Obama's Guantánamo: Stories from an Enduring Prison

Obama’s Guantánamo

Obama’s Guantánamo

Stories from an Enduring Prison

Edited by Jonathan Hafetz

NEW YORK UNIVERSITY PRESS

New York

NEW YORK UNIVERSITY PRESS

New York

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© 2016 by New York University

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Library of Congress Cataloging-in-Publication Data

Names: Hafetz, Jonathan, editor.

Title: Obama’s Guantánamo : stories from an enduring prison / edited by Jonathan Hafetz.

Description: New York ; London : New York University Press, 2016. | Includes bibliographical references and index.

Identifiers: LCCN 2016001626 | ISBN 9781479852802 (cl : alk. paper) | ISBN 1-4798-5280-5 (cl : alk. paper)

Subjects: LCSH: Prisoners of war—Legal status, laws, etc.—Cuba—Guantánamo Bay Naval Base. | Guantánamo Bay Detention Camp. | Detention of persons—Cuba—Guantánamo Bay Naval Base. | Military courts—Cuba—Guantánamo Bay Naval Base. | Obama, Barack. | Prisoners of war—Legal status, laws, etc.—United States. | Detention of persons—United States. | Military courts—United States. | LCGFT: Essays.

Classification: LCC KZ6495 .O23 2016 | DDC 344.7303/548—dc23

LC record available at http://lccn.loc.gov/2016001626

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Contents

Introduction

Jonathan Hafetz

1. Twelve Years After

Sabin Willett

2. The Wrong Person: How Barack Obama Abandoned Habeas Corpus

Gary A. Isaac

3. President Obama’s Failure to Transfer Detainees from Guantánamo

J. Wells Dixon

4. The Boumediene Case after the Supreme Court

Mark Fleming

5. Too Dangerous to Release: Debunking the Claim

Pardiss Kebriaei

6. Mental Illness before Guantánamo

Shayana Kadidal

7. You Love the Law Too Much

Martha Rayner

8. First, Do No Harm

Alka Pradhan

9. Nourishing Resistance: Tariq Ba Odah’s Eight-Year Hunger Strike at Guantánamo Bay

Omar Farah

10. The Taliban Five and the Prisoner Exchange

Frank Goldsmith

11. Hamdan: The Legal Challenge to Military Commissions

Joseph McMillan

12. A Tale of Two Detainees

David Frakt

13. More Kafka than Kafka

Jason Wright

14. Storytelling #Guantanamo

Aliya Hana Hussain

About the Contributors

Index

Introduction

Jonathan Hafetz

A preceding volume, The Guantánamo Lawyers: Inside a Prison outside the Law, was completed in early 2009, a time of considerable excitement and hope. President Barack Obama, who was just beginning his first term, had ordered the closure of the U.S. detention center at Guantánamo Bay and declared that the United States must respect both its Constitution and international law even when defending its security against terrorist threats. To be sure, difficult questions lingered, including what would happen to the remaining prisoners once the U.S. closed Guantánamo and whether U.S. officials would be held accountable for the past mistreatment of detainees. But at least it seemed that the Guantánamo Bay prison, the overarching symbol of lawlessness and abuse in America’s global war on terror, would be shut and this notorious chapter in American history would come to an end.

Predictions of Guantánamo’s demise would soon prove premature. Within months, it became clear that Obama would not meet his original pledge of closing the prison within his first year in office. Now, deep into Obama’s second term, it seems unlikely that Guantánamo will be closed at any time in the foreseeable future. When Obama took office, 242 prisoners remained at Guantánamo. Today, that number is 107. The drop has been slow, uneven, and arbitrary. Approximately half of those who remain have long been cleared for release by the Obama administration. But most of those cleared detainees are from Yemen, whose security conditions have dissuaded the U.S. from transferring prisoners there. Meanwhile, the legal and political obstacles to closure have become more entrenched. In many respects, the prospect of Guantánamo’s closure seems as remote now as when the first prisoners were brought there in January 2002. The 9/11 attacks have grown more distant, but Guantánamo remains ever present.

