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Obama’s Guantanamo Appeasement Plan

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Posted on May 25, 2009

By Marjorie Cohn

Two days after his inauguration, President Obama pledged to close Guantanamo within one year. The Republicans, led by Sens. John McCain, Mitch McConnell and Pat Roberts, immediately launched a concerted campaign to assail the new president. They claimed his plan would release dangerous terrorists into U.S. communities and allow released terrorists to resume fighting against our troops.  Fox News agitator Sean Hannity and Bush team players like torture-memo lawyer John Yoo filled the airwaves and print media with paranoia.

The Republican attacks were bogus. A 2008 McClatchy investigation revealed that the overwhelming majority of Guantanamo detainees taken into custody in 2001 and 2002 in Afghanistan and Pakistan were innocent of wrongdoing or bit players with little intelligence value. A substantial number of those prisoners were literally sold to U.S. officials in exchange for bounty payments offered by the U.S. military. A Seton Hall Law Center report has debunked Pentagon claims that many released detainees have “returned to the fight.” And no one has ever escaped from one of the U.S. supermax prisons, which house hundreds of people convicted of terrorist offenses.

The Republicans have continued to oppose the effort to close Guantanamo. In an attempt to burnish his image and forestall war crimes charges, Dick Cheney now leads the charge, making ubiquitous attacks on Obama. Keeping Guantanamo open is “important,” Cheney declares. He claims that closing Guantanamo would endanger Americans, and warns that if detainees are brought to the United States, they would “acquire all kinds of legal rights.” Obama is also taking heat from the intelligence community. Those officials, like Cheney, seek to justify what they did under the Bush regime.

And now even the Democrats are piling on the bandwagon. Reacting defensively to the Republican attack campaign, the Senate voted 90 to 6 to deny Obama funds to close Guantanamo until he comes up with a “plan” for relocating the detainees there. “We spent hundreds of millions of dollars building an appropriate facility with all security precautions on Guantanamo to try these cases,” said Democratic Sen. Jim Webb on ABC News. “I do not believe they should be tried in the United States,” he added.

The pressure has caused Obama to buckle. Timed to coincide with a Cheney speech to the right-wing American Enterprise Institute, Obama announced an appeasement plan to deal with the 240 remaining Guantanamo detainees. Parts of his plan would threaten the very foundation of our legal system—that no one should be held in custody if he has committed no crime. These are Obama’s five categories for disposition of detainees once Guantanamo is closed:

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1) Those who violated the laws of war will be tried in military commissions.

Obama’s plan would backtrack on an early promise to shut down the military commissions. Obama now claims that such commissions can be fair because they will no longer permit the use of evidence obtained by cruel, inhuman or degrading interrogation methods. He fails to mention, however, that the Pentagon is using “clean teams” to re-interrogate people who were previously interrogated using the prohibited methods. When they once again give the same information, it miraculously becomes untainted. Obama also fails to acknowledge that those tried in the military commissions are forbidden from seeing all the evidence against them, a violation of the bedrock principle that the accused must have an opportunity to confront his accusers.

Even the U.S. Supreme Court has disagreed with this part of Obama’s proposed plan of action. In Ex parte Milligan, the Supreme Court declared military trials of civilians to be unconstitutional if civil courts are available.

Prisoners falling in this category should be tried in the courts of the United States, because the laws of war are actually part of U.S. law. The Supremacy Clause of the Constitution says that treaties shall be the supreme law of the land. The Geneva Conventions and the Hague Convention, which the United States has ratified, contain the laws of war.

2) Those who have been ordered released from Guantanamo will remain in custody.

Seventeen Uighurs from China were ordered released after they were found not to be enemy combatants. But they continue to languish in custody because they would be imperiled if returned to China, which considers them enemies of the state. Suggestions that they be brought to the United States have been met with paranoid NIMBY (not in my backyard!) protestations. So, under Obama’s plan they will remain incarcerated in a state of legal limbo.

3) Those who cannot be prosecuted yet “pose a clear danger to the American people” will remain in custody with no right to legal process of any kind.

These are people who have never been charged with a crime. Obama did not say why they cannot be prosecuted. Secretary of Defense Robert Gates claims as many as 100 people may fall into this category. Included in this group are those who have “expressed their allegiance to Osama bin Laden.” They will suffer “prolonged detention.”

Obama’s plan for “prolonged detention” is nothing more than a newly-coined phrase for “preventive detention,” a policy that harks back to the bad old days of the Alien and Sedition Acts of 1798 and the internment of people of Japanese extraction in the 1940s. If Obama succeeds in convincing Congress to legalize “prolonged detention,” the United States will continue to be a pariah state among justice-loving nations. The U.S. Congress, still rendered catatonic by post-9/11 rhetoric, will probably capitulate along with Obama.

