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Lisa Hajjar
Lisa Hajjar
Lisa Hajjar is a professor of sociology at the University of California
Obama inherits and embraces a 'legal mess'
From Guantanamo to Bagram prison in Afghanistan, Obama has broken his promise to end torture and illegal detention.
Last Modified: 10 Sep 2011 15:04
When President Obama came into office, he promised to close Guantanamo prison down within a year, three years later, most of its inmates remain in a state of indefinite 'limbo' [GALLO/GETTY]

Days after the terrorist attacks of September 11, 2001, the Bush administration started making decisions that led to the official authorisation of torture tactics, indefinite incommunicado detention and the denial of habeas corpus for people who would be detained at Guantánamo, Bagram, or "black sites" (secret prisons) run by the CIA, kidnappings, forced disappearances and extraordinary rendition to foreign countries to exploit their torturing services.

While some of those practices were canceled when Barack Obama took office in January 2009, others continue to characterise US detention policy in the "war on terror". Even the canceled policies continue to stain the record because there has been a total failure to hold the intellectual authors of these illegal practices accountable or to provide justice for the victims of American torture and extraordinary rendition.

This five-part series traces the detention policy debacle as it has evolved over the last ten years.

Part 4: Obama inherits, embraces a "legal mess"

Barack Obama campaigned for president on the promise that he would end torture and restore the rule of law, which had been upended by policies instituted by the Bush administration. When he won the 2008 election, there was hopefulness among those who were inspired by his message that the US detention policy debacle would come to a quick end.

On his second day in office, President Obama signed executive orders to shutter CIA black sites and close Guantanamo within one year [GALLO/GETTY]

On January 22, 2009, President Obama's second day in office, he nourished that hope by signing executive orders to suspend the military commissions (with the stated intention of moving trials into federal courts), to shutter the CIA's black sites and require the Agency to adhere to 2006-revised Army Field Manual for interrogations, and one pledging to close Guantánamo within one year.

The same day those orders were signed, in anticipation of a change in official policy, District Court judge John Bates invited lawyers representing the new administration to notify the court if the government intended to alter its position in Maqaleh v. Gates, a case seeking to extend habeas rights to prisoners at the Bagram facility in Afghanistan.

The answer came on February 20: No. The government "adheres to its previously articulated position".

Hope takes a beating

Thus, to the chagrin of those hoping for change, in his first month President Obama had decided to embrace one of the most ignominious features of the Bush administration detention policy - which he had condemned as a Senator and promised to end. Obama, like Bush, took the position that foreigners abroad can be held in captivity for years with no right to contest their detention.

Advocates for a restoration of the rule of law were also disappointed by the president's avowal to "look forward, not backward". This mantra signaled that on his watch there would be neither a thorough and public investigation of the detention policy debacle nor accountability for the authorisation of torture and abuse.

In order to implement his executive order to close Guantánamo, President Obama formed an inter-agency task force headed by White House counsel Greg Craig to come up with a plan.

The assumption in early 2009 was that closing this blighted symbol of injustice would not be controversial. Even former President George W Bush and Republican presidential contender John McCain had expressed their support for closure.

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As Craig and his team started planning how to disperse Guantánamo detainees, they realised that it would be easier to persuade other countries to accept those who had been cleared for release if the US also accepted some.

This position was being pressed by the State Department as well. Craig proposed bringing in two Chinese Uighers who could not be repatriated to their own homeland because China would imprison them as ethnic dissidents. His team was also working on a plan to transfer prisoners slated for prosecution to custody in a mainland prison, a necessity in light of President Obama's suspension of the military commissions.

When word of the Craig team plans leaked, critics accused the administration of putting American safety at risk by bringing terrorists into the country. Bipartisan political support for the closure of Guantánamo quickly transformed into demands to keep the facility open.

Congressional leaders from both parties demonstrated their disapproval to make the US a destination for any detainee by refusing to provide funding to close the facility.

