Encouraged by his campaign, we shared the hope that the election of Barack Obama would mean restored respect for the rule of law and human rights. So also we envisioned a Justice Department no longer captive to the partisan agenda of the Executive. We were therefore heartened when, on day one of his administration, President Obama signed executive orders mandating the closure of the detention facility at Guanta'namo in a year and banning the torture practices labeled "enhanced interrogation techniques." These measures, along with a rhetoric promising transparency and accountability, augured well for a decisive break with Bush-era policies.
Yet, in the last eighteen months, our hope for change has been almost entirely drained. The achievement of what should be modest goals, such as the closure of Guanta'namo, now lies in grave doubt. The Obama administration and the Holder Justice Department have sustained many of the most objectionable of the Bush policies. The administration has consistently acted to accommodate the fear mongering and belligerence of the rightwing, rather than to fulfill its mandate to restore fairness and justice. Our country now stands at a crossroads. Its current path risks entrenching policies inimical to the Constitution and American values. We are reaching out to you in hope that it is not too late to turn in the direction President Obama first promised.
Below we outline areas of our
greatest concern, highlighting how the Obama
administration and DoJ have worked against their stated intentions and proper charge.
The detention facility remains open long after the deadline for its closure. Men cleared for release continue to languish there, as do some who have had federal judges rule that there are no valid grounds for their detention. This is unacceptable. If Guanta'namo was, on day one, a foreign policy liability and a stain on the rule of law, it remains so eighteen months later.
We appreciate the difficulties in closing the camp. The Republican leadership and rightwing media consistently distort key facts and stoke public fear, making rational discussion about the camp's fate difficult. Still, this is no excuse for the failure to close it. As habeas petitioners continue to win their hearings, as a fuller picture of the detention of innocent men emerges, and as evidence of the role of Guanta'namo, Abu Ghraib, and other ills in radicalizing America's enemies mount, the rationale for closing the prison only grows stronger.
Moreover, the Obama administration and the Department themselves have had a hand in the current morass. We make note here of the Department's tragic decision to challenge [Judge] Ricardo Urbina's ruling in October 2008 that 17 Uighurs at Guanta'namo be released immediately into the United States. Had the DoJ let that ruling stand, allowing the Uighurs to peacefully settle here, foreign governments may have been more willing to take in men from Guanta'namo. Further, their resettlement would have pre-empted the baseless argument sweeping through Congress that bringing men from Guanta'namo into the United States in all cases represents an intolerable security threat.
In addition, the administration continues to erect obstacles to forestall the repatriation even of men allied to governments who have done everything the United States has asked to guarantee that they pose no security risk. Documenting such delays with respect to his Kuwaiti client [Fayiz al-Kandari], Lt. Col. Barry Wingard recently concluded that "the US's ever-increasing demands have now entered the realm of the absurd."
We should add that the DoJ's invocation of qualified immunity, political question doctrines and state secrets privilege to block lawsuits concerning extraordinary rendition and torture (as in Arar v. Ashcroft, et. al.) has not only denied the plaintiffs a chance at restitution, but prevented an accounting of how some of those detained -- far from "evildoers" -- are themselves victims of American incompetence and cruelty.
Finally, the administration has never publicly refuted the Pentagon's grossly exaggerated tally of detainees "returning to the battlefield" upon release from Guanta'namo. As Professor Mark Denbeaux has shown [PDF], the Pentagon's numbers are based in flawed methods, such as counting speech acts critical of US policy as evidence of "recidivism." Quoting these baseless numbers, pundits and politicians perpetuate the myth of a "revolving door" from Guanta'namo to terrorism. In general, the Obama administration has let stand the big lie regarding Guanta'namo: that it always housed, and continues to house, the "worst of the worst." With the entire prison population stigmatized this way, the principled resolution of the fate of the men imprisoned there remains remote.
Bagram and Habeas Corpus
The problem with Guanta'namo is not the physical existence of the prison, but the effort to contrive areas outside the boundaries of U.S. and international law. To maintain "legal black holes" elsewhere perpetuates the Guanta'namo problem. The prison at Bagram Air Force Base in Afghanistan is one example. We have learned, by virtue of a FOIA request, the names of men detained at Bagram. However we do not know their nationalities, the circumstances of their capture, or what evidence, if any, warrants their detention (leaked [Maj. Gen. Doug] Stone report indicates 400 of 600 should never have been detained and should be immediately released). Nor do Bagram prisoners have proper legal counsel. It may be that many of those prisoners, like those at Guanta'namo, were detained on flimsy bases. But without more information about them, as well as a system for assessing the validity of their detention, we will never know. Further, Bagram has been the subject of allegations of gross physical abuse -- including the fatal beating of captives -- beyond what is alleged to have taken place at Guanta'namo.
The recent ruling holding that men captured away from the Afghan battlefield but brought to Bagram have no habeas rights is distressing; we are appalled that the Department of Justice would even contest the lower court judgment. The new ruling substantially undoes the victory for the rule of law that the 2008 Boumediene decision represents, reviving Bush-era conceits of executive power. We understand that prisoners captured in war have not historically enjoyed habeas rights. But all such prisoners are entitled, according to the Geneva Conventions, to an expeditious and competent hearing to determine the validity of their detention. This is a right that the Bush administration systematically denied. The Combatant Status Review Tribunals fell far below minimum standards of due process, and were rightly rejected by the Supreme Court in favor of habeas hearings. The spirit of Boumediene is the proposition that "war on terror" suspects should have a legitimate chance to argue the wrongfulness of their detention, and that this opportunity should exist for all suspects, regardless of where they are imprisoned. Given the frequent imprisonment of innocent men, nothing inspires confidence that one could dispense with the habeas process.
The Obama administration has taken the dangerous position that foreign nationals can be captured nearly anywhere in the world, brought into an active war zone, and denied the ability to plead their innocence. This position validates the reckless view that the United States is less safe if it takes prudent steps to ensure that it does not detain innocent men.