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How To Remove The
Stain Of Guantanamo

Terrell E. Arnold
On Wednesday, January 21, his first work day in office, President Obama began the task of removing the stain of Guantanamo. In a motion filed in the military court trying the case of five defendants accused of organizing the 9/11 attacks he asked for "a continuance of the proceedings" until May 20. That would give his team time to decide how to proceed not only with the case on trial but with other cases as well. The judge in that trial refused to go along, but the Pentagon and all other judges involved have agreed.
That suspension has two main values. First, it avoids a situation in which trial procedures of questionable fairness and legality would interfere with President Obama's effort to make a clean policy break with the Bush administration abuses. Second, it gives the President time to shape the policies for carrying out his promised end to the sordid Guantanamo chapter. In the process he can begin to shape policies correctly to govern future detention of terrorism suspects.
However, moving on to some post-Guantanamo political clear space is not a simple matter, and the President is right in suggesting it may take a year to get it done. The real questions concern how his presidency will get rid of the Guantanamo stain on America's reputation. Critical steps are required to achieve that outcome.
President Obama needs permanently to end the show trials in tribunals that have much to do with vengeance and nothing to do with justice. One of the worst features of the Bush team approach to terrorism was insistence that terrorists could not be dealt with as criminals. The fact is that most of the world-with the major exceptions of the United States, Israel and some well-known dictatorships-considers terrorism a crime and deals with it through law enforcement processes.
The Bush team wanted to set terrorism apart from crime. Treating it as a crime subject to law enforcement processes had no political pizzazz and would not justify a war. Moreover, his team argued that so called enemy combatants-previously called terrorists-had forfeited their legal rights; therefore, they were not entitled to a fair trial. The scale of 9/11 caused much of the American public to close its eyes to the legal travesties that resulted.
With several moves Bush trashed America's legal centerline. Lead chapters of the Guantanamo story were written through (1) indefinite detention without charges, (2) confinement under subhuman conditions, (3) torture to extract information, (4) rendition to other countries where brutal torture was known to be common practice, and (5) use of the tainted information obtained by torture in courts that do not afford due process.
While Guantanamo has been a US facility for over a century, Bush officials argued that it is not American territory; it belongs to Cuba, so US law would not apply there. Thus, Guantanamo became a legal no-man's land. US prison keepers could and did make up their own rules. Common practices included keeping prisoners in small cells open to the elements, keeping prisoners standing in extreme positions for long periods, waterboarding (dunking and near drowning) to extract information, and holding some in cells so small that prisoners could barely sit in a cramped position. All these and other inhumane practices came to light with the exposure of prisoner treatment at Abu Ghraib in Iraq.
Guantanamo became schizophrenic, because normally US policy is that US law applies to personnel who serve on US bases abroad. Such a requirement is written into status of forces agreements (SOFA) with other governments in countries where our forces are stationed. However, there has never been a SOFA with Cuba, and US laws appear to have applied to the conduct of US personnel in every respect except their treatment of enemy combatants who were brutalized, kept incognito, and not allowed to communicate with outsiders.
President Obama needs to bring all prisoners held by the United States into the justice system. The notion that a terrorist is more dangerous or more deranged than the criminal who walks into a university or high school classroom and mows down dozens of students simply does not stand up under any serious examination. Actually few terrorists are distinguishable from ordinary people until they carry out an attack; that indeed is part of the problem. Destruction of the Federal Building in Oklahoma City was a terrorist crime for which the perpetrator went to prison after being found guilty in a US court of law.
The destruction of the World Trade Centers was a public crime that was viewed by a large share of the world population. Any surviving perpetrators, as and when they are properly identified, should be put on an equally public trial, and, if found guilty, should be subjected to punishments that are well-established in American law. That should be the future of the five alleged 9/11 planners now awaiting trial in Guantanamo
US adherence to international law must be restored. US abuses of prisoners at Guantanamo violated international agreements the United States was instrumental in establishing. That includes Common Article III of the Geneva Conventions on the treatment of prisoners of war-ratified by the United States. Included as well is the UN Convention on Torture which the US has signed but not ratified. The United States cannot regain its historic position as a defender of human rights unless it complies fully with these accords, as well as with US laws and regulations, including the US Army Field Manual that explicitly subscribes to the Geneva Conventions rules that prohibit torture.
