Closing Gitmo: Unintended (?) Consequences

As you all presumably know, I’ve been in the city of sin all week, doing two days of training and then, yesterday, attending some really good panels at Netroots Nation.

One highlight of the week for me will surely be my panel Saturday at 1:45 Las Vegas time (4:45 ET). Congressman Jerrold Nadler, Center for Constitutional Rights Director Vince Warren, Matthew Alexander, American Prospect’s Adam Serwer, and I will talk about why we need to close Gitmo and how we can do it.

I fear we’re going to be talking as much about unintended consequences as we will about closing Gitmo the right way.

Take the case of  Abdul Aziz Naji. He’s the Algerian who had been detained at Gitmo, who objected being sent back to his home country because he feared torture. Though he appealed his repatriation all the way to SCOTUS (here’s Balkinization on the legal issues), he ultimately lost his bid to stay in Gitmo rather than be returned home.

And now, after being returned to Algeria on Monday, he has apparently disappeared.

The New York-based Center for Constitutional Rights, which represents many Guantanamo detainees, said Naji’s lawyers and family have been unable to locate or contact him since he was repatriated by the U.S. government.

“His whereabouts and well-being in Algeria are currently unknown,” it said in a statement. “Mr. Naji has disappeared since his return to Algeria, and is presumably being held in secret detention by Algerian state security forces.”

Pardiss Kebriaei, a lawyer with the center, said: “We know that he’s been transferred. But as for where he is … we don’t know. It’s very concerning.”

Now, Algeria’s government has denied that he was detained. Which is interesting since–as the Long War Journal points out–our own government called his repatriation a transfer, not a release. That usually means transfer into custody. That seems to suggest we did intend Algeria to hold him.

So where is he?

Anyway, hopefully CCR’s Warren will have an update when he speaks on Saturday.

  1. Peterr says:

    IIRC, I think that for many of the detainees we have sent elsewhere from Gitmo, we described the repatriation as a transfer and not a release — even when we knew good and well that as soon as they landed, they were going to go free. By calling it a transfer, you see, if the person in question ends up blowing up a building or something, we can blame it all on that other country. “*You* should have held on to him.”

    The fact that he disappeared suggests to me his plea to SCOTUS not to return was not simply a legal ploy.

    Either he was right and is being held by those he said he fears, or he’s trying to avoid those he fears by disappearing first. If I were in his shoes and scared to go back to Algeria, I’d probably disappear as soon as I could, too.

    • bobschacht says:

      IIRC, a previous post or commenter said that he was not afraid of the Algerian gov’t, but was afraid of Islamic extremists. Could it be that the gov’t is holding him in protective custody?

      Bob in AZ

  2. ghostof911 says:

    The Pentagon said the transfer was coordinated with the government of Algeria to ensure it took place under “appropriate security measures.”

    To the Pentagon, “appropriate security measures” means blowing up the commercial center of the United States. Abdul Aziz Naji is but one of the bugs it snared to deflect attention from its monstrous crimes.

  3. Leen says:

    “So where is he?”

    Thank you to Ew, Jeff Kaye etc for keeping a focus on this.
    Hope your panel will be live steamed. will be watching and listening

  4. harpie says:

    Thanks so much for highlighting this, EW. It’s great that you will be on that panel with CCR’s Warren. Enjoy your time there!

  5. spanishinquisition says:

    The thing is that Gitmo has to actually be closed, not just relocated. There will be serious [intended] consequences if Gitmo is simply relocated between Gitmo North (Thomson) and Gitmo ME (Bagram) if Obama claims such an action as a progressive victory. It was never about people not liking Cuba, it was about people not liking indefinite detention, yet Obama is turning it into something with style but no actual substance.

    • skdadl says:

      I would want to see that point addressed too, especially the question of Bagram and the Tor prison there, and then what I understand are quite a number of other prisons in Iraq and Afghanistan. Do we even know how many the U.S. continues to operate and seems intent on continuing to operate? And where, besides Iraq and Afghanistan?

      The fudging of release/transfer is just more evidence of the administration’s cowardice in the face of right-wing paranoid xenophobia. They know that most of the detainees are and always have been innocent of any charge a grown-up could take seriously. “The worst of the worst” — pshaw. But they don’t have the courage to take even that lie on.

      • spanishinquisition says:

        “Do we even know how many the U.S. continues to operate and seems intent on continuing to operate? And where, besides Iraq and Afghanistan?”

        That’s also part of it where Obama claimed to get rid of the secret CIA prisons, yet he instead does it under the cover of the military instead with the CIA essentially renting space – claiming great change, while in reality changing nothing.

        “The fudging of release/transfer is just more evidence of the administration’s cowardice in the face of right-wing paranoid xenophobia. They know that most of the detainees are and always have been innocent of any charge a grown-up could take seriously.”

        I think Obama is doing these things because he wants to do them. Obama for instance all on his own announcing how he unilaterally has the right to assassinate citizens who haven’t been convicted of anything and he all on his own has said that he can indefinitely detain people he knows for a fact are innocent (like wives and children of suspected terrorists). I think Obama prefers looking like he was forced into something, but in reality most of the time Obama gets what he wants and does what he wants. Claiming weakness while having strength has been the Democrats MO since the corporatist HIR bill.

