- On Wednesday, January 21, his first work day in office,
President Obama began the task of removing the stain of Guantanamo. In
a motion filed in the military court trying the case of five defendants
accused of organizing the 9/11 attacks he asked for "a continuance
of the proceedings" until May 20. That would give his team time to
decide how to proceed not only with the case on trial but with other cases
as well. The judge in that trial refused to go along, but the Pentagon
and all other judges involved have agreed.
- That suspension has two main values. First, it avoids
a situation in which trial procedures of questionable fairness and legality
would interfere with President Obama's effort to make a clean policy break
with the Bush administration abuses. Second, it gives the President time
to shape the policies for carrying out his promised end to the sordid Guantanamo
chapter. In the process he can begin to shape policies correctly to govern
future detention of terrorism suspects.
- However, moving on to some post-Guantanamo political
clear space is not a simple matter, and the President is right in suggesting
it may take a year to get it done. The real questions concern how his presidency
will get rid of the Guantanamo stain on America's reputation. Critical
steps are required to achieve that outcome.
- President Obama needs permanently to end the show trials
in tribunals that have much to do with vengeance and nothing to do with
justice. One of the worst features of the Bush team approach to terrorism
was insistence that terrorists could not be dealt with as criminals. The
fact is that most of the world-with the major exceptions of the United
States, Israel and some well-known dictatorships-considers terrorism a
crime and deals with it through law enforcement processes.
- The Bush team wanted to set terrorism apart from crime.
Treating it as a crime subject to law enforcement processes had no political
pizzazz and would not justify a war. Moreover, his team argued that so
called enemy combatants-previously called terrorists-had forfeited their
legal rights; therefore, they were not entitled to a fair trial. The scale
of 9/11 caused much of the American public to close its eyes to the legal
travesties that resulted.
- With several moves Bush trashed America's legal centerline.
Lead chapters of the Guantanamo story were written through (1) indefinite
detention without charges, (2) confinement under subhuman conditions, (3)
torture to extract information, (4) rendition to other countries where
brutal torture was known to be common practice, and (5) use of the tainted
information obtained by torture in courts that do not afford due process.
- While Guantanamo has been a US facility for over a century,
Bush officials argued that it is not American territory; it belongs to
Cuba, so US law would not apply there. Thus, Guantanamo became a legal
no-man's land. US prison keepers could and did make up their own rules.
Common practices included keeping prisoners in small cells open to the
elements, keeping prisoners standing in extreme positions for long periods,
waterboarding (dunking and near drowning) to extract information, and holding
some in cells so small that prisoners could barely sit in a cramped position.
All these and other inhumane practices came to light with the exposure
of prisoner treatment at Abu Ghraib in Iraq.
- Guantanamo became schizophrenic, because normally US
policy is that US law applies to personnel who serve on US bases abroad.
Such a requirement is written into status of forces agreements (SOFA) with
other governments in countries where our forces are stationed. However,
there has never been a SOFA with Cuba, and US laws appear to have applied
to the conduct of US personnel in every respect except their treatment
of enemy combatants who were brutalized, kept incognito, and not allowed
to communicate with outsiders.
- President Obama needs to bring all prisoners held by
the United States into the justice system. The notion that a terrorist
is more dangerous or more deranged than the criminal who walks into a university
or high school classroom and mows down dozens of students simply does not
stand up under any serious examination. Actually few terrorists are distinguishable
from ordinary people until they carry out an attack; that indeed is part
of the problem. Destruction of the Federal Building in Oklahoma City was
a terrorist crime for which the perpetrator went to prison after being
found guilty in a US court of law.
- The destruction of the World Trade Centers was a public
crime that was viewed by a large share of the world population. Any surviving
perpetrators, as and when they are properly identified, should be put on
an equally public trial, and, if found guilty, should be subjected to punishments
that are well-established in American law. That should be the future of
the five alleged 9/11 planners now awaiting trial in Guantanamo
- US adherence to international law must be restored. US
abuses of prisoners at Guantanamo violated international agreements the
United States was instrumental in establishing. That includes Common Article
III of the Geneva Conventions on the treatment of prisoners of war-ratified
by the United States. Included as well is the UN Convention on Torture
which the US has signed but not ratified. The United States cannot regain
its historic position as a defender of human rights unless it complies
fully with these accords, as well as with US laws and regulations, including
the US Army Field Manual that explicitly subscribes to the Geneva Conventions
rules that prohibit torture.