President Obama has to end the practices of rendition and torture abroad. Rendition is defined-by Wall Street Journal and others-as the practice of seizing terror suspects abroad and sending them to third countries for interrogation. Secret flights of unmarked aircraft to Egyptian, Jordanian, Moroccan and other foreign prison keepers who routinely use torture must stop. That includes detention of prisoners by the US at such bases as Diego Garcia in the Indian Ocean. In the eyes of the rest of the world, so long as reports keep coming in about such renditions of prisoners to any location on the planet, all assertions about the cleanup of Guantanamo will be disbelieved, as indeed they should be.
On January 22, Obama signed executive orders that set new rules of the game. The orders specify putting an end to Guantanamo, ending torture, and closing US secret prisons in various parts of the world. Thus, on their faces the orders were hailed as slamming a door on several controversial Bush policies. However, the new rules refer only to treatment of individuals_ detained in armed conflict _.
In future cases, Leon Panetta told the Senate Intelligence Committee during his confirmation hearing to head the CIA, prisoners would not be moved in old style renditions to other countries, but they could be returned to their countries of origin to be dealt with by those governments. In many cases individuals became terrorists because of the injustices or crimes of their home governments. That includes the well-known torturer governments, and a threat to return individuals to their home countries could itself be a form of torture. In fact, that threat could be a big stick in US interrogations of detainees.
The new Obama rules would not help the great majority of people who have been detained at Guantanamo. "Armed conflict" conventionally means warfare, i.e. battlefield conflicts. Thus, unless there is some language that is not yet public, the new rules would exclude people detained in connection with covert operations, counterterrorism or counter-insurgency activities. That means such attacks as US raids into Yemen and Syria to eliminate alleged al Qaida officials, as well as periodic US bombing raids on alleged militants in Pakistan would continue.
The President created a cabinet level task force under the leadership of the Attorney General to review all Guantanamo cases. The task force will be dealing with detainees in three categories: (a) Those who have no charges against them and are releasable; (b) those against whom there is apparently enough evidence for trial; and (c) those loosely labeled by anonymous officials as "untryable", but not safely releasable.
This third category appears to consist of individuals whose case information was obtained by torture or about whom all incriminating information is tainted. Under a system of due process, such cases would probably not lead to convictions, but the individuals may still be considered dangerous. This may, as critics suggests, lead to a Kafkaesque situation in which people spend their lives in confinement because the government is afraid to let them go. How this will turn out for all the cases awaits the work of the task force.
In deciding the cases, Obama as well as members of his team do not want to be tagged with releasing the individual who carries out the next terrorist attack. Much is being made in media of the case of Said Ali al-Shihri who was released from Guantanamo and reportedly joined al Qaida in Yemen. One bad apple in the large barrel that Bush created at Guantanamo is likely to be below probable cases of recidivism. Genuine grievances have been generated, and how to detox those situations is part of the Obama team challenge.
Dealing with the threat of terrorism is a genuine problem and cautionary approaches are prudently in order. Fear of an attack with weapons of mass destruction is the horror driving this train. Finding and detaining individuals who are known to have violent plans or who are associated with or involved in the management of people with such plans are absolute requirements. Holding them out of public view is also in order. The task is to do all those things in a framework of laws and respect for human rights.
Guantanamo, Abu Ghraib, Diego Garcia and other rendition sites have contaminated the American justice system and will have to be systematically-and publicly-expurgated for the world to believe the United States has cleaned up its act. There is, legally speaking, no difference between holding someone illegally for a period of weeks versus holding them so for a longer period, except possibly the penalties to be imposed on those who carry out such unlawful confinements.
Properly disposing of Guantanamo is central to the cleanup. The overall Bush team case for using Guantanamo was a scary legal proposition: American officials (a) detaining foreign nationals (b) in the security interests of the United States (c) on a facility strictly controlled by Americans (d) were not required to honor the US Constitution in dealing with the rights of those individuals. The Bush team legal bottom line added that neither did international agreements such as Common Article III of the Geneva Conventions apply to detainees in Guantanamo.
Obama apparently is being pressed by some advisers to keep the Bush system. The situation is politically difficult. If he cleans up the Bush mess and then the United States is attacked again, his critics will say he should have left well enough alone. That may be the most absurd of /post hoc ergo propter hoc /conclusions, but he and his supporters could be made to pay politically anyway.
An immediate challenge is to deal fairly and effectively with the existing detainees most of whom have never been charged with any crime. He needs both a sound legal and a humanitarian way to deal with those detainees. Both domestic and foreign hard liners will be pressing him, however, to keep them confined because by being confined they have become dangerous.
A part of the challenge is for Obama to be bold enough to apologize for US mistakes in these detentions, and then make suitable amends. Finding them homes in other countries may be a step in the right direction, but the Guantanamo stain goes with the released detainees, and few countries are comfortable with former alleged terrorists in their midst.