        • Mary says:

          He so badly wants the approval of guys like Lindsey Graham. I’m not and never have been swayed by the arguments that he got into the Presidency and then just suddenly discovered problems like GITMO were “hard”

          We’ve known for years and years that in order to handle GITMO, really address it, you’d have to do two very very difficult things. The first would be to tell the truth about the kinds of things the US did that created the problem. That was going to be very hard bc US Execs just don’t own up to misfeasance very often – think how long it took for any governmental response to Korematsu. But we didn’t have a problem that could go away in large part with a declaration of triumph, like in WWII.

          That brings things to the second problem, which would be to define publically all the issues with our approach of “worldwide war” on “ideology” targeting Muslims throughout the world to prove that they were on ‘our side’ or risk having assassination squads and bombings and disappearances for which there was no recourse of any kind. And then to redefine our goals, legal parameters, etc. and to publically acknowledge that the Executive branch is SUBJECT TO and not above the law. Bc while it isn’t, it is the radical fuel (an unchecked, lawless, godless, invasive tyranny with no check) that flames the radical response.

          It would have been really tough to be truthful and to commit to courses of action that didn’t feed the flames. It would be so much easier an garner so much more praise from his friends like Kagan and Emmanuel and Brennan etc. to simply become Bush, but worse, and then assume that he could win over support from “the right” by being Bush, while not losing it from “the left” by being “anything but a Republican.”

          • tjbs says:

            Mary it goes to “oath” to protect and defend the constitution.

            Like marriage many claim that mantle and according to the stats about half of those that swore an “oath till death do us part” didn’t understand the meaning of a solemn oath.

    • ghostof911 says:

      Hey, I have a great idea. Let’s commit a crime so monstrous that no one will believe that we are the culprits. Because a culprit must be identified, let’s pick up some insignificant bugs from the other side of the planet, make them showcase prisoners on some tropical island, and everyone will forget about who was responsible for the original crime.

      Think it will work?

  6. Mary says:

    I can’t figure out how to link to the pdfs that comes up as part of the CCR files for Naji, but there is one from their “Guantanamo’s Abandoned” files titled “ALGERIAN GUANTÁNAMO DETAINEE IN NEED OF PROTECTION” that has some good info about Naji.

    He had formerly served in the Algerian Army against insurgents, making him a target already. Then he went worked with a charitable org called Askar Tiba delivering food and clothing to the poor around Kashmir with the Pakistani government’s blessing. While he was with a group making a deliver he stepped on a landmine and lost his leg. He’d been in the hospital in Pakistan for month and then was in rehab for months more living with different families who would take him in when the US raided the home he was staying in and he was on his way to GITMO.

    I’m not sure about Naji’s case, but for a lot of these habeas cases, including the kind of “companion” case also involving an Algerian that was just recently kicked out by the DC Circuit, Brett Kavanaugh’s name has been prominent.

    Back in 2007 when they weren’t Obama Zombies, Durbin and Leahy had launched an effort to keep Kanaugh from being able to review the detainee cases bc they discovered he had fibbed to Durbin during his nomination process and had, despite his representations to the contrary, been involved in some of the detainee, um, what am I gonna call it, hmmm, let’s go with *policy planning,* in the Bush Admin.

    Senate Democrats have complained that a federal appeals court judge may have misled them at his confirmation hearings when he said he had no role in formulating detention policy when he was an official in the Bush White House.

    Senators Patrick J. Leahy of Vermont, the chairman of the Judiciary Committee, and Richard J. Durbin of Illinois, a committee member, have questioned the forthrightness of the judge, Brett M. Kavanaugh, of the United States Court of Appeals for the District of Columbia Circuit.

    Of course, now that it’s Obama who is working with the Starr-y eyed judges like Kavanaugh to disappear an amputee, they don’t have much to say.

    • harpie says:

      Mary, try these…the last one is the actual report. I think people will have to cut and paste that link…doesn’t seem to be “linking”. If that doesn’t work, the report can be accessed at the second link.ánamo's%20Refugees%203d%20ed%20_FINAL_.pdf
      Naji is on page pdf. 17 [of 19]

      edit: the second works

        • harpie says:

          Yay, faster!

          That’s a great link, and it goes directly to the information Mary wanted to highlight. Great work, as usual!

            • Mary says:

              From that link:

              One potentially explosive argument is that the most commonly charged offenses — conspiracy and providing material support for terrorism — are not war crimes that can be tried in a military court.

              This was set up by Stevens to be the basis for challenges in a prior Sup Ct case, but we get Stevens switched out with Kagan, who either

              a) recuses herself because of all her involvement in these kinds of things in the Obama admin (note: McCain would have been forced by the Democratic Congress to ante up someone not so tied in to the torture detentions – the Dems aren’t even asking questions much of Kagan or focusing on how many things are put at risk by what should be her recusals of necessity), or

              b) doesn’t recuse herself and votes consistently with the few things she bragged to Lindsey Graham about and makes it a crime to be anything other than what she, personally, selects as acceptable – on a par with her pride in her arguments to criminalize giving legal advice to anyone who isn’t the “right kind” of torture victim and with her “even the left wing Obama appointee Kagan” vote seals the deal even more securely for torture and militarization of a faltering nation, or

              c) she doesn’t recuse, makes sure that Kennedy isn’t going to buy in (he didn’t specifically concur with that part of the Stevens opinion) leaving her safe to pretend she’s something she’s not by voting against being able to try these kinds of “crimes” in a military commission and then opening u p the court to all kinds of criticism from the right that she

              participated at all, given her background associations.