How did we get here? The Guantánamo Lawyers described the Bush administration’s creation of a prison beyond the law. Obama’s Guantánamo: Stories from an Enduring Prison, recounts the Obama administration’s failure to close it. Like its predecessor, Obama’s Guantánamo consists of accounts from lawyers who have not only represented Guantánamo detainees, but also served as those detainees’ principal connection to the outside world. The lawyers poignantly describe their clients’ plights and deepening sense of despair. In many respects, the landscape has become increasingly difficult to navigate. Lawyers and their clients face a relentlessly hostile legislative branch, a judiciary that has become less receptive to their claims, and an administration that refuses to expend the political capital necessary to close the prison.

The seeds of failure were sown from the beginning of Obama’s presidency. After ordering Guantánamo’s closure, Obama created a task force to study what to do with the remaining prisoners rather than immediately taking action. In 2015, Obama himself would recognize this as a mistake, acknowledging that he should have closed Guantánamo on his first day in office. As opposition grew during his first year, Obama proved weak and indecisive. Two critical missteps stand out. First, in the spring of 2009, Obama abandoned his plan to resettle detainees in the United States, a move that, if taken, would have transformed the political landscape around Guantánamo. The first detainees slated for resettlement in the U.S. were ideal candidates: a handful of Uyghurs, a minority group from northwestern China, who by all accounts posed no threat to the U.S. and never should have been detained in the first place. The Uyghurs could not be returned to China because of the risk of persecution there, thus making their resettlement in another country essential. But Obama caved at the first sign of resistance, fearful that he would be painted as soft on terrorism. Abandoning the plan to bring the Uyghurs to the United States not only revealed that Obama lacked resolve on Guantánamo, but also discouraged other countries, in Europe and elsewhere, from doing more to resettle detainees. Because the U.S. was unwilling to help clean up its own mess, other nations felt less compelled to come to its rescue.

The second critical mistake was maintaining the legal architecture supporting Guantánamo. In a May 2009 speech at the National Archives, Obama indicated that he would seek to prop up military commissions, the discredited tribunals established by President Bush to try terrorism suspects of largely made-up war crimes in violation of domestic and international standards of justice. Rather than scrap military commissions, Obama tried to reform a system that was beyond repair, breathing new life into Guantánamo. Obama also adopted the Bush administration’s position that the president had the authority to continue detaining individuals indefinitely without trial under the Authorization for Use of Military Force (AUMF) on the theory the U.S. was engaged in a global armed conflict against Al Qaeda and associated terrorist organizations and those individuals at one time were part of or had supported those groups. Without that authority, the legal basis for Guantánamo would have collapsed; with it, Obama could maintain that detentions at Guantánamo were lawful as long as the war continued, however undesirable as a matter of policy.

As Obama wavered, the backlash against closing Guantánamo grew fiercer and the politics more toxic. By the end of 2009, Congress began restricting Obama’s ability to move prisoners from Guantánamo. Initially, Congress barred bringing detainees to the United States, not merely for release, but also for continued detention or prosecution. It then limited Obama’s ability to send detainees to other countries by imposing unprecedented restrictions on the commander-in-chief’s authority to transfer wartime prisoners. Although Obama protested, he always acquiesced. Obama, moreover, failed to use aggressively the limited authority Congress had left him to transfer prisoners. Between early 2011 and mid-2013, the transfer of prisoners from Guantánamo came to a virtual halt. In January 2013, the administration shut down the one office dedicated exclusively to closing the prison. As the chasm grew between Obama’s postinaugural promise and the reality of the prison’s continued existence, it became difficult to remember that the presidential candidates from both parties had previously supported shutting the prison. Closing Guantánamo had gone from a bipartisan issue to the new third rail of American politics.

In the past, the Supreme Court had intervened to protect the rights of Guantánamo detainees. During the Bush administration, the Court issued landmark rulings affirming the right of Guantánamo detainees to habeas corpus and mandating basic protections against mistreatment for all detainees in accordance with the Geneva Conventions. In the first days of the Obama administration, district judges scrutinized the government’s often thin claims for detention and granted relief in the overwhelming majority of cases they heard. But the U.S. Court of Appeals for the D.C. Circuit, which exercises jurisdiction over all Guantánamo detainee appeals and which has long been hostile to detainee claims, reversed this trend. It interpreted broadly the president’s detention authority and created procedural and evidentiary hurdles that made it exceedingly difficult for detainees to prevail. This time, the Supreme Court declined to interfere, seemingly content to watch as the D.C. Circuit deprived the Court’s own prior rulings of any real impact on the ground.