Looking forward, acting backward

Dick Cheney, the secretive former vice president, became a voluble critic of the Obama administration's efforts to reform Bush policies that he had played a major role in crafting.

In numerous media interviews and speeches to defend the previous administration's record, he delivered the message that White House-approved brutal interrogation tactics (which, in his view, are "tough" but not "torture") had produced excellent intelligence that had kept the nation safe, and he admonished the new administration for sacrificing security by relinquishing methods that work.

In defiance of the public record, including the bipartisan Senate Armed Services Committee report of 2008 that documented errors and failures of the detention policy, Cheney insisted that "our enhanced interrogation programme ... [was] used on hardened terrorists after other efforts failed ... [The use of these methods] prevented the violent death of thousands, if not hundreds of thousands, of innocent people." Cheney has recycled the torture-kept-us-safe canard in his newly published autobiography, In My Time.

On May 21, 2009, President Obama responded to increasingly shrill and partisan criticism by delivering a national security speech. He was blunt about the "legal mess" he inherited and the complicated problems of cleaning it up.

There are, he explained, five categories and courses of action for Guantánamo prisoners: First, those who violated the laws criminalising terrorism would be prosecuted in federal courts. Second, those who violated the laws of war would be prosecuted in military commissions. Thus, Obama rescinded his suspension of the commissions but promised that the system would be reformed to exclude evidence elicited through torture or cruel, inhumane and degrading treatment. (A new Military Commissions Act was passed by Congress in October 2009.)

The third and fourth categories Obama identified were, respectively, people who can and must be released because they have been deemed to pose no terrorist threat (like the Uighers), and those who can be transferred to custody in other countries.

Many of the prisoners in Guantanamo and Bagram are eventually found to pose no real threat to US security and are released [GALLO/GETTY]

Fifth, those posing what he termed "the toughest problem" are "people who cannot be prosecuted yet who pose a clear danger to the American people". With this, he seemed to suggest that he was considering the embrace of indefinite detention without trial.

On November 13, 2009, Attorney General Eric Holder announced plans to prosecute Khalid Sheikh Muhammad (KSM) and four other 9/11 suspects in New York City. Holder explained that this was the scene of the crime and that federal courts are best equipped to deal with complex capital cases. Within weeks of Holder's announcement, support for these trials from New York officials evaporated.

Criticism of this plan was cemented with Congressional legislation barring the use of federal funds to try Guantánamo detainees within the US.

White House Chief of Staff Rahm Emanuel, who regarded the whole detention policy issue as a political minefield for Democrats rather than a matter of grave legal importance, sought to strike a deal on Guantánamo with Republican Senator Lindsey Graham, a strong advocate of keeping the facility open.

Political expediency prevailed over legal principle: By the end of Obama's first year, plans to close Guantánamo had been scrapped and the military commissions were back in business. Craig resigned under pressure after clashing with Emanuel, and Holder was increasingly marginalised from White House policy making on detention issues.

On March 7, 2011, President Obama signed an executive order establishing a formal system of indefinite detention which, he announced, would apply to at least 48 of the detainees at Guantánamo. The reason some people deemed dangerous were unprosecutable was explained as "evidentiary problems" that might hamper a trial. Those problems are, for the most part, the taint of torture and abuse.

On April 4, 2011, the administration finally conceded defeat on Holder's plan for the five 9/11 suspects when military commission charges were filed against them, although to date no trial has been scheduled. The Justice Department filed a motion in Kiyemba v. Obama arguing that the Supreme Court should decline to hear the Uighers' appeal to have their court-ordered release enforced by a court; they had refused to be resettled in Palau and wanted to come to the US where there are communities of Uighers.

On April 18, the government motion prevailed. The five remaining Uighers and dozens of other cleared prisoners at Guantánamo are trapped in a limbo-like state of unfreedom by the politics that stripped the great writ of any legal remedial force.

Detention debates

The ongoing national debate about torture, terror and the law intensified following the 2009 Christmas Day attempt by Umar Farouk Abdulmutallab, a Nigerian, to detonate explosives in his underwear while traveling on a transatlantic flight bound for Detroit.

