Return to Law?

Closing Gitmo, Ending Torture and a Review of Enemy Combatant Cases

By Andy Worthington

(January 25, London, Sri Lanka Guardian) Finally! 2569 days after the prison at Guantánamo opened -- but just two days into the new Presidency -- Barack Obama signed three executive orders and a Presidential memorandum that mark a decisive break with the “War on Terror” policies of the Bush administration. As he signed the orders, he reiterated a comment that he made at his inauguration, when he stated, “As for our common defense, we reject as false the choice between our safety and our ideals,” and also said, ”This is me following through on not just a commitment I made during the campaign, but I think an understanding that dates back to our Founding Fathers, that we are willing to observe core standards of conduct, not just when it's easy, but also when it's hard.”

Executive Order on the Closure of Guantánamo

The first of yesterday’s four important documents orders Guantánamo to be closed “as soon as practicable, and no later than one year from the date of this order.” The Order also establishes an immediate review of the cases of the remaining 242 prisoners to work out whether they can be released, to be “conducted with the full cooperation and participation” of the Attorney General, the Secretaries of Defense, State and Homeland Security, the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff, and instructs the Secretary of State to negotiate repatriation, or transfer to third countries, in the cases of those who can be released.

If the review establishes that prisoners are not be released, the Order states that the participants “shall identify and consider legal, logistical and security issues relating to the potential transfer of individuals currently detained at Guantánamo to facilities within the United States,” adding that they “shall work with Congress on any legislation that may be appropriate.” When it comes to trials, the Order states that the options for those who are not approved for release or transfer include investigating “whether it is feasible” to pursue prosecutions in federal courts on the US mainland.

Following President Obama’s request on Tuesday for the judges in the Military Commission trial system to suspend all proceedings, the Order also directs defense secretary Robert Gates to halt the proceedings pending a four-month review, and requires him to ensure that prisoners are held in conditions that comply with the Geneva Conventions regarding the humane treatment of prisoners, adding, “Such review shall be completed within 30 days and any necessary corrections implemented immediately thereafter.”

The verdict

As human rights groups have already pointed out, a year is a long time to bring an end to Guantánamo, especially as judges in the habeas corpus reviews (which followed the Supreme Court’s ruling last June that the prisoners have habeas rights) have already established that the Bush administration failed to establish a case against 23 of the 26 prisoners whose cases have been reviewed to date (see The Ordeal of the Wrongly Imprisoned Uighurs, After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims, and Guantánamo’s Forgotten Child). In my opinion, based on three years of detailed research, the majority of the prisoners could be released within a far shorter timescale.

The other outstanding problem -- the 60 or so prisoners who were cleared for release by the Bush administration, but who cannot be repatriated because of treaties preventing the return of foreign national to countries where they face the risk of torture -- is not specifically addressed. I anticipate that other countries may be willing to accept some of these cleared prisoners, but am disappointed that Obama did not mention the Uighurs, as he can send an extraordinarily positive message to the rest of the world by accepting these 17 innocent men into the United States, as Judge Ricardo Urbina ordered in October, before he was overruled by an appeals court.

The resuscitation of the Geneva Conventions is, of course, long overdue and gratefully received, and should -- and must -- lead to an improvement in the living conditions of those still detained, who are held, for the most part, in conditions of isolation more severe than those endured by convicted criminals on the US mainland. However, the refusal to commit explicitly to transferring those regarded as genuinely dangerous (somewhere between 35 and 50 of those still held) to trials in a federal court leaves the option open that a revised version of the Military Commissions, or a brand-new legal system, will be proposed instead. This is deeply troubling, as the long and bitter lessons of the last seven years should have established that novel trial systems are an inadequate and dangerous substitute for established laws, as the President well knows. In August 2007, he stated explicitly, “Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.”

Executive Orders on Interrogations and Detention Policy Options

The second Order establishes that the questioning of prisoners by any US government agency must follow the interrogation guidelines laid down in the Army Field Manual, which guarantees humane treatment under the Geneva Conventions, and, of course, prohibits the use of torture. Reverting to the “requirements” of the Federal torture statute, the UN Convention Against Torture, Common Article 3 of the Geneva Conventions and other legislation and treaties, the Order states that “in all circumstances” prisoners will be “treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment).”

As a result, the Order states, “All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order.” The Order also specifically revokes President Bush’s Executive Order 13440 of July 20, 2007, which “reaffirm[ed]” his “determination,” on February 7, 2002, that “members of al-Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war,” sought to grant himself the right to “interpret the meaning and application of the Geneva Conventions” as he saw fit, and also sought to exclude the CIA from any oversight whatsoever.

It also orders the CIA to “close as expeditiously as possible any detention facilities that it currently operates,” adding that the agency “shall not operate any such detention facility in the future,” and orders all departments and agencies of the government to allow representatives of the International Committee of the Red Cross to have “timely access” to all prisoners.

And finally, the Order establishes a Special Interagency Task Force on Interrogation and Transfer Policies, to evaluate “whether the interrogation practices and techniques in the Army Field manual, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidelines for other departments or agencies.” The Task Force is also required to evaluate “the practices of transferring individuals to other nations,” to ensure that they do not face torture.

