OBAMA’S GUANTANAMO: STORIES FROM AN ENDURING PRISON, by Jonathan Hafetz (ed). New York: New York University Press. 2016. 229 pp. Cloth $30.00. ISBN 9781479852802.
Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap@lagrange.edu
This book is infuriating, interesting, and exasperating. It is infuriating because it describes a situation that should not exist in a democratic country: the continuing and apparently limitless imprisonment of individuals who have often been confined for no good cause and whose redress has been curtailed over and again. It is interesting because in several chapters it considers a topic not often found in academic treatments of legal policy: the state of habeas corpus in the law of war. Finally, it is exasperating, at least to a professional political scientist, in its treatment of presidential power. In this review I will cover each of these aspects using example chapters to illustrate them. However, all of the book’s contributions are worth an interested reader’s consideration.
The continued existence of the prison at Guantanamo Bay in Cuba has been a problem for years. This book is testimony to this; it is a sequel to THE GUANTANAMO LAWYERS: INSIDE A PRISON OUTSIDE THE LAW (2011) that Hafetz co-edited. As before, OBAMA’S GUANTANAMO focuses on the prisoners themselves and the complex story of their resistance to their incarceration. It also amply illustrates the frustrations of the advocates for the prisoners; advocates who find themselves in a long battle with a reluctant government after winning landmark victories in the Supreme Court during the second Bush administration that appeared to clear the ground for their clients’ release.
The Guantanamo Bay prison was originally intended to provide a way to hold those persons captured on the battlefields of Afghanistan and Iraq who were deemed to have “intelligence value” and to be a threat to US national security indefinitely in a place where the jurisdiction of U.S. federal courts did not extend. With a few exceptions, determinations about the prisoners (“detainees”) were based on either barely supported suspicions or on information extracted by torturous interrogations. Nevertheless, the Bush administration, convinced that the prisoners were vital intelligence resources in fighting terrorist organizations, wished to hold them for interrogation and subsequent indefinite detention to prevent their return to the field. In a stunning series of decisions, the Supreme Court declared that federal courts had jurisdiction over Guantanamo (RASUL V. BUSH), extended habeas corpus protections to the prisoners (RASUL and HAMDI V. RUMSFELD), drew the teeth of the torture regime instituted in the War on Terror (HAMDAN V. RUMSFELD), and forced suspension of operations of the military commissions Congress had established to try them (HAMDAN, then BOUMEDIENE V. BUSH).* The election of Barack Obama as president raised hopes among all involved in the prisoners’ cases; Obama had pledged to shut down the prison and many of the inmates had already been cleared for release.
Illustrations of the process and its failings can be found in subsequent chapters concerning the prisoners Abu Wa’el Dhiab and Tariq Ba Odah. Alka Pradhan’s chapter on Dhiab is both depressing and infuriating. Dhiab was captured in 2001 in Pakistan during a raid on a “safe house” supposedly associated with an al Qaeda cell that had fled Syria. At the time Pradhan became his counsel he had been cleared for release, but nothing had happened as a result. Dhiab then went on a prolonged hunger strike that had led to him being force-fed by the camp administration. Dhiab refused to quit his strike and was subject to “forcible cell extraction”, also known as a “hard takedown”, to get him to force-feeding sessions. This involves six guards invading a cell and subduing the inmate by forcing him to the floor and shackling him. Dhiab had suffered both a broken rib [*54] and injuries to his back from hard takedowns, necessitating the use of a wheelchair and crutches. He was regularly denied both, forced to walk to be force-fed, and handled roughly during the feedings. Pradhan sued and, after prolonged resistance from Justice Department, got his client medically examined. Unluckily for the government, Dhiab’s force-feedings had been filmed and Pradhan was also able to get a ruling from the court that the videos should be released. Dhiab was released one month later and now lives in Uruguay, despite his efforts to be sent to Turkey so that he could be reunited with his family. The videos remain classified.
Omar Farah’s account of the imprisonment of his client, Tariq Ba Odah, is both depressing and inspiring. Ba Odah was captured in Pakistan in 2002. He readily admitted that he had trained with the military arm of al Qaeda and had fought at Tora Bora, but denied any terrorist training. He was cleared for release in 2009, but, again, lack of action and the changing legal requirements for the Guantanamo prisoners had kept him imprisoned. Ba Odah responded with a hunger strike that lasted from 2007 until his release in 2016. As in Dhiab’s case, the prison administration responded with “hard takedowns” and forced-feeding. Ba Odah refused to submit statements to the various panels he was sent to and even refused to speak to an attorney until 2010. His reason was a simple one: he asserted that he hadn’t done anything except fight against the Northern Alliance (the US allies in Afghanistan) and, later, US forces. Further, at first he had cooperated with his interrogators. However, experience taught him that he could expect nothing but indefinite detention. He decided to take the one avenue left to him and resist passively. Finally, after strenuous efforts by Farah and Ba Odah’s staunch resistance to the point of death, Ba Odah and seven other Yemeni prisoners were released in 2016.