Michael Ratner, president of the Center for Constitutional Rights, noted that Obama’s new system of preventive detention will just “move Guantanamo to a new location and give it a new name.”

4) Those who can be safely transferred to other countries will be transferred.

Obama noted that 50 men fall into this category. It is unclear what will happen to them when they reach their destinations.

5) Those who violated U.S. criminal laws will be tried in federal courts.

Obama cited the examples of Ramzi Yousef, who tried to blow up the World Trade Center, and Zacarias Moussaoui, who was identified as the 20th 9/11 hijacker. Both were tried and convicted in U.S. courts and both are serving life sentences.

This is the only clearly acceptable part of Obama’s plan. All detainees slated to remain in custody should be placed into this category. The federal courts provide due process as required by the Fifth Amendment to the Constitution, which does not limit due process rights to U.S. citizens: “No person ... shall be deprived of life, liberty, or property without due process of law.”

The federal courts are well suited to deal with accused terrorists. Indeed, federal judges who have presided over such cases say that the Classified Information Procedures Act can effectively protect classified intelligence in federal court trials.

If Mr. Obama proceeds with the plan he announced this week, he will empower those who point to U.S. hypocrisy on human rights as a justification to do us harm. Obama’s capitulation to the intelligence gurus and the right-wing attack dogs will not only imperil the rule of law; it will actually make us more vulnerable to future acts of terrorism.


Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of “Cowboy Republic: Six Ways the Bush Gang Has Defied the War” and co-author of the new book, “Rules of Disengagement: The Politics and Honor of Military Dissent.” Her articles are archived at www.marjoriecohn.com.


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By gezelda, June 5 at 11:39 pm #
(Unregistered commenter)

THE GUANTANAMO DIALOG
God: Now here’s one you can have.  I don’t want him.
Satan:  I don’t want him either.  He’s innocent.

God: Yeah, I know.  But we paid money to capture him and I don’t want the facts on that to come out.
Satan:  I told you from the start that I was only taking the ones that were actually guilty.

God: Yeah, but how would we know?  None of them’s had a fair trial yet.
Satan:  Well give them a trial, then.  Talk to me after that.

God: It’s gonna take time.  We gotta look at all the photos. And go over all the evidence, and nobody wants to do that. It’s too gruesome.
Satan:  That’s not my worry, old man.  You’re the one who started all this saints and sinners business.  I told you from the start it wasn’t gonna work.

God: Well, there didn’t seem to be any other way.  Everybody can’t end up in the same place, you know.  Then there’d be no such thing as justice.
Satan:  You should have thought of the complications beforehand.  Judging other people is an ugly job.  Everybody makes mistakes.

God: But we gotta have a system!  Otherwise the law means nothing. That’s why I invented the Ten Commandments.
Satan: Nobody pays any attention to them anymore, especially since the humans invented war.  Now they got all those weapons of mass destruction and stuff, they’ll never quit killing each other.

God: That’s what I’m telling you.  People gotta be punished, don’t they? I thought that’s what you were supposed to do.
Satan:  I’m sorry man, but I just can’t take ‘em all.  There’s too many of them.

God:  Well where can I put them?  I got nowhere near enough room up here. Everybody’s saying they don’t want them in their backyard.
Satan:  Well, why don’t you just send them back where they came from?

God: Sounds easy, but it won’t work.  They might be tortured.

Report this

By AbuMubarak, May 27 at 3:27 pm #

Dear Marjorie and Robert,
  Rachel Maddow was fearless as she “nailed” Obama.  I suggest your viewers watch the YOUTUBE video:

http://www.youtube.com/watch?v=1uuWVHT1WUY&feature; =related


Thank you for that video.  It reminds me of David Dinkins, first black mayor of NYC.  He was elected and supported by the black constituents because they thought he would bring “change”.  But he spent his whole office appeasing his enemies, who did nothing but bade their time until his term was over, then they turned on him.

So when it was time for his re-election, he had neither black support nor those who he had kissed-up to for his whole term in office.

Obama is so much trying to appease the middle, that he is losing from both ends.  He wasn’t elected to give bankers money or perpetuate Guantanamo.  He was elected to bring some real change to the American system. 

He is disappointing his base and turning himself into fish food for his detractors.

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By KDelphi, May 27 at 3:10 pm #

Mary Hath—I had given up on all of those, yes, MSNBC , too.