              And with a or c, she gets to preen as well, as if the cases she and Katyal were instrumental in shoving down the law’s throat, like a force fed GITMO detainee, had never been.

              I did wonder, although I couldn’t work up the stomach to be all that interested in how low we might have fallen, if the hugely and horrifically overbroad and outright nasty “material support” case, where IIRC Stevens joined, might have been some kind common grounds decision to try to deal in advance with this kind case. It might be possible that it would form a common grounds area between some of the Justices who are not going to be as blatantly political as Roberts, Alito, Thomas and Kagan, a way to MAYBE get Kennedy’s vote on requiring these material support cases to be brought in civilian courts and not via military commissions and his vote on indefinite detention issues as well – after all, if anything from wearing a Che t-shirt to remembering the 4th amendment is enough to get you arrested for material support and to get a lawyer who might try to help you threatened with being locked up too – the rationale for “needing” indefinite detention and military commissions is lessened.

              But I don’t really believe that’s where things are going or even that they’d be better if they ended up there.

              The court only makes things better when it does the right thing, not the expedient thing.

  7. R.H. Green says:

    Since talks on this topic are scheduled for tomorrow, I’d like to offer my oddball views on it.

    I think the topic of “closing Guantanamo” is a “dogwhistle” term that has no relation to the issues at hand; I think this term was introduced by the Obama administration (Sunstein?) to confuse matters and gain political support from the left.

    Guantanamo is a naval base located on the island of Cuba. There has been discussion for decades about closing it for reasons having to do with budgets, need for navel power in the region, and most publicly, with relations with Castro. This has nothing to do with using the base as an offshore detention facility.

    When Obama said he would close Guantanamo, he seemed to imply that he would shut down the detention facility, and more importantly, the abhorrent practices for which it has become infamous. Since he has has not done this, there has been a movement to pressure him to “keep his promise to close GITMO”. It is not necessary to close the base to stop the practice of treating people as if there were no restrictions on depravity, whether or not the treatment occurs on foreign soil. The discussion should be on the governments practices, whether there, in Illinois, or the orient.

  8. Mary says:

    Also – none of this is really an unintended consequence. There’s a reason why the Geneva Conventions made it a war crime and serious breach of the conventions to ship non-pows out of the country where they were found. During wars and turmoils in countries, there are lots of de facto if not de jure refugees – civilians attempting to escape the war, retributions by government or non-governmental actors, etc.

    So we have all these people who were non-Pakistani, non-pows, not taken on battlefields, and were purchased in what were basically human trafficking transactions. Of course – just as the GCs contemplate – when you round up refugees from the countries they have taken refuge, pay off that government to turn them over to you so that you can take them to a lawless place with no rules and conduct interrogation experimentation on them, there is going to be a problem when you decide you’re done with them.

    This is why it is a WAR CRIME to ship these people to GITMO as has been done. It’s also why neither the old CSTs nor any new proceedings can be fair tribunals – bc if they rule on the truth – that someone was never a “combatant,” then they are also making the factual findings that the US and their colleagues and superiors have committed a war crime by the shipment and detention, even if the conspiracies do cover up the other mis- or mal-treatment. The shipment is too open and obvious a fact to cover up.

    This is why I so strongly believe that a lot of the pressure to release info should be concentrated on the Aug 2002 memo where Bush was told that a lot of the people at GITMO were likely innocent. Bc I think the fact that this is co-extensive with a determination that the people participating in putting and keeping them there are war criminals is why there was such a strong reaction by Addington et al that the determinations of the president that the guys were illegal combatants could not be revisited.

    I have to wonder, too, as they were now discovering that people like Zubaydah weren’t al Qaeda and weren’t involved in 9/11 and were also getting the feedback from GITMO that a lot of those detainees weren’t al Qaeda or even low level Taliban, if that didn’t contribute to the pressure that Bybee has said they were suddenly getting to get out their torture memos. Bc there was a lot of convergence going on, before and leading up to Aug 2002, that these huge exercises of “CIC” powers were being applied to non-combatants. And they were needing every out they could get.

    In any event, the Geneva COnventions have always made it plain that this kind of activity – shipment out of country (like the shipment of Jewish refugees in various nations to concentration camps) of non-pows was a war crime and in part bc of these very well delineated problems and consequences. And it’s something that has been on the WH and DOJ plate since at LEAST the still unrleased AUg 2002 CIA memo on GITMO. You have to believe that Bellinger – who knew all about that memo – had all those factors in play when he barred a member of the National Security Council (i.e., the Secretary of State and his counsel, Taft) from being able to receive any of the torture and detention memos.

