The existential threats were first made manifest in the horrific case of Salman Rushdie. The renowned British novelist was sentenced to death in a fatwa, issued by Ayatollah Khomeini in 1989, for allegedly committing “blasphemy against Islam” in his book The Satanic Verses. The fatwa sparked violence by Muslims, ostensibly directed against Rushdie and his book, around the world. Several people associated with the book were attacked (one was murdered) and many more died in riots around the world. Rushdie himself had to live under police protection for many years thereafter. The anxiety not to cause offense has increased as the concept of “Islamophobia” has become more powerful and has had the effect of inhibiting discussion.t During the course of 2010, the U.S. Treasury Department decided that it had enough evidence to designate al-Awlaki publicly as a terrorist, asserting that he had “involved himself in every aspect of the supply chain of terrorism—fundraising for terrorist groups, recruiting and training operatives, and planning and ordering attacks on innocents.” The National Security Council considered the case and agreed that al-Awlaki could be targeted.28
When they discovered this, the American Civil Liberties Union and the Center for Constitutional Rights attempted to come to the terrorist’s aid.u
In November 2010, al-Awlaki released a video in which he stated “Don’t consult with anybody in killing the Americans; fighting the devil doesn’t require consultation or prayers or seeking divine guidance.” 29 By coincidence on that same day, the human rights groups went to the District Court in Washington, D.C. to argue that that al-Awlaki could not instruct counsel to seek an injunction to prevent the C.I.A. targeting him since he was unreachable in the ungoverned parts of Yemen. So they had invited his father to file a lawsuit as his son’s “next friend,” to stop any such thing happening. 30
In other words, the groups claimed that the nature of al-Awlaki’s work—plotting in Yemen how best to kill Americans—made it impossible for him to defend himself in court in Washington. They seemed to be asserting a constitutional right not to be caught while conspiring to commit murder. v Benjamin Wittes of the Brookings Institution wrote on his perceptive Lawfare Blog that this argument was “maddening. . . . It essentially asserts al-Awlaki’s right to avail himself of the justice system without submitting to it.” 31
The case came before Judge John Bates of the District Court in Washington, D.C.; he seemed equally skeptical and asked, “What is it that should lead me to believe that he [Anwar al-Awlaki] wants to bring this case?32
Good question: there was no evidence at all. Indeed, al-Awlaki, like Khalid Sheikh Mohammed and other Islamists, had often made clear his contempt for U.S. law and said that only the law of Allah, sharia law, counted for anything. Muslims must not be forced to accept the rulings of Western courts, and to abide by Western laws was “to live as sheep, as pleasantly as a flock of tame, peaceful and obedient sheep. One billion and a quarter Muslims with no say on the world stage, stripped of their right to live as Muslims under the law of Islam, directly and indirectly occupied by the West, are asked to live as sheep.” He rejected totally the proposal of moderate Muslim clerics that Muslims, Christians, and Jews should try to coexist peacefully in the modern nation state. 33
Despite al-Awlaki’s contempt for Western jurisprudence and society, and despite his avowed ambition to kill many more Americans, the ACLU and CCR still tried to show that the U.S. government had no authority to stop him by whatever measures were possible. w
In January 2011, Judge Bates released a strong judgment rejecting the ACLU/CCR plea. He not only ruled that al-Awlaki’s father lacked standing to bring the case but also ruled that the case presented a non-justiciable political question. The judge acknowledged that his conclusion was “somewhat unsettling” but nonetheless argued that “there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable.” 34
The ACLU and the Center for Constitutional Rights both denounced Judge Bates’s decision in no uncertain terms. They had even worse news to come.
On March 7, 2011, President Obama signed an Executive Order lifting the freeze on military trials that he himself had imposed in January 2009, and effectively acknowledging that Guantanamo would remain open for the foreseeable future. Thus he had abandoned two of the signature policies on which he had campaigned and which he had promulgated with great fanfare in January 2009.
