I’ve helped unleash a blogging monster! Two weeks ago, I was delighted to receive an email from Morris Davis, the retired Air Force colonel and former chief prosecutor for the Military Commissions at Guantánamo Bay, who resigned when placed in a chain of command under the Pentagon’s General Counsel William J. Haynes II. As he explained in December 2007, Haynes had been involved in “authorizing the use of the aggressive interrogation techniques” — in other words, torture — which conflicted with his own insistence that prosecutors in the Military Commissions “would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the [Bush] administration … sanctioned.”
Moe asked if I had a contact at the Huffington Post for an op-ed he had just written defending the importance of the rule of law — and how it applies to everyone — which, as I explained at the time, was “written in a blistering style that America needs more of.” I was happy to provide Moe with a contact, and his op-ed was subsequently published on the Huffington Post, and was followed up yesterday with another excellent article dissecting the gulf between Presidential candidate Barack Obama’s rhetoric about Guantánamo, and the reality once he was in the White House.
I have a lot of time for Moe’s opinions, and for his direct, conversational style, and so I’m cross-posting his article below. His analysis of how Bush and Cheney “had their way with the country for 8 years,” Deliverance-style, is darkly hilarious, and I’m also in complete agreement with him about the need to decide, once and for all, whether al-Qaeda’s terrorist activities constitute a crime or a “war.” I also agree with his call for transparency regarding those prisoners whom the administration (preempting rulings in the courts on their habeas corpus petitions) has decided should continue to be held indefinitely without charge or trial, and his insistence that, in a broader sense, “transparency on all fronts is imperative,” and that “There needs to be greater access to the detainees, the detention facility, the military commissions, and the indefinite detention review process.”
My only caveat is with Moe’s discussion of whether Guantánamo is “the best place to hold alleged foreign terrorists.” Although he’s correct to point out that the facility is not the same as it was in the days of Camp X-Ray, with its open-air cages, and that it does not, materially, compare unfavorably with America’s shockingly harsh domestic prison system, every discussion of the prison should point out, over and over again, that what makes Guantánamo different is the fact that those held there have not been tried and convicted of any crimes and are still more cut-off from the world, and their families, than the most dangerous convicted criminals on the US mainland. “[G]reater access to the detainees [and] the detention facility” would improve this, but the aim, to my mind, must always be to continue to push for the closure of the prison, and to insist that nothing like it is ever contemplated again.
Obama and Change at Guantánamo: Believe It When You See It
By Morris Davis
“I’m asking you to believe.” That’s what it said at the top of the page on BarackObama.com, the wildly popular website for President Obama’s successful 2008 campaign. On a page entitled “Strengthen America Overseas,” candidate Obama said to believe that as president he would “restore America’s standing, reputation and authority in the world.” Given the shellacking we’d taken on those fronts during the Bush-Cheney years, his promise sounded like music to a great many ears. He said, “The first step to reclaiming America’s standing in the world has to be closing” the detention facility at Guantánamo Bay, Cuba. He told us to believe: “As president, Barack Obama will close the detention facility at Guantánamo” and “reject the Military Commissions Act.” He asked people to believe, and they took him at his word.
On Tuesday, April 27, 2010, a judge takes a seat on the bench and gavels court to order … in a military commission convened at Guantánamo Bay, Cuba.
Nearly 18 months after believers elected Barack Obama president and more than 15 months after he raised his hand and took the oath of office, that which he promised to stop continues. Maybe the Obama 2012 re-election slogan should be “Believe it when you see it.”
I spent 25 years in the military where I was prohibited from active involvement in partisan politics; the military is, as it should be, apolitical. I retired from the military on October 1, 2008, and for the first time in my adult life I was able to get involved and actually do something in the weeks leading up to the election. I contributed money to the Obama campaign, I put an Obama-Biden sticker on my car, I put an Obama-Biden sign in my front yard (and after someone doused it in lighter fluid and set it on fire I put up another one), and on election day I volunteered with the Obama campaign and went door to door as part of the get-out-the-vote effort. Candidate Obama told me to believe and I did.