Critics excoriated Holder for allowing Abdulmutallab to be read his Miranda rights and for not subjecting him to "enhanced" interrogation or shipping him off to Guantánamo.

The critics ignored two facts in their enthusiasm to see the old policies restored: The Bush administration had followed an identical course of action with Richard Reid, the "shoe bomber", and Abdulmutallab provided information to FBI interrogators who used conventional methods when questioning him.

In May 2010, following a failed attempt to detonate a bomb in New York City's Times Square, Pakistani-born US citizen Faisal Shahzad was removed from a plane as he was about to fly out of the country. Again, Holder was criticised for providing constitutional protections for a (non-white, non-Christian) terrorist arrested within the US.

That these events could be treated by so many officials and commentators as evidence of the "need" to subject terror suspects to torture should be unsurprising for a country that had failed to face the truth about the actual record of torture's inefficacy.

The most ridiculous intervention to justify keeping Guantánamo open was provided by Republican Senate Majority leader Mitch McConnell. On July 11, 2011, McConnell tried to connect the fact that a Florida jury had acquitted Casey Anthony of charges alleging that she had murdered her daughter Caylee by claiming that this proved the value of the military commissions, suggesting that civilian juries were too unreliable to keep Americans safe.

The actual record of terrorism prosecutions could not be more different from the fantasies of military commission enthusiasts.

In contrast to the handful of people who have been prosecuted by the commissions at Guantánamo, federal courts have prosecuted over 300 domestic and international terrorism suspects over the last 10 years. For example, Shahzad, who was tried in federal court, received a life sentence on October 5, 2010, five months after he was arrested.

Secrecy and denial Obama-style

President Obama's "looking forward, not backward" posture functions as a form of official denial. This commitment to unaccountability differs from the Bush administration's preference for denial through euphemisation and stonewalling on demands for information. But the results are the same.

"[The definition of physical torture excludes anything less than] the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Jay Bybee, in the "torture memos"

The Obama administration has maintained and managed the refusal to thoroughly investigate or acknowledge past crimes by relying on heavy-handed classification and other efforts to block public access to information deleterious or embarrassing to the US government. Indeed, this has become the most secrecy-addicted presidency in US history.

When the CIA's Office of the Inspector General report was finally released in August 2009, excessive redactions made it impossible to glean a clear understanding about how the torture program had grown and spread.

The report by the Justice Department's Office of Professional Responsibility (OPR) that investigated the role that lawyers in the Office of Legal Counsel (OLC) played in formulating the torture policy-which was completed but not released under President Bush-was withheld (without explanation) until February 2010.

As astute observers had expected, the OPR report contained substantial evidence that OLC lawyers had colluded with the White House to "legalise" unlawful tactics. The authors of the draft report concluded that this constituted "professional misconduct," which could have led to disbarment proceedings against them.

In the case of Jay Bybee, who signed the infamous August 1, 2002, "torture memos" that narrowed the definition of physical torture to exclude anything less than "the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death" and authorised tactics already in use by the CIA, it could have led to his impeachment from the bench of the Ninth Circuit.

But instead of allowing that honest and accurate conclusion to be adopted in the final report, Holder authorised David Margolis, a Justice Department official whose own career would be implicated by the damning assessments in the draft, to make the final determination. Margolis decided that the lawyers whose work had been investigated had merely exercised "poor judgment," taking them off the disbarment hook.

In an internationalised effort to block public access to damaging information, the Obama administration threatened to suspend bilateral counter-terrorism cooperation with Britain if documents detailing Binyam Mohamed's extraordinary rendition and torture were entered into evidence as part of his suit against British officials who colluded with the CIA. That effort failed: In February 2010, the British High Court rejected the Labour government's appeal to keep segments of the documents classified and they were published.

The Obama administration emulated its predecessor's strategies to bar exposure of state crimes through litigation and to derail cases brought by torture victims.

