Every now and then I’m forcefully reminded of the extent to which Guantánamo is still used by unscrupulous lawmakers as a political plaything, even though it is a place where, by any objective measure, a small number of terrorist suspects are held alongside insignificant Taliban foot soldiers and others unfortunate enough to be in the wrong place at the wrong time when the Bush administration decided that the Geneva Conventions were "quaint" and that it would be a good idea to offer substantial bounty payments for anyone who could be dressed up as a terrorist by the US military’s Afghan or Pakistani allies.
One of these instances of shameful political maneuvering arose last week, when the Wall Street Journal published an article explaining that "Republican staffers on the Senate Intelligence Committee recently traveled to Spain, Germany, France and other countries to dig for evidence of lax oversight of former detainees transferred there."
The Journal described the trip as "an indicator of the next phase of the fight" over Guantánamo, focused on whether the release of prisoners to their home countries, or to third countries if they face the risk of torture or other ill-treatment in their home countries, "can continue at the same pace" that it has over the last 21 months, with the release of 64 men under President Obama.
This news was shocking for two particular reasons, both of which reveal deep cynicism on the part of the two men responsible for the trip: Sen. Christopher Bond of Missouri, the senior Republican on the Senate Intelligence Committee, who has stated the administration should "start prioritizing the safety and security of the American people over the so-called rights of these terrorists," and Sen. Jeff Sessions of Alabama, the senior Republican on the Judiciary Committee, who has complained about what he has called the "administration’s politicized rush to shut down Gitmo and release dangerous inmates," and who has apparently written to Attorney General Eric Holder "seeking documents related to the decisions to transfer detainees."
The first reason for shock at the latest attempt by Sens. Bond and Sessions to undermine efforts to close Guantánamo is that all of the transfers from the prison were approved by the Guantánamo Review Task Force, an interagency body established by President Obama to review the remaining Guantánamo cases. The Task Force was led by Matthew G. Olsen, a lawyer with the Department of Justice for 12 years (who, in other words, had served eight years under President Bush), and it consisted of around 60 lawyers, analysts and agents, including representatives from the intelligence agencies (in other words, a cross-section of career officials who did not obviously have a radical left-wing ax to grind).
In addition, when the Task Force delivered its report in January, its members presented an extremely cautious appraisal, concluding that, of the 174 men still held, 35 should face trials, 48 should continue to be held indefinitely without charge or trial (which should please Sens. Bond and Sessions as much as it has enraged opponents of Guantánamo), and the remainder — around 90 men at present — were eligible for transfer.
However, no sooner had the Task Force issued its findings than the President announced a moratorium on the transfer of any prisoners to Yemen, following hysterical overreaction to the news that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, a Nigerian, had apparently been recruited in Yemen. As 58 of the men approved for transfer were Yemenis, and there is no sign of when, if ever, the President will lift the moratorium, this means that Sens. Bond and Sessions are fretting about the release of just 32 men — all of whom, to reiterate, have been approved for transfer by a Task Force of cautious career officials.
The second reason for shock at the outrage manufactured by Sens. Bond and Sessions — along with the mention of Sessions’ letter to Attorney General Holder "seeking documents related to the decisions to transfer detainees" — is that no prisoner can actually be released from Guantánamo without the approval of Congress in the first place.
Last October, Lt. Col. David Frakt, a law professor and the former military defense attorney for two Guantánamo prisoners, pointed out that, in summer 2009, Congress "passed a law that requires the Administration to give Congress 15 days notice before releasing anyone from Guantánamo." Lt. Col. Frakt explained that this is what had happened to his client, Mohamed Jawad, an Afghan, and a former child prisoner, who had won his habeas corpus petition in July, but had not been released from Guantánamo until Congress had reviewed his case. As he also explained:
I consider this Congressional notification requirement to be blatantly unconstitutional as a violation of the separation of powers. In Jawad’s case, it meant that after the Executive Branch and the Judiciary had concluded there was no lawful basis for the military to detain Mohammed Jawad (after the Department of Justice ultimately conceded the habeas corpus petition), the military was required to continue to detain him at Guantánamo at the order of the legislature, Congress. As I explained in Federal District Court, this placed Jawad in the status of "Congressional prisoner," a status for which there is no Constitutional authority.