- President Obama has to end the practices of rendition
and torture abroad. Rendition is defined-by Wall Street Journal and others-as
the practice of seizing terror suspects abroad and sending them to third
countries for interrogation. Secret flights of unmarked aircraft to Egyptian,
Jordanian, Moroccan and other foreign prison keepers who routinely use
torture must stop. That includes detention of prisoners by the US at such
bases as Diego Garcia in the Indian Ocean. In the eyes of the rest of the
world, so long as reports keep coming in about such renditions of prisoners
to any location on the planet, all assertions about the cleanup of Guantanamo
will be disbelieved, as indeed they should be.
- On January 22, Obama signed executive orders that set
new rules of the game. The orders specify putting an end to Guantanamo,
ending torture, and closing US secret prisons in various parts of the world.
Thus, on their faces the orders were hailed as slamming a door on several
controversial Bush policies. However, the new rules refer only to treatment
of individuals_ detained in armed conflict _.
- In future cases, Leon Panetta told the Senate Intelligence
Committee during his confirmation hearing to head the CIA, prisoners would
not be moved in old style renditions to other countries, but they could
be returned to their countries of origin to be dealt with by those governments.
In many cases individuals became terrorists because of the injustices or
crimes of their home governments. That includes the well-known torturer
governments, and a threat to return individuals to their home countries
could itself be a form of torture. In fact, that threat could be a big
stick in US interrogations of detainees.
- The new Obama rules would not help the great majority
of people who have been detained at Guantanamo. "Armed conflict"
conventionally means warfare, i.e. battlefield conflicts. Thus, unless
there is some language that is not yet public, the new rules would exclude
people detained in connection with covert operations, counterterrorism
or counter-insurgency activities. That means such attacks as US raids into
Yemen and Syria to eliminate alleged al Qaida officials, as well as periodic
US bombing raids on alleged militants in Pakistan would continue.
- The President created a cabinet level task force under
the leadership of the Attorney General to review all Guantanamo cases.
The task force will be dealing with detainees in three categories: (a)
Those who have no charges against them and are releasable; (b) those against
whom there is apparently enough evidence for trial; and (c) those loosely
labeled by anonymous officials as "untryable", but not safely
- This third category appears to consist of individuals
whose case information was obtained by torture or about whom all incriminating
information is tainted. Under a system of due process, such cases would
probably not lead to convictions, but the individuals may still be considered
dangerous. This may, as critics suggests, lead to a Kafkaesque situation
in which people spend their lives in confinement because the government
is afraid to let them go. How this will turn out for all the cases awaits
the work of the task force.
- In deciding the cases, Obama as well as members of his
team do not want to be tagged with releasing the individual who carries
out the next terrorist attack. Much is being made in media of the case
of Said Ali al-Shihri who was released from Guantanamo and reportedly joined
al Qaida in Yemen. One bad apple in the large barrel that Bush created
at Guantanamo is likely to be below probable cases of recidivism. Genuine
grievances have been generated, and how to detox those situations is part
of the Obama team challenge.
- Dealing with the threat of terrorism is a genuine problem
and cautionary approaches are prudently in order. Fear of an attack with
weapons of mass destruction is the horror driving this train. Finding and
detaining individuals who are known to have violent plans or who are associated
with or involved in the management of people with such plans are absolute
requirements. Holding them out of public view is also in order. The task
is to do all those things in a framework of laws and respect for human
- Guantanamo, Abu Ghraib, Diego Garcia and other rendition
sites have contaminated the American justice system and will have to be
systematically-and publicly-expurgated for the world to believe the United
States has cleaned up its act. There is, legally speaking, no difference
between holding someone illegally for a period of weeks versus holding
them so for a longer period, except possibly the penalties to be imposed
on those who carry out such unlawful confinements.
- Properly disposing of Guantanamo is central to the cleanup.
The overall Bush team case for using Guantanamo was a scary legal proposition:
American officials (a) detaining foreign nationals (b) in the security
interests of the United States (c) on a facility strictly controlled by
Americans (d) were not required to honor the US Constitution in dealing
with the rights of those individuals. The Bush team legal bottom line added
that neither did international agreements such as Common Article III of
the Geneva Conventions apply to detainees in Guantanamo.
- Obama apparently is being pressed by some advisers to
keep the Bush system. The situation is politically difficult. If he cleans
up the Bush mess and then the United States is attacked again, his critics
will say he should have left well enough alone. That may be the most absurd
of /post hoc ergo propter hoc /conclusions, but he and his supporters could
be made to pay politically anyway.
- An immediate challenge is to deal fairly and effectively
with the existing detainees most of whom have never been charged with any
crime. He needs both a sound legal and a humanitarian way to deal with
those detainees. Both domestic and foreign hard liners will be pressing
him, however, to keep them confined because by being confined they have
- A part of the challenge is for Obama to be bold enough
to apologize for US mistakes in these detentions, and then make suitable
amends. Finding them homes in other countries may be a step in the right
direction, but the Guantanamo stain goes with the released detainees, and
few countries are comfortable with former alleged terrorists in their midst.
