Dragging Guantanamo captive. Shane T. McCoy was a Navy photographer, the only official photographer present on Jan. 11, 2002, the day the camp was opened. Credit: Shane T. McCoy/public domain

By Jim Lobe
WASHINGTON, May 1 2013 (IPS)

With at least 100 detainees now participating in a three-month-old hunger strike, U.S. President Barack Obama Tuesday reiterated his earlier denunciations of the Guantanamo detention facility and blamed Congress for preventing its closure.

Speaking at a White House news conference, he said he has asked his staff “to review everything that’s currently being done in Guantanamo, everything that we can do administratively” and promised to “re-engage with Congress to make the case that this is not something that’s in the best interest of the American people. And it’s not sustainable.”"The notion that we’re going to continue to keep over a hundred individuals in a no-man’s land in perpetuity...that is contrary to who we are." -- U.S. President Barack Obama

“I think it is critical for us to understand that Guantanamo is not necessary to keep America safe,” he said. “It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens co-operation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”

His remarks followed the announcement that the Navy has sent some 40 additional medical personnel to Guantanamo to deal with the spreading strike.

At least 21 of the strikers, five of whom have been hospitalised, are reportedly being force-fed in a procedure which the American Medical Association (AMA) has denounced as a violation of the profession’s “core ethical values”.

Obama, however, indicated Tuesday that he supported these measures. “I don’t want these individuals to die,” he said.

While welcoming Obama’s renewed commitment to close the prison, attorneys for detainees and human rights groups stressed that Obama could take a series of steps without Congress to improve the situation, notably by repatriating more than half of the remaining 166 detainees.

“Congress is certainly responsible for imposing unprecedented restrictions on detainee transfers, but President Obama still has the power to transfer men right now,” according to the Center for Constitutional Rights (CCR), a leader in the legal battle over Guantanamo since terrorist suspects were first sent there from Afghanistan and Pakistan in early 2002.

“He should use the certification/waiver process created by Congress to transfer detainees, starting with the 86 men who have been cleared for release,” the New York-based group said.

Under a 2012 law, the secretary of defence may order detainees returned to their homelands or to third countries if he certifies on a case-by-case basis that they will pose no future threat to U.S. national security.

Eighty-six prisoners, including 56 Yemenis, have been cleared for release by Pentagon review boards to date, but the administration has not yet certified them, apparently due to fears that that if any of them are subsequently implicated in anti-U.S. terrorist activity, the political backlash could be too costly.

According to a recent U.S. intelligence study, between 16 and 27 percent of previously released detainees have participated in terrorism since they left Guantanamo.

“(The law) as written allows the president to transfer individuals if it’s in the national security interest of the United States,” noted Carlos Warner, who represents 11 detainees. “The president’s statement made clear that Guantanamo negatively impacts our national security, (so) the question is not whether the administration has the authority to transfer innocent men, but whether it has the political courage to do so.”

Whether Obama’s strong remarks Tuesday signal a new determination on his part and that of his new Pentagon chief, Chuck Hagel, to take advantage of the certification authority under the 2012 law remains unclear, although his vow to consult with Congress suggested to some observers that he would be seeking more political cover before taking such a step.

“(U)ltimately, we’re going to need some help from Congress, and I’m going to ask some folks over there who care about fighting terrorism but also care about who we are as a people to step up and help me on it,” he said.

The administration of President George W. Bush detained a total of 779 suspected terrorists at Guantanamo but had repatriated some two-thirds of them to their homelands or third countries by the time Obama promised on his first day in office in January 2009 to close the facility within one year.

His efforts to do so, however, were blocked by Congress which enacted legislation preventing the transfer of detainees to U.S. soil and greatly restricting the administration’s power to repatriate them, particularly to countries, such as Yemen, suffering significant internal instability.

The Obama administration itself imposed a freeze on all transfers to Yemen after the attempted bombing of a U.S.-bound airliner in December 2009 by a Nigerian national who had allegedly been trained in Yemen.