Ultimately, it was the Guantánamo prisoners themselves who ensured that they would not be forgotten. In February 2013, detainees began a mass hunger strike that galvanized international attention and catapulted Guantánamo back into the news. Forced to respond, Obama seemed pained by his failure to close the prison. He promised more action, and the pace of transfers started to pick up. But progress remains slow and the obstacles substantial. Even reports of the prison’s staggering costs—estimated at around $3 million per prisoner annually—have not generated momentum for closure. Most likely, the administration’s latest push will prove too little, too late.

Obama’s Guantánamo describes the failure to close America’s enduring offshore detention center and the costs of that failure for those still imprisoned there. The lawyers and advocates who have worked to defend Guantánamo detainees and hold the U.S. government to its legal and moral obligations supply the book’s chapters. In some instances, lawyers overcame obstacles and achieved success. But more often, they struggled in the face of adversity. Together, their stories provide a picture of Guantánamo during the Obama administration, as the promise of closing America’s prison outside the law was replaced by the reality of the forever prison, hope supplanted by despair. The book aims not only to inform readers about conditions at Guantánamo today, but also to provide a historical record so that future generations understand how America abandoned its ideals and then abandoned its attempt to restore them. If The Guantánamo Lawyers described the loss of the rule of law, Obama’s Guantánamo describes the failure to repair it. Absent a dramatic last-minute turnaround, that failure will be Obama’s legacy.

The book opens with Sabin Willett’s Twelve Years After, which details how the Obama administration abandoned its plan to bring a small group of Uyghur detainees to the United States at the beginning of Obama’s first term. As Twelve Years After explains, by ceding ground at this critical early stage, Obama encouraged the political backlash and fearmongering that would dominate the rest of his administration and doom his efforts to close Guantánamo.

Chapters 2 and 3 examine this backlash in greater depth. In The Wrong Person: How Barack Obama Abandoned Habeas Corpus, Gary A. Isaac laments the transformation of Barack Obama from a presidential candidate whose defense of constitutional rights earned him the overwhelming support of Guantánamo lawyers across the country, to a president whose sacrifice of those rights produced widespread disappointment. As Mr. Isaac explains, Obama’s initial moves of ordering Guantánamo’s closure and banning torture would mark the highpoint of a presidency that would, in time, look increasingly like his predecessor’s on many national security issues.

In President Obama’s Failure to Transfer Detainees from Guantánamo, J. Wells Dixon examines the collapse of Obama’s proposal to close Guantánamo through the experiences of his client Djamel Ameziane. Mr. Dixon describes how Mr. Ameziane eventually obtained his release from Guantánamo after a years-long battle in which the U.S. government sought to return him to the one place Mr. Ameziane did not want to be sent: his native Algeria, where he feared persecution.

Chapter 4, Mark Fleming’s "The Boumediene Case after the Supreme Court," revisits an important district court case decided in late 2008, after the Supreme Court had recognized the constitutional right of Guantánamo detainees to habeas corpus. In that case, the district judge ruled in favor of five of Mr. Fleming’s six clients, thus paving the way for their eventual release. In time, however, such forceful decisions by district court judges would become the exception, as appellate court rulings required judicial deference to the government and made it difficult for detainees to prevail.

The next five chapters examine various aspects of indefinite detention at Guantánamo. In chapter 5, Too Dangerous to Release: Debunking the Claim, Pardiss Kebriaei describes the plight of a Yemeni citizen, Ghaleb Al-Bihani, whom the Obama administration initially slated for legal limbo, classifying him as someone who could not be prosecuted, but who was nonetheless too dangerous to release. In 2014, Mr. Al-Bihani appeared before the Periodic Review Board (PRB), established by President Obama to determine whether law-of-war prisoners, such as Mr. Al-Bihani, should continue to be detained as a matter of military necessity. Although the PRB ruled in Mr. Al Bihani’s favor, he still remains at Guantánamo.

