This time last year, President Obama responded to the 2011 National Defense Authorization Act with a signing statement. Objecting to the law's restrictions on the transfer of Guantanamo detainees to the U.S. for trial or to their home countries, the president promised: "My Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future." (My emphasis).
This past New Year's eve, President Obama signed the 2012 National Defense Authorization Act, or NDAA. In doing so, he extended the Guantanamo transfer restrictions, while also codifying the indefinite detention without trial of suspected terrorists. In the statement he issued with that signature, he said:
"I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists."
The pledge to seek repeal and oppose expansion of transfer restrictions had melted into a watery "reservation."
The president's Saturday statement also makes a new promise.
"I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation." Although the Obama Administration has consistently claimed the power to kill U.S. citizens without charge or trial in the war on terror, as it did to the radical cleric Anwar al-Awlakiin Yemen, the president now promises not to imprison them.
Of course, a future president still might.
The death of Osama bin Laden last week is prompting the Obama Administration,members of Congressand the American publicto re-think the war in Afghanistan, and to wonder how the demise of the world's most famous terrorist might hasten its end.
That's as it should be. But for now, there are still 100,000 troops on the ground in Afghanistan, and some 1700 prisoners that the U.S. is detaining there indefinitely without charge or trial. That's ten times the number of prisoners at Guantanamo Bay and almost triple the number imprisoned in Afghanistan when President Obama took office. As I wrote in a new report released today by Human Rights First, based on research in Afghanistan and observation of U.S. military practices there, the United States is not providing its prisoners there even the minimum level of due process required by international law. And that's ultimately undermining the United States' ability to put an end to the war there quickly and responsibly.
The flood of news stories in the wake of the latest Wikileaks document dump reveal how one Guantanamo detainee after another was imprisoned at Gitmo for years based on tips from informants that turned out to be false. As James Carafano of the Heritage Foundation said in today's New York Times, that's not a big surprise. Law enforcement relies on such dubious tips in building criminal cases all the time. "The nature of intelligence is that it is ambiguous sometimes. It is sometimes based on sources you wouldn't take to Sunday school."
In criminal cases, that's not necessarily a problem, because criminal defendants ultimately get a chance to test the evidence in court. But that's not the case for military detainees. Until the Supreme Court ruled in 2008 that Guantanamo prisoners had a right to challenge their detention in federal court, they were stuck in the prison with no independent assessment of their guilt or innocence.
In fact, that's still the case for detainees imprisoned by the United States in Afghanistan today. The U.S. military holds some 1700 detainees at a prison on the Bagram Air Base in Afghanistan - nearly ten times as many as remain at Guantanamo. But unlike at Guantanamo, prisoners in Afghanistan don't have the right to legal representation or to challenge or even to see the secret evidence being used against them.
Unfortunately, as the latest set of documents revealed by Wikileaks demonstrates, the military's ability or willingness to truly vet its secret informant evidence does not inspire confidence. The result is that we may well be imprisoning the wrong people.
Gulet Mohamed, the 19-year-old American citizen detained in Kuwait in December where he says he was tortured in prison could be on his way back to the United States soon, according to Justice Department lawyers. But that won't answer the larger question his detention and alleged torture in Kuwait raises: has the United States adopted a new policy of "proxy detention" of U.S. citizens by countries that engage in torture?
Shortly after taking office, President Obama announced he'd close CIA prisons and end abusive interrogations of terrorism suspects by U.S. officials. But the Obama administration has notably preserved the right to continue "renditions" - the abduction and transfer of suspects to U.S. allies in its "war on terror," including allies notorious for the use of torture.
Although the Obama Administration in 2009 promised to monitor more closely the treatment of suspects it turned over to foreign prisons, the disturbing case of Gulet Mohamed, an American teenager interrogated under torture in Kuwait, casts doubt on the effectiveness of those so-called "diplomatic assurances." It's also raised questions about whether the "extraordinary rendition" program conducted by the Bush administration has now been transformed into an equally abusive proxy detention program run by its successor.
This past May, PFC Bradley Manning, the 22-year-old Army intelligence analyst who allegedly boasted of leaking video and documents to Wikileaks founder Julian Assange, was arrested. Originally held in Kuwait, in July he was transferred to a prison at the Quantico Marine Corps Base in Virginia. (Firedoglake has a helpful timeline of events here.)
According to Manning's military defense lawyer, David Coombs, Manning is being held in maximum custody, alone in a cell about six by 12 feet. He does not see any other inmates and has only minimal exchanges with guards, who wake him up at 5:00 a.m. daily and check on him every five minutes. Coombs writes: "PFC Manning is required to respond in some affirmative manner. At night, if the guards cannot see PFC Manning clearly, because he has a blanket over his head or is curled up towards the wall, they will wake him in order to ensure he is okay."
After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.
Liz Cheney declared that the guilty verdict "signals weakness in a time of war."
John Yoo said prosecutors were "lucky to even get one conviction," adding that "It is really hard to see what the upside is to having civilian trials."
And Laura Ingraham, sitting in for Bill O'Reilly on Fox, called trying terror suspects in federal court "insane," "wrong" and "potentially dangerous."
"How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but ... judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"
That's just one of many intriguing questions raised -- but not answered -- by the D.C. District Court today in its decision dismissing the case of Anwar al-Awlaki, a challenge to the government's authorization to kill a U.S. citizen allegedly tied to Al Qaeda overseas. Ultimately, the court won't answer any of these critical questions because it decided that Al-Awlaki's father lacks standing to sue, since he's not directly harmed by the U.S. action.
Significantly, though, Judge John Bates did not dismiss the case on the merits. Instead, he went out of his way to write that the case raises important legal questions regarding whether the government can target its own citizen for death in a foreign country without so much as a hearing to determine that he's done anything wrong.
Since Ahmed Ghailani's conviction on only one of 285 criminal counts on Wednesday, the verdict has been pronounced by supporters of military commissions as the reason to stop trying any terror suspects in civilian courts.
In a surprising verdict issued late Sunday afternoon, a military commission jury sentenced Omar Khadr to 40 years in confinement. Given that Khadr has already served eight years at the U.S. prison camp at Guantanamo Bay, Cuba, that's a 48-year sentence for a child soldier. Khadr is also the only fighter charged by the U.S. government with murder on the battlefield since the start of the wars in Iraq and Afghanistan. He was only 15 years old when, according to his guilty plea, in July 2002 he threw a grenade that killed a U.S. soldier.
The government's star witness in the sentencing hearing of Omar Khadr continued to talk for hours on the stand today, explaining his view of why he believes that the Canadian captured in 2002 at the age of 15 is "highly dangerous."
In testimony Tuesday afternoon that literally had my jaw dropping, a forensic psychiatrist called by the U.S. government testified that Omar Khadr, the Canadian who Monday pled guilty to a slew of terrorist acts including murder, is too dangerous to be released because he is sincerely religious and became even more devout at the Guantanamo Bay prison.