On national security issues, there are now two Americas. In the first, which existed from January to May 2009, the rule of law flickered briefly back to life after eight years of the Bush administration.
In this first America, President Obama swept into office issuing executive orders promising to close Guantánamo and to uphold the absolute ban on torture, and also suspended the much-criticized system of trials by Military Commission used by the Bush administration to secure just three contentious convictions in seven years.
In addition, in April 2009 he complied with a court order to release four "torture memos" issued in 2002 and 2005 by lawyers in the Justice Department’s Office of Legal Counsel, which purported to redefine torture so that it could be used by the CIA (in 2002), or broadly upheld that decision (in 2005). As well as confirming the role of the courts in upholding the law, these documents contained important information for those hoping to hold senior Bush administration officials and lawyers accountable for their actions in the "War on Terror."
The final flourish of this period was the decision to move a Guantánamo prisoner to New York to face a federal court trial, which took place in May 2009. Ahmed Khalfan Ghailani, a Tanzanian seized in Pakistan in July 2004, was held in secret CIA custody for over two years, until he was moved to Guantánamo in September 2006, with 13 other men regarded as "high-value detainees."
Ghailani’s transfer to face justice in New York for his involvement with the 1998 African embassy bombings was important not only because it confirmed that Guantánamo prisoners could be tried in federal court, rather than by Military Commission, but also because it established a connection with the way in which justice had been pursued before the 9/11 attacks. Ghailani had been indicted for his part in the African embassy bombings in 1998, and three of his alleged co-conspirators had been successfully tried and convicted in federal court in May 2001, prior to receiving life sentences in October 2001.
Unfortunately, in the second America, which emerged on the same day as Ghailani’s transfer, the rule of law has, for the most part, given way to political expediency and the blatant obstruction of justice, which have served only to reinforce the hideous novelties introduced by the Bush administration in its "War on Terror," and to prevent any attempt to secure accountability for those responsible for the administration’s crimes.
This second America began with a major speech on national security in which the gains made by moving Ghailani to New York were offset by a decision to revive the Military Commissions, and also to hold some prisoners in Guantánamo indefinitely without charge or trial, shattering the notion, prevalent until that date, that prisoners would either be released or charged in federal court.
This announcement came just five days after Obama changed his mind about complying with another court order — this one involving the release of photos showing the abuse of prisoners in US custody in Afghanistan and Iraq — and although this decision was, perhaps, justified on the basis that it would inflame anti-American sentiment in both countries, it was later revealed that, around the same time, the President had also capitulated to far less justifiable criticism of a plan hatched by Greg Craig, the White House Counsel.
Craig, who had also been the driving force behind the President’s executive orders when he took office, had been close to resettling two Uighur prisoners at Guantánamo on the US mainland, in order to break a deadlock involving cleared Guantánamo prisoners who could not be repatriated because they faced the risk of torture, and also to send out a clear message to America’s allies that, in closing Guantánamo, the administration was prepared to acknowledge its own mistakes, and was hoping that other countries would therefore help out by taking other cleared prisoners who could not return home.
The Uighurs are Muslims from China’s oppressed Xinjiang province, and the 17 men in Guantánamo at that time were clearly innocent men, who had won their habeas corpus petition in a US court in October 2008, after the Bush administration gave up all pretence that they were "enemy combatants." However, although Greg Craig had secured support for his plan from Hillary Clinton and defense secretary Robert Gates, Obama quashed it when Republicans got wind of it, leaving the Uighurs scrabbling around for a new home, and making the job of finding new homes for other cleared prisoners more difficult, especially as Republicans — and members of Obama’s own party — followed up on this successful attempt to intimidate the President by passing a law preventing him from bringing any cleared prisoner to the US mainland.
Since then, capitulation to pressure has been the name of the game. Last November, Attorney General Eric Holder announced that the "high-value detainee" Khalid Sheikh Mohammed, and four other HVDs accused of involvement with the 9/11 attacks, would, like Ghailani, face a federal court trial in New York. However, when a Republican-led backlash started, Obama caved in once more, refusing to press the advantage gained by having already moved Ghailani to New York, and freezing into inaction, taking the decision away from Holder about where and how the men would be tried, but refusing to make any decision at all. Part of the problem was that, on the same day that Holder announced the 9/11 trial, he also announced that five prisoners would face trials by Military Commission, leaving an option open for critics of federal court trials that should have been slammed firmly shut.
