Obsidian Wings

Indefinite Detention

by hilzoy

From the Washington Post:

"Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said. (...)

Under one White House draft that was being discussed this month, according to administration officials, detainees would be imprisoned at a military facility on U.S. soil, but their ongoing detention would be subject to annual presidential review. U.S. citizens would not be held in the system.

Such detainees -- those at Guantanamo and those who may be captured in the future -- would also have the right to legal representation during confinement and access to some of the information that is being used to keep them behind bars. Anyone detained under this order would have a right to challenge his detention before a judge."

This is a very puzzling article. It has some good news: for instance, that Obama has rejected the idea of national security courts. This is good: the idea of trying to construct an entire new set of courts, all of whose procedures could be litigated until eternity, is crazy, and why we need a new court system has never been adequately explained. If the administration has rejected that, that's good news. 

Then there's this: 

"One administration official said future transfers to the United States for long-term detention would be rare. Al-Qaeda operatives captured on the battlefield, which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn of Africa, would be held in battlefield facilities. Suspects captured elsewhere in the world could be transferred to the United States for federal prosecution, turned over to local authorities or returned to their home countries.

"Going forward, unless it's an extraordinary case, you will not see new transfers to the U.S. for indefinite detention," the official said."

Ken Gude of the Center for American Progress comments:

"Congress has already approved traditional law of war detention in the Authorization to Use Military Force of 2001. The Supreme Court sustained military detention authority of those detainees captured in zones of active combat in 2004 in Hamdi v. Rumsfeld, so President Obama is on firm legal ground should he choose to limit military detention to those circumstances. (...)

This would be a significant shift from the Bush administration’s policy that swept into U.S. military detention virtually anyone suspected of terrorist activity captured anywhere in the world. It would restore the bright line between criminal and military detention, a crucial distinction to preserve not just in the United States, but also in other countries that look to or use the U.S. as an example."

That's not entirely right, I think. First, I'd like to see a very clear definition of "the battlefield", to prevent future reversions to Bush's doctrine that it was the entire world. This should not be left up to the discretion of the President. Second, this allows for exceptions to the rule that future detainees will be either held as prisoners of war, transferred to the US for trial, turned over to local authorities, or sent home. Those exceptions should not be "rare", or reserved for "extraordinary cases"; they should be nonexistent.

Finally, of course, there's that little bit about "going forward". Those detainees that the administration believes that it can neither try nor release could be held indefinitely, according to this policy. That is, of course, the elephant in the room. And it's just wrong.

In this country, we have what we call "laws". When you break a law, you can be tried, and, if the government can prove your guilt beyond a reasonable doubt, you can be sent to jail. If the detainees in question have not actually violated any laws, then it's hard to see why we propose to detain them. If they have, and we cannot prove it beyond a reasonable doubt, then we should ask: why not? 

If we don't have convincing evidence against someone, we should not detain him. If we do have such evidence, but it was obtained under torture and the person we tortured will not repeat it in court, then it is unreliable. If we have evidence, but revealing it would compromise "sources and methods", then we're in a pickle, but not an insoluble one. We might allow a judge to review that evidence in camera. We might decide that convicting this person is worth compromising some of our secrets. We could try to find more evidence that we could disclose. But we do not get to just detain someone indefinitely. 

No President should have that power. Period.

I sympathize with Obama's not wanting the Congress to pass legislation on this topic. They have been horrible on these issues so far, and I see no reason to think that they would change. (And, yes, Obama has been awful too, but the Congress has been even worse.) If he somehow has to obtain the power to detain people indefinitely, and it's legal to do it via executive order, fine.

I also don't envy him the politics of it. Obviously, if some released detainee commits an act of terror against the US, all hell will break loose. And the costs of that will not be purely political: people might not get health insurance, or we might be unable to act on global warming, if some released detainee decides to blow himself up in an American city. I wish that my fellow citizens were also moved by the wrongness of keeping people who might be innocent locked up without recourse, but apparently not enough of them are.

