Friday, August 10, 2007

Guantanamo -- Again

The U.S. Navy Base at Guantanamo Bay, Cuba is back in the news this week.

Regrettably, why “GITMO” was in the news was not because the administration had a timetable for closing the prison camp that is the raison d’etat for retaining the base – even though the President, the Secretary of State, and the Secretary of Defense have all expressed a desire to see the prison camp closed down.

No, the “headline” news is that the government has finally completed the “combatant status review tribunal (CSRT) procedures for the “Gang of 14” – what the Bush administration calls “high-value” prisoners. These are the prisoners who had been concealed in the CIA’s secret overseas jail system to preclude “interference” by the International Committee of the Red Cross (ICRC) while the CIA or “friendly” foreign intelligence services conducted interrogations. Given the one-sided rules that stack the proceedings against defendants, it was absolutely no surprise that all 14 were designated “enemy combatants” since the only other possible designation is “not enemy combatant.”

Theoretically, this clears the way for these 14 to be charged with a crime and to stand trial before special military commissions created by the Military Commissions Act passed by Congress in December 2006. But the whole military commission trial process is in limbo because presiding judges in two cases brought earlier this year ruled the commissions lacked jurisdiction. The 2006 act empowered military commissions to try “unlawful enemy combatants.” But CSRTs, the tribunals that categorize detainee status, are limited to one of two rulings: a detainee is a danger to U.S. persons or interests – in which case the individual is an “enemy combatant” – or the person poses no threat and is not an enemy combatant.

In attempting to circumvent basic legal rights that all defendants have if tried within the U.S. military courts-martial system by substituting the military commissions for regularly constituted courts-martial boards, the administration ran afoul of international treaties as well as the U.S. legal system. One can anticipate that when Congress returns in September that the administration will press to correct the difference in terminology so it can conduct the trials of the “GITMO 14.”

Below the headlines, the Pentagon continues to struggle to free 80 detainees who are no longer considered to be a danger. Some do not want to return to their countries of origin because they fear they will be arrested as soon as they return – quite possibly simply because they are linked to the prison at Guantanamo. Some the administration does recognize would be arrested and could be killed – e.g., Uighurs who oppose Chinese repression in their homeland – but other countries are reluctant to take them in, again in part because of the GITMO connection. (The administration approached 100 countries before Albania agreed to take in five of 22 Uighurs.)

This week, arrangements were successfully concluded with Afghanistan to return five detainees to Kabul’s control and with Bahrain for one detainee. Whether there were – and if so the nature of – any conditionalities attached to the agreements returning the six to their countries of origin was not disclosed. But one of the impediments slowing the repatriation process is Washington’s frequent demand that the returned individual be incarcerated or be subject to police monitoring for a period of time. The Bush White House claims that 30 previously returned GITMO inmates were known to have resumed active opposition to U.S. and coalition troops in Afghanistan and Iraq.

The other relevant news is a change in policy by the new British Prime Minister, Gordon Brown. In contrast to Tony Blair’s position, Brown is willing to accept five detainees that were permanently resident in but not citizens of Great Britain at the time they were swept up and sent to GITMO. However, Washington could end up wrecking this transfer by insisting on London’s agreement to keep the five in prison once they are back in Britain. The law lords are completely unimpressed by White House claims that the jury-rigged GITMO process dispenses “justice.” That means that even should Brown agree to conditions, he might be unable to carry through.

What is becoming more apparent with each passing day is that the Bush administration is going to hand its successor another sticky wicket in the form of some 200 detainees it is either unwilling to return to their countries of origin, cannot put on trial because there is insufficient “evidence” even for the tribunals and commissions to act, or cannot find countries willing to accept former prisoners.

It gives new meaning to the phrase “illegal immigration.”

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