Just when it seemed that President Obama’s paralysis regarding Guantánamo couldn’t get any worse — with any further trials or prisoner releases apparently on permanent hold because any other course of action would be politically inconvenient — the House of Representatives and the Director of National Intelligence have stepped in to make the prospect of closing Guantánamo even more remote.
Congress has an extremely poor record when it comes to Guantánamo, having pretty much endorsed whatever cruel and illegal nonsense came its way during the Bush years, and having demonstrated, in 2009, that it had no interest in any reforms proposed by President Obama.
Last October, by 258 to 163 votes (with the majority including 88 Democrats), the House of Representatives backed a motion proposed by Rep. Hal Rogers (R-Ken.), which was designed to "[p]rohibit the transfer of GITMO prisoners, period," and which, in Rep. Rogers’ words, was concerned with "protecting the American people from all threats … including the warped intentions of terrorists and radical extremists." It was telling that Representatives would vote in such large numbers for a motion based on such unsubstantiated information, given that there is no confirmation whatsoever that the majority of the prisoners held at Guantánamo are, or have ever been, "terrorists and radical extremists."
Under pressure from the administration, the Senate foiled this plan, voting, by 79 votes to 19, to allow the administration to bring prisoners to the US mainland to face trials, as part of a $42.8 billion bill for Homeland Security, although no cleared prisoner could be resettled on the US mainland by the country that had wrongly imprisoned them in the first place — a veto that, it should be noted, was also endorsed by Obama’s Justice Department, the D.C. Circuit Court, and by President Obama himself, when he quashed a plan by White House Counsel Greg Craig to bring a handful cleared prisoners — out of 17 Uighurs, wrongly imprisoned Muslims who could not be returned to China because of the risk of torture — to live in the United States.
The House of Representatives’ plan to keep Guantánamo open
Last week, the House of Representatives was at it again, voting by 212 votes to 206, as part of a $1.1 trillion appropriations bill, to prohibit the President from spending any money to transfer prisoners to the US mainland or to acquire facilities to hold them on US soil.
In the two relevant sections of the bill, those who drafted the legislation took particular aim at the administration’s plans to hold federal court trials for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, which were announced by Attorney General Eric Holder last November, but delayed by the President in the face of widespread opposition, and also at plans, announced last December, to buy a prison in Illinois to house prisoners designated for trials (34 at present) — and, more contentiously, 48 other prisoners designated for indefinite detention without charge or trial.
Cleared prisoners — the 33 or so men awaiting third countries prepared to offer them new homes, because of fears of torture in their home countries, and because of the US ban on housing them in the US — would remain at Guantánamo, as would the 58 Yemenis cleared for release, who are now held as political prisoners because of a moratorium that President Obama announced last January, in response to widespread hysteria following the news that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen.
There was no word about what would happen to the one man who had been convicted in a trial by Military Commission — Ali Hamza al-Bahul, sentenced to life in November 2008 for producing a promotional video for al-Qaeda, after a one-sided trial in which he refused to mount a defense — but it was presumed by commentators that he would continue to be held at Guantánamo (even if the prison closed around him), and in the last six months he has been joined by two others — Ibrahim al-Qosi, a sometime cook for al-Qaeda, who accepted a plea deal in summer and is expected to serve just two more years, and Omar Khadr, the Canadian former child soldier, who accepted a plea deal in October, and who will be transferred to Canadian custody next October.
The first of the two sections in the appropriations bill that refer to Guantánamo (Section 1116) states, "None of the funds made available in this or any prior Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee who (1) is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense."
The second (Section 2210) states, "None of the funds provided to the Department of Justice in this or any prior Act shall be available for the acquisition of any facility that is to be used wholly or in part for the incarceration or detention of any individual detained at Naval Station, Guantánamo Bay, Cuba, as of June 24, 2009."
How House Democrats were fooled — and Obama was asleep at the wheel
What is particularly ridiculous about the vote is not so much that the House of Representatives contains so many elected representatives who are opposed to the President’s plans because they are either fearful and credulous about Guantánamo, or cynical and fearmongering, but, as The Hill reported on Thursday, that many Democrats in the House of Representatives had not even bothered to read the bill, and had failed to notice the two sections, and, moreover, that neither President Obama nor Eric Holder had alerted the House about its contents either.
As The Hill explained:
[Many] Democrats, including Rep. Jim Moran (D-Va.), a member of the defense appropriations subcommittee, said they didn’t even know the provision was included. Moran’s anger with the president boiled over in a short interview Thursday with The Hill about the provision and the tax debate held shortly after the Democratic Caucus voted to reject Obama’s tax-cut deal. "This is a lack of leadership on the part of Obama," fumed Moran "I don’t know where the f*** Obama is on this or anything else. They’re AWOL."
Most Democrats didn’t know the provision was included in the continuing resolution until the rule for the bill hit the floor, when liberal members began defecting in large numbers. Rep. Jane Harman (D-Calif.), a leading voice on national security issues, and the four top Democrats on the Judiciary Committee found out during the vote on the rule, Moran said. At one point, the rule governing the bill was hanging by just one vote while Majority Leader Steny Hoyer (D-Md.) and Speaker Nancy Pelosi (D-Calif.) rushed around the floor doing damage control.
