The Guantanamo Conundrum

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Civil liberties advocates warn the President’s failure to close the military prison, as promised, will lead to “grave consequences”

Will Guantánamo Bay ever close?  On Jan. 22, 2009, President Barack Obama won worldwide praise when he signed an executive order pledging to close the controversial military prison “no later than one year from now.”

But on the eve of the anniversary of his promise last week, an anonymous “administration official” told The New York Times that up to 50 detainees would continue to be held at Guantánamo without trial for an indefinite period: they were, he explained, too difficult to prosecute, but too dangerous to release.

As far as human rights advocates were concerned, that was more than just another failed political promise.

“The consequences are grave,” warned Stephen Abraham, a retired Lieutenant Colonel with the US Army Intelligence Corps Reserves, at a special panel convened  in New York last Friday, the day Guanatanamo was supposed to shut its doors forever. “Keeping it open affects our security because the symbol of Guantánamo, along with Abu Ghraib (the Iraqi prison where suspected militants were infamously tortured by US troops) will continue to be a spur to insurgents.”

Worse still, say civil liberties advocates, the Obama administation has opened a new and potentially ominous challenge to the Constitution by endorsing a special category of  prisoner whose rights to an trial are suspended in the name of national security.

“We can’t be true to our values and say the executive branch can decide who is too dangerous to be on the streets,” retired Federal District Court Judge John Coughenour of Seattle told the audience. “That’s not what this country is about. We can’t just seize people and lock them up for what might be their natural lives.”

Coughenour got a round of warm applause from the audience at the panel, held  at the Interchurch Center on New York’s Upper West Side, and sponsored by a cohort of some of the country’s most prominent civil liberties-oriented organizations, including The Constitution Project, the Open Society Institute and the Rockefeller Brothers Fund.

But it underlined the widening cracks in the pro-change coalition that brought Obama to the White House. Moderator Jeffrey Toobin of The New Yorker observed that opinions of liberal Upper West Siders and human rights crusaders now differed starkly from majority opinion across the nation, especially after the arrest of Umar Farouk Abdulmutallab, the 23-year-old Nigerian who was caught trying to ignite explosives in his underwear as his flight circled over Detroit. “There’s a consensus in the rest of the country that’s very different,” Toobin said, noting the  90-6 vote in the Senate last May blocking the use of federal funds to close Guantánamo.

The advocacy reps were nonplussed. “People don’t realize that 575 people have already been released from Guantánamo under the Bush Administration with little impact,” insisted Shayana Kadidal, a senior managing attorney with the Guantánamo Global Justice Initiative of the Center for Constitutional Rights. “The president has to use his bully pulpit to address this, and then maybe America will get it.”

Silence from the Administration

There was no one on hand from the Administration to explain why this wasn’t going to happen any time soon. A representative from the Department of Justice originally scheduled to speak at the panel failed to appear.

About 200 prisoners remain at “Gitmo,” a sharp reduction in numbers since the peak of the War on Terror. The administration plans to prosecute about 40 of them in connection with terrorism cases, including several who will be brought to New York to face charges of  conspiracy in connection with the Sept 11, 2001 attacks.

But at least 110 who have been cleared of any connection with terrorism are awaiting repatriation to other countries. As many as 40 of them are Yemenis, the audience was told.  Those prisoners, along with the 50 judged too dangerous to release but for whom authorities admit they have little hard evidence to prosecute, are effectively in limbo.

And despite plans to ship some of the Guantánamo detainees to a specially reinforced prison in Illinois, the revival of terrorism fears since the Christmas Day incident—and the efforts by the Obama Administration to look strong on national security—have complicated hopes that the President would revisit some of the assumptions about how to prosecute the war on terror which  opened his predecessor to worldwide condemnation.

“Obama now owns this place (Guantánamo),” said Kadidal. “He has failed to lead on the facts, failed to lead on legal standards, and failed to anticipate the resistance of the bureaucracy.”

According to several of the panelists, the use of preventive detention without trial was central to the previous administration’s approach of keeping its anti-terror intelligence gathering methods, including the use of torture, out of the reach of  the courts.

“But terrorism is at its heart a criminal act,” said Abraham. “There is evidence. It can be prosecuted. Intelligence professionals are called to make decisions all the time about whethere they will continue an operation or bring a prosecution. There’s no need to create a new box of prisoners who cannot be prosecuted and cannot be released.”

The only dissenting note came from Celeste Koeleveld, who served as an Assistant US Attorney in the Southern District of NewYork until 2008,  and prosecuted a number of terror cases.

“What do we do when we know a person is hell-bent on destroying us?” she asked.

But the idea that federal prosecution of terror cases, including bringing accused terrorists to the U.S. mainland, poses special security risks was witheringly denounced by Judge Coughenour,  who presided over the 2005 trial of so-called Millennium Bomber Ahmed Ressam in Los Angeles, as well as the trial of 12 members of the violent Christian Patriot group know as the Montana Freemen in the late 1990s.

“The expenses of one billion dollars I’m hearing for the New York trial (of accused 9/11 mastermind Khalid Shaikh Mohammed) are startling,” he said, pointing out there was “virtually no expenditure” on security in the Ressam trial, even though authorities learned only after the venue had been transferred from Seattle to Los Angeles, that LAX Airport had been his primary target.

“There are literally hundreds of so-called terrorists in federal prisons today, and there has never been an incident,”the judge said, adding that  no security incident had occurred in any of the 195 terrorism trials held in the U.S. over the past eight years.

“I lived in Billings,  Montana for the nine months of the Freemen trial, and I was under round-the-clock protection, ” he said., “It was hard, but these are the things we do  (in the U.S. judicial system).”

Coughenour predicted that the consensus would eventually shift back to providing even the most dangerous suspected terrorists with the constitutional rights they were entitled to under U.S. law.  “As federal courts have more of an opportunity to speak to these issues, our values will count.”

It’s not likely to happen any time soon, however.  Kadidal noted Friday that the president could still live up to his original promise.  “There is still time left today,” he said, glancing at his watch.

But the deadline came and went.

Stephen Handelman is the editor in chief of The Crime Report

Photo by casmaron via Flickr.

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