{"id":20482,"date":"2012-07-30T12:00:52","date_gmt":"2012-07-30T11:00:52","guid":{"rendered":"http:\/\/www.transcend.org\/tms\/?p=20482"},"modified":"2012-07-26T17:08:03","modified_gmt":"2012-07-26T16:08:03","slug":"the-obama-gitmo-myth","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2012\/07\/the-obama-gitmo-myth\/","title":{"rendered":"The Obama GITMO Myth"},"content":{"rendered":"

New vindictive restrictions on detainees highlights the falsity of Obama defenders regarding closing the camp.<\/em><\/p>\n

Most of the 168 detainees at Guantanamo have been imprisoned by the U.S. Government for close to a decade without charges and with no end in sight to their captivity. Some now die at Guantanamo<\/a>, thousands of miles away from their homes and families,\u00a0without ever having had the chance to contest accusations of guilt. During the Bush years, the plight of these detainees was a major source of political controversy, but under Obama, it is now almost entirely forgotten. On those rare occasions when it is raised, Obama defenders invoke a blatant myth to shield the President from blame: he wanted and tried so very hard to end all of this, but Congress would not let him. <\/em>Especially now that we\u2019re in an Election Year, and in light of very recent developments, it\u2019s long overdue to document clearly how misleading that excuse is.<\/p>\n

Last week [of 16 Jul 2012], the Obama administration imposed new arbitrary rules<\/a>\u00a0for Guantanamo detainees who have lost their first habeas corpus challenge. Those new rules eliminate the right of lawyers to visit their clients at the detention facility; the old rules establishing that right were in place since 2004, and were bolstered by the Supreme Court\u2019s 2008 Boumediene <\/em>ruling that detainees were entitled to a \u201cmeaningful\u201d opportunity to contest the legality of their detention. The DOJ recently informed a lawyer<\/a>\u00a0for\u00a0a Yemeni detainee, Yasein Khasem Mohammad Esmail, that he would be barred from visiting his client unless he agreed to a new regime of restrictive rules, including acknowledging that such visits are within the sole discretion of the camp\u2019s military commander. Moreover, as SCOTUSblog\u2019s Lyle Denniston explains:<\/p>\n

Besides putting control over legal contacts entirely under a military commander\u2019s control, the \u201cmemorandum of understanding\u201d does not allow attorneys to share with other detainee lawyers what they learn, and does not appear to allow them to use any such information to help prepare their own client for a system of periodic review at Guantanamo of whether continued detention is justified, and may even forbid the use of such information to help prepare a defense to formal terrorism criminal charges against their client.<\/p>\n

The New York Times<\/em>\u00a0Editorial Page today denounced these new rules<\/a> as \u201cspiteful,\u201d cited it as \u201cthe Obama administration\u2019s latest overuse of executive authority,\u201d and said \u201cthe administration looks as if it is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing.\u201d Detainee lawyers are refusing to submit to these new rules and are asking a federal court to rule that they violate the detainees\u2019 right to legal counsel.<\/p>\n

But every time the issue of ongoing injustices at Guantanamo is raised, one hears the same apologia<\/em> from the President\u2019s defenders: the President wanted and tried to end all of this, but Congress \u2014 including even liberals such as Russ Feingold and Bernie Sanders \u2014 overwhelming voted to deny him the funds to close Guantanamo.<\/em> While those claims, standing alone, are true, they omit crucial facts and thus paint a wildly misleading picture about what Obama actually did and did not seek to do.<\/p>\n

What made Guantanamo controversial was\u00a0not <\/strong>its physical location: that it was located in the Caribbean Sea rather than on American soil (that\u2019s especially true since the Supreme Court ruled in 2004<\/a> that U.S. courts have jurisdiction over the camp). What made Guantanamo such a travesty \u2014 and what still makes it such \u2014 is that it is a system of indefinite detention whereby human beings are put in cages for years and years without ever being charged with a crime. President Obama\u2019s so-called \u201cplan to close Guantanamo\u201d \u2014 even if it had been approved in full by Congress \u2014 did not seek to end that core injustice. It sought to do the opposite: Obama\u2019s plan would have continued the system of indefinite detention, but simply re-located it from Guantanamo Bay onto American soil.<\/p>\n

Long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. <\/strong>President Obama fully embraced indefinite detention \u2014 the defining injustice of Guantanamo \u2014 as his own policy.<\/p>\n

