Overview from the issue on Closing Guantánamo (2/26/2009)

by Kenneth Jost

Mohammed Jawad has spent more than a quarter of his young life in the prison at Guantánamo Bay, Cuba, for an offense he says he didn’t commit.

The government says the Afghani teenager threw a grenade at a U.S. military jeep in Kabul in 2002, wounding two American soldiers and their Afghan interpreter.

Jawad, who was 16 or 17 at the time, claims he was working to clear land mines when the attack occurred and that another youth was responsible. Jawad says he confessed under coercion while in custody in Afghanistan and again at the U.S. detention camp at Guantánamo Bay, Cuba, only after more than a year of abusive interrogation.

Then, in a pair of rulings in October and November, an Army judge threw out the confessions that the prosecution had said were central to the case.. Col. Stephen Henley ruled that Jawad had confessed the first time only after Afghan soldiers threatened to kill him and his family. The statements made in Guantánamo, Henley said, were also coerced.

With a case so badly handled, Jawad would seem to be an obvious candidate for release from the controversial prison camp that President George W. Bush ordered to be established in 2002 for “enemy combatants” captured in the Afghanistan war or elsewhere. In its final week in office, however, the Bush administration on Jan. 13 urged the review panel that acts as an appeals court for the military commission system at Guantánamo to reverse the rulings in Jawad’s case and allow the prosecution to go forward.

After taking office only a week later, President Obama signed an executive order for a review of all pending Guantánamo cases and the closure of the facility – which now houses 241 prisoners – within one year. In Jawad’s case, however, the new administration returned to the military review panel to ask for a 120-day delay before it rules on Jawad’s case. The panel granted the request, over the objections of Jawad’s lawyers.

Obama’s action – on his second full day in office – moved toward fulfilling his repeated campaign pledge to close Guantánamo, known as “Gitmo.” Human rights advocates, who have strongly criticized Guantánamo and the legal rules the Bush administration established for enemy combatant cases, are applauding Obama’s move.

“Today is the beginning of the end of this sorry chapter in our nation’s history,” Elisa Massimino, executive director and CEO of Human Rights First, said after Obama signed the order. “The message this sends to the world could not be clearer: The United States is ready to reclaim its role as a nation committed to human rights and the rule of law.”

Even some former Bush administration officials agree the time has come to close the facility. John Bellinger, who was legal adviser at the State Department and National Security Council during the Bush administration, says he has “very strongly” supported closing this “albatross around our necks.”

“The benefits of Guantánamo have been outweighed by the legacy costs of Guantánamo, and that has been true for some time,” says Charles “Cully” Stimson, former assistant secretary of Defense for detainee affairs and now a senior legal fellow at the conservative Heritage Foundation. The facility has taken “a moral toll” on the U.S. image at home and abroad, he says.

Robert Chesney, a respected national security expert now a visiting professor at the University of Texas Law School in Austin, says Guantánamo reflects a broader failure of policy on how to deal with suspected terrorists captured both within and outside the United States since the Sept. 11, 2001, attacks on the World Trade Center and Pentagon by the Islamic terrorist group al Qaeda.

“For more than seven years, we’ve struggled to define a counterterrorism policy that is effective, that is politically sustainable and simultaneously reflects our core values as Americans,” Chesney remarked as he opened a panel discussion at the school on Feb. 3. “We have not yet succeeded in doing this.”

Despite indications of editorial and public support for Obama’s action, Republicans are raising questions and apparently setting the stage to criticize the closure if suspected terrorists are transferred to facilities within the United States. “Most families neither want nor need hundreds of terrorists seeking to kill Americans in their communities,” House GOP Whip Eric Cantor of Virginia said in a statement issued the same day.

Another critic, however, notes that Obama’s executive order did nothing other than promise a review of case files and set a goal of closing the facility. “He hasn’t really done much,” says Andrew McCarthy, legal editor of National Review and chairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.

McCarthy has backhanded praise for the interim nature of Obama’s move, which he says contrasts with candidate Obama’s “demagogic, overheated rhetoric” during the campaign. “What he has obviously found is that there are very difficult issues, very complex issues that have to be worked through with respect to the detainees,” McCarthy says.

“It was unfortunate that he and people who are like-minded were critical of Guantánamo,” McCarthy adds, “when in point of fact if you didn’t have Guantánamo, you would need to have something like it, whether it was inside the United States or outside.”

In establishing Guantánamo, President Bush said the camp would be used to house “the worst of the worst” suspected terrorists. But the national security and human-rights camps diverge on how to regard the 779 prisoners who have been held at Guantánamo over its seven-year history, some 540 of whom have been released. Among the detainees still being held, Bellinger predicts the Obama administration will find “a lot of bad people left, or at least many in the gray area.”

“We’ve known all along that not everyone held at Guantánamo had any business being held there at all,” counters Sharon Bradford Franklin, senior counsel with the Constitution Project, an advocacy group that seeks to find consensus on constitutional issues.

Outside government, the most extensive study of the Guantánamo detainees appears to have been conducted by Benjamin Wittes, a senior fellow at the Brookings Institution think tank and author of a highly regarded new book on counterterrorism policies, Law and the Long War. Wittes writes that his examination of the information publicly available on the detainees indicated many of them had incriminating ties to al Qaeda. An updated compilation by Wittes available on the Brookings Web site, however, shows that only a small fraction of the prisoners still being held are considered major al Qaeda leaders.

Paradoxically, Obama’s pledge to close Guantánamo appears to be contributing to an increase in tensions in the prison camp. A special Defense Department review team that spent almost two weeks at Guantánamo concluded in February that detainees are being treated humanely in compliance with the provisions of the Geneva Conventions regarding wartime captives. But the report noted a nearly sixfold increase in disciplinary incidents by detainees since September 2008 and tied the increase in part to detainees’ “uncertainty and anxiety about the future.”

Along with Guantánamo, the Obama administration inherits an array of legal proceedings. Obama’s order froze proceedings in the military tribunal system, which thus far has secured three convictions: Ali Hamza Ahmad Suliman al-Bahlul, Osama bin Laden’s alleged media secretary, was found guilty of 35 counts relating to support of terrorism and sentenced to life in prison; Salim Ahmed Hamdan, bin Laden’s former driver, was convicted on reduced charges; and David Hicks, the so-called Australian Taliban, pleaded guilty to one count of providing material support of terrorism. He and Hamdan were essentially sentenced to time served and have since been released. But pending cases in federal courts up to and including the Supreme Court are continuing.

The high court is scheduled to hear a case on April 22 testing whether the government can hold without trial a Qatari native – Ali Saleh Kahlah al-Marri – as an enemy combatant after he was arrested while lawfully residing in the United States on a student visa. In a closely divided ruling, the federal appeals court in Richmond, Va., said yes – but with more judicial scrutiny than proposed by the Bush administration. In one of its first moves, the Obama administration asked for and was granted an extension of time to file the government’s brief with the high court.

In a separate case, the federal appeals court for the District of Columbia is reconsidering whether former Guantánamo detainees can sue government officials for alleged torture and religious discrimination. The Supreme Court sent the case back to the appeals court in December to consider the impact of the justices’ decision in June that Guantánamo detainees can use federal habeas corpus to challenge their confinement.

The pending cases are forcing the Obama administration to make policy decisions sooner than the one-year timetable outlined for closing Guantánamo, according to Chesney. “There will not be as much new time as the administration would like,” Chesney said at the panel discussion.. “The litigation calendar will force them to take positions much faster than that.”

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