I think I will give it another look-see…thanks

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By Mary Hath Spokane, May 27 at 10:56 am #
(Unregistered commenter)

Dear Marjorie and Robert,
  Rachel Maddow was fearless as she “nailed” Obama.  I suggest your viewers watch the YOUTUBE video:

http://www.youtube.com/watch?v=1uuWVHT1WUY&feature=related

  I suspect everyone who gave their (frequently asked for) $25 checks to moveon. and change. are red mad!  Their ‘savior’ turned out to be just another grayman puppet!!  He doesn’t even right his own speeches! That should be a real RED FLAG for everyone!
  Join the march this summer!  see my website;
    http://www.MaryHathSpokane.com

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By Folktruther, May 27 at 4:20 am #

My contention is, Bisbonian, that if you can state the reality-based truth is a simple concise way, you can penetrate the miasma of the American clueless and braindead (among which I don’t include you) and get them to believe presuppositions incompatilble with the the power deludions with which they have been indoctrinated from childhood. 

But I could be wrong, overemphasizing the role that reason plays in the power process.

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By Bisbonian, May 26 at 9:40 pm #
(Unregistered commenter)

“He is legitimating and enchrenching Bushite policies so they will be acceptable to a bipartisan consensus.”

I hadn’t thought of it that way.  Interesting point.

Report this

By KDelphi, May 26 at 6:45 pm #

This will sound like a cliche, but, in a way, its not Obama or Bush…its the uS economic and class system…but, you guys all knew that, right?

Report this

By AbuMubarak, May 26 at 6:35 pm #

Is Obama better than Bush? which is better, the devil you know, or the devil you don’t?

Report this

By tahitifp, May 26 at 6:17 pm #

During the campaign, I heard several people say that they thought Obama would be worse than bush. They didn’t vote for McCain either.

I didn’t trust Obama from his very first speech and I don’t trust him now.  My mother told me to beware of smooth talkers who promised things. smile

I’d like to know what his SCOTUS pick, Sotomayor, thinks of preventive detention.  Is she OK with the imperial presidency that he’s building?

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By KDelphi, May 26 at 6:09 pm #

B-b-b-but, Folk, Johannes, arent we “all in this together”??

Thats what Pres. Obama says!

I am , of course, not serious.

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By Folktruther, May 26 at 6:03 pm #

Yeah, KDelphi, Johannes, and by that time its too late.  This is especially the problem when USans are indoctiranted with a selfish and atomizing individualism.  Europeans like Johannes are familiar with a socializt collectivist opposition and so are more sophisticated with the snares and delusions of power.  they are more politcally sophisticated because they are more familar with class struggle politics.  US liberal ideology conceals neoliberal presuppositions, as Anarcissie commented, that separate, isolate and alienate people from each other.  IT makes mobilizing the USAn population very difficult.

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By KDelphi, May 26 at 5:17 pm #

NYCArtist—I think it depends on your definition of “terrorist”, right?

I mean, is a serial cannibal a “terrorist”? I know it sounds like parsing words, but, I think the point being that , if we can keep some of those guys in at Mansfield, we can probably keep people who may have just been bought and paid for on the invasion of Iraq an Afghanistan, by poor neighbors, who were offered money.

Johannes and Folk—the USAns think that the govt will “never do it to them”—they never care about anything until it effects them , personally.

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By NYCartist, May 26 at 3:58 pm #

I am again surprised to see that in Super-Max prisons are “hundreds of people convicted of terrorist acts”.  I was surprised when I read it in the text of Obama’s speech, for the first time.

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By johannes, May 26 at 2:56 pm #

@ Folktruher

Very nice writing and absolutely the truth.


@  Self wise, wise words but be carefull, You have hearth wat he said yesterday.

We have the same problems in Europe, the freedom of citizen excist of paying taxes.


Salutations.

Report this

By Self Wise, May 26 at 1:51 pm #

Call, write your representative and make them represent, protest, make your voices heard over others or stop wasting time on this blog ______ complaining.  Shouting out on this blog does not replace political action and organizing.

Report this

By Folktruther, May 26 at 1:32 pm #

Obam is NOT ‘Bush-lite.’  He is much worse than that.  He is legitimating and enchrenching Bushite policies so they will be acceptable to a bipartisan consensus.  By advocating preventive detention, he is building the bricks of a new kind of American police state. THERE IS NOTHING WHATEVER FROM PREVINTING A RIGHT WING SUPREME COURT FROM MAKING PREVENTIVE DETENTION AS PART OF THE CONSTITUTION FOR THE AMERICAN POPULATION.  Or from preventing an administration of simply ignoring the laws, as BOTH BUSH DID AND OBAMA IS DOING.