In February, 2009, the Obama DOJ told an appellate court it was embracing<\/a> the Bush DOJ\u2019s theory that Bagram detainees have no legal rights whatsoever, an announcement that shocked the judges on the panel hearing the case. In May, 2009, President Obama delivered a speech at the National Archives \u2014 in front of the U.S. Constitution \u2014 and, as his plan for closing Guantanamo, proposed a system of preventative \u201cprolonged detention\u201d without trial inside the U.S.;\u00a0The New York Times <\/em>\u2013 in an article headlined \u201cPresident\u2019s Detention Plan Tests American Legal Tradition\u201d \u2013\u00a0said<\/a>\u00a0Obama\u2019s plan \u201cwould be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.<\/strong>\u201d In January, 2010, the Obama administration announced<\/a>\u00a0it would continue to imprison several dozen Guantanamo detainees without any charges or trials of any kind, including even a military commission, on the ground that they were \u201ctoo difficult to prosecute but too dangerous to release<\/strong>.\u201d That was all Obama\u2019s doing, completely independent of anything Congress did.<\/p>\n

When the President finally unveiled his plan<\/a> for \u201cclosing Guantanamo,\u201d it became clear that it wasn\u2019t a plan to \u201cclose\u201d the camp as much as it was a plan simply to re-locate it \u2014 import it \u2014 onto American soil, at a newly purchased federal prison in Thompson, Illinois. William Lynn, Obama\u2019s Deputy Defense Secretary,\u00a0sent a letter<\/a>\u00a0to inquiring Senators that\u00a0expressly stated<\/a>\u00a0that the Obama administration intended to continue indefinitely to imprison<\/a> some of the detainees with no charges of any kind. The plan was classic Obama: a pretty, feel-good, empty symbolic gesture (get rid of the symbolic face of Bush War on Terror excesses) while preserving the core abuses (the powers of indefinite detention ), even strengthening and expanding those abuses by bringing them into the U.S.<\/p>\n

Recall that the ACLU immediately condemned<\/a> what it called the President\u2019s plan to create \u201cGITMO North.\u201d About the President\u2019s so-called \u201cplan to close Guantanamo,\u201d Executive Director Anthony Romero said:<\/p>\n

The creation of a \u201cGitmo North\u201d in Illinois is hardly a meaningful step forward<\/strong>. Shutting down Guant\u00e1namo will be nothing more than a symbolic gesture if we continue its lawless policies onshore.<\/p>\n

Alarmingly, all indications are that the administration plans to continue its predecessor\u2019s policy of indefinite detention without charge or trial for some detainees, with only a change of location.<\/strong> Such a policy is completely at odds with our democratic commitment to due process and human rights whether it\u2019s occurring in Cuba or in Illinois.<\/p>\n

In fact, while the Obama administration inherited the Guant\u00e1namo debacle, this current move is its own affirmative adoption of those policies<\/strong>. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proven guilty and the right to confront one\u2019s accusers. . . . .The Obama administration\u2019s announcement today contradicts everything the president has said about the need for America to return to leading with its values.<\/p>\n

In fact, Obama\u2019s \u201cclose GITMO\u201d plan \u2014 if it had been adopted by Congress \u2014 would have done something worse than merely continue the camp\u2019s defining injustice of indefinite detention. It would likely have expanded<\/strong>\u00a0those powers by importing them into the U.S. The day after President Obama\u2019s speech proposing a system of \u201cprolonged detention\u201d on U.S. soil, the ACLU\u2019s Ben Wizner told me in an interview<\/a>:<\/p>\n

It may to\u00a0serve to enshrine into law the very departures from the law that the Bush administration led us on, and that we all criticized so much.<\/strong>\u00a0And I\u2019ll elaborate on that. But that\u2019s really my initial reaction to it; that what President Obama was talking about yesterday is\u00a0making permanent some of the worst features of the Guantanamo regime.<\/strong>\u00a0He may be shutting down the prison on that camp, but what\u2019s worse is he may be importing some of those legal principles into our own legal system, where they\u2019ll do great harm for a long time.<\/p>\n

So even if Congress had fully supported and funded Obama\u2019s plan to \u201cclose Guantanamo,\u201d the core injustices that made the camp such a travesty would remain<\/strong>. In fact, they\u2019d not only remain, but would be in full force within the U.S. That\u2019s what makes the prime excuse offered for Obama \u2014 he tried to end all of this but couldn\u2019t<\/em>\u00a0\u2013\u00a0so misleading. He only wanted to change the locale of these injustices, but sought fully to preserve them.<\/p>\n