I don’t mean to sound too bitter about President Obama’s failure to do what he promised to do about Guantánamo and military commissions … he told me to believe that he’d do as he said and then he didn’t; I get it. I recognize the incredibly crappy hand President Obama inherited from the Bush-Cheney administration, and I take exception with those who blame Obama for not instantly turning things around. In the movie Deliverance a hillbilly has his way with Ned Beatty for about 8 seconds, and after the hillbilly’s demise Ned doesn’t instantly leap to his feet like nothing happened. Bush and Cheney had their way with the country for 8 years, so President Obama deserves some time to help us heal and recover. I’m willing to afford him some latitude for failing to do what he said we could believe he would do if we elected him as our President. I’m disappointed, not dissentient.
With that behind me, there are four areas where I believe President Obama could improve the handling of the detainee issue and, in the process, enhance our standing in the eyes of the world.
First, there is nothing wrong with the detention facility at Guantánamo Bay. If it’s the best place to hold alleged foreign terrorists, fine. Before I was an attorney I worked as a bail bondsman, and over the years I’ve seen a lot of American jails and prisons. There are many American citizens currently behind bars who would trade their surroundings for Gitmo in a nanosecond if they could see Gitmo as it really is. Camp X-Ray was open from January to April 2002 and has been shuttered for more than 8 years. Those images — men kneeling near what look like dog cages in Camp X-Ray — reflect Gitmo as it was in early 2002, not as it is now, so the administration needs to devote more resources to dispelling the images of the past and showing the world the truth about conditions today. To the critics of Gitmo, if there’s a detention facility anywhere in the world that’s better for holding alleged terrorists then identify it so the administration has the benefit of seeing how it might improve Gitmo.
Second, if terrorism falls within the ambit of warfare rather than ordinary crime, then the Geneva Conventions are the basis of the rights the detainees enjoy, and fairly administered military commissions could meet or exceed the requirements of Common Article 3 of the Geneva Conventions. Decide whether we’re at war with al-Qaeda and its affiliates or if their activities are manifestations of a crime spree, and pick the corresponding criminal forum. Fourteen high-value detainees got off the airplane at Gitmo in September 2006. Parsing an explanation for why Ghailani gets full constitutional rights in a trial in federal court while his fellow passenger Nashiri gets something less in a military commission does not enhance our standing in the eyes of the world. [Note: Ahmed Khalfan Ghailani, one of the 14 “high-value detainees,” was transferred to New York in May 2009 to face a federal court trial that is scheduled to begin next year, whereas Abdul Rahim al-Nashiri, another “high-value detainee,” was put forward for a trial by Military Commission last November. I analyzed this two-tier judicial system in an article at the time, “The Logic of the 9/11 Trials, the Madness of the Military Commissions”].
Third, deciding what to do with those that will face prosecution is a lot easier than deciding what process is due those that will be detained indefinitely without trial. Anyone who faces indefinite detention deserves the right to know the basis for that decision and a meaningful opportunity to confront the allegations and the evidence. The Bush-Cheney administration had the chance to implement robust review procedures in the Combatant Status Review Tribunals and the Administrative Review Boards but chose not to do so, which I believe was directly responsible for the Supreme Court affording detainees the constitutional right of habeas corpus in the Boumediene decision [in June 2008]. We can’t afford to screw this up again.
Fourth, after eight and a half years of secrecy and failure, transparency on all fronts is imperative. There needs to be greater access to the detainees, the detention facility, the military commissions, and the indefinite detention review process. There should be a concerted effort to open the windows and raise the shades to let the sunlight shine on Guantánamo. Conducting hearings this week in the [Omar] Khadr case before the administration has even published the rules for the military commissions does not aid that cause; instead, it perpetuates the notion that we’re making up the rules as we go along to stack the deck. Similarly, if closed hearings are required in any of the trials they should be the rare exception and transparency the general rule. When secrecy is absolutely essential the determination should be made at the very highest level … it needs to be clear where the buck stops and who is responsible.
Candidate Obama made promises that President Obama didn’t honor. He’s not the first politician and he won’t be the last to look into the camera and say “read my lips.” He started out his campaign asking me to believe, and I did. I still believe. I have the audacity to believe we can do better. I have hope that we will.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.