But that doesn't make it right. Obama does not have to do this. The rule of law is one of our most basic values. It underwrites the freedoms that we go on and on about, but are apparently unwilling to risk much of anything to preserve. 

Shame on him if he does this. And shame on us.

Fish!

by hilzoy

From the Toronto Star (h/t CharleyCarp):

"After almost eight years of captivity, each step of Khelil Mamut's freedom is a little overwhelming.

The ocean, which he could hear only on windy days when the waves crashed beyond Guantanamo's razor wire rimmed fence, is now something he can wade into.

People call him by his name, not 278, his internee serial number.

Then there was the horse he saw while walking one of the island trails on Thursday, the day he and three other Chinese citizens of the Muslim Uighur minority arrived in Bermuda. The animal made him stop suddenly, just to stare.

"How can I express it," he said yesterday, describing the new tropical home where he now lives with the three other former Guantanamo detainees. "It is so great, so beautiful."

"This may be a small island," added Abdullah Abdulqadir. "But it has a big heart.""

That's Khelil Mamut on the left right, with the fish. Salahidin Abdulahat is on the right. They look happy. So am I. 

Bermuda Does What We Will Not

by hilzoy

Yesterday, four of the Uighur detainees at Guantanamo were transferred to Bermuda. Some or all of the rest might go to Palau. Apparently, the British government is upset, and some Bermudans are worried about the effects on the tourist industry:

""When an American is watching an ad (for Bermuda) it hits my mind as an American, they saw the level of intense media attention, I say to myself, 'Hmm, that's the country that accepted Guantanamo Bay detainees' ... This is a fact, mark my words, tourism will be affected by this," said Donte Hunt, a deputy party chairman for the United Bermuda Party, the government's opposition party.

But the Bermudan government defended its decision to take the Uighurs, who the U.S. feared would face torture if sent to China. Minister of Education, Elvin James, a staunch ally of Prime Minister Ewart Brown, lamented the attention that's been paid to the nation, but said the "constant criticism" is unfair. 

"If we have people here who are homeless, does it not mean we can take care of four more? ... That's the love we need to show here today," James said during a boisterous parliamentary session that mimics the British system. 

"We have people here, taken against their will, proven to be innocent, and now they want a chance to survive and earn a decent living," James said, earning loud laughter from opponents."

I'm glad for the four who are free: it's about time. I only wish my own country had done as much, instead of acting like cowards.

Shameful

by hilzoy

From the Washington Post:

"The Obama administration, picking up the argument of its predecessor, is opposing the release of Chinese Muslim detainees at Guantanamo Bay into the United States.

In papers filed with the Supreme Court late Friday, the administration says a group of Uighurs (pronounced WEE'-gurz) are being lawfully held at the U.S. Navy base in Cuba even though they are not considered enemy combatants. (...)

The Uighurs' "continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States," Solicitor General Elena Kagan told the court.

The men are held apart from the other detainees, in the least restrictive conditions, Kagan said. "They are free to leave Guantanamo Bay to go to any country that is willing to accept them," she said."

The administration's brief is here (pdf). One note: I think it's not quite accurate to say that the administration is "opposing the release" of the Uighurs in this brief; it is arguing that it cannot be compelled to do so by court order. That said:

I have no idea whether or not the administration's argument is correct as a matter of law. Moreover, I don't care. Whatever the law says about whether it can be forced to admit the Uighurs, the administration has the right to admit them voluntarily. If it cannot find another country that is willing to take them, then it should.

We set up a system that gave people incentives to turn over people they claimed were foreign fighters, whether they were or not. We then dismantled all our normal procedures for separating combatants from non-combatants. It should not surprise anyone that we ended up detaining people who were innocent. 

I have no problem with the government taking some reasonable period of time to try to identify another country that is willing to take detainees who cannot be returned to their own countries. But these detainees have been held for seven and a half years. That's not a reasonable amount of time to tie up loose ends; it's a tenth of a normal lifespan. 

We screwed up. We should step up to the plate and do what's right. Seven and a half years is too long.