While the administration had succeeded in repatriating or resettling about 80 detainees in its first two years in office, progress ground to a halt by 2011.

Earlier this year, the State Department shut down the office of the special envoy in charge of repatriating cleared prisoners, one of a series of steps – including Obama’s failure to mention Guantanamo in his most recent inaugural and State of the Union addresses and the failure to initiate promised annual reviews of detainees who had not been cleared for repatriation — that contributed to the deepening despair and desperation of the remaining detainees, according to both their lawyers and Pentagon officials.

The detainees “had great optimism that Guantanamo would be closed. They were devastated …when the president backed off,” Gen. John Kelley, the head of the U.S. Southern Command (SouthCom), which has jurisdiction over the facility, told Congress
last week, before the spreading hunger strike drew national attention.

In addition to the 86 detainees who have been cleared for release, nine, including the operational “mastermind” of the 9/11 attacks, Khalid Sheik Mohammed, have either been convicted or are being tried before military commissions that have been attacked by civil and human rights groups as lacking due process.

Another 46 detainees have been deemed too dangerous to release but cannot be tried either because the evidence against them would be inadmissible in court (due to its acquisition by torture or other illegal methods) or whose alleged acts did not amount to a crime under U.S. law. They were designated for indefinite detention during Obama’s first term.

In his remarks Tuesday, Obama appeared to distance himself from indefinite detention, which has been denounced by the U.N. High Commissioner for Human Rights as a violation of international human rights law.

“The notion that we’re going to continue to keep over a hundred individuals in a no-man’s land in perpetuity, even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating Al-Qaeda core … — the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, it is contrary to our interests, and it needs to stop,” he said.

“President Obama’s call to end indefinite detention at Guantanamo is encouraging after his long silence on the issue,” said Laura Pitter, counter-terrorism adviser at Human Rights Watch (HRW), although she also noted that he was unclear whether his critique extended to detainees deemed to dangerous to release.

*Jim Lobe’s blog on U.S. foreign policy can be read at http://www.lobelog.com.

A shrine to the victims of the Boston bombing. Credit: Vjeran Pavic/cc by 2.0

By Carey L. Biron
WASHINGTON, Apr 22 2013 (IPS)

Civil liberties and human rights groups are applauding the White House’s announcement Monday that Dzhokhar Tsarnaev, the lone surviving suspect in last week’s bombing in Boston, will not be charged as an enemy combatant, as some conservative politicians here had been urging.

The widely debated legal designation would have allowed for a much lengthier detention – potentially indefinitely – and would also have imposed fewer qualifications on the government’s ability to interrogate Tsarnaev. Some have also suggested that the label could have shifted jurisdiction for the case to the military, though this would have conflicted with Tsarnaev’s rights as a U.S. citizen."There seems to be a false sense that somehow a military response is a stronger response, and that’s really off the mark." -- HRF's Raha Wala

Nonetheless, many groups are decrying the U.S. government’s decision to begin interrogating the 19-year-old Tsarnaev without reading him what are known here as his “Miranda rights”, a due process assurance that requires law enforcement to verbally explain a suspect’s legal rights. These include rights to legal representation and to refuse to answer officials’ questions.

“As to whether he’s an enemy combatant, this was not really a close decision at all,” Raha Wala, a senior counsel with Human Rights First (HRF), a Washington advocacy group, told IPS. “Here we have individuals engaged in criminal terrorist operations, and that should be handled by civilian authorities. It’s hard to see any connection here to ongoing armed conflict or even broader extremist operations.”

The announcement puts an end a fast-rising debate over how to deal with Tsarnaev, who was captured Friday.

“He will not be treated as an enemy combatant,” White House spokesperson Jay Carney told reporters Monday. “We will prosecute this terrorist through our civilian system of justice … This is absolutely the right way to go and the appropriate way to go.”

