End 15 Years Of Injustice

Say No to Donald Trump’s Proposed Executive Order to Keep Guantánamo Open, to Prevent Further Releases, and to Reintroduce Torture and "Black Sites"

A U.S. sailor replaces the photo of Barack Obama at Guantánamo with a photo of Donald Trump (Photo: John P. Wagner Jr. / U.S. Navy).

By Andy Worthington, January 27, 2017

On Wednesday our worst fears on Guantánamo and torture were confirmed, when the New York Times published a leaked draft executive order, "Detention and Interrogation of Enemy Combatants," indicating that Donald Trump wants to keep Guantánamo open, wants to send new prisoners there, and wants to "suspend any existing transfer efforts pending a new review as to whether any such transfers are in the national security interests of the United States." Trump also, it seems, wants to reinstate torture and the use of CIA "black sites."

Specifically, the draft executive order proposes revoking the two executive orders, 13492 and 13491, that President Obama issued on his second day in office in January 2009 — the first ordering the closure of Guantánamo, and the second to close CIA "black sites," to grant the International Committee of the Red Cross access to all prisoners, and to ensure that interrogators only use techniques approved in the Army Field Manual.

The draft executive order also proposes to "resurrect a 2007 executive order issued by President Bush," as the New York Times put it, which "responded to a 2006 Supreme Court ruling about the Geneva Conventions that had put CIA interrogators at risk of prosecution for war crimes, leading to a temporary halt of the agency’s ‘enhanced’ interrogations program."

Lies about "recidivism"

The draft executive order also reinstates the military’s rather shameful official claim that the prison is "legal, safe and humane," and, moreover, repeats lies about the recidivism rate of former prisoners that have no place in official government documents. Since 2009, statements issued by the military and more recently by the Director of National Intelligence, have made unsubstantiated claims about the number of recidivists released from Guantánamo (the term technically means those who have relapsed into criminal behavior after their release from detention, but in the cases of the Guantánamo prisoners the term itself is misleading, as no process was undertaken to establish whether any of these men had committed crimes in the first place).

Nevertheless, the key aspect of the recidivism problem is that these unsubstantiated figures are used with scandalous disregard for the truth by mainstream media outlets, and are also contested by other analysts. The claims, published every six months, break down those regarded as recidivists into those who are "confirmed" of reengaging and those who are "suspected" of doing so, and yet the media regularly adds both figures together, even though designations of those "suspected" of recidivism often involve only one source, with no way of knowing if that single source is reliable. This disregard for the truth is also evident in the draft executive order, which claims that "[o]ver 30 percent of detainees released from Guantánamo have returned to armed conflict." In fact, the latest DNI report, in September 2016, suggested that those "confirmed of reengaging" was 17.6%, while those "suspected of reengaging" was 12.4% — a total of 30%, not "[o]ver 30%." In addition, as the Constitution Project has pointed out, it is also important to remember that an "overwhelming majority" of those regarded as "confirmed of reengaging" were transferred during the Bush administration, whereas President Obama engaged in much more strict criteria regarding releases.

Above all, however, other analysts maintain that the DNI’s figures are exaggerated — and, of course, there is no way of independently verifying the figures because the DNI won’t release them. However, the author and journalist Peter Bergen at New America in Washington, D.C. has, for many years, been running analyses of the publicly available recidivism figures, and has persistently come up with lower figures. In 2013, for example, when the DNI had a "confirmed" figure of 16.1 percent, New America came up with 4 percent, with similar discrepancies between the "suspected" figures — 11.9 percent from the DNI, 4.7% from New America.

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The leak of the new president’s plans came on a day filled with other woes — an actual executive order authorizing the creation of the Mexican wall that Trump obsessed about on the campaign trial, and another aimed at severely restricting immigration, with a total ban on any arrivals to the U.S. from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.

No torture

Nevertheless, Trump’s enthusiasm for torture led to serious criticism — see this Guardian article, for example, featuring damning criticism from retired Air Force Colonel Steve Kleinman, who heads the research advisory committee to the High Value Detainee Interrogation Group (HIG), described by the Guardian as "a secretive group from the FBI, CIA and military with a mandate to interrogate high-level terror suspects without torture."

Kleinman said, "If the U.S. was to make it once again the policy of the country to coerce, and to detain at length in an extrajudicial fashion, the costs would be beyond substantial – they’d be potentially existential. We’ve seen how [torture] promotes violent extremism, how it degrades alliances. We’ve seen how it only serves to provide information that policymakers want to support [desired policies], not what they need." He added, "A lot of these people who weigh in heavily on interrogation have no idea how little they know, [and do so] because of what they see on television."

Kleinman also said, "There is, at best, anecdotal evidence to support torture," adding, "There is, on the other hand, a robust body of scientific literature and field testing that demonstrates the efficacy of a relationship-based, rapport-based, cognitive-based approach to interrogation, as well as a robust literature that would suggest torture immediately undermines a source’s ability to be a reliable reporter of information: memory is undermined, judgment is undermined, decision-making is undermined, time-references are undermined. And this is only from a purely operational perspective; we can’t take the morality out of strategy."

In addition, of course, the failures of torture were explicitly spelled out in the executive summary of the Senate Intelligence Committee’s report into the CIA torture program, published in December 2014, and it is to be hoped that, collectively, the CIA and other interrogators — if they still have misplaced brief in the efficacy of torture — understand that they were very fortunate to evade prosecution for their actions.

Trump himself remains bullish about torture, but he at least promised to take advice from his colleagues. In an interview with ABC News, he reiterated his belief that torture works, and that the US should "fight fire with fire," saying, "I’ve spoken in recent days with people at the highest level of intelligence, and I’ve asked them: 'Does torture work?' And the answer was 'Yes, absolutely'" — a statement that, it should be noted, probably bears no relation to the truth.