And one other thing: the administration says this about the Uighurs: "Petitioners would like the federal courts to order that they be brought to the United States, because they are unwilling to return to their home country." (p. 11) As Registan notes, this is false. The reason we cannot send them back to China is not that they are "unwilling" to go back; it's that we believe, with good reason, that they would be tortured or killed if they were repatriated. That means that it would be illegal for us to send them back. 

It's also a bit disingenuous for the administration to argue that the Uighurs are free to leave. The Bush administration has previously argued that they cannot be set free in Guantanamo, for the perfectly good reason that Guantanamo is a military base, and we do not normally allow people free access to military bases. 

Smooth Operator

by publius

I'll be honest -- I'm a bit frightened of David Petraeus's political and media savvy.  This guy is good.  I just watched him on Fox News and was very impressed with his answers on everything from Gitmo to torture to the ability of our legal system to try detainees.  The video is here, but I've posted some excerpts from the rough transcript:

On closing Gitmo:

What I do support is what has been termed I think a responsible closure of Gitmo.  Gitmo has caused us problems -- there's no question about it. I oversee a region in which the existence of Gitmo has indeed been used by the enemy against us.  We have not been without missteps or mistakes in our activities since 9/11.

On trying detainees in the US:

I don't think we should be afraid to live our values.  That's what we're fighting for.  It's what we stand for and so indeed we need to embrace them and we need to operationalize them in how we carry out what it is we're doing on the battlefield and everywhere else. So one has to have some faith I think in the legal system.  One has to have a degree of confidence that individuals that have conducted such extremist activity would indeed be found guilty in our courts of law.

On opposing torture:

PETRAEUS:  [F]or the vast majority of the cases our experience . . .is that the techniques that are in the army field manual that lays out how we treat detainees, how we interrogate them -- those techniques work. That's our experience in this business.

FOX NEWS:  So is sending this signal that we're not going to use these kind of techniques anymore . . . What kind of impact does that have on people who do us harm in the in the field that you operate in?

PETRAEUS:  Well actually what I would ask is -- does that not take away from our enemies a tool which again they've beaten us around the head and shoulders in the court of public opinion. When we have taken steps that have violated the Geneva convention, we rightly have been criticized.  And so as we move forward I think it's important to . . . live our values, to live the agreements that we have made in the international justice arena into practice.

Very smooth.  Obviously, that's all good stuff.  But I'm a little wary of relying too much on any argument that begins, "Well, I'm right because General Petraeus says X."  Most obviously, he is a direct subordinate of Obama -- just like he used to be a direct subordinate of Bush back when he was saying arguably unhelpful things about the surge.  And more generally, I don't like the idea of relying heavily on the public statements of active military officials in political policy debates. 

But I do think this passage shows Petraeus's political dexterity.  He's someone who can go on Fox News and articulate Obama's political message, while simultaneously retaining the sympathies of all parties. 

If he ever runs for anything, I hope it's not as a Republican.

Let's Hope For Lying

by publius

Like everyone else, I've been disturbed by the political posturing surrounding Gitmo.  The criticisms of closing Gitmo, in particular, seem completely insincere given that (1) our prisons can and do hold dangerous people; and (2) Gitmo is essentially the United States for habeas purposes after Boumediene. 

But there's actually one thing even more disturbing than Republican dishonesty -- the possibility that they are sincerely afraid of transferring the detainees.  Some critics are clearly lying -- no argument there.  But it may well be that other Republicans are sincerely worried that the detainees' evilness cannot be contained by any prison, or that they will brainwash their hapless prisonmates.

The reason sincerity would be more disturbing is because it would illustrate just how successful the sustained fear-mongering and monster-creating has been over the past few years.  One of the great errors we made after 9/11 was that we were simply too afraid.  We too readily believed the worst.  Under this barrage of fear-mongering, the Gitmo detainees (many of whom were and are completely innocent) were transformed into all-powerful monsters with superhuman abilities.

And the more we see the world as full of powerful forces with the will and ability to kill us all, the more inclined we will be to accept extreme measures to protect ourselves.

