Sunday, February 22, 2009

Obama denies terror suspects right to trial.

I was not naive enough to think that Barack Obama was going to come to power and be able to instantly sweep away the nightmare of the Bush years. He promised to prosecute the struggle against terrorism “in a manner that is consistent with our values and our ideals” and I am more than willing to give him longer than his first few weeks in office to set about accomplishing that.

However, I am troubled by his decision to keep prisoners at Bagram air base in a state of legal limbo and can only hope that this is a holding decision until he has worked out what to do with them, rather than a decision to carry on with some of Bush's most contentious policies.

Less than a month after signing an executive order to close the Guantanamo Bay prison camp, President Barack Obama has quietly agreed to keep denying the right to trial to hundreds more terror suspects held at a makeshift camp in Afghanistan that human rights lawyers have dubbed “Obama’s Guantanamo”.

In a single-sentence answer filed with a Washington court, the administration dashed hopes that it would immediately rip up Bush-era policies that have kept more than 600 prisoners in legal limbo and in rudimentary conditions at the Bagram air base, north of Kabul.

Now, human rights groups say they are becoming increasingly concerned that the use of extra-judicial methods in Afghanistan could be extended rather than curtailed under the new US administration. The air base is about to undergo a $60m (£42m) expansion that will double its size, meaning it can house five times as many prisoners as remain at Guantanamo.

The closing of Guantanamo Bay will be nothing more than an empty gesture if the US is to continue the process of holding prisoners indefinitely and without trial elsewhere.
“Guantanamo Bay was a diversionary tactic in the ‘War on Terror’,” said the lawyer. “Totting up the prisoners around the world – held by the US in Iraq, Afghanistan, Djibouti, the prison ships and Diego Garcia, or held by US proxies in Jordan, Egypt and Morocco – the numbers dwarf Guantanamo. There are still perhaps as many as 18,000 people in legal black holes. Mr Obama should perhaps be offered more than a month to get the American house in order. However, this early sally from the administration underlines another message: it is far too early for human rights advocates to stand on the USS Abraham Lincoln and announce, ‘Mission Accomplished’.”
I think that lawyer sums up how most of us feel perfectly. We are neither declaring that Obama has sold us out, nor are we blindly supporting actions which we previously condemned simply because he is the man now pursuing them.

We are going to give him more than a few weeks to correct the abuses of the Bush administration, but correct them he must. And, if he does not, then our disappointment in him will be profound.

We want the change which Obama promised and still have faith that he can deliver it. But that change involves the US returning to within the boundaries of international law and that can't be achieved as long as the US is holding thousands of suspects with no apparent plan to ever try them for any crime.

From today's Independent's leading article:

But the case for respecting human rights remains unanswerable. Brutality, torture and long detention without trial are all not just morally repugnant but counterproductive. That is an argument President Obama himself made when he was running for office. Yet he has said nothing about the disappointing retreats from those high principles made on his behalf by subordinates in the past three weeks.

Gregory Craig, the White House counsel, said last week that the new President intended to avoid “bumper sticker slogans” in deciding what to do with the counterterrorism policies he inherited. Human rights and the rule of law are not bumper sticker slogans. For the sake of the struggle against extremism, Mr Obama needs urgently to deploy his thoughtfulness and great eloquence in explaining just where he stands.

Obama has been silent whilst certain Bush policies have been allowed to rumble on. I hope that silence is coming from someone deep in thought about what to do next. It is far too early to call this acquiescence, but there is a time limit before that would be what one is forced to do.

Click title for full article.

5 comments:

Steel Phoenix said...

I want to give him the benefit of the doubt too, but a few of his decisions have been counter to his apparent nature.

On the one hand, it is still very early and I think he has been more concerned with getting important things done than with keeping campaign promises. One the other, he has started to make rather permanent decisions, that look like bad ones. We don't know what he knows, but some decisions are inexcusable.

Bush had his followers believing that he was a good guy. They let him get away with a lot. I'm not willing to do that.