Related to this is a third Order, establishing another Special Interagency Task Force to provide an overview of detention policy options, which is charged with “conducting a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice.” Both Task Forces are to report their findings in the next six months.

The verdict

The majority of the Order regarding interrogations is a triumphant return to the rule of law, achieved by revoking all the “executive directives, orders, and regulations” that manifested the Bush administration’s slippery zeal for allowing torture, by insisting on adherence to the Army Field Manual, which prohibits the use of physical violence, and, as above, by returning to the Geneva Conventions, with their prohibitions on “cruel and inhumane treatment” and coerced interrogations. However, although a sweeping repudiation of these documents is a start, I look forward to further detailed analysis from the White House regarding the secret memos and presidential orders that purported to justify the Bush administration’s flight from the law and its attempts to justify torture.

And while it is wonderful to read that the CIA is obliged to close all secret prisons, it is absolutely imperative that this announcement is swiftly followed by the establishment of a robust means of accounting for the unknown number of prisoners (PDF) subjected to “extraordinary rendition” and torture, either in prisons run by the CIA or by other governments prepared to lend their torturers to the United States.

In addition, while the Order establishing a Task Force to overview detention policy insists that only “lawful options” are pursued, the Task Force on interrogation and transfer policies seems to be set up to find ways in which “extraordinary rendition” can be justified -- though not, admittedly, on an industrial scale -- and also seems designed to “recommend … additional or different guidance” for agencies outside the military, which is troubling, of course, as this, in essence, is exactly what has been happening for the last seven years, with such dire results. The President should resist all calls for exceptions to lawful procedures, and confirm, categorically, his absolute commitment to non-coercive methods of interrogation, which have a proven track record. See, for example, the Human Rights First report (PDF) examining 107 terror trials on the US mainland, and Jane Mayer’s article on the FBI’s interrogation of an-Qaeda informant.

I should also note that, just two weeks ago, psychologist and anti-torture activist Jeffrey S. Kaye explained, in an article for AlterNet, that, though widely praised by everyone in the new administration, including President Obama, the revised version of the Army Field Manual contains an Appendix that apparently keeps the door open for the use of the same torture techniques taught in US military schools to train US personnel to resist interrogation that were implemented by the Bush administration and that led directly to the widespread abuse of prisoners in Guantánamo, Afghanistan and Iraq, as a Senate Armed Services Committee report explained last month.

Presidential Memorandum on the Detention of Ali al-Marri

In the memorandum, President Obama ordered the Justice Department to conduct a review of the status of Ali al-Marri, a legal US resident, who has been held for five years and eight months in total isolation as an “enemy combatant” in the US Naval Brig in Charleston, South Carolina. As he noted, “Al-Marri is the only individual the Department of Defense is currently holding as an enemy combatant within the United States.” Explaining why he ordered the review, he wrote, “Because he is not held at Guantánamo Bay, al-Marri is not covered by the review mandated in the Review and Disposition Order [the Presidential Order relating to Guantánamo]. Yet it is equally in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal basis for al-Marri’s continued detention, and identify and thoroughly evaluate alternative dispositions.”

The verdict

Unlike the executive orders, which had been signposted well in advance, the memo was unexpected, but is long overdue. As I explained in a detailed article last month, the torture of al-Marri and his long isolation, which is more severe than any other “War on Terror” prisoner that I know of, is a disgrace, and should be deeply troubling to all Americans, especially as the 4th Circuit Appeals Court ruled last summer that the President not only had the right to indefinitely detain al-Marri as an “enemy combatant” without charge or trial, but that the principle extended to any American.

My hope, therefore, is not only that Obama brings al-Marri’s confinement to an end, but also that he acts to reverse the decisions that have enabled prisoners to be held as “enemy combatants” on the US mainland. Slightly complicating matters is the fact that, last month, the Supreme Court agreed to hear al-Marri’s case, but as his lawyer, Jonathan Hafetz, explained to the Associated Press, he “had already agreed earlier this week to the government's request for a one-month delay,” but didn’t want the case “pushed back so far that it is not heard before the Supreme Court finishes its work in the summer.” He added, however, "Any objective review will necessarily show that al-Marri's current detention as an enemy combatant is illegal. It's inconceivable that the Obama administration could defend this detention while proclaiming fidelity to the rule of law."

In conclusion, then, these three Orders and the memo are a bold start -- and they would, of course, have been unthinkable just a few days ago -- but more detail is required, dangerous loopholes must be shut off permanently, and other parts of the Bush administration’s dark legacy need to be swiftly addressed; in particular, the Authorization for Use of Military Force, passed by Congress in September 2001, which was used by the administration as a green light for the exercise of unfettered executive power; the military order of November 2001, which established the President’s right to seize and hold indefinitely anyone he regarded as an “enemy combatant,” and which also established the Military Commissions; and the Military Commissions Act of 2006 (PDF), which resuscitated Dick Cheney and David Addington’s reviled trial system after the Supreme Court ruled it illegal in June 2006.

Andy Worthington is a British historian, and the author of 'The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison' (published by Pluto Press). Visit his website at: www.andyworthington.co.uk He can be reached at: andy@andyworthington.co.uk - Sri Lanka Guardian