In a February 2009 hearing in a civil suit by five victims of extraordinary rendition (including Mohamed) against Jeppesen Dataplan, the company whose planes had transported them to torture, rather than taking the opportunity to restore the pre-Bush meaning of the states secrets privilege as the government's right to limit specific sensitive pieces of information or evidence, the lawyer from the Solicitor General's office stated that there would be no change in the government's position to invoke state secrets in order to bring an end to the suit.

In May 2010, the administration filed a motion opposing the Supreme Court from hearing the appeal of Maher Arar's civil suit against former Attorney General John Ashcroft and other officials responsible for his rendition to Syria where he was brutally tortured at the behest of the US.

In June, the government won when the Court declined to hear Arar's case.

No more torture?

In November 2009, the media began reporting International Committee of the Red Cross (ICRC) concerns about continuing torture in Afghanistan. In April 2010, the BBC broadcast testimonies of nine prisoners who said they had been subjected to beatings, sexual humiliation, sleep deprivation, isolation and other stress and duress tactics at a facility on the Bagram airbase called the "Tor Jail", which translates in Pashtu as the "black jail".

Bagram airbase in Afghanistan is referred to as the 'Tor jail' which translates in Pashtu as the 'black jail' [GALLO/GETTY]

On May 11, the ICRC confirmed the existence of a secret facility to which it has no access. And on October 14, the Open Society Foundation (OSF) published an investigative report into these allegations. Eighteen of the 20 released detainees who were interviewed by OSF had been detained at the black jail, half of them in the period since President Obama took office.

The secret facility is run not by the CIA but by the Defense Intelligence Agency and the Joint Special Operations Command (JSOC), which has authorisation to use interrogation methods detailed in Appendix M to the Army Field Manual. Appendix M is designed to achieve debility, disorientation and dread upon capture, and contains tactics otherwise expunged from US interrogators' playbook.

When news about Tor jail broke, Pentagon officials initially denied its existence.

As more information and evidence accreted, the Obama administration played the euphemism card, asserting that it is an "interrogation facility", not a "detention site", and therefore neither does the ICRC have a right to access those held there nor do the regular interrogation rules apply. Similar allegations of abuse have emerged about JSOC operations at undisclosed forward operating bases in Afghanistan.

People taken into US custody in Afghanistan can be held isolated and incommunicado at secret sites for an initial 30 days, and this can be extended for up to 90 days. The US is the only NATO country with forces in Afghanistan that permits protracted off-the-books detention; all others either release detainees or transfer them to Afghan custody within 96 hours.

Obama's wars

President Obama has taken ownership of the detention policy debacle that he inherited.

At the start of his presidency, when the presumption was that Guantánamo would be closed, critics sought to draw attention to Bagram, the main US-controlled prison in Afghanistan, by referring to it as "Obama's GTMO" because it shares many of the problems and features that earned the Cuba-based prison the excoriating nickname "the legal black hole", including indefinite detention and the denial of habeas rights for prisoners.

On January 27, 2009, Secretary of Defense Robert Gates testified before the Senate Armed Services Committee that the number of Bagram detainees was in the "ballpark" of 615. The Pentagon refused to release their names, nationalities, dates or sites of capture.

Such stonewalling and secrecy were reminiscent of the Bush administration's position on Guantánamo where the identities of detainees had remained classified until 2006. (The complete list was leaked by a military lawyer, Matt Diaz, in a 2005 Valentine's Day card sent anonymously to the Center for Constitutional Rights. In 2007, Diaz was court martialed and sentenced to a six-month jail sentence.)

Read the rest of Lisa Hajjar's five-part series:

- Part 1: US detention post-9/11: Birth of a debacle
- Part 2: The US detention policy: Exposing the dark side
- Part 3: The 'War on Terror' goes to court
- Part 5: America's dention policy turns ten

In September 2009, the America Civil Liberties Union (ACLU) submitted a Freedom of Information Act (FOIA) request for information about all detainees confined at Bagram. In January 2010, the Pentagon released a list 645 names - the number at the time the FOIA request was submitted, not answered - but redacted all other information.