What could happen in some cases is that released detainees may be transferred from one cell to another with no benefit of a fair legal procedure anywhere. Relying on War on Terrorism allies to give US detainees a trial and punishment under local laws-for crimes the US could not prove they committed---does not seem a constructive outcome.
The Guantanamo stain must be removed. An international mediator/ tribunal may be needed to sort the remaining cases, make decisions, if any, about risks and culpabilities, and assist in rehabilitation and placement. These are matters for international consideration and cooperative agreement, not merely for unilateral American decision making.
The ghosts of American injustice must be purged from the environment in some enduring manner. Whether the Americans themselves can achieve that result is at least questionable. There is a perverse logic in the argument that people are likely to do us harm because we unjustly confined them, and therefore we should go on unjustly confining them. That perversity is not removed by transferring responsibility for unjust confinement to a willing War on Terrorism ally. The real work here must focus on how those individuals get rehabilitated and reintroduced into whatever society they eventually enter. This is a vital part of the Obama acid test, and the stain of Guantanamo cannot be erased without it.
On reading the first edition of this article, John Whitbeck, a friend, attorney and Middle East pro emailed the following judgment about how to mitigate the consequences of unjust imprisonments:  "Any Guantanamo detainee against whom the United States has not been able to formulate a prosecutable case (even by a kangaroo commission!) after all these years should receive a personal presidential apology and at least a million dollars (plus an annual annuity, which could be made subject to future "good behavior") in compensation and be resettled (with his immediate family if he has one) in the United States or any other country he prefers which will take him. The same apology and financial compensation should be extended to those who have already been released without charges from Guantanamo. Similar if not identical treatment should be accorded to long-term detainees released without charges from Bagram and other hellish American detention facilities in Afghanistan, as well as from CIA 'black sites'".
Whitbeck was not sanguine that the United States could ever recover its reputation. However, he concluded that action along the foregoing lines "should  convince the world (notably the Muslim world) that America has really changed, as well as reducing (if not completely eliminating) the risk that those who have been held and persecuted unjustly will wish to hit back once they get a chance."
The Obama administration can do much to reduce both the risks and the future intensity of terrorist attacks by admitting the Bush era mistakes and compensating the victims. Both steps will help to enable those victims to fit back into civil society.
President Obama or any future American President has a recognized need for surveillance of politically violent individuals and sub national groups. That requires covert operations and sometimes demands capture and confinement of dangerous players. However, performance during the Bush era demonstrated that the agencies charged with such work cannot always be counted on to follow the rules, especially where the captured individuals may well be viewed by their captors as people of less than equal status, stateless persons, or citizens of unfriendly states.
The obvious problem, exposed most blatantly by the behavior of the Bush administration and its collaborators, is how to keep the system honest. The Foreign Intelligence Surveillance Act created the FISA court system to provide that oversight in domestic spying cases. As Whitbeck put it: "No country which even purports to respect the rule of law should even consider imprisoning anyone without charges indefinitely."  What is needed is a FISA court-like body to oversee US detentions and renditions of foreign nationals. There should be no exceptions to the oversight by this body over all US-held international detainees. While there would be predictable objections to the idea, the International Court of Justice should be extended a watching brief.
As the final act of US redemption for its human rights abuses there, Guantanamo should be closed and the land should be returned to the Cuban people.
As an historical footnote, the US enjoys Guantanamo on the cheap. The original agreement in 1903 specified an annual lease charge of 2,000 gold coins. Since the most common gold coin of the time was the quarter-ounce $5.00 gold piece, the lease charge would have been $10,000 per year. However, a newer lease signed in 1906 specified $2,000 per year. When Fidel Castro asked for return of the base in 1959, the US said no, and since that date the US has sent Cuba an annual check for $5,000, about $11 per square mile for the 450 square mile property. The Cubans have never cashed these checks. At a mere inflation adjusted rate, the current rental on the base would be about $800,000 or about $1,800 per year per square mile. By contrast, the US has paid the British a reported $40 million dollars for use of Diego Garcia the main island of which is less than 30 acres.
The writer is the author of the recently published work, A World Less Safe, now available on Amazon, and he is a regular columnist on rense.com. He is a retired Senior Foreign Service Officer of the US Department of State whose overseas service included tours in Egypt, India, Sri Lanka, the Philippines, and Brazil. His immediate pre-retirement positions were as Chairman of the Department of International Studies of the National War College and as Deputy Director of the State Office of Counter Terrorism and Emergency Planning. He will welcome comment at
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