Obama's Guantanamo Appeasement Plan
by Marjorie Cohn
Portside: May 25, 2009
Two days after his inauguration, President Obama pledged to close Guantánamo
within one year. The Republicans, led by Senators John McCain, Mitch
McConnell and Pat Roberts, immediately launched a concerted campaign to
assail the new president. They claimed his plan would release dangerous
terrorists into U.S. communities and allow released terrorists to resume
fighting against our troops. Fox News agitator Sean Hannity and Bush team
players like torture-memo lawyer John Yoo filled the airwaves and print
media with paranoia.
The Republican attacks were bogus. A 2008 McClatchy investigation revealed
that the overwhelming majority of Guantánamo detainees taken into custody in
2001 and 2002 in Afghanistan and Pakistan were innocent of wrongdoing or bit
players with little intelligence value. A substantial number of those
prisoners were literally sold to U.S. officials in exchange for bounty
payments offered by the U.S. military. A Seton Hall Law Center report has
debunked Pentagon claims that many released detainees have "returned to the
fight." And no one has ever escaped from one of the U.S. super-max prisons,
which house hundreds of people convicted of terrorist offenses.
The Republicans have continued to oppose the effort to close Guantánamo. In
an attempt to burnish his image and forestall war crimes charges, Dick
Cheney now leads the charge, making ubiquitous attacks on Obama. Keeping
Guantánamo open is "important," Cheney declares. He claims that closing
Guantánamo would endanger Americans, and warns that if detainees are brought
to the United States, they would "acquire all kinds of legal rights." Obama
is also taking heat from the intelligence community. Those officials, like
Cheney, seek to justify what they did under the Bush regime.
And now even the Democrats are piling on the bandwagon. Reacting defensively
to the Republican attack campaign, the Senate voted 90 to 6 to deny Obama
funds to close Guantánamo until he comes up with a "plan" for relocating the
detainees there. "We spent hundreds of millions of dollars building an
appropriate facility with all security precautions on Guantánamo to try
these cases," said Democratic Senator Jim Webb on ABC News. "I do not
believe they should be tried in the United States," he added.
The pressure has caused Obama to buckle. Timed to coincide with a Cheney
speech to the right-wing American Enterprise Institute, Obama announced an
appeasement plan to deal with the 240 remaining Guantánamo detainees. Parts
of his plan would threaten the very foundation of our legal system - that no
one should be held in custody if he has committed no crime. These are
Obama's
five categories for disposition of detainees once Guantánamo is closed:
1) Those who violated the laws of war will be tried in military commissions.
Obama's plan would backtrack on an early promise to shut down the military
commissions. Obama now claims that such commissions can be fair because they
will no longer permit the use of evidence obtained by cruel, inhuman or
degrading interrogation methods. He fails to mention, however, that the
Pentagon is using "clean teams" to re-interrogate people who were previously
interrogated using the prohibited methods. When they once again give the
same information, it miraculously becomes untainted. Obama also fails to
acknowledge that those tried in the military commissions are forbidden from
seeing all the evidence against them, a violation of the bedrock principle
that the accused must have an opportunity to confront his accusers.
Even the U.S. Supreme Court has disagreed with this part of Obama's proposed
plan of action. In Ex parte Milligan, the Supreme Court declared military
trials of civilians to be unconstitutional if civil courts are available.
Prisoners falling in this category should be tried in the courts of the
United States, because the laws of war are actually part of U.S. law. The
Supremacy Clause of the Constitution says that treaties shall be the supreme
law of the land. The Geneva Conventions and the Hague Convention, which the
United States has ratified, contain the laws of war.
2) Those who have been ordered released from Guantánamo will remain in
custody.
Seventeen Uighurs from China were ordered released after they were found not
to be enemy combatants. But they continue to languish in custody because
they would be imperiled if returned to China, which considers them enemies
of the state. Suggestions that they be brought to the United States have
been met with paranoid NIMBY (not in my backyard!) protestations. So, under
Obama's plan they will remain incarcerated in a state of legal limbo.
3) Those who cannot be prosecuted yet "pose a clear danger to the American
people" will remain in custody with no right to legal process of any kind.
These are people who have never been charged with a crime. Obama did not say
why they cannot be prosecuted. Secretary of Defense Robert Gates claims as
many as 100 people may fall into this category. Included in this group are
those who have "expressed their allegiance to Osama bin Laden." They will
suffer "prolonged detention."
Obama's plan for "prolonged detention" is nothing more than a newly-coined
phrase for "preventive detention," a policy that harks back to the bad old
days of the Alien and Sedition Acts of 1798 and the internment of people of
Japanese extraction in the 1940's. If Obama succeeds in convincing Congress
to legalize "prolonged detention," the United States will continue to be a
pariah state among justice-loving nations. The U.S. Congress, still rendered
catatonic by post-9/11 rhetoric, will probably capitulate along with Obama.
Michael Ratner, president of the Center for Constitutional Rights, noted
that Obama's new system of preventive detention will just "move Guantánamo
to a new location and give it a new name."
4) Those who can be safely transferred to other countries will be
transferred.
Obama noted that 50 men fall into this category. It is unclear what will
happen to them when they reach their destinations.