One of the Obama administration's inheritances was Maqaleh v. Gates, the habeas case involving four petitioners who were arrested elsewhere, transferred into Afghanistan and imprisoned at Bagram.

They are Fadi al-Maqaleh, a Yemeni who was 20 when he was arrested in 2003; Haji Wazir, an Afghan currency trader who was arrested in 2002 in Dubai where he had a shop; Amin al Bakri, a Yemeni gem trader who was arrested in Thailand in 2002; and Redha al Najar, a Tunisian who was arrested at his home in Karachi, Pakistan, in 2002.

The lawyers representing the petitioners - whom they have never been permitted to meet - are seeking to extend the Supreme Court's 2008 decision in Boumediene v. Bush to Bagram. In that case, the court decided that Guantánamo prisoners have a constitutional right to habeas because the US exercises "de facto sovereignty" at the naval facility.

The critical question is whether or not Bagram is "like" Guantánamo. The Bush position had changed after Boumediene, shifting from the claim that Guantánamo and Bagram were the same to claiming that the latter is different because it is in a war zone.

As noted above, in February 2009, the new Obama administration stated its intention to follow the Bush administration's course on this one.

After facing legal problems with closing Guantanamo bay, President Obama decided to follow Bush' policies on the matter [GALLO/GETTY]

 

On April 2, 2009, Judge Bates issued his opinion in which he stated that the petitioners in Maqaleh "are virtually identical to the detainees in Boumediene". He applied the multi-factored analysis that the Supreme Court had devised in Boumediene: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.

On these grounds, Bates dismissed the habeas petition of Wazir because he is an Afghan national, despite that he had been rendered from Dubai into Afghanistan for reasons the government never explained.

But for the other petitioners, Bates decided, federal courts do have jurisdiction to consider their habeas petitions: They are foreign citizens of other countries, and the Unlawful Enemy Combatant Review Board (UECRB) process at Bagram is even more deficient than the Combatant Status Review Tribunal (CSRT) process instituted in July 2004 after the Supreme Court's Rasul v. Bush decision.

Under the review process instituted at Bagram in 2005, detainees were not permitted to attend their own hearings or to access even a summary of the government's allegations against them. In April 2008, they began to be notified of hearings and granted the right to appear and speak on their own behalf.

Bates also reasoned that Bagram is like Guantánamo because US control over the facility is "practically absolute."

He interpreted the Supreme Court's intention in Boumediene to limit "the specter of limitless Executive power", ruling that the petitioners should not be deprived of habeas rights because the government had decided to transport and imprison them in an active theater of war. He wrote that it "strains credulity to believe that it is impractical to provide meaningful process to detainees held at a large, secure military base, like Bagram, under complete US control."

The Obama administration appealed the ruling.

"[D]etainees' 'personal representatives' are uniformed US soldiers with no legal background or training in the culture or language of the detainees they represent."

Daphne Eviatat and Gabor Rona of Human Rights First (HRF)

On May 21, 2010, a three-judge panel on the DC District Court unanimously overruled Bates' decision on the grounds that Bagram is not like Guantánamo because it is in an active theater of war, there is no similar long-term occupancy nor any indication that the US wants to maintain permanent control, and the Afghan government, unlike Cuba, is an ally in the war.

They rejected Bates' contention that due process at Bagram was not impractical, contending instead that the extension of federal judicial oversight could be disruptive of military operations. And they pointedly rejected the legal significance of the fact that the petitioners had been rendered into Afghanistan.

On February 15, 2011, Bates granted the Maqaleh lawyers' joint motion to amend their filing in light of new evidence and information.

The amended petition, which was submitted on April 6, cites changes in government policy and interpretations of applicable law (notably the Obama administration's acknowledgement that its detention authority under the Authorisation To Use Military Force is subject to international law, which prohibits arbitrary and indefinite detention).