Todd Dugdale said...

I am cautious about this, too.
The primary difference between Bagram and Guantanamo is that the US claimed Guantanamo was some kind of law-free zone where anything goes. Bagram detainees should be subject to Afghani law, but that is precious little protection, if any.

I doubt that HRW would be happy if these detainees received trials in Afghani courts. It would end the "legal limbo", however. All indications thus far is the current Administration is opposed to the use of torture and is willing to take concrete actions to prevent it. This is more than the Afghan government is willing to do.

The choice appears to be between Bagram and imprisonment in (even worse) Afghan prisons, under lax Afghan sanctions against torture, followed by summary execution decreed by Afghani courts. The latter choice is the "most legal" one.

Kel said...

SP, I agree this goes against what we believe are his instincts but that's the second one that has made my eyebrows raise. And, like yourself, I am not going to behave like a Bush supporter and pretend that I like something when I don't.

Todd, The problem for me is that we again appear to have an area which is somehow beyond the reach of the law. And there is no reason why they can't receive trials by the US. After all, they are in US custody exactly the same as the prisoners in Guantanamo were.

I am hoping that this six month review he has ordered will bring clarity and restore habeas corpus, which is one of the things Obama promised to do.

Todd Dugdale said...

And there is no reason why they can't receive trials by the US. After all, they are in US custody exactly the same as the prisoners in Guantanamo were.

Legally, they are subject to Afghan law and Afghan courts would have to agree to extradite them. Guantanamo was a "special case" (in the Bush Administration's eyes, at least) which was not on US soil and not subject to US law or Cuban law. Bagram is clearly on Afghan soil and is not an embassy.

Just as British constables cannot come to the US to enforce violations of British Law committed by American citizens while on American soil, so these detainees are legally bound by Afghan law. If these were Afghan citizens violating American Law while on American soil it would be simple.

The US has "got around" that little problem by claiming these as military prisoners (but not prisoners of war) subject to military trials that never seem to occur. Basically, the US has been making up the law as it went along, so it could decide to try the detainees in American courts, as you say, on criminal charges. The legal foundation for prosecuting non-Afghans caught within Afghanistan violating US law is weak, though. Then again, we seem to be able to do whatever we want.

If we want to go by the letter of the law, however, it would involve the Afghan justice system. These are crimes committed against Afghan authority on Afghan soil. This is why I'm cautious about demanding the law be followed so scrupulously; it could allow worse abuses to take place legally.

The very least Obama could do would be to declare them prisoners of war and afford them the protections that status offers, in my opinion.
Restoration of habeas corpus would be a big step toward making the GWOT a law-enforcement effort, as it rightly should be.

Kel said...

The US has "got around" that little problem by claiming these as military prisoners (but not prisoners of war) subject to military trials that never seem to occur. Basically, the US has been making up the law as it went along, so it could decide to try the detainees in American courts, as you say, on criminal charges. The legal foundation for prosecuting non-Afghans caught within Afghanistan violating US law is weak, though. Then again, we seem to be able to do whatever we want.

I agree that the US, under Bush, was simply making the law up as it went along; but there were never any claims that the US needed to apply for extradition for the many Afghans which it shipped off to Guantanamo.

And, if they are actually being held for good reason, there is no need to worry about the difficulty of trying them under US laws for crimes committed in Afghanistan as I presume they would be charged under your country's laws against terrorism, which are rather robust.

The problem, I suspect, is that the US authorities have very little evidence to back up such charges, and certainly not to the extent which would hold up in a US court of law.

And if they are being held for crimes against the state of Afghanistan - as opposed to terrorism charges or membership of al Qaeda - then I would contend that this is a matter for the Afghan authorities. However, to my knowledge Bagram air base is not run by the Afghan authorities.

What we simply cannot end up arguing is that there is no court which can try these men and that the war on terror has succeeded in creating a prison system which is outwith any courts reach. Bush sought to create legal black holes where people's guilt was established by his word alone. That simply cannot be allowed to stand.