Obama was bowing to both the political realities that he had created and the practical realities he had ignored. He and many of his supporters, near and far, had disdained George W. Bush and rebuked him for his policies in the War on Terror. But by the spring of 2011 he appears to have realized that his promises of “hope and change” were not easy to effect in the war against Al Qaeda. Having claimed in 2008 that President Bush’s policies undermined “our Constitution and our freedom,” Obama had since traced their history back to George Washington and declared, “They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources, and methods of intelligence-gathering, they allow for the safety and security of participants, and for the presentation of evidence gathered from the battlefield, that cannot always be presented effectively in federal courts.” 35 The Wall Street Journal pointed out, “The killers at Guantanamo will now be brought to justice via a process that the president once depicted as akin to the Ministry of Love in ‘1984.’” 36
It was now clear that Guantanamo would remain open, perhaps indefinitely. That was a serious reversal for Obama himself and a shock to many of his supporters. But it is important to stress that the Guantanamo of 2011 was very different from the prison site hastily created by the Bush administration soon after 9/11, a place that was depicted by America’s enemies as an illegal black hole filled with tortured suspects clad in orange suits and locked in wire cages.
By now Guantanamo was unique for the opposite reasons. The Bush administration had chosen it because it lay beyond the reach of U.S. courts. Now, by complete contrast, it was the only detention site used by the military in the War on Terror that was supervised by the federal courts and by lawyers pursuing habeas corpus cases on behalf of the inmates. Detainees at Guantanamo had more access to lawyers than in any other detention center, and press visits to the center were more frequent. In 2010 there had been over 1,400 legal visits to some 200 detainees. As Benjamin Wittes pointed out, Guantanamo had “evolved into a facility that offers a far more attractive model of how long-term counterterrorism detention can proceed than do the other sites the U.S. has used.” Wittes advised Obama to “embrace” Guantanamo. 37
If its reputation was nonetheless still awful, that was partly because President Obama and other like-minded people in the elite American and other media still excoriated it instead of acknowledging the changes that both Republican and Democrat administrations had brought about. The Obama administration had now recognized that detention in wartime was both legal and necessary and that Guantanamo, for all its shortcomings, played an important part in America’s self-defense. It had not been created after 9/11 because the Bush administration was uniquely malevolent, but because a detention facility was needed quickly after the start of the U.S.–led war against the Taliban and Al Qaeda. Not for nothing did Secretary Rumsfeld call Gitmo “the least worst place.” But that was an almost impossible idea to convey. The tendency amongst “opinion formers” was always to believe the worst of American motives and behavior in Guantanamo. x
Both Bush and Obama had sought to release as many detainees as possible—each administration wished to close Guantanamo, meet the concerns of European allies, put trust in the Saudi government’s rehabilitation program for jihadists, and take risks.
But there were many problems, including finding safe destinations for many of those deemed no threat to the United States. There was also a high rate of recidivism—of released detainees returning to war. By the end of 2010
, according to U.S. intelligence, 25 percent of the 598 detainees who had been set free were now confirmed or suspected of returning to the fight against America.38