This book also has several chapters revealing of the course of habeas law after BOUMEDIENE that are especially interesting. The government has seldom sustained a loss at the Supreme Court as comprehensive as BOUMEDIENE and the legal situation looked especially promising. Three extremely useful articles are included in OBAMA’S GUANTANAMO providing legal analyses that help in explaining the slow walk toward release that faced the prisoners as the law subsequently developed. The legal obstacles turned up soon after BOUMEDIENE, particularly in decisions of the Court of Appeals for the D.C. Circuit (Habeas petitions from Guantanamo are to the D.C. federal district courts). The first obstacle, as Sabin Willet points out in his informative chapter on the long struggle of Uyghur detainees to obtain release, stems from the ruling of the D.C. Circuit in the 2009 case of KIYEMBA V. OBAMA. This case involved the power of the federal courts to release detainees who had their habeas petitions granted. The Uyghur detainees who petitioned the district court had been cleared for release and had been offered resettlement. Some objected to the options given them by the United States and pled that they should be released in the United States pending resettlement offers they would accept. The D.C. Circuit ruled that the only place where they could be released following a successful petition was the U.S.; the courts had no jurisdiction otherwise. However, since the petitioners had been offered resettlement in “appropriate” countries and because such an order would violate the separation of powers by overstepping the executive’s control of immigration policy and numerous laws forbidding transfer of Guantanamo prisoners to US territory, the court below was powerless to order their release. When subsequent actions upheld this ruling, the result was that, while detainees could have their petitions granted by district courts, those courts had no power to order their release into the United States or to delay their transfer to countries that the government deemed appropriate.
More troubling are the rules for district courts hearing Guantanamo habeas cases that the D.C. Circuit subsequently issued. These are ably presented in Frank Goldsmith’s chapter on the “Taliban Five”, a group of Afghan detainees. The courts below were instructed to use a preponderance of evidence standard in judging the evidence presented by the government, to accept government restrictions on the distribution of classified evidence (even when [*55] defense attorneys had the top secret clearances needed to represent Guantanamo prisoners), to accept hearsay evidence, even when layered, and to disregard any evidence concerning the level of threat posed by petitioners on release. As might be imagined, the government found it much easier to present its case then the petitioners did. Despite the way the playing field tilted, attorneys for the prisoners persisted and, in many cases, prevailed.
Here I should point to what I think is the best chapter in the book, Joseph McMillan’s description of his long and ultimately victorious representation of Salim Hamdan, Osama bin Laden’s driver. Hamdan’s first case has already been mentioned but bears repeating. HAMDAN V. RUMSFELD challenged the parts of the Detainee Treatment Act that established the Guantanamo military commissions and that stripped federal courts of jurisdiction over habeas petitions from the prison. McMillan’s team won a resounding victory in that case only to find themselves facing subsequent action in before one of the newly re-established military commissions. The issues that faced McMillan and his team—shifting definitions in the charges against their client, sketchy disclosure by the government, hearing the case before military officers, and rules of evidence that would not have been accepted in a civilian criminal trial—would have discouraged a less dedicated group of attorneys. In the end Hamdan was convicted of “material support of terrorism”, but his sentence was reduced by time served and he was soon released to return home to Yemen. This did not stop his attorneys’ appeal of his conviction, an appeal that was subsequently successful before the D.C. Circuit in HAMDAN V. UNITED STATES. The ins-and-outs of this long and complex litigation are too convoluted to detail here, but are extremely revealing of the problems resulting from the continuation of Guantanamo and the often blatantly unjust results of litigation for its prisoners.