    It will be (not interesting – maybe sad, depressing, frightening?) to see what the upshot becomes of in particular the Pakistani transfers of refugees to the US, as Obama starts sending those refugees back to be tortured or killed or disappeared by the countries from which they were seeking refuge. I’m sure that kind of thing will combine with the drones progam to make us even more popular and will, of course, help stabilize that nation.


    When you engage in rampant, lawless evil, it’s not an “unintended consequence” when there are problems down the line. Obama screwed the pooch from the get go by not making a national address that recognized that we had purchased from unreliable sources and otherwise rounded up, also based on info from unreliablesources with pecuniary and other interests, a fair number of “mistakes” at GITMO and in our other detention facilities; that we owed an obligation with respect to the people we transferred to GITMO in violation of the Geneva Conventions, and that it was going to be a difficult problem now, since it had festered so long, but it was a problem the WH has known it would have to face since at least Aug 2002 when it was advised of the problem; and this is why we need to not only close GITMO but recognzie why such a facility should never be set up or used in the future when we are trying to track down non-state actors who are engaged in paramilitary battles with the US.

    Instead, he’s gone with “how can I make the innocent disappear”

    What could go wrong with that?

  9. Mary says:

    Thank you!

    Going to your second link and then going to page 17 works.

    I kept trying for what is the last link on your comment and it didn’t want to work for me.

  10. Leen says:

    ot incredible interview with Stephen Walt over at

    “Walt ”it is quite clear that some of the same groups and the same people who dreamed up the idea of going into Iraq in the first place way back in the late 90’s are now the loudest voices calling for a very hard line including the possibility of using military force against Iran.”

    Same campaign going to be waged over the next six months

      • Gitcheegumee says:

        Talk about synchronicity-check out # 17 that I posted over at Leen’s Seminal thread earlier today:

        The Israel Lobbies and Breitbartism: Dirty Tricks, Taboos and the threat to American Democracy/by Prof Juan Cole

        (BTW, thank you for sharing that wonderful post.)

  11. Mary says:

    It appears, too, that with his “transfers” v. release, Obama has followed the old Bush policies. Back when Bushco spokespersons were complaining about other countries not wanting to take GITMO detainees, the MSM pretty much always omitted the fact that in many cases the problem was that Bushco would only transfer these detainees into detention. The charade of them being combatant terrorists had to be maintained.

    With the exception of a few of the Uighurs going to Palau-ish destinations, Obama seems to have pretty much abandoned any shift in the Bushco course.

    Hopefully there will be enough attention kept on this particular transfer that the Algerian government and Obamaco will do something. When Bush tried to pull off something similar with Errachidi and the transfer to Morocco, Reprieve managed to stir up enough attention that the Moroccan gov put the razors away and return him to his family.

  12. tjbs says:

    The site of the WTC in New York is considered sacred or hallowed ground because innocents lost their lives to “terrorists”, right ?

    Using the same criteria shouldn’t the ground under camp No be considered the same?

    Not by us of course but by some humane society after us.

    O/T an interesting theory is found by googleing “CIA obama”, which is a more reasonable explanation than any other theory, which would explain obama’s motives and actions. Like the Mafia once in the door closes behind you.

  13. DWBartoo says:

    I hope that these “unintended (?) consequences” are called what they properly must be called. As Mary says, the proper (and honest) names for these “results” are, simply, “war crimes” … and they are recognized as such … by others.

    Others, who, if “we” do not stop our crimes against humanity, if “we” choose to continue blithlely along on “our” dictated path … will have no choice but to stop “us”.


  14. Jeff Kaye says:

    The ex-husband of Doris Tennant, one of Aziz’s attorney’s, has posted the latest statements from the attorneys on the case at a Daily Kos diary. (Of course, the diary got scant attention from the DKos folks.)

    From Doris’s letter:

    Earlier this week Ellen and I learned that our Guantanamo client, Abdul Aziz Naji, was forcibly repatriated to Algeria, where he was terrified to be returned. He is now being detained in Algeria, though we hope very much he will be released soon. However, the Algerian ambassador has stated to us that his government cannot protect him from extremists, who he very much fears will attempt to recruit him because of his association with Guantanamo. Our research in Algeria showed that his fears appear to be well founded. We fought hard to prevent his transfer, including petitioning for his asylum in Switzerland, but the US Supreme Court denied our request to stay his transfer late Friday night. It has been our privilege to work on his behalf, and our horror to learn what happened to him and to so many of the men in that place of hell. He became 8 years older there—he is now 35. He never did anything to harm the US or anyone else, and was never charged with a crime. Although the Supreme Court declared over two years ago that the Guantanamo prisoners have a right to challenge their detention in federal court, he could not pursue his habeas case because the Obama executive review team (consisting of representatives from the Departments of Justice and State, along with other top federal agencies) cleared him–essentially admitting there was no legal basis for his detention–though he was prevented from obtaining the court ruling to which he was entitled.

    I am very grateful to each of you for your support over these years. It seemed the only thing we could really do for him was to educate our fellow citizens in his name. We hope that you will send him your good wishes. He is no doubt very frightened right now, but he has a strong faith and steady mind, which we trust is serving him.

    Note that the Algerian ambassador has told the attorneys they cannot protect Aziz from the extremists. That’s exactly what Azis said he feared!!!