In Mental Illness before Guantánamo, Shayana Kadidal describes the fate of a detainee who, it appears, remained at Guantánamo not because the U.S. suspected him of terrorist activities, but rather because of a mental illness that the U.S. was unable or unwilling to address. Mr. Kadidal and his colleagues fought to prevent their client’s repatriation to Libya, where he faced almost certain death in one of Muammar Gaddafi’s jails. As a result of their advocacy, the client was sent instead to Albania, where Mr. Kadidal and his colleagues helped him obtain treatment for his mental illness, before the client eventually returned to Libya after Gaddafi’s fall.

In the next chapter, You Love the Law Too Much, Martha Rayner tells the story of her client Sanad al-Kazimi, who endured torture for nearly two years in various U.S.-run secret prisons before he was brought to Guantánamo, where he continues to be held today. Ms. Rayner describes how Mr. al-Kazimi’s experiences reinforce a painful but powerful lesson: that the law, despite its promise, remains largely meaningless for many prisoners at Guantánamo.

Chapters 8 and 9 address hunger strikes at Guantánamo. In First, Do No Harm, Alka Pradhan describes how the brutal force-feeding of her client Abu Wa’el Dhiab was intended not to keep him alive, but rather to make him suffer as a punishment for engaging in this form of resistance to his indefinite imprisonment. Ms. Pradhan recounts how she and other members of Mr. Dhiab’s legal team mounted a challenge to his force-feeding, which resulted in an important district court ruling—presently on appeal—ordering the release of the video recordings of the force-feeding.

Omar Farah’s Nourishing Resistance: Tariq Ba Odah’s Eight-Year Hunger Strike at Guantánamo Bay shares the plight of his client, who has been on hunger strike since 2007. As Mr. Farah explains, a hunger strike has become the one meaningful act of resistance for men like Tariq Ba Odah, who suffer from the failure by the U.S. government to remedy endless detention at Guantánamo. In fact, Tariq Ba Odah was cleared for release by the government five years ago. But because Mr. Odah is from Yemen, where the government fears returning detainees because of security concerns, and because the government has failed to find another country to transfer him to, he remains at Guantánamo.

In chapter 10, The ‘Taliban Five’ and the Prisoner Exchange, Frank Goldsmith describes the high-profile transfer of his client Khairullah Khairkhwa (and four other Afghan detainees from Guantánamo) to the custody of the government of Qatar in exchange for the release by the Taliban of U.S. Army Sergeant Bowe Bergdahl. The Bergdahl–Taliban prisoner exchange prompted a fierce protest by conservative politicians and pundits. But, as Mr. Goldsmith explains, the exchange was consistent with longstanding U.S. wartime practice. And the facts about Mr. Goldsmith’s client—a moderate member of the former Taliban government who could help facilitate peace in Afghanistan—were grossly distorted amid the fear and irrationality that dominates public discourse around Guantánamo.

The next three chapters examine military commissions, the controversial tribunals established at Guantánamo to try individuals for war crimes. In Hamdan: The Legal Challenge to Military Commissions, Joseph McMillan describes the legal odyssey of his client Salim Hamdan. Mr. Hamdan was at the center of two important cases: first, the initial challenge to the military commissions created by President Bush after 9/11, which led to the Supreme Court’s landmark 2006 decision in Hamdan v. Rumsfeld invalidating the commissions for lack of congressional authority; and second, a subsequent challenge to the first trial conducted before the new military commissions created under the Military Commissions Act of 2006, enacted by Congress four months after the Court’s Hamdan decision. Mr. McMillan argues that the commissions are still plagued by various flaws, including trying individuals for offenses that do not violate the laws of war—an argument that, in Mr. Hamdan’s case, the federal courts ultimately vindicated after a long legal battle.

A Tale of Two Detainees, by David Frakt, describes two other military commission cases, those of Mohamed Jawad and Ali Hamza al Bahlul. Mr. Frakt describes the misguided attempt to prosecute Mr. Jawad, who was a child at the time of his arrest and who had been repeatedly tortured, for allegedly throwing a grenade at a military vehicle. Not only did the U.S. fail to support its allegation with evidence, but also the allegation itself did not establish a war crime under any accepted meaning of the term. A Tale of Two Detainees further conveys the disappointment in President Obama for reviving the discredited military commissions, rather than terminating them.