Tsarnaev was charged Monday with using a weapon of mass destruction to injure and kill people, an accusation that could carry the death penalty. Last Monday, Tsarnaev and his brother, Tamerlan, allegedly killed three people and seriously injured more than 100 at the finish line of the Boston Marathon, where they are said to have set off two homemade bombs made from pressure cookers packed with nails and other metal.

Tamerlan Tsarnaev was killed Friday in a shoot-out with police, while his younger brother was captured, badly injured, after a massive police search.

Thereafter, some conservatives have cited Dzhokhar Tsarnaev’s alleged links to militant Islam as a motivating rationale for designating him as an enemy combatant.

“You can’t hold every person who commits a terrorist attack as an enemy combatant,” Senator Lindsey Graham, one of the most outspoken advocates of using the designation for Tsarnaev, admitted to the media over the weekend.

“But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda … to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”

In Tsarnaev’s case, however, U.S. law appears to be straightforward, given that the suspect, although born in Kyrgyzstan, became a naturalised U.S. citizen last fall.

“Under U.S. law, United States citizens cannot be tried in military commissions,” Carney stated Monday, noting that Attorney-General Eric Holder, the Department of Justice and President Barack Obama’s entire national security team agree with the decision.

Systems that work

Rights groups have excoriated other elements of the administration’s handling of the Tsarnaev case, however. Particular concern is being paid to the decision to proceed with interrogations outside of the ambit of the suspect’s Miranda rights, with officials invoking a recently expanded exemption in cases involving public safety.

“The Miranda warnings were put in place because police officers were beating and torturing ‘confessions’ out of people who hadn’t even been formally accused of a crime. We cannot afford to repeat our mistakes,” Vincent Warren, the executive director of the Center for Constitutional Rights (CCR), a legal advocacy group, said in a statement, noting that this has been the longest such exemption to date.

“If officials require suspects to incriminate themselves, they are making fair trials and due process merely an option and not a requirement. To venture down that road again will make law enforcement accountable to no one.”

As of Monday evening, police reports suggested that Tsarnaev, suffering from a gunshot in the neck, could not speak but had begun initial questioning, reportedly writing down answers to basic questions.

Detainee rights in terrorism cases are particularly polarised today given the recently stepped-up debate over the U.S. military prison in GuantanamoBay. There, new reports suggest that around half of remaining detainees are on hunger strike to protest their indefinite detention, which scholars have repeatedly suggested violates international law.

CCR’s Warren explicitly linked the two issues, noting: “Like Obama’s expanded killing programme and his perpetuation of indefinite detention without trial at Guantanamo, this is yet another erosion of the Constitution to lay directly at the president’s feet.”

Despite President Obama’s failure to follow through on 2008 pledges to close the prison at Guantanamo, the administration is seeing Monday’s announcement as being in line with a broader push against efforts to emphasise military over civilian justice in terrorism cases.

“It is important to remember that since [the attacks of Sep. 11, 2001], we have used the federal courts system to convict and incarcerate hundreds of terrorists,” White House spokesperson Carney noted Monday. “The effective use of the criminal justice system has resulted in the interrogation, conviction and detention of both U.S. citizens and non-citizens for acts of terrorism committed inside the United States and around the world.”

Although President Obama did make early attempts to have some high-profile terror suspects tried in the federal court system, public backlash scuppered the plan. In March, however, the administration decided to have Sulaiman Abu Ghaith, a former Al-Qaeda spokesperson and son-in-law of Osama bin Laden, put on trial in New York City.

Rights groups have suggested the move offers a new precedent for terrorism-related trials.

“The big dynamic following the Abu Ghaith decision is that the Obama administration is now clearly pushing in the right direction – towards using systems that work,” HRF’s Wala told IPS.

“There seems to be a false sense that somehow a military response is a stronger response, and that’s really off the mark when you look at how terrorism cases have proceeded. Fortunately, the U.S. criminal justice system has made lots of advances since 9/11 in handling terrorism cases and avoiding the uncertainties of detention at Guantanamo.”