    I hope he is in hiding, and not disappeared, but we can (unfortunately) count on one thing: the Obama administration will do shit to determine or enforce his safety. Human lives are as nothing to this government.

    Thanks for the article, EW (and for the link to my story a few days ago on it).

    To SCOTUS: permanent ignominious shame!

    • harpie says:

      Thanks for keeping us informed, Jeff!

      To SCOTUS: permanent ignominious shame!

      I second that.

    • Mary says:

      And it’s what Kavanaugh and the Obama admin said didn’t matter. They have established the principle that under CAT, they only have to ask Gov it Gov will torture and they can be wifully blind to whether Gov is likely to allow non-gov actors to torture and murder him.

        • Mary says:

          Probably – depending on their constitution or legal system. They might be under a constitutional imperative (if they follow it – apparently Obama has explained to the world that Constitutional imperatives aren’t that imperative) to take back citizens being turned over by a foreign gov that has them.

    • Gitcheegumee says:

      By any chance are you going to Vegas for Net Roots? (If that’s not being too nosy?)

    • DWBartoo says:

      “Permanent ignominious shame” should accompany several dozens of people beyond the Justices of SCOTUS … for so long as they may live and honest history may record their nefarious misdeeds and arrogant, unforgivable inhumanities.

      Jeff, thank you, for sharing Doris’s letter … and, as well, for all the other things you do and share.


  15. Jeff Kaye says:

    UPDATE, from CCR, in emailing this afternoon:

    An Algerian man who was wrongly detained at Guantánamo for nearly 8 years has gone missing after the United States sent him back to Algeria against his will. Abdul Aziz Naji did not want to return to Algeria because he feared persecution from both the Algerian government and militant anti-government forces. The Obama Administration violated both U.S. and international law by forcibly repatriating Mr. Naji, and Center for Constitutional Rights is now deeply concerned as neither his wellbeing nor whereabouts are known. In the press, Algerian officials have given mixed signals about whether or not Mr. Naji is being held in secret detention, but they have at no point revealed his location or provided evidence that he is well.

    Please write the Algerian Embassy in Washington, DC (at [email protected]) and the Permanent Mission of Algeria to the United Nations (at [email protected]) and demand that the Algerian government immediately account for Mr. Naji’s whereabouts and well-being. They must tell us where he is and provide assurances that he is well. The Algerian government should also comply with international law prohibiting the use of secret detention and torture. Moreover, the Algerian government must protect Mr. Naji from extremist forces in Algeria who may try to recruit him and harm him when he resists joining them. Finally, the Algerian government should in the future not accept forced repatriations of its citizens who fear they will be harmed in the country.

    Mr. Naji is presumably being held in secret detention by Algerian state security forces….

    CCR made a statement earlier today, at their website:

    July 23, 2010 – Today, the Center for Constitutional Rights (CCR) issued the following statement in response to the Algerian government’s denial that it is detaining Abdul Aziz Naji:

    “Yesterday the Algerian government issued a statement formally denying that it is detaining former Guantánamo detainee Abdul Aziz Naji. The statement also denies knowledge of his whereabouts. In addition, Mr. Naji’s attorneys in the U.S. report that they were told that no one named ‘Naji’ arrived at the airport in Algeria and that the security services deny he is with them.

    “After aggressive pressure by human rights organizations, including the Center for Constitutional Rights and Human Rights Watch, and media inquiries into his whereabouts and condition, a conflicting account was given by an Algerian official. Published in Al Hayat, an unnamed government source admitted that Mr. Naji is in “routine” custody in Algeria and subject to investigation, after which he will be released for transfer to the Algerian judicial system which will decide his fate. These inconsistent statements raise serious concerns about Mr. Naji’s current whereabouts and well-being, particularly in light of contradictory statements and the silence, on the part of the US officials who transferred him, to verify his status.

      • Jeff Kaye says:

        IMO, Aziz is a test case, as they will want to release others to countries where they fear persecution. They can let “friendly” governments “dispose” of their prisoners. I also believe it’s possible they intend to seed some small number through as possible double agents among the Islamic “extremist” groups, and this is one way to manufacture bona fides after being held so long. A very dangerous game for everyone involved.

        In any case, if they can get away with this without popular furor, then they can proceed with more of the same. This was all prefigured when al-Libi — the man who told the U.S. about Saddam and WMD (under torture — he later recanted the “confession”) — was mysteriously found dead in his Libyan cell and there was no call for investigation.

        Exult, you who see great triumph in the epoch-making achievements of the Obama administration, achievements that eclipse the Rooseveltian New Deal, and have brought manna to American shores. Exult, because reality in the form of major loss of liberties and yet another senseless war, bound to bankrupt the country, is right around the corner.

        I just woke up to a vision of a TV commercial, circa 2010: “He’s Jeb. Jeb Bush. Gee, that’s regular folks’ name. He’s the kind and gentler Bush.” The Democrats will run on the platform: “We saved the country. We’re the best. We smacked down the terrorists and kept unemployment from going over 15%. We promise we will be out of Afghanistan by 2016!”

  16. bluewombat says:

    it was about people not liking indefinite detention, yet Obama is turning it into something with style but no actual substance.