By January this year, the hysteria about the proposed 9/11 trial was at its height, and Obama’s inability to fight back meant that, when Umar Farouk Abdulmutallab, a Nigerian, was seized after failing to blow up a plane on Christmas Day, and was discovered to have been recruited in Yemen, the President caved in again. This time around, his critics’ demands were that no Yemenis should be released from Guantánamo. Even though 59 Yemenis had been approved for transfer to Yemen by the Guantánamo Review Task Force, consisting of 60 career officials and lawyers and established by the President to review the cases of all the Guantánamo prisoners, he announced a moratorium on the release of any Yemenis, which is still in place today and shows no sign of coming to an end.
In addition, Obama has done all in his power to ensure that nothing like the release of the "torture memos" in April 2009 will ever happen again. Early this year, he allowed a Justice Department "fixer," David Margolis, to override the damning conclusion of a four-year internal investigation into the authors of the 2002 memos — John Yoo and Jay S. Bybee — in which Margolis downgraded the report’s conclusion that both men were deliberately guilty of "professional misconduct" with a mild rebuke for having apparently only exercised "poor judgment."
In the courts, too, Obama has erected a seemingly impenetrable wall to accountability, invoking the little-known "state secrets" doctrine to block any attempt to have Bush-era crimes discussed in court, as, for example, in the case of five men subjected to "extraordinary rendition" and torture, who tried to sue Jeppesen Dataplan, Inc., a Boeing subsidiary responsible for acting as the CIA’s torture travel agent, and expanding this abuse of "state secrets" to defend two shocking innovations of his own: a massive increase in drone killings in Pakistan, and a decision to endorse the assassination of US citizens anywhere in the world, even though both projects appear to be illegal, and have attracted severe international criticism.
In this second America, the loss of the House of Representatives to the Republicans in the mid-term elections appears to have led only to the final confirmation that, on Guantánamo and national security issues, Obama is content to do nothing for the rest of his term in office.
This is in spite of significant developments in the trial of Ahmed Khalfan Ghailani, which has been taking place in a federal court New York for the last month. Ghailani’s trial has demonstrated that the traditional manner of trying terrorist suspects is fully functional — and can operate adequately even with the exclusion of evidence obtained through torture — and a decision is expected from the jury this week.
If the trial leads to a conviction, the result should allow the administration to sweep aside all criticism and proceed with the trial of Khalid Sheikh Mohammed and his four alleged co-conspirators, but as the Washington Post reported on Saturday, Obama administration officials have explained that the five men "will probably remain in military detention without trial for the foreseeable future." As the Post explained:
The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantánamo Bay, Cuba. The latter option would alienate liberal supporters.
This may change, of course, as President Obama has not made an official announcement, but it seems unlikely, as everything else at Guantánamo has ground to a halt. Faced with ferocious opposition to any plans that made it through his wall of compromise and cowardice, Obama has demonstrated that he is content to continue holding the remaining 174 prisoners at Guantánamo on the basis of the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, even though the AUMF perpetuates the false notion that the Guantánamo prisoners are neither prisoners of war, nor criminal suspects, but are still that third category of prisoner invented by the Bush administration: "enemy combatants," or, as they now are, "alien unprivileged enemy belligerents," who occupy a unique, and uniquely disturbing position, which, for the majority of the men, is still akin to a legal black hole, despite the fact that they were granted habeas corpus rights by the Supreme Court in June 2008.
Consider the facts: On the trial front, even though the Task Force recommended that 34 of the remaining prisoners should face trials, the administration is currently proceeding with the trial of just one man, Noor Uthman Muhammed, in the Military Commissions (following the scandalous betrayal of justice last month in the case of the former child prisoner Omar Khadr), and in federal court, the officials who spoke to the Washington Post suggested that even a successful outcome in Ghailani’s trial would lead to nothing more than possibly a single "clean case against an unknown."
As for the rest of the prisoners, there are 48 whom the Task Force recommended should continue to be held indefinitely without charge or trial, and 58 Yemenis who are going nowhere. Excluding Omar Khadr, Ibrahim al-Qosi and Ali Hamza al-Bahlul, the three remaining men convicted in trials by Military Commission, this leaves just 33 prisoners "approved for transfer," who, if new homes can be found, might be the only prisoners to be released from Guantánamo in the next two years, confirming the extent to which the closure of the prison has become irrelevant to President Obama and the Democrats in general.
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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, "Outside the Law: Stories from Guantánamo" (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.