The New York Times reports: In December 2005, Congress handed President George W. Bush a significant defeat by tightening legal restrictions against torture in a law called the Detainee Treatment Act. Soon afterward, Neil M. Gorsuch — then a top Justice Department official — sent an email to a White House colleague in case he needed “cheering up” about the administration’s setback.
The email from Judge Gorsuch, nominated by President Trump to fill the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia, linked to articles about a less-noticed provision in the act that undercut the rights of Guantánamo Bay detainees by barring courts from hearing their habeas corpus lawsuits.
“The administration’s victory is not well known but its significance shouldn’t be understated,” wrote Judge Gorsuch, who had helped coordinate the Justice Department’s work with Congress on the bill.
The email about the court-stripping provision — which the Supreme Court later rejected — is among more than 150,000 pages of Bush-era Justice Department and White House documents involving Judge Gorsuch disclosed by the Trump administration ahead of his Senate confirmation hearings next week.
Judge Gorsuch’s time in the executive branch was brief. He joined the Justice Department in June 2005 as the principal deputy associate attorney general, meaning he was the top aide to the No. 3 official in the department. He left in August 2006, when Mr. Bush appointed him as a federal appeals court judge in Denver.
But those 14 months were tumultuous ones for the Bush administration amid controversies over detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power. Judge Gorsuch’s job put him at the center of both litigation and negotiations with Congress over legislation about such topics.
References to those efforts may offer clues to Judge Gorsuch’s approach to the sort of national-security and executive power issues that rarely come before his appeals court but can be crucial at the Supreme Court.
In November 2005, for example, Judge Gorsuch visited Guantánamo for a briefing and tour. Afterward, he wrote a note to the prison operation commander, offering a glowing review.
“I was extraordinarily impressed,” Judge Gorsuch wrote. “You and your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of, and being able to see first hand all that you have managed to accomplish with such a difficult and sensitive mission makes my job of helping explain and defend it before the courts all the easier.” [Continue reading…]
Vox reports: President-elect Donald Trump has tapped Republican Rep. Mike Pompeo of Kansas to head the Central Intelligence Agency, putting a hawkish lawmaker who favors brutally interrogating detainees and expanding the American prison at Guantanamo Bay, Cuba, in charge of America’s premier spy agency.
Pompeo may be an unfamiliar name to many Americans, but he is well-known — and apparently generally well-respected — among intelligence professionals and well-liked by his colleagues on Capitol Hill.
The 52-year-old third-term Congress member serves on the House Intelligence Committee and played a prominent role the House Select Committee on Benghazi, which investigated Hillary Clinton for her role in the deaths of four Americans at the hands of Islamist terrorists in Benghazi, Libya, in 2012.
Pompeo was particularly harsh on Clinton during the hearings, and in a report afterward accused her of having “put politics ahead of people” and “focusing more on spin and media narrative before an election than securing American lives under attack by terrorists.”
As a member of Congress with experience working closely with — and at times strongly defending — the intelligence community, Pompeo’s nomination as CIA chief could bode well for the future relationship between the CIA and Congress, which has deteriorated in recent years over the CIA’s detainee program and feuds with its nominal overseers on Capitol Hill.
But Pompeo’s extremely hawkish views on critical national security issues, such as his support for keeping open the US prison at Guantanamo Bay; his defense of brutal CIA interrogation practices like waterboarding and “rectal feeding”; and his overwhelming focus on the dire threat of “radical Islamic terrorism” — all positions closely aligned with those of President-elect Trump and his new national security adviser, Lt. Gen. Michael Flynn — suggest he is not likely to be a particularly sobering or restraining force on the president-elect, particularly when it comes to controversial policies like torture and drone strikes.
Pompeo’s hawkish stance toward Russia, on the other hand, could be a major source of tension between him and the president-elect, who, along Flynn, seeks to develop closer ties with Russia, particularly in the fight against ISIS in Syria. [Continue reading…]
The New York Times reports: As a presidential candidate, Donald J. Trump vowed to refill the cells of the Guantánamo Bay prison and said American terrorism suspects should be sent there for military prosecution. He called for targeting mosques for surveillance, escalating airstrikes aimed at terrorists and taking out their civilian family members, and bringing back waterboarding and a “hell of a lot worse” — not only because “torture works,” but because even “if it doesn’t work, they deserve it anyway.”
It is hard to know how much of this stark vision for throwing off constraints on the exercise of national security power was merely tough campaign talk. But if the Trump administration follows through on such ideas, it will find some assistance in a surprising source: President Obama’s have-it-both-ways approach to curbing what he saw as overreaching in the war on terrorism.