A few examples. As this book went to press in the summer of 2011, the State Department named Othman al Ghamdi, commander of Al Qaeda in the Arabian Peninsula (AQAP) as a Specially Designated Global Terrorist. The Department did not mention that he had been one of the earliest detainees sent to Guantanamo in early 2002, after being captured by the Pakistani police near the Afghan border. At first he tried to hide his identity by pretending to be a Yemeni, but eventually it transpired that he had been a former Saudi soldier who had joined the jihad and was trained in Al Qaeda’s al Farouq camp in Afghanistan. He cooperated very little with interrogators in Guantanamo and was assessed as a “medium” rather than “high” threat. In 2005 the Bush administration’s Joint Task Force approved him for transfer back to Saudi Arabia, so long as the Saudis retained “control” over him and others like him. This meant a jihadist “rehabilitation” program and then release into Saudi Arabia. His “rehabilitation” was clearly not very successful, since by 2009 he was one of eleven former Guantanamo detainees on Saudi Arabia’s most wanted list and in 2010 he became more of a public leader of AQAP, denouncing America’s “crusade” against the Muslim world, and celebrating the triumph of 9/11.39
Classified documents released by WikiLeaks in 2011 revealed that amongst those who were released, one Yemeni returned home to serve as al-Awlaki’s deputy, another became a Taliban commander, and many were trained as suicide bombers. Another, Ayman Batarfi, a confidante of bin Laden who was deeply involved in Al Qaeda’s anthrax program, was released even though he was deemed “likely to pose a threat to the U.S., its interests, and its allies.” 40
Yet another was Abdul Hafiz, who had been held at Guantanamo because he was implicated in the murder of a Red Cross worker in Afghanistan. After he was given his freedom, he became a Taliban commander “who hunts charity workers in Afghanistan.” 41
Then there was a Libyan detainee, Sufyan Ben Qumu, who was transferred from Guantanamo back home to Libya in 2007. In spring 2011 he was reported to be fighting against Colonel Gaddafi along with other jihadist veterans of Afghanistan. Declassified documents from Guantanamo showed him to have been close to the top Al Qaeda leadership and noted, “The Libyan government considers detainee a dangerous man with no qualms about committing terrorist acts. He was known as one of the extremist commanders of the Afghan Arabs.” In other words, like other Libyan jihadists fighting to overthrow Gaddafi in 2011, he was unlikely to be a real ally to the NATO attempt to replace the colonel with a more democratic regime. 42
In Spring 2011, there were 172 prisoners still in Guantanamo, of whom the administration said nearly fifty could not be put on trial because, amongst other reasons, their evidence might be tainted by their treatment during “enhanced interrogations.” The other 124 could now be tried in either military or civilian courts or, in theory, resettled abroad.
Few of the cases were simple. Take the group of Chinese Uighurs who had been there since the camp opened in early 2002. As the analyst Thomas Joscelyn has pointed out, they were not “the worst of the worst,” but they were not innocent goatherds either.43 They were members of the Eastern Turkistan Islamic Party, an Al Qaeda affiliate, and they had been trained to fight alongside the Taliban and Al Qaeda by Abdul Haq, whom the Obama administration had designated a high-ranking Al Qaeda terrorist and had killed with a drone attack in northern Pakistan. Nonetheless both Bush and Obama were prepared to release them.
They could not, for their own safety, be returned to China; seventeen of them accepted resettlement to various places, some of them to the Pacific island of Palau. The last five preferred to stay in Guantanamo “because they have no connection to the island” of Palau, according to their American lawyers. They had no connection to the United States either, but that was where their lawyers argued they should be resettled. That option had in fact been considered and rejected by the Obama administration’s own Guantanamo Review Task Force. Nonetheless, their case against the government progressed through the court system until it was eventually turned down.