In a prior post, I called this "demand side" torture support.  To win the political battle, we need to not only show that torture is wrong, illegal, and counterproductive.  We also need to show that the threats have consistently been extremely overblown (e.g., from the mushroom cloud to the Uighurs).

Anyway, what's truly disturbing is that a sizeable chunk of the public still fears that the Gitmo detainees are so dangerous that they could break out and destroy towns in America with laser beams from their eyes.  Some of the detainees are, of course, very bad and dangerous people.  But the idea that America is so very fragile and helpless in the face of these overpowering evil forces that we can't transfer the detainees to another prison (or give them real trials) is absurd.

So let's hope the GOP really is lying on this one.

The Contrast

by publius

Cheney’s “I ♥ Torture” speech was, if nothing else, a clarifying moment.  Like a painting that captures the essence of a historical age in a single image, today’s split screen of Obama and Cheney reflected the very essence of the torture debate.  And the contrast couldn’t have been clearer – the men, the values expressed, the appeals to our better and baser selves.  It was all right there – in that single image – for all the future to see.

As for the speeches, they pretty much speak for themselves.  It was refreshing to hear an American President deliver that speech.  In fact, it made me proud to hear it.  As for Cheney’s, there’s not much to say.  We’ve heard that song many times.  It’s not exactly news that today’s GOP has cast their lot (and legacy) with torture.  They’ve enthusiastically and unapologetically embraced it for some time now.  And that’s a stain that will stick. 

But that we knew.

There was one part of Cheney’s speech that disturbed me though.  From listening to Cheney (and others), you get the sense that they are now rooting for another terrorist attack.

In that respect, Cheney’s speech was more than a retroactive defense of past criminal acts.  He was looking ahead.  He was setting up the political chessboard to attack Obama and the Democrats in a particularly poisonous way if – God forbid – we are attacked again. 

Jim Geraghty at National Review (via Sullivan) explains it well:

But in a nutshell, the Cheney argument is, "it worked." . . . The standard has been set; Obama is now tinkering with the methods. They're betting a lot — not just their chance at a second term, but the lives of you and me — that they can get the same results with different methods. We will see....

If there is another successful and terrible terror attack, either on U.S. soil or on a U.S. target abroad, the immediate moment will be too terrible to hear the words "I told you so." But if, God forbid, that day comes, we will know that indeed Dick Cheney did tell us so.

It’s a pretty neat trick.  The Bush/Cheney administration radicalizes a new generation of terrorists through actions like torture and unnecessary wars.  Then, when the blowback comes, they’ll try to blame it on someone else – specifically, on the people trying to clean up their mess.  It's like dousing a house with gasoline, and then blaming the cleanup crew when someone comes along with a match trying the burn the thing down.

One of the many problems with the Cheney/Geraghty logic is that the Bush administration’s methods can’t be judged strictly on short term results – just like the effects of smoking cigarettes can’t be judged purely in the short term.  The blowback from these actions takes years or even decades to fully materialize (see, e.g., USSR vs. Afghanistan in the 1980s).  God only knows, for instance, how many battle-hardened terrorists we’ve created and trained in the “classroom” of Iraq.  And who knows what they’ll do. 

But anyway, a terrorist attack will happen one day.  When it does, Cheney and his followers announced today that they will seek to divide the country based on fear and hate and paranoia – just like they did in 2002. 

That's why you can't ignore the debate.  Even if it goes away for a while, it will inevitably come back.  Like the final showdown with Vader, it can’t be avoided.  It must be faced – and politically defeated.

And that’s exactly what Obama tried to do today.  To his credit, he got right up and forcefully articulated why his vision – our vision – is correct.  He met the Cheney arguments head-on, and shied from none of them.  It was not a defensive speech.  In that sense, it was the polar opposite of what people like Tom Daschle said in 2002.

Obama’s going to disappoint me as President at times.  But he sure didn’t today.  He showed me that he’s not scared to fight hard on this most critical of political fronts.  It’s a very promising sign.

