Ten days into the New Year: Not-so-Happy Updates from Gitmo and Bagram

self-deceptionThe Obama administration and Judiciary have been providing a pretty grim preview of 2010 in relation to Guantanamo Bay and Bagram policies.  Here’s a three-part update on some of the devastating ‘developments’ that have taken place in recent days:

1) In the final days of 2009, a federal appeals court in New York ruled that U.S. government agencies may refuse to confirm or deny the existence of records when faced with a Freedom of Information Act request that might disclose sensitive intelligence activities, sources, or methods.

The ruling came on the heels of a Freedom of Information Act (FOIA) request submitted in 2006 by 23 lawyers representing detainees at Guantánamo Bay. In the aforementioned case, lawyers were seeking access to records from the National Security Agency (NSA) and Justice Department that were obtained or related to “ongoing or completed warrantless electronic surveillance or physical searches regarding, referencing, or concerning”any of the 23 lawyers.  

During the ruling, one of the three presiding appeals court judges, Jose Cabranes, uses logic that strikes the ear as painfully predictable in stating that “as long as the disclosure of such data puts national security at risk, intelligence agencies can withhold secret information.” Cabranes further writes, ” The fact that the public is aware of the program’s existence does not mean that the public is entitled to have information regarding the operation of the program, its targets, the information it has yielded, or other highly sensitive national security information that the government has continued to classify.”

Although the Bush administration’s Terrorist Surveillance Program (TSP) and Wiretapping Warrant Program (WWP) were both terminated after their existence was made public in 2005, ‘terrorist’ surveillance continues in the current administration under the Foreign Intelligence Surveillance Act (FISA).  

The appropriate response to this buffoonery comes from Glenn Greenwald, a legal expert and feature writer for Salon. In his June 2009 article, Greenwald rails against this administration’s continued invocation of the Bush era ‘state secrets’ privilege in order to withhold evidence that lawyers have been fighting to access using the Freedom of Information Act (FOIA).  He points out the disingenuity that underlies the current administration’s simultaneous call for a ‘return to the rule of law’ while retroactively attempting to change FOIA by narrowing its disclosure requirements, thus vesting the state with “brand new secrecy powers” which, as  Greenwald notes, ” not even George Bush sought for himself.”

In the same article, Greenwald then goes on to ask what purpose this manipulation of the law serves:

 Other than creating an illusion of transparency and accountability, what’s the point of having laws that purport to restrict what the Government can do if political officials just retroactively waive those laws whenever they want?  What’s the point of having a FOIA law if the Government will simply pass a new law exempting itself from FOIA’s mandates any time it loses in court and wants to conceal evidence anyway?” 

Greenwald’s questions point towards a problematic trend in cases seeking legitimacy through the FOIA. In these instances, precedent suggests that lawyers challenging ‘state secrets’ are being systematically pigeon holed into fighting what can only ever be a losing battle. While the administration tirelessly maintains that the release of such material constitutes a ‘national security risk’ that potentially endangers ‘the safety of civillians’, the mention of another important reason – namely, the danger that these ‘state secrets’ pose to the legitimacy of the state – remains audibly absent. Once again, Greenwald’s analysis is on point: 

Given that anything which reflects poorly on our Government can be said to endanger our troops and American citizens, why stop here?  Why not just have a general power of suppression whereby the President can keep any evidence secret as long as his Defense Secretary decrees that its disclosure will “endanger” the troops?

2) The news from Bagram isn’t much better. On January 7th,  a federal appeals court panel expressed deep skepticism  about giving three detainees currently held at Bagram the same right to challenge their indefinite detention as prisoners at Guantanamo Bay.

In this case, which concerns one Tunisian and two Yemeni men, the court suggests, “opening federal courts to some detainees from Bagram could have far-reaching consequences, possibly interfering with U.S. military operations in future campaigns anywhere in the world.” Additionally, the judges expressed fears that in granting habeas to these men, their cases could “lay the groundwork for opening up the court system to many other detainee cases now and in the future.”

Is anybody else wondering why opening federal courts to detainees in Bagram is such a horrific prospect? Proponents of the state argue that Bagram is located in a war zone and that the right to challenge one’s detention has never been extended to a war zone, but the mere fact that this right hasn’t historically been granted doesn’t imply that it should not be, particularly considering that a number of the detainees at Bagram are picked up, or rather “abducted,” from locations around the world and then extradited to war zones.

Back in April of 2009, it was the Obama Administration that laid the groundwork for the skepticism that is now being echoed by judges in this recent case. At that time, Obama had appealed a ruling made by Judge John Bates of the US District Court for the District of Columbia that allowed detainees being held by the US in Afghanistan to proceed with habeas corpus challenges  to their detention. The Obama DOJ rationalized its motion for a stay by reasoning that “the extensive harms to the Government and the public interest involved in further proceedings envisioned by the Court in these cases, and the likelihood of respondents’ success on the merits of appeal, strongly warrant a stay pending appeal.”

Sound familiar? Who says repetition is ineffective?   

3) Lastly – and perhaps most alarmingly given that this ‘development’ foretells an expansion rather than reduction in the War on Terror – on January 6th the Obama Administration announced the decision to halt the return of 30 Yemeni detainees who had already been cleared for transfer back to Yemen. The decision came in the aftermath of the botched Christmas airline bombing attempt that is said to have been carried out by the Yemeni branch of Al Qaeda. As a result of that potential event, the President has taken a u-turn on previous commitments, now aligning himself with the claim that if these detainees were transfered back to Yemen, they would ‘slip’ back into ‘extremism’.  

Dahlia Lithwick’s incisive article, “The Sins of Guantanamo,”  which appeared in Slate on January 6th,  provides some instructive lessons: 

In light of America’s spontaneous discovery of the existence of Yemen on Christmas Day, it may make political sense to argue that Guantanamo detainees repatriated there will turn to terrorism. But it makes no more legal sense than their original incarceration did. The idea that we would hold onto these men based solely on a foiled terror plot connected to their country of origin shows how little factual accuracy matters when it comes to Guantanamo.

Later, in the same article: 

The argument that there may be some people at Guantanamo who may, if released, take up arms against the United States is rooted in precisely the type of fear and paranoia Kennedy warns about. It disregards the fact that—as the Center for Constitutional Rights said in a statement yesterday—”the vast majority of the men at Guantánamo should never have been detained in the first place, and that over 550 have been released and are peacefully rebuilding their lives.” We don’t as a rule punish dozens of innocent men because of fears about one or two. And how far can we take arguments about future dangerousness? As Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch has argued, under a broad “future dangerousness” theory, “the United States military could march through the streets of Kandahar, Riyadh, or Islamabad, arrest and detain any dangerous looking male between the ages of 20 and 35. After all, at least some portion of them might one day join forces with al Qaeda or the Taliban, or want to.”

And, finally: 

For those of us who had hoped to see Guantanamo disappear into history’s rearview mirror, the events of this week show that the defining sins of Guantanamo will plague the camp indefinitely. The implausible connection between the Yemeni detainees and the Christmas bomber kicked things off. Then came yesterday’s federal appellate court decision curbing the rights of habeas corpus petitioners there (a ruling that—in the words of a concurring judge—”goes well beyond what even the government has argued in this case”). We are so terrified of imagined connections between the detainees and future acts of terror, we can’t possibly let any of them go.

Enough said, but for good measure, I’ll conclude with a question:  Is it just me, or do we seem to be living in a world in which we increasingly prefer (self)deception to truth?

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