- What could happen in some cases is that released detainees
may be transferred from one cell to another with no benefit of a fair legal
procedure anywhere. Relying on War on Terrorism allies to give US detainees
a trial and punishment under local laws-for crimes the US could not prove
they committed---does not seem a constructive outcome.
- The Guantanamo stain must be removed. An international
mediator/ tribunal may be needed to sort the remaining cases, make decisions,
if any, about risks and culpabilities, and assist in rehabilitation and
placement. These are matters for international consideration and cooperative
agreement, not merely for unilateral American decision making.
- The ghosts of American injustice must be purged from
the environment in some enduring manner. Whether the Americans themselves
can achieve that result is at least questionable. There is a perverse logic
in the argument that people are likely to do us harm because we unjustly
confined them, and therefore we should go on unjustly confining them. That
perversity is not removed by transferring responsibility for unjust confinement
to a willing War on Terrorism ally. The real work here must focus on how
those individuals get rehabilitated and reintroduced into whatever society
they eventually enter. This is a vital part of the Obama acid test, and
the stain of Guantanamo cannot be erased without it.
- On reading the first edition of this article, John Whitbeck,
a friend, attorney and Middle East pro emailed the following judgment about
how to mitigate the consequences of unjust imprisonments: "Any
Guantanamo detainee against whom the United States has not
been able to formulate a prosecutable case (even by a kangaroo commission!)
after all these years should receive a personal presidential apology and
at least a million dollars (plus an annual annuity, which could be made
subject to future "good behavior") in compensation and be resettled
(with his immediate family if he has one) in the United States or any other
country he prefers which will take him. The same apology and financial
compensation should be extended to those who have already been released
without charges from Guantanamo. Similar if not identical treatment should
be accorded to long-term detainees released without charges from Bagram
and other hellish American detention facilities in Afghanistan, as
well as from CIA 'black sites'".
- Whitbeck was not sanguine that the United States could
ever recover its reputation. However, he concluded that action along the
foregoing lines "should convince the world (notably the Muslim
world) that America has really changed, as well as reducing (if not completely
eliminating) the risk that those who have been held and persecuted unjustly
will wish to hit back once they get a chance."
- The Obama administration can do much to reduce both
the risks and the future intensity of terrorist attacks by admitting the
Bush era mistakes and compensating the victims. Both steps will help to
enable those victims to fit back into civil society.
- President Obama or any future American President has
a recognized need for surveillance of politically violent individuals and
sub national groups. That requires covert operations and sometimes demands
capture and confinement of dangerous players. However, performance during
the Bush era demonstrated that the agencies charged with such work cannot
always be counted on to follow the rules, especially where the captured
individuals may well be viewed by their captors as people of less than
equal status, stateless persons, or citizens of unfriendly states.
- The obvious problem, exposed most blatantly by the behavior
of the Bush administration and its collaborators, is how to keep the system
honest. The Foreign Intelligence Surveillance Act created the FISA court
system to provide that oversight in domestic spying cases. As Whitbeck
put it: "No country which even purports to respect the rule of law
should even consider imprisoning anyone without charges indefinitely."
What is needed is a FISA court-like body to oversee US detentions
and renditions of foreign nationals. There should be no exceptions to the
oversight by this body over all US-held international detainees. While
there would be predictable objections to the idea, the International Court
of Justice should be extended a watching brief.
- As the final act of US redemption for its human rights
abuses there, Guantanamo should be closed and the land should be returned
to the Cuban people.
- As an historical footnote, the US enjoys Guantanamo on
the cheap. The original agreement in 1903 specified an annual lease charge
of 2,000 gold coins. Since the most common gold coin of the time was the
quarter-ounce $5.00 gold piece, the lease charge would have been $10,000
per year. However, a newer lease signed in 1906 specified $2,000 per year.
When Fidel Castro asked for return of the base in 1959, the US said no,
and since that date the US has sent Cuba an annual check for $5,000, about
$11 per square mile for the 450 square mile property. The Cubans have never
cashed these checks. At a mere inflation adjusted rate, the current rental
on the base would be about $800,000 or about $1,800 per year per square
mile. By contrast, the US has paid the British a reported $40 million dollars
for use of Diego Garcia the main island of which is less than 30 acres.
- The writer is the author of the recently published work,
A World Less Safe, now available on Amazon, and he is a regular columnist
on rense.com. He is a retired Senior Foreign Service Officer of the US
Department of State whose overseas service included tours in Egypt, India,
Sri Lanka, the Philippines, and Brazil. His immediate pre-retirement positions
were as Chairman of the Department of International Studies of the National
War College and as Deputy Director of the State Office of Counter Terrorism
and Emergency Planning. He will welcome comment at