Hearings are underway in the US Senate to assess what to do with the 240 detainees still behind bars at Guantanamo Bay, and what will become of the military tribunals and detention without trial that the administration of former US president George W. Bush and a compliant Congress put into place.
The US Congress is also debating what will happen to the detention camp itself, which was established in 2002 to house men who were allegedly “the worst of the worst,” in a setting deliberately framed by Bush attorneys as “legal outer space.”
But are those Senate hearings actually window dressing on a new reality that is just as bad as the old one — and in some ways worse?
Military tribunals without due process are up and running again. While US President Barack Obama has released a few prisoners, notably Chinese Uighurs, and sent another for a real trial in New York City, he is now, chillingly, signaling that he is about to begin “preventive detention,” which would empower him to hold forever an unspecified number of prisoners without charges or trials.
On a visit to Guantanamo, Department of Defense spokesman Joe DellaVedova told me that a series of panels were reviewing the detainees’ files, a process that will take until the end of this year. The review will sort the detainees into three categories: those who will be tried in criminal courts in the US; those who will be released and sent to other countries; and those who “can’t be released and can’t be tried and so have to be held indefinitely … what is being called ‘preventive detention.’”
I was stunned. DellaVedova’s comment suggested that the review process was merely political theater. If there is to be a genuine review of the accusations against these detainees, how can it be known in advance that the third category will be required? Indefinite preventive detention is, of course, the foundation of a police state.
Human rights organizations knew that Obama had prepared the way, in public-relations terms, for some criminal trials — talking up the “supermax” security of some US prisons, and noting that other terrorists have successfully been tried by the US’ justice system. (Other democracies, such as the UK and Spain, always try terrorism suspects, including alleged al-Qaeda members, in ordinary criminal trials.)
But, six months after he ordered an end to torture and CIA “black sites,” and promised to close Guantanamo within a year, Obama seems to be re-branding Bush’s worst excesses.
He has brought in planeloads of journalists to Guantanamo Bay to show them a “safe, transparent and humane” facility that now offers fresh baklava and video viewing from a shackled loveseat.
But the roughly 240 detainees remain incarcerated without having been charged with any crime, and will still not get a fair trial, even under Obama’s proposed military commissions. After all, the prosecutor, the judge and the “panel” are all to be US government employees.
Furthermore, Obama’s Justice Department has invoked Bush’s argument that the State Secrets Act bars evidence about torture from being disclosed, which means that anyone who was tortured can never appear in court. Moreover, Obama has sought to suppress hundreds of photographs depicting sexual assault in US-run prisons, and has done nothing to roll back the Patriot Act.
Why should Obama, who has carefully studied the Constitution, be backtracking this way?
First, he does not dare appear to be “soft on terror.” Second, perhaps he needs to be able to try the Guantanamo detainees in a rigged setting, or even keep them from trial forever: Lawyers claim that torture, including sexual torture, was so endemic in the CIA and the military that Obama could be holding scores, if not hundreds, of prisoners whose bodies are crime scenes.
Wells Dixon, a lawyer at the Center for Constitutional Rights who represents some of the detainees, said the Obama administration cannot risk calling the torture practices crimes, so it calls them “classified sources and methods” that cannot be revealed in court.
“I can’t even tell you about the way my clients were tortured or I will be prosecuted,” he says.
In fact, even the explanation of why this material is classified cannot be reproduced, because the explanation itself is privileged.
Nor has the access of lawyers to their Guantanamo clients improved under Obama. “We are subject in all detainee cases to a protective order,” Dixon says.
“Under this order, everything the detainee says is classified,” unless the Department of Defense “Privilege Team” decides otherwise, he says.
Dixon then told me a revealing story of one of his clients, Majid Khan, a so-called “high-value detainee” who was held for three years in CIA “black sites.” Khan was tortured, Dixon said, though “the government would say that what happened to him is an ‘intelligence source or method.’”
Because Dixon has a security clearance, he cannot discuss those classified “sources and methods.”
On the other hand, Dixon continued: “When the government does something to [Khan] that they say is classified, they have disclosed to him classified information. But since he doesn’t have a security clearance, there is nothing that prevents him, unlike me, from saying to the outside world: ‘This is what they did to me.’ Nothing prevents that — except for the fact that he is physically in custody.”’
The “logical conclusion,” Dixon says, is that Khan “must be detained for the rest of his life — regardless of whether he is ever charged with a crime — because if he was ever released, nothing would prevent him from disclosing this information.
Majid Khan — and there are many more like him — is a classic product of the Bush administration’s disregard for the fundamental principles of the rule of law. Unfortunately, Obama’s administration, for all its lofty rhetoric, appears too willing to perpetuate it.
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