Tuesday, October 21, 2008

Surprise: So Bush Never Considered Closing Guantanamo?

Bush Decides to Keep Guantanamo Open
By Steven Lee Myers, The New York Times

Washington - Despite his stated desire to close the American prison at Guantánamo Bay, Cuba, President Bush has decided not to do so, and never considered proposals drafted in the State Department and the Pentagon that outlined options for transferring the detainees elsewhere, according to senior administration officials.

Mr. Bush's top advisers held a series of meetings at the White House this summer after a Supreme Court ruling in June cast doubt on the future of the American detention center. But Mr. Bush adopted the view of his most hawkish advisers that closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

The administration is proceeding on the assumption that Guantánamo will remain open not only for the rest of Mr. Bush's presidency but also well beyond, the officials said, as the site for military tribunals of those facing terrorism-related charges and for the long prison sentences that could follow convictions.

The effect of Mr. Bush's stance is to leave in place a prison that has become a reviled symbol of the administration's fight against terrorism, and to leave another contentious foreign policy decision for the next president.

Both presidential candidates, Senators John McCain and Barack Obama, have called for closing Guantánamo and could reverse Mr. Bush's policy, though probably not quickly since neither has spelled out precisely how to deal with some of the thorniest legal consequences of shutting the prison.

Mr. Bush's aides insist that the president's desire is still to close Guantánamo when conditions permit, and the White House has not announced any decision. But administration officials say that even Secretary of Defense Robert M. Gates and Secretary of State Condoleezza Rice, the most powerful advocates for closing the prison, have quietly acquiesced to the arguments of more hawkish advisers, including Vice President Dick Cheney.

A senior administration official who spoke on condition of anonymity to discuss the administration's internal deliberations said it would be much harder to fulfill a campaign promise to close the prison than either candidate has stated. "This may not be the ideal answer, but what we are trying to do is work with the system we've got," the official said.

Mr. Bush's decision followed a review of the implications of the Supreme Court's ruling in June that the 250 detainees at Guantánamo have the right to make habeas corpus appeals.

The ruling, Boumediene v. Bush, undercut a core rationale for keeping the prison off American soil, raising expectations that Mr. Bush might at last move to close it, a prospect he first raised in June 2006, when he said, "I'd like to close Guantánamo, but I also recognize that we're holding some people that are darn dangerous, and that we better have a plan to deal with them in our courts."

In August 2007, Mr. Bush said "it should be a goal of the nation to shut down Guantanamo," adding, "But it is not as easy a subject as some may think on the surface."

Mr. Bush has harshly criticized the ruling, including at least twice in fund-raising speeches for Republicans. When he met with his senior security advisers, no options for closing the prison were on the agenda, the administration officials said.

"This is an administration that believes very, very strongly in certain things it has done," said Matthew Waxman, a professor at Columbia Law School who served in the Department of Defense overseeing detainee polices, "and Guantánamo is one that some administration officials at high levels believe was right all along."

Mr. Cheney and his chief of staff, David S. Addington, have made it clear in the internal discussions this year that keeping Guantánamo open under a new president would validate the administration's decisions dealing with terrorists, the officials said.

Closing Guantánamo would most likely mean abandoning prosecutions against some detainees and risking the release of others who still pose a threat to the United States and its allies.

An administration official who favors closing the prison suggested that the next president might reconsider after having access to the classified evidence that the Bush administration believes justifies the indefinite detention of dozens of detainees.

"The new president will gnash his teeth and beat his head against the wall when he realizes how complicated it is to close Guantánamo," the official said.

Mr. McCain has suggested moving the detainees to Fort Leavenworth, Kan., home of the Army's prison. His remarks prompted a letter in June from the two Republican senators from Kansas, Sam Brownback and Pat Roberts, objecting to the idea on a variety of grounds.

Mr. McCain's campaign did not respond to requests for comments about Guantánamo. The Obama campaign declined to comment specifically, but in his platform, Mr. Obama promises to abolish military tribunals and conduct a review to determine which prisoners to prosecute, which to hold under the laws of war and which to release. His proposal does not specify where detainees would be held.

Other sites that have been mentioned include the United States Naval Consolidated Brig in Charleston, S.C., and the United States Penitentiary Administrative Maximum Facility, known as supermax, in Florence, Col.

Beyond political opposition in those regions, the officials involved in the administration's discussions said that bringing the detainees to American soil would allow additional legal challenges beyond habeas corpus and raise the prospect that judges could free them in the United States.