5) Those who violated U.S. criminal laws will be tried in federal courts.
Obama cited the examples of Ramzi Yousef, who tried to blow up the World
Trade Center, and Zacarias Moussaoui, who was identified as the 20th 9/11
hijacker. Both were tried and convicted in U.S. courts and both are serving
life sentences.
This is the only clearly acceptable part of Obama's plan. All detainees
slated to remain in custody should be placed into this category. The federal
courts provide due process as required by the Fifth Amendment to the
Constitution, which does not limit due process rights to U.S. citizens: "No
person . . . shall be deprived of life, liberty, or property without due
process of law."
The federal courts are well suited to deal with accused terrorists. Indeed,
federal judges who have presided over such cases say that the Classified
Information Procedures Act can effectively protect classified intelligence
in federal court trials.
If Mr. Obama proceeds with the plan he announced this week he will empower
those who point to U.S. hypocrisy on human rights as a justification to do
us harm. Obama's capitulation to the intelligence gurus and the right-wing
attack dogs will not only imperil the rule of law; it will actually make us
more vulnerable to future acts of terrorism.
Marjorie Cohn is president of the National Lawyers
Guild and a professor at Thomas Jefferson School of
Law, where she teaches criminal law and procedure,
evidence, and international human rights law. She
lectures throughout the world on human rights and US
foreign policy.
***
You are cordially invited to attend the weekly meeting of the
============================
> POTLUCK FOR PROGRESSIVES <
============================
Friday, May 29, 2009
6:30 - 9:30 P.M.
(Film starts at 7:30 P.M)
Unitarian Universalist Church in Anaheim
511 South Harbor Blvd.
Anaheim, California
(Located on the Southwest corner
of Harbor Blvd. and Santa Ana Street)
(714) 758-1050
www.uuchurchoc.org
The "Potluck for Progressives" is organized to bring likeminded
people to break bread and talk about crucial issues affecting the
community and the world.
At weekly meetings, people interested in peace, social justice, labor,
and the environment gather to exchange ideas, talk about successes,
plan actions, or just engage in a friendly discussion with one another.
Bring a dish to share! Enjoy the bounty that others bring as well! The
potluck starts at 6:30 p.m. with a speaker or film to follow at 7:30 p.m.
Please join us even if you can't bring any food!
Featured Film:
7:30 - 9:00 P.M.
"Salt of the Earth," a 1954 film depicting a real strike that took place
at the Empire Zinc Company in New Mexico where miners walked
off the job in protest of poor safety conditions and low wages. Racial
discrimination is evident because the miners, who are mostly Mexican,
are paid less than those at neighboring mines where the miners are
Anglos. As the strike ensues, the company bosses and the Sheriff
resort to illegal and violent tactics in an attempt to break it.
Much of the film focuses primarily on the home life of the miners' families.
The wives are angry that their homes in the company town do not even
have running water, while in the company towns of mines worked by
Anglos, amenities and better sanitation make life significantly easier.
When the strike begins, the wives implore their husbands to make better
sanitation a key demand; but the men refuse fearing it would jeopardize
their efforts at winning higher wages and improved safety conditions.
But after a court order is issued forbidding the miners from striking, the
men begin to change their attitudes. To continue the strike, their wives
volunteer to march the picket line in their places, creating a reversal of
traditional gender roles: the women stage the rallies, maintain the picket
line even while under violent attack from the Sheriff and his deputies, and
spend time in jail; meanwhile, the men stay at home and reluctantly do
domestic chores.
As a result of the unity between the miners, their wives, and their Anglo
co-workers, the company bosses realize they can't break the strike; they
are forced to capitulate to the miners' demands for higher wages,
improved safety conditions, and better sanitation. This film's underlying
theme of racial and sex equality -- not to mention working class
solidarity --
still remains as strong today as it did more than fifty years ago, when it
was
suppressed by the House Un-American Activities Committee and the FBI.
Open Forum
9:00 - 9:30 P.M.
Open discussion, announcements,
and other news of interest.
"Potluck for Progressives" is endorsed by the Social Concerns Committee
of the Unitarian Universalist Church in Anaheim and is free and open to the
general public. Although a small donation might be requested to help pay for
facility costs, nobody will be turned away due to a lack of funds.
***
What: Brunch with Extreme Klezmer Makeover!
When: Sunday, May 31 @ 11 am
Where: (Workmen's Circle)
1525 S. Robertson Blvd. LA CA 90035
Enjoy Bagels, lox and all the fixings while listening to the best klezmer
music in LA. Extreme Klezmer Makeover, featuring Joellen Lapides,
is a quartet of musicians playing traditional Eastern European music
as well as contemporary Klezmer infused with Cajun, R&B, Folk, Middle
Eastern and Jazz rhythyms and melodies.
Sunday, May 31 @ 11 am
Join Br. 1016 for Brunch with
Extreme Klezmer Makeover!
Tickets $15 for members, $20 for the public, $2 off per ticket when
purchased by May 28.
E-mail us: circle@circlesocal.org
PH: 310.552.2007
Hear Extreme Klezmer Makeover's music at
www.extremeklezmer.com
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