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How lawyers helped create Guantanamo
Richard Ackland's piece was published on Brisbane Times this morning, and is reprinted on Webiary with the author's permission.
What works better in the war on terrorism? Trials that are rigged to produce verdicts of guilt for bogus charges based on coerced testimony - or a system of due process that respects the rights of the accused?
Dick Cheney was pretty clear about what is more effective. As vice-president he said the Guantanamo Bay prison, coupled with the military commissions, prevented a repeat of September 11.
President Obama told the world in his inauguration speech, "Our security emanates from the justness of our cause; the force of our example; the tempering qualities of humility and restraint."
Two days later, he signed an order setting a 12-month deadline for the closure of Guantanamo Bay, and suspending for 120 days all proceedings against detainees held at the Cuban base.
John Hutson, a retired US admiral and now a law school dean, responded to these latest orders saying Obama "is dedicated to getting us back on track as a nation. This is the right thing to do morally, diplomatically, militarily and constitutionally. But it also makes us safer."
Safer than Dick's suspension of the rule of law, lock-'em-up and torture 'em? Can the enforcement of human rights be an effective anti-terrorism measure?
The proof is in the black hole pudding, so to speak. After seven years of the previous administration's methods, all it got out of the Guantanamo military commissions were three convictions, some of them pleas of guilty from detainees desperate for something to happen. David Hicks was one of them.
The real nasties, including some of the alleged September 11 conspirators, have still not been convicted.
In fact, Susan Crawford, Cheney's handpicked handmaiden who oversees the whole "legal" process, said this month "we tortured" Mohammed al-Qahtani, one of the accused conspirators, and that is why he was not sent for trial. It's reasonable to think that if detainees are being mistreated and subjected to a flawed jurisdiction that might flow through to a developing sense of anger by people who want to be martyrs. That is hardly a circumstance that makes America or her allies "safe".
It can only be assumed the Bush people went down this path because the alternatives, such as Military Courts-Martial or criminal trials in civilian courts, did not guarantee convictions. Before the last election, the Republicans were desperate for guilty outcomes and preferably executions at Guantanamo.
Still, the carefully crafted processes of the military commissions failed to deliver. So tainted was their legal conception and so bent their procedure that endless constitutional challenges were inevitable. Even the suspension of the Geneva rules for prisoners of war, the attempted move to remove habeas corpus from the process, and the "intelligence extracting" methods of the CIA, didn't do much to help.
t would not surprise if Obama and his legal advisers reverted to the traditional military justice system for the remaining detainees or, for some, the criminal courts of the US - with all the due process protections.
All that remain at Guantanamo are about 240 prisoners. At its peak it held about 600 detainees, mostly hapless, innocent "floaters" scooped up in Pakistan and Afghanistan.
Of the 240, it is estimated that nearly 100 pose no threat to anyone and should be sent home. Some are Yemeni and, according to the British-American lawyer, Clive Stafford Smith, they remain in Cuba solely because of George Bush's reluctance to talk to the Yemeni President, Ali Abdullah Saleh.
About 40 detainees will face a trial at some point. The problem with the balance of the prisoners is that no one else wants them. Most have been cleared by the US military but there is nowhere for them to go. Stafford Smith points to Ayman al-Shurafa, who the Israelis refuse to allow to return to his Palestinian home, even though he has been deemed not to be a threat. Then there's Ahmed bel Bacha, who would be in danger from factional forces if he returned to his native Algeria. This is a man who once received a £30 tip from the British Labour heavyweight John Prescott for cleaning his Bournemouth hotel room.
One of the lessons, if we need lessons, from all of this is that lawyers can always be recruited to sanctify just about any illegality the state deems appropriate. There was the chief lawyer at the Pentagon, "Jim" Haynes, Cheney's legal advisor, David Addington, John Yoo, from the Justice Department and now at Berkeley, and Jay Bybee, who is currently a federal appeals judge.
All of them had various roles sprinkling holy water over suspension of habeas and Geneva, the overreach of executive power, illegal presidential military commissions, torture, wiretaps, rendition and black hole prisons.
The whole edifice of the bankrupt machinery for handling terrorism cases would not have happened unless lawyers gave advice that black was white.
And Australia trotted along behind, wagging its approving tail. We now owe it to Obama, who wants to repair the US fall from moral grace as well as send a pressing message to the Islamic world, to help him empty Guantanamo. We could easily provide succour to some of those perfectly harmless, cleared, stateless and otherwise unwanted souls.