The prospect of that became more acute on Oct. 7, when a federal judge ordered the release of 17 Uighurs from China who were swept up in 2002 and held in Guantánamo. The administration had already dropped efforts to declare the men as enemy combatants, but refused to return them to China because of concerns about the treatment they would receive there, trying unsuccessfully to find a third country to accept them.

The judge, Ricardo M. Urbina of Federal District Court, ordered the detainees brought to his court in Washington to free them, but the Justice Department appealed and won a stay.

One official said that the Justice Department's arguments - that the 17 men remained dangerous - complicated diplomatic efforts to find a country other than China willing to accept them.

The government's lawyers filed the arguments for a continued stay on Thursday, and on Monday a federal appeals court refused to allow the Uighurs' immediate release into the United States to give it time to hear the government's full appeal.

Since the Supreme Court decision in June, Mr. Bush and his aides have remained focused on legal strategies for coping with the wave of habeas corpus appeals now flooding the federal court system and seeking new legislation that would allow the government to continue to hold foreign terrorists without charge.

A version of that legislation was introduced by Senators Lindsay Graham, Republican of South Carolina, and Joseph I. Lieberman, independent of Connecticut, two of Mr. McCain's closest friends and advisers. But the legislation stalled and appears unlikely to be adopted during the current session of Congress.

The senior administration official involved in the deliberations said that the Supreme Court's ruling did not grant judges the authority to release detainees in the United States, comparing it to allowing an illegal immigrant to live in the country legally without legal standing.

That official and others said that officials from the Department of Homeland Security, along with the Justice Department, have argued most vigorously for keeping Guantánamo open, largely because a ruling like the Uighur case could result in foreign fighters being freed into American communities.

"The federal courts have an absolute right to release these people, but the court didn't say where, and what does that mean, to release them," the senior official said.

"And in our view, the Supreme Court didn't say, and the district courts don't have the power, to order the United States to bring somebody from a foreign country - a foreigner - into the United States in complete disregard for our immigration law."

Advocates for closing Guantánamo argued that Mr. Bush is still following the same flawed logic that has made it a reviled symbol, especially abroad.

Mr. Waxman, the former defense official, acknowledged the difficulties of closing the prison and the risks involved, but he argued that after seven years, a radical change was required.

"Whatever consequence they're worried about," he said of the administration's concerns, "has to be weighed against the damage we continue to incur by keeping the status quo."

1 comment:

Connie L. Nash said...

Inter Press Service News Agency
Friday, October 24, 2008 06:23 GMT

Readers Opinions

Next President Will Inherit Guantanamo Dilemma

William Fisher

NEW YORK, Oct 21 (IPS) - Leading human rights groups reacted with outrage Tuesday to media reports that the administration of President George W. Bush has decided not to close the iconic prison at the U.S. Naval Base at Guantanamo Bay, Cuba.
Quoting anonymous senior Bush Administration officials, The New York Times reported that the issue would in effect be "kicked the down the road" to await action by the new president when he takes office in January 2009.

The Times reported that Bush never considered proposals drafted by the State Department and the Pentagon that outlined options for transferring the detainees elsewhere.

According the newspaper, Bush adopted the view of his most hawkish advisers that closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

Civil libertarians were quick to condemn the administration's position.

Jameel Jaffer, director of the National Security Project for the American Civil Liberties Union Foundation (ACLU), told IPS, "The decision to keep the prison open is deeply irresponsible. Hundreds of men have been held without charge and without trial for almost seven years."

"At this point, the government has both a moral and legal obligation to close Guantanamo. Even President Bush has conceded that the prison should be closed. But unfortunately it seems that this administration is simply unwilling to show the leadership that would be required to actually get the job done," he said.

Jaffer was also critical of the controversial system of justice that exists at Gitmo. He told IPS, "The handful of prisoners who have been charged with crimes are being tried in a system that is unfair and unconstitutional. It's a system that allows the government to rely on secret evidence, on hearsay, and on evidence that was elicited through abusive interrogation methods such as waterboarding."

Jameel Jaffer has been an active participant in cases involving GITMO, the Bush administration's "domestic surveillance" programme, provisions of the USA Patriot Act, and a number of related legal issues.

Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR) a legal advocacy organisation that has provided attorneys for many of the Guantanamo detainees -- expressed equal outrage.