The Uighurs: Coda

by hilzoy

Newt Gingrich talking to Chris Wallace on Fox News (h/t):

"WALLACE: Well, let me get -- let' take one example, the Chinese Uighurs, Chinese Muslims...

GINGRICH: Right.

WALLACE: ... who were arrested in Afghanistan, brought to this country. The Pentagon says they're not enemy combatants. At least one federal judge has said they're not a threat. But if they go back to China, they're going to be prosecuted.

GINGRICH: Why is that our problem? I mean, why -- what -- if the -- if the -- what -- what is it -- why are we protecting these guys? Why does it become an American problem?

WALLACE: So what, send them to China and...

GINGRICH: Send them to China. If a third country wants to receive them, send them to a third country. But setting this precedent that if you get picked up by Americans -- I mean, the Somalian who was recently brought here who's a pirate -- I mean, if you get picked up by the Americans, you show up in the United States, a lawyer files an amicus brief on your behalf for free, a year later you have citizenship because, after all, how can we not give you citizenship since you're now here, and in between our taxpayers pay for you -- this is, I think -- verges on insanity."

Obviously, we can't send them back to China. They would be tortured or killed there, and knowing that, we are forbidden under international law to send them there. 

The Uighurs became our problem when we imprisoned them. We were the ones who set up a system whereby we paid bounties to people for turning in foreign fighters. We were also the ones who decided (pdf),against decades of precedent, not to hold Article 5 Tribunals to determine which of the people we captured were actually combatants and which were not. That is: we set up a system in which people had incentives to turn in the innocent, and then we decided that we could dismantle our normal systems for telling the innocent from the guilty.

We have kept these men in jail for seven and a half years. They have wives and families who spent (pdf) the first four years of their imprisonment not knowing whether they were dead or alive. Some of them have children they have never met -- children who are seven years old now. If this is not our problem, I do not know what is.

I was brought up to believe that when I made a mistake, I should admit it and try to do whatever I could to make it right. I think this is true of me, and I think that it is true of my country. We should not let innocent people languish in prison just because we are afraid, despite all evidence to the contrary, that they might do something bad. It's foolish -- it's not as though no one will be able to keep track of the Uighurs if they are released. But more than that, it's cowardly and ignoble. 

I would hope that my country is better than that. I hope that we have the minimal decency not to allow ourselves to be convinced by demagogues that we should be afraid to admit our mistakes and try to make things right. I would hope that we would actually investigate charges that people were "trained mass killers instructed by the same terrorists responsible for killing 3,000 Americans on September 11, 2001" before we decided to let them rot in jail for no good reason. 

I'd hope we would have the grace to do this even if the person making the charges wasn't someone who blamed liberals for a murder in which a woman cut another woman's abdomen open and stole her unborn child.

And I would hope that politicians would show some leadership and remind us that we are better than this. (Here I want to give a shout-out to Rep. James Moran, who has been very strong on this issue.) We do not have to be at the mercy of our most groundless fears. We do not have to let bullies like Newt Gingrich or blowhards like Jonah Goldberg dictate the terms of debate.

We can be better than that.

My main motivation for doing this is just the thought: the Uighurs are innocent, and they deserve better than this. But it's also worth noting what rides on this, and what is, I suspect, motivating some of the politicians who are using the Uighurs to score political points. 

Barack Obama wants to close Guantanamo. To do so, he needs to find countries to take some of the detainees in. Many countries are quite understandably asking: if the United States won't take them in, why should we? 

The Uighurs are the most obviously innocent of all the detainees. Uighur communities have offered to take them in and help them resettle. There are a lot of things in their favor. If Republicans block their release in this country, they can block the release of any detainee in this country. And if they do that, then the task of closing Guantanamo down will become much, much more difficult, perhaps impossible.

We should not let that happen without a fight.

The Uighurs: Compilation

by hilzoy

This is a post compiling the questionable and/or false claims that have been made about the Uighurs. It contains a few things I have not said in any of my earlier posts, but its main purpose is to collect these points in one convenient location. I have tried to be thorough; those of you who are already bored with this topic might want to skip this one. 