Over and over, Mr. Obama has imposed limits on his use of such powers but has not closed the door on them — a flexible approach premised on the idea that he and his successors could be trusted to use them prudently. Mr. Trump can now sweep away those limits and open the throttle on policies that Mr. Obama endorsed as lawful and legitimate for sparing use, like targeted killings in drone strikes and the use of indefinite detention and military tribunals for terrorism suspects.
And even in areas where Mr. Obama tried to terminate policies from the George W. Bush era — like torture and the detention of Americans and other people arrested on domestic soil as “enemy combatants” — his administration fought in court to prevent any ruling that the defunct practices had been illegal. The absence of a definitive repudiation could make it easier for Trump administration lawyers to revive the policies by invoking the same sweeping theories of executive power that were the basis for them in the Bush years. [Continue reading…]
The Guardian reports: The military lawyers prosecuting the self-proclaimed architect of the 9/11 attacks have struck back against accusations that they colluded with a military judge to destroy evidence relevant to Khalid Sheikh Mohammed’s defense.
In the latest sign that the US’s premier military commission at Guantánamo Bay is becoming what one observer likened to a “schoolyard brawl”, the prosecutors said Mohammed’s attorneys had cynically pursued a “scorched-earth litigation strategy” that involves “batter[ing] the reputation” of the army colonel presiding over the case.
In a 24 May military commissions filing recently unsealed to the public, the prosecution accuses Mohammed’s defense team of bad faith and shoddy lawyering and says the true goal of its counterparts was to destroy the credibility of the controversial military trial system.
Yet in the filing, the chief commissions prosecutor, Brigadier General Mark Martins, and his team elide the central charge in the controversy: the destruction of evidence in a death penalty case.
Last month, Mohammed’s attorneys leveled the extraordinary allegation that military judge and army colonel James Pohl had secretly issued an order permitting the government to destroy evidence that he had earlier publicly agreed to preserve. While extensive classification rules render central facts in the case difficult to conclusively determine, other rulings suggest the evidence in question concerns Mohammed’s torture by the CIA at secret prisons. [Continue reading…]
The Intercept reports: On April 16, the Department of Defense issued a short press release announcing that Mohammed al-Hamiri, a Yemeni citizen held at Guantánamo Bay, had been transferred for release. Hamiri had been incarcerated at Guantánamo since 2002, when he was detained by American forces. First taken into custody at the age of 19, Hamiri spent more than a third of his life at the prison. During that time, he was never charged with any crime.
Writing was one of Hamiri’s greatest comforts during the 13 long years he spent at Guantánamo. Hamiri’s letters and other personal writings were cleared for release earlier this year through the work of lawyers at the Center for Constitutional Rights. The letters reflect an enduring sense of hope, love for family and friends, and a remarkably poetic imagination.
Hamiri’s release this week represents the start of a new chapter in his life, one he has spent years waiting for with both hope and trepidation. His writings from Guantánamo offer a glimpse into what the prospect of freedom meant to him during his long imprisonment. “I do not know why I am writing these words, and I do not know if my letters and my words are going to be read by eyes that know the meaning of justice,” he reflected recently, writing that prison had given him “no voice other than this pen with which to write a painful memory from the pages of my life.” [Continue reading…]
With only nine months to go, in the fashion of modern presidents, Barack Obama is already planning his post-presidential library, museum, and foundation complex. Such institutions only seem to grow more opulent and imperial as the years and administrations pass. Obama’s will reportedly leave the $300 million raised for George W. Bush’s version of the same in the dust. The aim is to create at least an $800 million and possibly billion-dollar institution. With his post-Oval Office future already in view and his presidency nearly history, his “legacy” has clearly been on his mind of late. And when it comes to foreign policy, he definitely has some accomplishments to brag about. The two most obvious are the Iran nuclear deal and the opening to Cuba. In their own ways, both could prove game changers, breaking with venomous relations that lasted, in the case of Iran, for more than three and a half decades, and in the case of Cuba, for more than half a century.
You can already imagine the exhibits celebrating them at the Barack Obama Presidential Center to be built on the south side of Chicago. But it’s hard not to wonder how that institution will handle the three major foreign policy promises the new president made in the distant days of 2008-2009. After all, he was, in part, swept into the presidency on a blunt promise to end George W. Bush’s catastrophic war in Iraq. (“So when I am Commander-in-Chief, I will set a new goal on Day One: I will end this war.”) Nine years later, he’s once again taken this country into the Big Muddy of an Iraq War, either the third or fourth of them in the last five presidencies (depending on whether you count the Reagan administration support for Saddam Hussein’s war with Iran in the 1980s). At this moment, having just dispatched B-52s, the classic Vietnam-era carpet-bombing plane of choice (Ted Cruz must be thrilled!) to Qatar as part of that war effort, and being on a mission-creep path ever deeper into what can only be called the Iraq quagmire, we’re likely to be talking about a future museum exhibit from hell.