He told IPS, "We've been saying for two years now that the government's litigation strategy is to run out the clock on these cases and leave the mess at Guantanamo for the next president to clean up -- much like the misadventure in Iraq. At every stage the government has tried to maximise delay, with no discernable endgame to resolve the situation."

He said that "various inside sources have told reporters for years that there are no more than two dozen men at Gitmo who might be worthy of facing charges. If the government chooses to charge them they should be charged and tried in federal court inside the United States."

He added, "As to the rest, with narrow exceptions, men who are not going to face charges simply should not be detained. The exceptions relate to people actually captured on a conventional battlefield, which is a tiny fraction of the men at Guantanamo -- about 4 percent overall."

He predicted that "over 200 of the men still at Guantanamo will be returned to their home countries. The idea that moving prisoners to indefinite detention in Kansas will represent an improvement over Guantanamo is ridiculous."

Other legal and human rights organisations have also weighed in on the Guantanamo issue. For example, Human Rights First (HRF) has drafted a report, "How to Close Guantanamo: Blueprint for the Next U.S. Administration", detailing a step-by-step process for closing Guantanamo and dealing responsibly and legally with the detainees.

According to HRF's international legal director, Gabor Rona, "Those who can be tried under the laws of war and other criminal laws should be prosecuted. Those who will not be prosecuted by the U.S. must be released to their home country or a third country where they will not be at risk of ill treatment."

"They may also be subject to prosecution. But this process cannot take place in a vacuum. It must be part of a larger effort to return the U.S. to practices that respect its international legal obligations under the Geneva Conventions and human rights treaties," he said.

He told IPS that "This means, at a minimum, abandoning the concept of 'enemy combatant', which is unknown in the laws of war and which was created by this administration to remove detainees from the law."

Since the U.S. began sending prisoners to from Afghanistan to Guantanamo in January 2002, the island prison has become the centre of a highly charged chapter in U.S. jurisprudence.

U.S. Appeals Courts and the U.S. Supreme Court have ruled against various aspects of the Guantanamo legal regimen. The Supreme Court declared the Bush-constructed Military Commissions unconstitutional. And it ruled that Congress could not block detainees' right to petition for habeas corpus, an opinion legal and human rights advocates have characterised as "a rebuke to a cornerstone of the Bush administration's so-called 'global war on terror'."

In another case, a highly fractured court ordered that the government establish tribunals to determine whether individuals are in fact "enemy combatants." That same day the court also decided Rasul v. Bush, recognising that Guantánamo prisoners were entitled to file petitions for habeas corpus under the terms of the congressional Habeas Corpus Act.

In response, Bush administration lawyers established Combat Status Review Tribunals (CSRTs) -- considered by many legal scholars to be kangaroo courts where prisoners are denied lawyers and, in most cases, access to the evidence against them -- and Congress passed the Detainee Treatment Act (DTA), which revoked habeas corpus for Guantánamo prisoners, giving them access to U.S. courts only for a cursory review of whether CSRT procedures were followed correctly.

In June 2006, the Supreme Court decided in Hamdan v. Rumsfeld that the DTA's ban on habeas petitions did not apply to those already filed. The Bush administration, with the complicity of key congressional Democrats, rammed through the Military Commissions Act (MCA), which contained a provision depriving federal courts of jurisdiction over all habeas petitions filed by Guantánamo prisoners.

Hamdan, the Yemeni-born driver for Osama bin Laden who was captured in Afghanistan, became the first Guantanamo detainee ever to be tried by Military Commission. He was convicted of aiding terrorism but acquitted on a charge of conspiring to commit terrorist attacks including those on Sep. 11.

Given credit for years already served, Hamdan could be eligible for release before the end of 2008, though the government has recently claimed that the court overestimated the time he has served.

Over the years, evidence obtained largely from government records has shown that practices tantamount to torture have been widely and consistently practiced at Guantanamo, in violation of the Geneva Conventions.

The effect of Bush's decision is to retain a prison that has become a worldwide negative icon for the administration's fight against terrorism.

The decision also leaves another major foreign policy dilemma for the next president. Both Senators John McCain and Barack Obama have called for closing Guantánamo.

Either candidate could reverse Bush's policy, but neither has discussed how he would deal with the legal consequences of shutting the prison. The principal issue is where to imprison and/or try the remaining approximately 250 Guantanamo detainees, many of whom have already been declared eligible for release.


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