Indeed, as part of that excuse, one frequently<\/a> hears<\/a> that even liberal civil liberties stalwarts in the Senate \u2014 such as Russ Feingold and Bernie Sanders \u2014 voted to deny funding for the closing of Guantanamo: as though it is they who are to blame for these enduring travesties, rather than Obama. But this, too, is misleading in the extreme.<\/p>\n

The reason these Democratic Senators voted to deny funds for closing Guantanamo is not<\/strong>\u00a0because they lacked the courage to close Guantanamo. It\u2019s because they did not want to fund a plan to close the camp without knowing exactly what Obama planned to do with the detainees there \u2014 because people like Feingold and Sanders did not want to fund the importation of a system of indefinite detention onto U.S. soil. Here\u2019s what actually happened<\/a> when the Senate, including most Democrats, refused to fund the closing of Guantanamo:<\/p>\n

[White House Press Secretary Robert Gibbs] added Obama has not yet decided where some of the detainees will be sent.\u00a0<\/strong>A presidential commission is studying the issue.\u00a0. . .<\/p>\n

Sen. Daniel Inouye, D-Hawaii, chairman of the Appropriations Committee, favors closing Guantanamo, and the legislation his panel originally sent to the floor provided money for that purpose once the administration submitted a plan for the shutdown.<\/strong><\/p>\n

In changing course and seeking to delete the funds, he said, \u201cThe fact that the administration has not offered a workable plan at this point made that decision rather easy.\u201d<\/strong><\/p>\n

Can that be any clearer? They would have voted to fund the closing of Guantanamo, but only once they knew what Obama\u2019s plan was for the detainees there. Feingold \u2014 whose vote against funding the closing of Guantanamo is invariably cited by Obama defenders \u2014 wrote a letter to the President<\/a> specifically to object to any plan to import the system of indefinite detention onto U.S. soil:<\/p>\n

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.<\/p>\n

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world.<\/strong> It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.<\/p>\n

Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere<\/strong>, with disastrous consequences for our national security.<\/p>\n

Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties<\/strong> with greatly contrasting positions on legal and constitutional issues.<\/p>\n

Feingold was not going to vote for a plan to close Guantanamo if it meant that its core injustice \u2014 indefinite detention \u2014 was going simply to be re-located onto American soil, where it would be entrenched rather than dismantled. That<\/strong>, as all of this evidence makes clear,\u00a0is why so many Democratic Senators voted to deny funding for the closing of Guantanamo: not because they favored the continuation of indefinite detention, but precisely because they did not want to fund its continuation on American soil, as Obama clearly intended.<\/p>\n

Now, here we are, almost four years after the vow to close Guantanamo was enshrined in an Executive Order, and the rights of detainees \u2014 including the basic right to legal counsel \u2014 are being constricted further, in plainly vindictive ways. Conditions at Guantanamo are undoubtedly better than they were in 2003, and some of the deficiencies in military commissions (for the few who appear before them) have been redressed. But the real stain of Guantanamo \u2014 keeping people locked up in cages for years with no charges \u2014 endures. And contrary to the blatant myth propagated by Obama defenders, that has happened not because Obama tried but failed to eliminate it, but precisely because he embraced it as his own policy from the start.<\/p>\n

____________________<\/p>\n

Glenn Greenwald (email: GGreenwald@salon.com<\/a>) is a former Constitutional and Civil Rights litigator and is the author of three <\/em>New York Times<\/em> Bestselling books: two on the Bush administration’s executive power and foreign policy abuses, and his latest book, With Liberty and Justice for Some<\/a>, an indictment of America’s two-tiered system of justice. Greenwald was named by <\/em>The Atlantic<\/em> as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.<\/em><\/p>\n

Go to Original \u2013 salon.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Most of the 168 detainees at Guantanamo have been imprisoned by the U.S. Government for close to a decade without charges and with no end in sight to their captivity. Some now die at Guantanamo without ever having had the chance to contest accusations of guilt. Last week [of 16 Jul 2012], the Obama administration imposed new arbitrary rules for Guantanamo detainees who have lost their first habeas corpus challenge. Those new rules eliminate the right of lawyers to visit their clients at the detention facility.<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[139],"tags":[],"class_list":["post-20482","post","type-post","status-publish","format-standard","hentry","category-justice"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/20482","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=20482"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/20482\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=20482"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=20482"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=20482"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}