It is not LAW that is fundamental, but justice and freedom for the American people.  And this is based on POWER.  If people maintain their power from their rulers, they will make their own laws and attain their own freedom.  Obama is systematically depriving the American people of power, of dispowering the American people.  He is EXTENDING Bushite policies and legitimating them.

The US has traditionally been a racist society where the laws have focused on oppressing the non-White population.  Like the prisoners of Gitmo.  But the main enemy of the US ruling class are the truthers and activsts of the population.  It was not the Jews that were first imprisoned and executed by the Nazies, it was the communists, socialists and liberals.  Including those who,foolishly, paved the way for Hitler’s assumption of power.

The Obama cheerleaders are putting a rope around their own necks as well, by fostering the legitimating of an anti-mobilizing police state.  A postmodern police state need not have giant Nazi rallies, merely tv and modern adertising techniques.  And intelligence and police agencies spying on the population.  And laws and procedures for preventive and other forms of imprisonment; preventing people from traveling, communicating and assempling; and general fear and intimidation instilled by War.  Obama is legitimating the installation of all of these measures, with the support of most of the Dem leaders.

Report this

By Night-Gaunt, May 26 at 12:58 pm #

That was the plan, give us two “choices” one very obviously bad and the other not so obviously bad. All others weren’t allowed to have a chance in the game of rigged elections.

Now what McCain might have had more trouble with, Obama sails through very quickly.

Even if Gitmo closed there are so many other military bases like Bahgram that are expanding to take more prisoners. Most of which we have no idea where and who and how many there are in these “black sites” all around the world and even on ships at sea!

One thing all of those thousands of photos of tortured detainees would have shown us is that the stink and rot of torture was wide and deep. From the top apple down it was and systematic. That was why they remain hidden, because it might of inflamed us too.

Trust but verify, one of the very few things I ever agreed with Reagan on just because it is prudent.

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By Bisbonian, May 26 at 12:56 pm #
(Unregistered commenter)

“Obama = Bush-lite.”

True enough.

“Aren’t you glad you wasted your vote?”

Because a vote for John McCain would have accomplished what?

Report this

By Thomas Mc, May 26 at 12:11 pm #

Obama = Bush-lite.
Aren’t you glad you wasted your vote?

Report this

By thebeerdoctor, May 26 at 7:56 am #

The ownership class has plenty of wiggle room to do what is best…for themselves. The newest one selected to preside over the kingdom, President Obama, has the precarious task of convincing the great unwashed that he still really believes in changing things, despite all the evidence to the contrary. This is indeed a tall order for the cool one, and the members of what could best be called the bipartisan illusion, do not make it any easier. You might say that things are getting a bit sticky. Will somebody make an order for more soap? If only it were possible to scrub the minds of that vast sea of Those Who Do Not Own, so they would no longer ever consider questioning authority. Maybe Barry will finally convince us that we are the numbskulls we have been waiting for.

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By johannes, May 26 at 7:18 am #

Well the land of the free is gone, he can put you in prison so long he likes without to say why.

He is not jet there, but its not far away, well he is even bether as Bush.

Every country gets the president, withs it deserve.

I am very sorry for the goodwilling American people, who ones again are betrayd by the riche power scrapers.

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By AbuMubarak, May 26 at 4:52 am #

The real question is, is Obama serious or is this all a political sham to make people THINK he is serious, when in essence, he may also be part of the overall strategy.

http://therealnews.com/t/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=3756&updaterx=2009-05-22+10:41:25

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By KDelphi, May 26 at 12:06 am #

On the other hand, this was a pretty good week for GOP, considering that theyre “out of power”, they got alot done!

Somebody should tell the Dems that they have control of the executive and legislative branches~! Hurry, so they can do all this progressive stuff that they truly want to do, like pass universal heatlh care, like Obama said he would do (when they got all three back!! of course) in 2003…and close GITMO, and, stop war…hurry, before 2010!

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By PatrickHenry, May 25 at 8:51 pm #

Folktruther, not all trials are rigged, I’ve served on a few juries myself.

3rd world “terrorists” pale in comparison to the 1st world ones.

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By Folktruther, May 25 at 8:32 pm #

Obama is really disgusting.  I see Patrick Henry is an advocate of American Justice, rigged trials and then let the criminals in prison finish them off.

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By PatrickHenry, May 25 at 8:03 pm #

First they all have to be tried in a court of law.

If a prosecuter deems there is insufficient evidence (in alot of cases I’m sure) to try them, extradite them to where we found them.

If found guilty, send them to a federal prison where they will soon find U.S. prisoners are patriotic too.

Either case we need to demolish and remove the buildings at Guantanamo, tear down the fence and leave.  This would be the symbol of change the world would respect.

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