But it won’t begin to match the special exhibit that will someday undoubtedly explore the president’s heartfelt promise to work to severely curtail the American and global nuclear arsenals and put the planet on a path to — a word that had never previously hovered anywhere near the Oval Office — nuclear abolition. The president’s disarmament ambitions were, in fact, significantly responsible for his 2009 Nobel Prize, an honor that almost uniquely preceded any accomplishments. Now, the same man is presiding over a planned three-decade, trillion-dollar renovation and modernization of that same arsenal, including the development of an initial generation of “smart” nukes, potentially first-use weapons. It’s certainly been a unique path for our first outright anti-nuclear president to take and deserves a special place of (dis)honor at the future Obama center.
Barring surprising developments in the coming months, however, no exhibit is likely to be more striking or convoluted than the one that will have to be dedicated to the “closing” of Guantánamo, the notorious offshore, Bush-era prison camp. After all, as TomDispatch regular Karen Greenberg, author of Rogue Justice: The Making of the Security State, a striking soon-to-be-published anatomy of post-9/11 national security state mania, points out today, the closing of Guantánamo within a year represented one of the president’s first promises on entering the Oval Office. Unless somehow he succeeds in shutting Gitmo down over fierce Republican congressional opposition in these final months, it could prove the pièce de résistance of his future museum. Tom Engelhardt
Still in the Bush embrace
What really stands in the way of closing Guantánamo
By Karen J. Greenberg
Can you believe it? We’re in the last year of the presidency of the man who, on his first day in the Oval Office, swore that he would close Guantánamo, and yet it and everything it represents remains part of our all-American world. So many years later, you can still read news reports on the ongoing nightmares of that grim prison, ranging from detention without charge to hunger strikes and force feeding. Its name still echoes through the halls of Congress in bitter debate over what should or shouldn’t be done with it. It remains a global symbol of the worst America has to offer.
Reuters reports: In September, U.S. State Department officials invited a foreign delegation to the Guantanamo Bay detention center to persuade the group to take detainee Tariq Ba Odah to their country. If they succeeded, the transfer would mark a small step toward realizing President Barack Obama’s goal of closing the prison before he leaves office.
The foreign officials told the administration they would first need to review Ba Odah’s medical records, according to U.S. officials with knowledge of the episode. The Yemeni has been on a hunger strike for seven years, dropping to 74 pounds from 148, and the foreign officials wanted to make sure they could care for him.
For the next six weeks, Pentagon officials declined to release the records, citing patient privacy concerns, according to the U.S. officials. The delegation, from a country administration officials declined to identify, canceled its visit. After the administration promised to deliver the records, the delegation traveled to Guantanamo and appeared set to take the prisoner off U.S. hands, the officials said. The Pentagon again withheld Ba Odah’s full medical file.
Today, nearly 14 years since he was placed in the prison and five years since he was cleared for release by U.S. military, intelligence and diplomatic officials, Ba Odah remains in Guantanamo. [Continue reading…]
The Guardian reports: Lawyers representing Guantánamo Bay detainees who have been held at the camp in Cuba for up to 14 years without charge or trial have accused President Obama of stalling on his promise to close the military prison.
As the US president enters his final year in office, pressure is mounting on him to stand by his pledge to shut down the detention center by the time he leaves the White House. Numerous defense lawyers working directly with Guantánamo detainees have told the Guardian that they hold Obama and his senior officials personally responsible for the lack of action.
Obama made his vow to close Guantánamo within a year on his second day in the White House in 2009. In recent months, he has stepped up the rhetoric, promising to redouble efforts to close the prison while also heavily criticising the Republican-controlled Congress for blocking moves to transfer prisoners out of the prison to the US mainland. [Continue reading…]
Pardiss Kebriaei writes: I feel like there is a heavy weight on my chest – it’s as if I’m breathing through a needle hole. And then I ask myself, “If I write or say something, is anybody going to listen to me? Is it really going to make any difference?”
Zaher Hamdoun is a 36-year-old Yemeni man who has been detained in Guantánamo without charge since he was 22, one of 116 prisoners still detained there six years after Obama promised to close the facility. After I visited him earlier this summer, he followed up with a letter filled with questions.