As before, I'm taking Newt Gingrich's column as my starting point, since it conveniently collects these false or questionable claims in one piece of irresponsible prose. Here are the claims Gingrich makes; I've added numbers to his claims for convenient reference.

"Seventeen of the 241 terrorist detainees currently being held at Guantanamo Bay are Chinese Muslims known as Uighurs. These Uighurs have been allied with and trained by al Qaeda-affiliated terrorist groups. (1) The goal of the Uighurs is to establish a separate sharia state. (2) (...)

At Guantanamo Bay, the Uighurs are known for picking up television sets on which women with bared arms appear and hurling them across the room. (3) (...)

By their own admission, Uighurs being held at Guantanamo Bay are members of or associated with the Eastern Turkistan Islamic Movement (ETIM) (4), an al Qaeda-affiliated group designated as a terrorist organization under U.S law. (...) (5)
 
Prior to 9/11, the Uighurs received jihadist training in Tora Bora, Afghanistan, a known al Qaeda and Taliban training ground. (6) What's more, they were trained, most likely in the weapons, explosives and ideology of mass killing, by Abdul Haq, a member of al Qaeda's shura , or top advisory council. (7) President Obama's own interagency review board found that at least some of the Uighurs are dangerous. (8) (...)

Even if you accept the argument made by their defenders that the Uighurs' true targets are Chinese, not Americans, it does nothing to change the fact that they are trained mass killers instructed by the same terrorists responsible for killing 3,000 Americans on September 11, 2001. (9)"

The Uighurs: 5

by hilzoy

Ryan Grim at the Huffington Post talks to the Uighurs' translator, Rushan Abbas, about their reaction to Newt Gingrich's column:

"Gingrich pushed further in an op-ed, claiming that '[b]y their own admission, Uighurs being held at Guantanamo Bay are members of or associated with the Eastern Turkistan Islamic Movement (ETIM), an al Qaeda-affiliated group designated as a terrorist organization under U.S law."

No, they have never admitted that, says Abbas, adding that the Uighurs call the claim "baseless, factless slander against them." Abbas returned from Guantanamo Monday. She now works with the Uighurs' defense attorneys.

The Uighurs call relatives in the United States and Europe often, she says, so stay up on the news. They were surprised to hear the accusation from the former Speaker of the House.

"Why does he hate us so much and say those kinds of things? He doesn't know us. He should talk to our attorneys if he's curious about our background," Abbas relates. "How could he speak in such major media with nothing based in fact? They were very disappointed how Newt Gingrich was linking them to ETIM which they never even heard of the name ETIM until they came to Guantanamo Bay."

The Uighurs are apparently under the misconception that American columnists are fact-checked for accuracy. "They just cannot understand," she says. "How come the media doesn't even verify the story? How could they just publish something like that without checking whether what he says is true or not?""

Beats me. 

Grim also says this about the story about the Uighurs smashing a TV set that showed a woman with bare arms:

"Abbas, however, says that the detainee who went off on the TV has already been released to Albania and that it had nothing to do with any bare arms. Rather, he had repeatedly requested to speak to camp supervisors and had been ignored, so he chose to cause a scene. Scandling said Wolf's account of the TV smashing came from a story in the L.A. Times."

I had heard that as well, after writing my last post on the subject, and was waiting for confirmation before publishing it. Note not just that neither an objection to bare arms nor any other sort of Islamic fundamentalist anything had anything to do with it, but also that the detainee in question is presently living peaceably in Albania. That means that even if you don't think, as I do, that it is perfectly understandable that someone who had been imprisoned unjustly for seven and a half years might throw a TV to the ground in frustration, and even if you overlook the many US citizens who have tossed the odd appliance around during (say) a bar fight without thereby showing themselves to be terrorists, there is no need to worry about any TV-throwing Uighurs being released into the US. The only Uighurs still in Guantanamo have never thrown any TVs at all.

I can only hope that I would have shown that much forbearance.