As The Hill also reported, Eric Holder finally responded the day after the vote, calling on the Senate to remove the provisions in the bill when they come to vote on it. The Hill explained that, in a letter, Holder "called the move an unprecedented grab of executive authority by Congress," and stated, "We have been unable to identify any parallel … in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes." He did not, however, explain why, as Jim Moran explained, the administration was "AWOL" when it came to recognizing the poison pills tucked away in the bill.
Another unsubstantiated "recidivism" report
While we wait to see whether the Senate will indeed remove these two sections, supporters of Guantánamo secured another propaganda victory last week when the Office of the Director of National Intelligence, headed, since August 5 this year, by Lt. Gen. James R. Clapper, issued a "report" — actually a two-page "Summary of the Reengagement of Detainees Formerly Held at Guantánamo Bay, Cuba" — which was about as damaging to the government’s plans to close Guantánamo as it was possible for a report to be. It makes me wonder who is running the show when Clapper, the former head of the Pentagon’s National Geospatial-Intelligence Agency, "played a key role in promoting the Bush administration’s claim that Iraq had weapons of mass destruction prior to the 2003 invasion," as Democracy Now! explained in August.
I have previously complained about the Pentagon’s tendency to produce unsubstantiated claims about the "recidivism" of released Guantánamo prisoners, which are then promoted enthusiastically by a mainstream media that loves shocking headlines for their own sake, and is prepared to abandon all pretense that they exercise journalistic rigor when presented with propaganda by the Pentagon. The last example of this distressing trend was in January this year, when the Pentagon claimed — without providing any supporting evidence whatsoever — that 1 in 5 of the prisoners released from Guantánamo had returned to militant activities.
Last week, again without providing any evidence, the Director of National Intelligence, "consistent with direction in the Fiscal Year 2010 Intelligence Authorization Act," reported that, of the 598 detainees released from Guantánamo, "The Intelligence Community assesses that 81 (13.5 percent) are confirmed and 69 (11.5 percent) are suspected of reengaging in terrorist or insurgent activities after transfer." The assessment also noted, "Of the 150 former GTMO detainees assessed as confirmed or suspected of reengaging in terrorist or insurgent activities, the Intelligence Community assesses that 13 are dead, 54 are in custody, and 83 remain at large." It was also noted that, of the "66 individuals transferred since January 2009″ — under President Obama, in other words — "2 are confirmed and 3 are suspected of reengaging in terrorist or insurgent activities."
Predictably, the assessment’s own claims were amplified in subsequent headlines, which failed to distinguish between "confirmed" and "suspected" terrrorists or insurgents. Fox News ran with "25 Percent Recidivism at Gitmo," and there was an unhinged, and completely inaccurate report on GOP USA, which claimed, in defiance of what had actually been proposed, "Guantánamo recidivism rate skyrockets under Obama early release program." However, even the New York Times, which was badly stung last year when it ran a front-page story backing a claim that 1 in 7 released prisoners were recidivists, failed to report the story accurately. Although the Times' headline was the modest, "Some Ex-Detainees Still Tied to Terror," the article itself stated that the report "offered the most detailed public accounting yet of what the government says has happened to former Guantánamo detainees, a matter that has been the subject of heated political debate."
"The most detailed public accounting yet"? The report provided no such thing, and the Times reinforced its journalistic failures by refusing to ask who these 150 men might be. We know of a handful of suspected — and disputed — recidivists in Russia, of a dozen or more in Saudi Arabia, of a Kuwaiti who became a suicide bomber, and of Afghans who resumed their opposition to the US — or took up arms for the first time — after their release, and we also know that some of these men were released because they fooled the US authorities in Guantánamo, and their captors were too arrogant to liaise with the Afghan authorities, who would have known who they were.
Why "recidivists" are not necessarily terrorists
However, there are three major problems with this current assessment: firstly, "suspected" terrorists or insurgents is a remarkably vague claim for an intelligence assessment, and is, I would suggest, worthless; secondly, the only way that this report could be remotely accurate would be if 3 out of every 4 released Afghans had taken up arms against US forces; and thirdly, focusing on the word "terrorist" — even in those unsubstantiated cases which are apparently "confirmed" — rather tends to obscure the fact that, if released Afghans are fighting against US forces, it may be that this is because they are from a country that is still under US occupation.
In conclusion, I have seen no evidence to suggest that more than a few dozen released prisoners have ever engaged in anything that could honestly be labeled "terrorism." It may well be that dozens of released Afghan prisoners are fighting the US in their home country, but if so, the hysteria that is allowed to flourish at the mention of this information reveals a major failing on the part of the Obama administration.
In sitting back and continuing to hold prisoners at Guantánamo under legislation passed the week after the 9/11 attacks — the Authorization for Use of Military Force — the Obama administration persists in endorsing the false basis of the "War on Terror": that al-Qaeda and the Taliban are, essentially, interchangeable. It is distressing that such a damaging piece of propaganda as this latest report should emerge from the Office of the Director of National Intelligence under Obama’s very nose, but it is more distressing that, by refusing to tackle the fundamental detention problem head-on — telling the American people in no uncertain terms that Guantánamo held, and in some cases continues to hold, a small number of criminal suspects (terrorists) and a far larger number of soldiers, as well as all the innocent men rounded up for bounties — the administration continues to foster and allow the type of counter-productive hysteria that regards all Guantánamo prisoners, past and present, as terrorists, when this has never been the case.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, "Outside the Law: Stories from Guantánamo" (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.