The New York Times was indignant on their behalf. Ignoring their admission that they were trained by Abdul Haq, the paper claimed that they “are not enemies, let alone enemy combatants” and their appeal “in no way threatens national security.” 44
The forty-eight hard core detainees presented a real problem. (By July 2011, two deaths had reduced the number to forty-six.) If they could neither be tried nor released, then it appeared that they might remain in Guantanamo in perpetuity. This was not a pleasant prospect, but the administration was now prepared to argue that it had the legal authority to hold all of the detainees at Guantanamo under the laws of war. The courts had upheld that view, while finding that some detainees should be released for lack of evidence against them. All detainees would still have the right to petition the federal courts under the doctrine of habeas corpus. And under Obama’s new proposals their status would be constantly reviewed. y
Obama’s announcement did not please human rights groups. “With the stroke of a pen,” said Tom Parker of Amnesty International, “President Obama extinguished any lingering hope that his administration would return the United States to the rule of law by referring detainee cases from Guantanamo Bay to federal courts rather than the widely discredited military commissions.” Anthony D. Romero, executive director of the American Civil Liberties Union, said “providing more process to Guantanamo detainees is just window dressing for the reality that today’s executive order institutionalized indefinite detention, which is unlawful, unwise, and un-American.” 45 Those charges were partisan, but undoubtedly true was Romero’s complaint that “in a little over two years, the Obama administration has done a complete about-face.” Similarly, Clive Stafford-Smith, British lawyer, founder of the human rights group Reprieve, and attorney for fifteen detainees at Guantanamo, asserted that in some ways Obama’s new system was worse than that of President Bush. The “kangaroo court,” he said, was back.46 David Remes, an American attorney who represented sixteen Yemeni detainees, said that the review process was no better than that of George W. Bush and there was merely “a new cast of characters” on review boards. It certainly would not do any of his Yemeni clients any good; the administration was not planning to send home any Yemeni detainees because Yemen lacked the ability to reintegrate and monitor them. 47
Also expressing shock was the New York Times, which called Obama’s decisions “a stain on American justice.” 48 And in the online magazine Slate, the legal analyst Dahlia Lithwick maintained that the decision was “cowardly, stupid, and tragically wrong.” In her view, the administration had “surrendered to the bullying, fear-mongering, and demagoguery of those seeking to create two kinds of American law.”49 From the opposite end of the spectrum, the Washington Times approved of Obama’s change of heart and wondered how long it would be before “the distraught workers in the peace movement” felt compelled “to mutter the words ‘Obama’ and ‘war criminal’ in the same breath.” The paper also maintained that President Obama owed his predecessor an apology for smearing him and his policies so thoroughly. 50 That is certainly correct.
The United States is, alas, likely to be involved in future conflicts that resemble that against Al Qaeda. Detention facilities will be needed again.
Swift intelligence gathering will, as after 9/11, be deemed a priority in any future conflict, and the United States will almost certainly continue to disagree with its European allies on the need to treat terrorists as honorable prisoners of war. By the same token, the Europeans will continue to leave the disagreeable and costly parts of the defense of the West to the United States. (As we have seen, German, British, and other European jihadists training in secret camps in Pakistan and Afghanistan were amongst the targets of U.S. drones in 2010 and 2011.)
In a future conflict, dangerous people will be detained as they
were in Afghanistan after 9/11 but, in the fog of war, “innocent goat herders” will also be seized in error. All of them will need to be detained somewhere, and now that Guantanamo is under the supervision of the U.S. federal courts, the administration of the day will be more likely to choose somewhere close to the theater of war—like Bagram, where national security anxieties still precede judicial concerns. Then the criticism will start all over again. And thus, as Benjamin Wittes points out, “we will have recreated Guantanamo . . . the real Guantanamo—which is not the facility itself but the problems that gave rise to the facility, the problems that closing the facility will do nothing to address.” 51
Given his other recent shifts towards the policies of President Bush, it was no surprise that on April 5, 2011, President Obama added to the anguish of many of his old supporters and new critics on the left by performing another painful somersault. He announced the start of his campaign for re-election in 2012, and on that same day he had his attorney general, Eric Holder, reverse himself on the trial of Khalid Sheikh Mohammed and his co-conspirators. In November 2009 Holder had promised “the trial of the century” in federal court in Manhattan, but now he announced that the trial of the Al Qaeda men would take place before a military commission in Guantanamo after all. In his statement the attorney general blamed Congress for denying the administration the right to transfer terrorists to federal courts in the United States. He was right—in December of 2010, after the near disaster of the Ghailani trial, Congress had indeed legislated to limit the executive’s ability in this regard. But Holder made it sound as if he had lost a partisan battle; in fact many Democrats, like Senator Charles Schumer of New York, had taken the lead, insisting that the terrorists should not enjoy all the constitutional protections of American citizens.52 (There were echoes here of Justice Jackson’s Eisentrager opinion that foreign combatants arrayed against America should not enjoy all the legal privileges of American citizens.) Obama had no alternative but to sign the legislation, and to accept its consequences.
Justice and the Enemy Page 17