    President Obama? A triumph of style over substance? Why, who could have imagined such a thing?

  17. fatster says:

    I don’t know quite where to put these two, so I’ll just park them here.

    Mapping US drone and Islamic militant attacks in Pakistan

    ‘Compared with 25 drone strikes between January 2008 and January 2009, there were at least 87 such attacks between President Obama taking office on 20 January 2009 and the end of June 2010.

    ‘More than 700 people have been killed in such attacks under Mr Obama, compared with slightly fewer than 200 from under his predecessor, George W Bush.’



    Ya think?

    Curbing US military reduces Afghan insurgent attacks: report


  18. powwow says:

    Reuters, CCR, HRW, and others, are undoubtedly making a real difference here, by directly contacting members of the Algerian government for comment, and publishing their responses. As are the few U.S. media outlets covering this story, who have contacted members of the U.S. Executive Branch for comment and published their non-responses. Many thanks to Reuters – reporters Adam Entous, Lamine Chikhi, and Christian Lowe, and editors Todd Eastham and Jon Hemming – for acting on the CCR Press Release, and for progressing the story the next day, which EW and the LWJournal have now helpfully analyzed and further publicized.

    As I mentioned in Jeff’s thread, Members of Congress know more than we do about the status of these detainees – including of Farhi Saeed bin Mohammed, who was likewise denied a stay of transfer to Algeria by the Supreme Court a week ago Friday – because of reports from the administration that they’ve mandated. What remains to be applied of diplomatic or political pressure in the cases of these two Algerians could be enhanced, I think (as on all issues regarding Congressional responsibility and accountability), by direct media inquiries to Members of Congress (especially powerful committee chairs) who have access to secret reports about pending detainee transfers.

    For general information, and in hopes that some intrepid reporters will try to get Members of Congress on the public record about this situation, below I’ve listed current reporting requirements regarding the foreign citizens locked up in Guantanamo, as compiled by a June 17, 2010 Congressional Research Service Report.

    The most applicable reporting requirement, from the standpoint of bin Mohammed (still in Guantanamo last we knew) and other future transferees, is this one:

    The 2010 Homeland Security Appropriations, Interior Appropriations, Consolidated Appropriations, and the Defense Appropriations Acts contain identical provisions which restrict the use of appropriated funds to transfer or release a Guantanamo detainee to another country or any “freely associated state.”18 The restrictions apply unless the President, 15 days prior to such transfer or release, submits the following information in classified form:

    (1) the name of the detainee and the country or freely associated state to which he will be transferred;
    (2) an assessment of the risk to national security or U.S. citizens posed by the transfer or release; and
    (3) the terms of any agreement with the country or freely associated state that has agreed to accept the detainee.19


    Likewise, on November 30, 2009, the President assigned reporting functions required by the three FY2010 acts to the Secretary of State, Secretary of Defense, and the Attorney General.38 According to press accounts, the designated officials had not yet submitted a [different] 45-day report [see below] to Congress as of late 2009.39

    […] The other acts [mandating the 15-day-before-transfer reports] require their submission “to Congress” or “to the Congress,” without specifying individual Members or committees.41 Those general phrases have been interpreted to refer to the committees of jurisdiction. Thus, reports submitted to the clerk of the House and Senate would likely be given to committees deemed to have jurisdiction over the underlying legislation or subject matter.42 [Such as the House and Senate Armed Services Committees; see below for more and committee links.]


    The restriction in P.L. 111-84, the 2010 Defense Authorization Act, applies through December 31, 2010, but only to the use of funds appropriated to the Department of Defense. In contrast, such restrictions in the 2010 Homeland Security, Interior Department, Consolidated Appropriations, and Defense Appropriations Acts (P.L. 111-83, P.L. 111-88, P.L. 111-117, and P.L. 111-118) appear to apply to all federal funds, but only during the 2010 fiscal year (October 1, 2009-September 30, 2010).36

    In addition, last year, as part of the “the final” off-budget, emergency supplemental funding bill for Iraq and Afghanistan […pause in recognition of the Audacity of Congressional Deceit…], an additional, regular Guantanamo reporting requirement was enacted (which is apparently still in effect, although FY 2009 ended 9/30/09), which spells out the committees of jurisdiction in Congress that must receive that report, which are likely also the committees being sent the required 15-day-before-transfer reports outlined above:

    Section 319 of the Supplemental Appropriations Act, 2009 (P.L. 111-32), requires the President to submit reports on the Guantanamo “prisoner population” to specified Members31 of Congress within 60 days of the legislation’s enactment [it became law on June 24, 2009] and every 90 days thereafter.

    [Footnote 31:]

    Members to whom the report must be submitted include:

    (1) The majority leader and minority leader of the Senate;
    (2) The Chairman and Ranking Member on the Committee on Armed Services of the Senate;
    (3) The Chairman and Vice Chairman of the Select Committee on Intelligence of the Senate;
    (4) The Chairman and Vice Chairman of the Committee on Appropriations of the Senate;

    (5) The Speaker of the House of Representatives;
    (6) The minority leader of the House of Representatives;
    (7) The Chairman and Ranking Member on the Committee on Armed Services of the House of Representatives;
    (8) The Chairman and Vice Chairman of the Permanent Select Committee on Intelligence of the House of Representatives; and
    (9) The Chairman and Ranking Member of the Committee on Appropriations of the House of Representatives.