The amended filing also cites the June 8, 2010, announcement that the administration intends to maintain "indefinite" control over a portion of the new $60 million 1000-person Detention Facility in Parwan that opened on the airbase the previous December. (The name Bagram has tended to stick to the new facility.)

Reform as illusion

As part of the review and reform of detainee operations, General Douglas Stone was tasked to conduct an investigation in Afghanistan. On August 29, 2009, Stone reportedly told senior military officials that at least two-thirds of Bagram detainees pose no threat to the US or Afghanistan, and recommended their release.

His 700-page report remains classified.

The following month, the Obama administration replaced the UECRBs with a new Detainee Review Board (DRB) process which, for all intents and purposes, is identical to the CSRTs which the Supreme Court had determined to be deficient for Guantánamo in Boumediene.

In February 2011, Daphne Eviatar and Gabor Rona of Human Rights First (HRF) attended several DRB hearings and reported on what they observed.

"[D]etainees' 'personal representatives' are uniformed US soldiers with no legal background or training in the culture or language of the detainees they represent. Moreover, with only 15 such representatives assigned to Bagram at the time of this report, each representative is responsible for the defense of more than 100 detainees."

"The result, in the cases we observed, is that these representatives appeared to do little or nothing on behalf of the detainee. Although each is required to attend a 35-hour training course, none seemed to have independently investigated the case, collected evidence on the detainee's behalf, demanded that the government produce evidence, or asked even the most obvious questions challenging the evidence that the government presented."

They elaborated: "In some cases, the evidence against the detainee appeared to be as thin as a mere claim by US soldiers that they found bombmaking materials in a house nearby. No public evidence was presented connecting the individual detainee to that house, or to the materials."

"In other cases, where the government claimed to have more specific evidence, such as explosive residue found on the detainee's body or clothing, the evidence often raised more questions than it answered, such as whether the residue was found before or after detaining authorities showed the explosive materials to the detainee, and whether he handled them at that time. Yet those questions were never asked."

"In some cases, the evidence against the deainee appeared to be as thin as a mere claim by US soldiers that they found bombmaking materials in a house nearby."

Daphne Eviatar and Gabor Rona of HRF

The DRBs have a smorgasbord of alternatives: Subject to Pentagon approval, they can order the release of detainees. Or they can order continued detention in US custody, transfer to Afghan custody either for prosecution or for a process of reconciliation and rehabilitation.

The Afghan legal system, by the US State Department's own account, is corrupt, trial procedures rarely meet the baseline of international due process standards, and torture is common.

Detainees transferred from US to Afghan custody are imprisoned at Pul-e-Charki, a Soviet-era facility that the US renovated in 2007; it is known locally as Block D. According to HRF, more than 250 Afghan detainees repatriated from Guantánamo were dispatched to Pul-e-Charki, and 160 were put on trial, often on evidence deemed too flimsy even for the US.

In some ways, the current state of Bagram closely resembles Guantánamo circa 2004, with an inadequate review process and arbitrary decision making about the continued detention or transfer of detainees.

It has supplanted Guantánamo circa 2002 as a place where detainees can be held indefinitely with no access to lawyers and to which people can be transferred from other countries at the sole discretion of the executive branch.

Since Obama took office, the prisoner population at Bagram has more than tripled, and it is more than ten times the current size of Guantánamo. By April 2011, the number of detainees in US custody at Bagram had topped 1900, of whom 41 are non-Afghans, including Maqaleh, al Bakri and al Najar.

The Obama administration maintains that the government has the right to continue to use Bagram to indefinitely detain non-Afghan prisoners who have been or in the future could be transferred there from other countries.

Part 5 to follow.

Lisa Hajjar is a professor of sociology at the University of California - Santa Barbara. Her research and writing focus on the laws of war and conflict, human rights, and torture. She is the author of Courting Conflict: The Israeli MIlitary Court System in the West Bank and Gaza. She is also a co-editor of Jadaliyya and serves on the editorial committees of Middle East Report and Journal of Palestine Studies. Hajjar is currently working on a book about anti-torture lawyering in the US.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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