Will there be a day when I will live like others live? Like a person who has freedom, dignity, a home, a family, a job, a wife and children?
Hamdoun is not among the 52 men approved for transfer from Guantánamo, nor is he in a dwindling group of detainees the government plans to charge. He is in a nebulous middle category of people the Obama administration has determined it is not going to charge but doesn’t know if it is ever going to release. [Continue reading…]
The Guardian reports: Only three of the 116 men still detained at Guantánamo Bay were apprehended by US forces, a Guardian review of military documents has uncovered.
The foundations of the guilt of the remaining 113, whom US politicians often refer to as the “worst of the worst” terrorists, involves a degree of faith in the Pakistani and Afghan spies, warlords and security services who initially captured 98 of the remaining Guantánamo population.
According to an analysis of long-neglected US military capture information, 68 of the residual Guantánamo detainees were captured by Pakistani security forces or apparent informants. Another 30 were sent to the notorious wartime facility by forces from Afghanistan – mostly warlords and affiliates of early US efforts to topple the Taliban after 9/11. [Continue reading…]
Clive Stafford Smith writes: Recent history demonstrates that if President Barack Obama, arguably the most powerful person on planet Earth, wants to prioritize almost anything – from pardoning 46 convicted drug felons to bombing a foreign country without the consent of Congress – little can stand in his way. Why, then, is Shaker Aamer not home in London with his wife and four children?
Aamer is the last British resident to be detained without trial in Guantánamo Bay and he has never been charged with a single offense. In 2007, he was cleared for release by the Bush Administration; in 2009, six US intelligence agencies unanimously agreed that Shaker should be released. In January 2015, British Prime Minster David Cameron personally raised Shaker’s plight with President Obama, who promised that he would “prioritize” the case.
On Thursday, we came a little closer to understanding the reason that Aamer’s youngest child, Faris – who was born on Valentine’s Day 2002, the day that Aamer was rendered to the detention center at Guantánamo Bay – has never even met his father. The Guardian revealed that “the Pentagon [is] blocking Guantánamo deals to return Shaker Aamer and other cleared detainees.” President Obama, it seems, has personally ordered Aamer’s release, and his subordinates have ignored and thwarted his order. [Continue reading…]
Carter and the White House are increasingly at odds about how to whittle down the number of detainees held in Guantánamo Bay, hampering the administration’s push to close the detention center by the end of its term.
The White House believes that Carter is unwilling to be accountable for the transfer of Guantánamo detainees and their conduct post-release, even to the point of defying the president’s policy on the detention facility, a White House source told The Daily Beast. [Continue reading…]
The New York Times reports: President Obama is enjoying a winning streak lately, with the Supreme Court reaffirming his signature health care law and Iran agreeing to curbs on its nuclear program. But one longstanding goal continues to bedevil him: closing the wartime prison at Guantánamo Bay, Cuba.
The administration’s fitful effort to shut down the prison is collapsing again. Ashton B. Carter, in his first six months as defense secretary, has yet to make a decision on any newly proposed deals to transfer individual detainees. His delay, which echoes a pattern last year by his predecessor, Chuck Hagel, is generating mounting concern in the White House and State Department, officials say.
Last week, Mr. Obama’s national security adviser, Susan E. Rice, convened a cabinet-level “principals committee” meeting on how to close the prison before the president leaves office in 18 months. At that meeting, Mr. Carter was presented with an unsigned National Security Council memo stating that he would have 30 days to make decisions on newly proposed transfers, according to several officials familiar with the internal deliberations. [Continue reading…]
The Washington Post reports: Military prosecutors this year learned about a massive cache of CIA photographs of its former overseas “black sites” while reviewing material collected for the Senate investigation of the agency’s interrogation program, U.S. officials said.
The existence of the approximately 14,000 photographs will probably cause yet another delay in the military commissions at Guantanamo Bay, Cuba, as attorneys for the defendants demand that all the images be turned over and the government wades through the material to decide what it thinks is relevant to the proceedings.
Defense attorneys said they have not yet been informed about the photographs and said it is unacceptable that they should come to light now, more than three years after the arraignment of Khalid Sheik Mohammed and four other defendants accused of planning the Sept. 11, 2001, attacks. [Continue reading…]
An editorial in the New York Times says: In 2008, Ali al-Bahlul, a propagandist for Al Qaeda who has been held at Guantánamo Bay, Cuba, since early 2002, was convicted by the military tribunal there and sentenced to life in prison. But officials had no evidence that Mr. Bahlul was involved in any war crimes, so they charged him instead with domestic crimes, including conspiracy and material support of terrorism.