Lt. Col. Frakt added that this, coupled with a "refusal to authorize funds for detainees to be resettled in the United States — even those determined to be innocent of any wrongdoing who should qualify for political asylum," revealed "the extent of Congressional depravity on any issues related to detainees."
However, although he was undoubtedly correct to assert that Congress had no authority to interfere in the cases of prisoners determined by the Executive and the Judiciary to be unlawfully held, he conceded that, "It may be that, if the US is contemplating releasing a detainee that it has the lawful basis to detain under the laws of war, that Congress can legitimately condition the expenditure of US funds to effectuate the release on the provision of this notification to Congress."
In other words, Congress already has extensive powers not only to review a prisoner’s case before release for 15 days, but also, if it wishes, to raise questions about the expenditure involved. This realization, coupled with the fact that the likes of Sens. Bond and Sessions have already succeeded in stopping the release of any prisoners to Yemen, thoroughly undermines the credibility of any attempt by either Senator to turn the release of Guantánamo prisoners to Europe and other countries into an opportunistic new campaign against the closure of the prison.
Despite the Senators’ best efforts to stir up dissent on the deceptive basis that they have no say over the administration’s transfer policy — and the Wall Street Journal’s willing part in promoting these lies — the Republican staffers were unable to pinpoint any specific problems they encountered in their visit to Europe, where the prisoners released have either had their release approved by federal court judges (through their habeas corpus petitions), or by the Guantánamo Review Task Force.
Lamely, they "declined to say whether the delegation uncovered any evidence of detainees being in touch with suspected al-Qaeda affiliates" — because there clearly was no evidence of anything of the kind – and, "[w]ithout offering details," claimed that "some countries’ monitoring of detainees differed from what the administration has described."
This was countered by an Obama administration official "involved in overseeing the Guantánamo transfers," who stated that "US security officials receive regular reports from countries hosting transferred detainees," and explained that, although the reports "include details of behavioral problems by some detainees, some of whom are experiencing culture shock," there was absolutely no evidence that any of the men were "dangerous," and none "has been confirmed or suspected of re-engaging" with terror groups.
This denial of the scaremongering of Sens. Bond and Sessions was only introduced towards the end of the article, but it should have been sufficient to silence the Senators. Elsewhere, however, it was made clear that they were also obsessed with the propaganda that regularly emerges from the Pentagon regarding the supposed "recidivism" of released prisoners, which, on its last outing, in January this year, involved an outrageous claim that 20 percent of the prisoners released under President Bush — at least 110 men — had "returned to the fight."
I have previously dealt with the shocking unreliability of this figure and its obvious genesis as black propaganda aimed at keeping Guantánamo open — citing thorough research by the Seton Hall Law School and the New America Foundation, refuting the Pentagon’s claims — but even on this point the Republican critics were unable to establish why, as the Journal put it, "Mr. Obama should abandon the release policy in light of that figure," for the simple reason that, of the 66 men released by Obama, only one, an Afghan named Abdul Hafiz, released in December 2009, has allegedly "returned to the fight," reportedly joining the Taliban in Afghanistan.
With no case whatsoever, and lies and deceit aplenty, Sens. Bond and Sessions should cease their negative campaigning, stop wasting tax-payers’ money on cynical jaunts to Europe, accept that Obama’s release policy is deeply cautious, and start answering some more difficult questions instead, such as why they think it is appropriate to suspend the release of 58 men to Yemen, approved for transfer by the cautious officials of the President’s Task Force. If they were capable of thinking straight, they would realize that all that does is inflame anti-American sentiment in Yemen, where the entire population has, essentially, been accused of being terrorist sympathizers.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, "Outside the Law: Stories from Guantánamo" (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.