    The reports must provide the following information with respect to each detainee:

    (1) name and country of origin;
    (2) a “summary of the evidence, intelligence, and information used to justify” his detention; and
    (3) a “current accounting of all the measures taken to transfer” him to his home or another country.

    In addition, the reports must state the “number of individuals released or transferred from detention … who are confirmed or suspected of returning [sic; assuming guilt in the absence of due process, charge, or conviction much, Members of Congress….? – pow wow] to terrorist activities after release or transfer” and provide “an assessment of any efforts by al Qaeda to recruit detainees released from detention.”

    For other Bill-of-Attainder-esque reasons, the following Congressional restrictions also deserve highlighting:

    The Homeland Security Appropriations Act includes two additional provisions affecting the treatment of Guantanamo detainees. Section 553, which appears to apply beyond the end of the 2010 fiscal year, requires that former detainees be included on the “No Fly List,” “unless the President certifies in writing to Congress that the detainee poses no threat to the United States, its citizens, or its allies.”50 A second provision prohibits the use of funds appropriated under that act to “provide any immigration benefit” to any former Guantanamo detainee, including a visa, admission into the United States, parole into the United States, or classification as a refugee or applicant for asylum.51 The prohibition is similar to proposals introduced earlier during the 111th Congress; however, the other proposals would apply permanently, whereas the prohibition in the Homeland Security Appropriations Act appears to apply only to funds appropriated by that act.52


    The House-passed version of the FY2011 defense authorization bill (H.R. 5136) contains a reporting requirement relating to detainees’ legal representation. It would require the Department of Defense’s Inspector General to “conduct an investigation of the conduct and practices” of attorneys who represented non-citizen Guantanamo detainees in habeas corpus or military commission proceedings.63 The Inspector General would be required to submit a report of the findings to the House and Senate Armed Services Committees within 90 days of the bill’s enactment.

    • Jeff Kaye says:

      Incredible reporting, powwow. Let’s hope some truly intrepid types follow-up your recommendation.

      As for the last two paragraphs… holy shit. I knew Congress was craven, but how low they go is amazing. Pelosi and Reid can rot in hell. They can keep warm in the coldest, most frozen part of hell (at the bottom, where Dante put Satan, frozen in ice) by burning copies of Pelosi’s Reaganesque interview:

      Pelosi: [This week’s Wall Street-reform legislation has] the boldness and enthusiasm of the New Deal but with less government.

  19. timbo says:

    This country has gone insane in the membrane. Since when do we stand for declaring someone guilty and an enemy of the United States simply because they were turned into a US Marine battalion by someone who didn’t like that someone? It’s tyranny and abuse, pure and simple. Making it a law that someone can no longer fly to the United States? What if that person was innocent? What if they were held for no reason other than some cafeteria contractor wanted some more mouths to feed and bill the U.S.G. for it? Crazy…

  20. klynn says:

    Thanks for the post EW.

    Just a note. Mary @ 13, great comment.

    Actually, the entire thread of comments is fantastic. The comments could be woven together to create another post.

    Jeff, powwow thank you as well.

  21. powwow says:

    Another member of the American media laudably weighs in to try to make a positive difference in the lives of the two Algerians. The New York Times editorial page, today:

    It is an act of cruelty that seems to defy explanation.

    Mr. Naji, 35 and born in Algeria, was picked up by the police in Pakistan in May 2002 and turned over to the Americans on suspicion of being a terrorist. He admitted working for the humanitarian wing of Lashkar-e-Taiba, the Pakistani terrorist organization, but the Bush administration never charged him with a crime, explained why he was being held, or demonstrated any connection to terrorist acts.

    The Obama administration, which is trying to reduce the population at Guantánamo, battled Mr. Naji’s lawyers all the way to the Supreme Court for the right to send him to Algeria.


    Mr. Naji asked for political asylum in Switzerland, but within hours of the court’s order, he was on a plane bound for Algeria. The court refused to accept a similar plea from another Algerian at Guantánamo who does not wish to go home, Farhi Saeed Bin Mohammed, who has not yet been returned but could be at any time. Four other Algerian prisoners have made similar claims.


    The government refuses to deport prisoners to Libya, Syria and other countries known for abuse. It could find a new home for the Algerians.

    Contrast how the New York Times editorial writer treats the untested – in a law of war-required Article 5 tribunal, or otherwise, because Naji didn’t get a habeas corpus court ruling, unlike bin Mohammed – uncharged, and unproven government claims about Naji’s pre-capture behavior, with how Tom Joscelyn of the “Foundation for Defense of Democracies” (and author of the LWJournal post linked in this diary) speaks of Abdul Naji, in repeating the claims of an anonymous administration official:

    During his testimony before hearings held at Gitmo [you mean the CSRT “hearings” which “did not address entitlement to Prisoner of War status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accused’s participation in hostilities,” as a military judge put it in Salim Hamdan’s case in 2007, Tom?], Naji tried to downplay his ties to the LET, but conceded that he had been at an LET training camp in Pakistan for several months, and that he had crossed into Kashmir with an armed cadre of LET-trained individuals.