Last Friday, a panel of the federal appeals court in Washington, D.C., reversed Mr. Bahlul’s conspiracy conviction because, it said, the Constitution only permits military tribunals to handle prosecutions of war crimes, like intentionally targeting civilians. (The court previously threw out the other charges on narrower grounds.)
The 2-1 decision, by Circuit Judge Judith Rogers, was a major rebuke to the government’s persistent and misguided reliance on the tribunals, which operate in a legal no man’s land, unconstrained by standard constitutional guarantees and rules of evidence that define the functioning of the nation’s civilian courts. [Continue reading…]
Huffington Post reports: For years, Guantanamo Bay prisoners’ memories of their time in CIA custody have been considered classified state secrets. Abu Zubaydah’s lawyers can’t talk publicly about how he lost his left eye. Lawyers for Mustafa al Hawsawi, who can now only sit on a pillow, can’t tell the press or the public about anal feedings that left him with a rectal prolapse. And until recently, Majid Khan’s lawyers couldn’t bring up the time he was hung from a pole for two days, naked and hooded, while interrogators threw ice water on him.
The government argued that by talking about what had happened to them, the CIA’s former prisoners, who are now detained at the Guantanamo Bay prison facility, would risk revealing classified information about the agency’s torture program.
But as James Connell, a lawyer who represents detainee Ammar al Baluchi, wrote more than three years ago in a motion to declassify the prisoners’ accounts, “A person’s own experiences — whether the smell of a rose or the click of a gun near one’s head — are what make them a person, and the government can never own or control them.”
The notion that a torture survivor’s memories can be classified, Connell wrote, “contravenes the most basic principles of human rights.” He added that detainees “were exposed to classified interrogation techniques only in the sense that Hiroshima was exposed to the classified Manhattan Project.”
Now, the government is starting to change course. A Senate Intelligence Committee report, which began to pull back the curtain on the CIA’s use of torture in secret prisons known as “black sites,” compelled the government to change its rules about keeping former CIA prisoners’ memories secret. Khan became the first to successfully test the new rules by going public with his account of his imprisonment, which included details not previously disclosed in the Senate report. Citing the success of Khan’s team, defense attorneys for other Guantanamo detainees are now cautiously optimistic that they can bring their clients’ memories of their time in CIA black sites to light. [Continue reading…]
Christian Lorentzen reviews Guantánamo Diary by Mohamedou Ould Slahi: In the autumn of 2001 Mohamedou Ould Slahi was working in Nouakchott, the capital of Mauritania, setting up computer networks. He was born in the hinterlands, son of a nomadic camel trader, and had picked up the trade in Germany; he went to the University of Duisberg on a scholarship in 1988, at the age of 17. He’d long been a fan of the German national football team. He was also devout and had memorised the Koran as a teenager. In 1991 he went to Afghanistan to train with the mujahedin and pledged an oath to al-Qaida. He made another trip the next year, but saw little action fighting Muhammad Najibullah’s communist government before it fell. When the fighting disintegrated into factional struggles, he went back to Germany. He tried once to join the war in Bosnia, but couldn’t get through Slovenia. He worked in Duisberg until 1999, when his visa expired and pressure was coming down from the immigration office. He applied for permanent residency in Canada and went to Montreal, where he led prayers at a mosque attended by an Algerian called Ahmed Ressam. On 14 December 1999, Ressam was arrested at the US border with explosives and timing devices in his rented car. This was the Millennium Plot to blow up Los Angeles International Airport, and though Ressam was a stranger to him it was the start of Slahi’s troubles.
In Montreal he believed he was being watched, possibly through a small hole drilled through his bedroom wall from his neighbour’s flat. (He called the police about it and they told him to fill the hole with caulk.) He was questioned by Canadian intelligence, but let go. Still, he was spooked, and in January 2000 he set off to return to Mauritania, via Dakar; on landing he was picked up by Senegalese special forces. He was rendered to Nouakchott, held for weeks, threatened with torture, and interrogated by Mauritanian intelligence and the FBI. Here was the start of the American authorities’ four-year fixation on two words, ‘tea’ and ‘sugar’, picked up on a tapped phone conversation and presumed to be code. They released him to return to his family. On his way out, the director of Mauritanian intelligence told him: ‘Those guys have no evidence whatsoever.’ [Continue reading…]
Listen to more extracts from Mohamedou Ould Slahi’s Guantánamo Diary here.