Chapter 13, More Kafka than Kafka, details the military commissions’ flaws and absurdities. Jason Wright, an army officer and criminal defense lawyer, was assigned to represent Khalid Shaikh Mohammad, the alleged mastermind of the 9/11 attacks, as well as another detainee. In More Kafka than Kafka, Major Wright describes how, until he was eventually forced to resign from the U.S. Army, the commissions sought to prevent him from fulfilling his duty of zealously representing his clients, whether by attempting to classify instances of U.S. torture so they could not be discussed publicly or by spying on attorney-client communications and seizing attorney-client materials.

In the final chapter, Storytelling #Guantanamo, Aliya Hana Hussain describes her work outside the courtroom on behalf of Guantánamo detainees. Ms. Hussain, an advocate at the Center for Constitutional Rights, explains how she uses social media to build support and sympathy for Guantánamo detainees and to help prevent them from vanishing from the public eye. Despite all the impediments advocates face, Storytelling #Guantanamo ends on a note of hope, as Ms. Hussain describes a watercolor painting depicting glimmering sunlight amid a storm at sea that was left to her by one Guantánamo detainee who finally gained his freedom and is now slowly rebuilding his life.

As the stories recounted in this volume and the prior one show, a diverse array of advocates from various backgrounds rose up to fight for civil liberties and human rights when they were most seriously threatened. Yet nothing can ever erase the stain of Guantánamo, whose continued existence is a living reminder of lawlessness and abuse. Despite President Obama’s intention to close Guantánamo, his lasting legacy is likely to be the normalization deep into the future of what should have been condemned and marginalized as a temporary deviation from America’s Constitution and ideals.

December 2015

1

Twelve Years After

Sabin Willett

The Flat Tire

One spring morning in 2009, my partner Susan Baker Manning and I walked out of the offices of the Department of Homeland Security in Washington, D.C., grinning ear to ear. We’d cut the deal. Two Uyghur clients would be freed from Guantánamo and brought to northern Virginia—perhaps within days. More than seven years had passed since the first interrogator told these men that they were innocent and would soon be freed. We’d been hard at their legal cases for more than four years. The cases had taken us to Guantánamo and the trial court, to Congress and the D.C. Circuit, to Albania and Sweden. At last, these two men had the end in sight. Ablikim and Salahidin would be freed. We were almost giddy.

It was a cold, sunny morning, and quiet outside the Nebraska Avenue complex. We knew things would not be quiet for long. A press fracas would erupt when our clients arrived in Northern Virginia. We’d have to prepare the men for sound trucks, shouted questions, microphones thrust at them. But over four years we had learned something about the press. If our clients could weather the initial flurry, the press’s attention would pass to other things. And as the excitement faded, perhaps the mythology of the Guantánamo terrorist would begin to fade with it.

We crossed the street to where Susan’s Austin Mini Cooper was parked, and found the right rear tire was flat.

The president’s bold pledge to close Guantánamo would soon be as flat as the tire. The deal we’d struck would collapse, and not just for Ablikim and Salahidin, the two Uyghur clients whom a senior officer of the department had just committed to bring to the United States. In a broader way, our deal would take the air out of the whole program for closing Guantánamo—out of Executive Order 13492 (which ordered the prison’s closure two days after Obama’s inauguration), out of the hopes of hundreds of men. Our deal would end up double locking the gates of the iconic prison, rather than opening them.

Of all the inmates, it was the Uyghurs who made Guantánamo the forever prison. Of all the prisoners, it was the indisputably innocent ones—the ones everyone agreed did not belong there—who inspired our country to make Guantánamo a monument and its inmates perpetual exhibits. The law of Guantánamo is the law of unintended consequences.

The Uyghurs

The Uyghurs are a Turkic people. They come from a region of Asia known to them as East Turkestan, and to the Chinese as Xinjiang, and practice a less conservative Islam than is common on the Arabian peninsula. Between Han and Uyghur people there has always been tension. In the last century, Uyghurs staged several uprisings against Chinese rule, and twice (in 1933 and 1944) briefly gained their independence. The First East Turkestan Republic, a short-lived attempt at independence, fell in 1934. A second East Turkestan Republic, a Soviet puppet state, existed from 1944 until Mao Tse Tung