    A senior intelligence official contacted by the Long War Journal explained that not only was Naji a member of the LET, but he was also the instructor for an improvised explosive device (IED) cell and trained al Qaeda members to build explosives.

    Naji was not “cleared” of these charges by President Obama’s Guantanamo review task force.

    Joscelyn even more confidently asserts details about the pre-capture activities of Omar Khadr, in a new Josh Gerstein Politico piece about the pending (meaning, by definition, guilt has yet to be determined) Khadr military commission:

    “We try 15 year olds all the time as adults in the United States. This was not strictly speaking a child, nor was he a soldier. He was an Al Qaeda operative,” Joscelyn said.


    Joscelyn said, “Khadr’s unique, he’s not just your average IED planter. He is from a prominent Al Qaeda family. He was trained at a terrorist camp. He was caught on tape planting IEDs and other explosive devices. All these things are indisputable.

    Where’s any proof of your assertions, Tom, that wasn’t generated by an untested, one-sided, self-serving, and cloaked-in-secrecy military claim?

    “Defense of Democracies”? What kind of “democracy” takes on blind faith the word of a military chain of command that’s openly violated its own Army Regulation which, if implemented in good faith, would have given its claims some legitimacy? A regulation specifically designed to put into practice international law ratified by the U.S. Senate – the law of the land – that’s intended to try to avoid cases of mistaken identity of foreign captives, and thus years of lawless detention in a time of war.

    You want to know how democracies are really defended, Tom? In thankless, uncompensated, obscurity for years, like that voluntarily endured by Doris Tennant, an American civilian attorney who’s labored on behalf of Abdul Naji, and whose daughter recently wrote this about her mother and her mother’s client:

    Every few months, my mother rides in a tiny, decades-old government airplane to Guantánamo Bay, Cuba, where she meets with her pro bono client, Abdul Aziz Naji. Aziz is a thirty-four-year-old Algerian man who has been held at Guantánamo for eight years without being charged with a crime. Four years ago, my mother and her law partner Ellen [Lubell] volunteered to take on his case, in hopes of forcing the U.S. government to grant Aziz habeas corpus, the right to challenge his detention in a court of law. This basic human right has been intrinsic to all civilized societies since the proclamation of the Magna Carta in 1215.


    During meetings with my mother and Ellen, his legs—both real and prosthetic—are shackled to the floor.


    This made me realize that the very fundamentalism I had blamed for violence, enmity, and ignorance was, in Aziz’s life, a precious gift affording him not only some measure of peace in his solitary cell, but also allowing him to profess nothing but kindness toward my mother and her law partner, citizens of the country that imprisoned him without charge.

    […] Aleksandr Solzhenitsyn, who was awarded the Nobel Prize for writings which exposed the brutality of the Gulag, turned to Christ to help him preserve his sense of self through eight years in the prison camps.


    Numerous observers have noted the strength of believers during the Holocaust.


    In this way, Christianity brings my grandparents the inner peace and inner value that the Dalai Lama says every religion is capable of manifesting.

    Aziz’s method of worship similarly entails simple kindness to others. He frequently tells my mother and her law partner—who is Jewish, as are many of the Guantánamo lawyers—that he is keeping them and their families in his prayers, and I often end my meditation and yoga practice with the wish that “any merit gained from this practice be dedicated to Abdul Aziz Naji.” And Aziz’s frequent invocation of the term inshallah (God willing) is nearly identical in psychological effect to an awareness of impermanence; both practices ward off the suffering that results from desperate attempts to control the uncontrollable.


    As I was writing this, I learned that Aziz had gone on a hunger strike. Although he has been “cleared for release” for many years, he remains stuck in limbo between a windowless, solitary cell and a return to Algeria, where the fate of former Guantánamo prisoners is uncertain at best. Because of his association with terrorism, however groundless, Aziz would run the risk of imprisonment and torture in Algeria; he also could be forcibly recruited by extremists. “All the golden ideas I had in mind are no longer here,” he told my mother. “I just want a simple life. I have had my dreams destroyed.” Hannah Tennant-Moore, May, 2010

    Hannah’s mom and those like her, including many Jewish-American lawyers, are the ones actually “defending democracy,” while truly honoring the memory of the Holocaust by their daily sacrifices on behalf of unjustly-imprisoned foreigners of the Muslim faith; sacrifices which are helping to prevent our state-sponsored demonization of the Muslim Other, and all that comes with it, from making Americans as notorious for acting on their indiscriminate hatred, as Germans now are for their past acts of hatred-fueled barbarity.

  22. harpie says:

    [s/b reply to [email protected]]

    If “all these things are indisputable” [Tom Joscelyn], then it should be a fairly simple task to PROVE it beyond a reasonable doubt. Why doesn’t the government just PROVE the accusations and get it over with?

    I double-dog DARE them.


    Thanks for the article from Tennant’s daughter.

    Jeff Kaye continues this conversation in a diary, here:

    • harpie says:

      …wanted to say “beyond a reasonable doubt in a regularly constituted court of law“.

      note to self: don’t try to comment when you’re fuming.