This brings me to the exasperating aspects of the book. The attorneys who wrote most of the chapters are almost uniformly frustrated that the Obama administration, after Obama’s pledges to close Guantanamo and the appearance of united government after the 2008 election, proved unable or unwilling to follow through on the promise. Many of the presentations in the book hint at this, but the most compelling case is made in Gary Issac’s essay. Issac was energized by Obama’s campaign promises and was sorely disappointed that they did not materialize. The problem such arguments present for political scientists is that they are often premised on an unrealistic view of presidential power. For example, Issac cites, among other similar allegations, the Obama administration’s brief opposing Supreme Court review of the D.C. Circuit’s decision in KIYEMBA II. The Court refused to grant certiorari and, as a consequence, indefinite detention of the Uyghur prisoners continued until arrangements could be made to transfer them to other countries, a process that ultimately involved agonizing waits and marginal choices. Issac blames this on what comes down to a failure of political will by President Obama. He. Didn’t. Even. Try.
Presidents face hard choices stemming from what is, compared to chief executives in other countries, an institutionally weak office. If they are to get their agenda into effect, they must persuade Congress to do it. It is a common fallacy, exposed again in the recent attempt to “repeal and replace” the Affordable Care Act, that presidents can, even in a united government, force Congress to do their bidding. When the decision in KIYEMBA I came down, the Affordable Care Act was being formed and debated. Its passage depended on the approval of a substantial minority of conservative Democratic Senators. Presidents have to decide what hill they want to use their political capital to fight on. Given the inevitable reaction of conservative Democrats and the still powerful Republican minority in Congress to any release of Guantanamo prisoners into the U.S. (several laws had been passed to prevent it), it is not surprising that the administration opposed reviewing the decision, especially since they were already planning to find other countries that would take the cleared detainees. Further, consider the precedent created by a reversal of KIYEMBA. If the decision of the D.C. district court was sustained, future presidents could almost depend on legal assaults on executive [*56] discretion in immigration and, ultimately, other areas of foreign policy. If I were president and I had found host countries for the successful petitioners that they objected being returned to, I would look to the future and oppose the establishment of the courts as arbitrators of such difficult foreign policy decisions. When you exercise power you have to get inured to the tradeoffs that requires.
These are not arguments that would appeal to Issac or other critics of the Obama administration in this book; it is written by advocates and it shows. But the necessities of the Madisonian presidential system force choices and sometimes those choices leave opportunities behind in pursuit of policies considered of greater worth or urgency. It is unfortunate that it took the 2013 mass hunger strike among the Guantanamo prisoners to bring their plight to the fore again and, as the writers in this book point out, by that time opportunities to close the prison had been squandered. However, to suppose that any action that Obama tried in this area would have survived Congressional opposition, especially after the 2010 election, shows an unrealistic appreciation of presidential power. As president, you have to know your limits and work within them, even when the results are deplorable.
For all the reservations I have about this book, I can strongly recommend it to interested readers. Its virtues—detailed histories of prisoner mistreatment and legal proceedings in their behalf—far outweigh my reservations about some of its analysis. If you are looking for a solid overview of how litigation concerning the prison has proceeded since 2008 and why we should be concerned about the failure to close Guantanamo during the Obama administration, this is the place to find it. Because of this, the book would be an excellent secondary text in courses on human rights or on constitutional law, especially if the course focused on issues involving the law of war and how the United States has coped with it. Further, I think a consideration of the ethical and legal situation the failure to close Guantanamo has left us is especially important as the Trump administration continues. I doubt seriously that any effort will be made to close the prison or release or try the detainees in the near future; indeed, events may even augment the prison’s population. Vigilance about their situation and activism aimed at closing the prison need to continue. Reading this book will provide those concerned with the background to make that more effective.
* In HAMDAN, the Court decided that Common Article 3 of the Geneva Conventions was enforceable in US courts. While the character of interrogations is not addressed in HAMDAN, violations of the Common Articles, including torture and inhuman treatment, are punishable under the War Crimes Act as felonies with very severe punishments attached. Tortuous interrogations (though not such practices as forced feeding and “hard takedowns”) virtually ceased as a result.
CASE REFERENCES
BOUMEDIENE V. BUSH 553 U.S. 723 (2008).
HAMDAN V. RUMSFELD 548 U.S. 557 (2006).
HAMDAN V. UNITED STATES 696 F.3d 1238 (D.C. CIR 2012).
HAMDI V. RUMSFELD 542 U.S. 507 (2004).
KIYEMBA V. OBAMA 561 F.3d 509 (D.C. CIR. 2009) (KIYEMBA I).
KIYEMBA V. OBAMA 605 F.3d 1046 (D.C. CIR. 2010) (KIYEMBA II).
RASUL V. BUSH 542 U.S. 466 (2004).
© Copyright 2017 by author, Tracy Lightcap.