As the Guardian noted, Trump "said he would defer to the incoming CIA director, Mike Pompeo, and the defense secretary, James Mattis, on the issue," and although Pompeo has previously expressed support for torture, he has recently backed down. Mattis, meanwhile, is vehemently opposed to its use. Both men were grilled extensively on these issues by Sen. John McCain, who survived torture himself, and is, as the Guardian put it, the "co-author of a 2015 law barring the security agencies from using interrogation techniques that surpass the prohibitions in the army field manual, pledged defiance over a return to torture." McCain, who is the chair of the influential Senate Armed Services Committee, said, "The president can sign whatever executive orders he likes. But the law is the law. We are not bringing back torture in the United States of America." Moreover, he said he secured "explicit guarantees from Pompeo and Mattis during their Senate confirmation proceedings to follow the interrogations law and the army field manual," and stated, "I am confident these leaders will be true to their word."

Cynics would only add that interrogation techniques that constitute torture survive in Appendix M of the Army Field Manual, and that there is no reason for torture to be reintroduced by any other route, but Trump and those close to him were clearly thinking beyond the Army Field Manual and back to the terrible days of the Bush administration’s disgraceful global torture program when they compiled the draft executive order, and it is to be hoped that the widespread resistance to torture that surfaced after the draft was leaked will deter Trump and his people from entertaining any more foolish notions that a full-scale torture program should resurrected. As ever with this president and his advisors, however, vigilance must be maintained.

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However, even as protestors mobilized across the country in support of Mexicans, Muslims and immigrants in general, following the executive orders about the Mexican wall, immigration and refugees, there was, unfortunately, much less focus on Guantánamo in the media.

Close Guantánamo

Keeping Guantánamo open, of course, is not a drastic move, as President Obama failed to close it despite promising to do so for eight years. However, the proposal to suspend all transfer processes until a new review is conducted is profoundly unfair for the five men still held who have been approved for release by high-level, inter-agency US government review processes, and the 26 others for whom reviews — the Periodic Review Boards — are still ongoing. Established in 2013, and akin to parole boards, the PRBs have, to date, approved 38 out of 64 prisoners for release, and all but three have been freed. Reviews, however, are ongoing, with the prospect that at least a handful of other men will be approved for release, perhaps leaving around 20 men still regarded as too dangerous to release alongside the ten men currently facing (or having faced) trials.

The circumstances surrounding the ongoing imprisonment of the men is far from perfect, as the military commission trial system is fundamentally dysfunctional and not fit for purpose, and the claim that men can continue to be held indefinitely without charge or trial remains an affront to the values that the U.S. claims to respect, which, with regard to imprisonment, should involve those deprived of their liberty either being charged with crimes and tried in federal court, or held as prisoners of war until the end of hostilities and protected by the Geneva Conventions — with, it must be said, an opportunity to seek judicial redress if their captors claim that there is no end to the hostilities because they are, apparently, detained in a war without end.

However, throughout the Obama administration, the prison was at least treated as a legacy issue — albeit a thorny one — and every proposal by Republican lawmakers that new prisoners should be sent to Guantánamo, for example, was resisted, with valid arguments being made that the correct venue for those accused of terrorism was to be tried in federal court.

Unfortunately, in the draft executive order for Donald Trump, proposals are made not only for the ongoing imprisonment and trials of "alien enemy combatants" at Guantánamo, but also for "the detention and trial of newly captured alien enemy combatants." It is clear from another section, listing those with whom the U.S. "remains engaged in a global armed conflict," that the authors of the draft executive order regard those enemies as "al Qaeda, the Taliban, and associated forces, including … members of the Islamic State in Iraq and Syria, and with those who fight on behalf of or provide substantial support to or harbor such groups in furtherance of hostilities against the United States, its citizens, or its coalition partners."

Nevertheless, it is not clear that those drafting the executive order are aware that the conditions for imprisonment at Guantánamo — as laid out in the Authorization for Use of Military Force that Congress passed in the days after the 9/11 attacks — relate specifically to 9/11, and those allegedly involved with al-Qaeda, the Taliban or associated forces. In other words, it seems probable that, although Obama stretched the limits of authorization by including ISIS in his remit for drone strikes, it is probable that a new authorization would be required to detain Islamic State members at Guantánamo.

It is not impossible, with a Republican-controlled Congress, to imagine this happening, but the question would have to be why, when by far the best place for terrorists to be dealt with is in federal court. Even throughout the hysteria of the early days of Guantánamo, when the Bush administration was busy peddling its lies about the prison holding "the worst of the worst," federal court trials were taking place for anyone accused of terrorism who was not unfortunate enough to have ended up in the legal black hole of Guantánamo or the CIA’s "black sites," and those trials, of course, continued successfully under President Obama.

In addition, it is worth noting that, although Trump promised on the campaign trial to send U.S. citizens to Guantánamo, to be prosecuted in military commissions, that is not mentioned in the draft executive order, because Americans have constitutional protections, and those do not apply at Guantánamo, where only foreign citizens can he held. As Jonathan Hafetz, a professor at Seton Hall Law School, told CNN in August, after Trump’s wild claim was first made, "To bring anyone from the U.S. — citizen or not — to Guantánamo and put them in military detention would be unprecedented. Even the Bush administration, in its most sweeping views of executive power, didn't transfer [terror suspects arrested in the U.S.] to Guantánamo."

In conclusion, then, as noted above, eternal vigilance is required with Trump and his advisors, but the only specific area in which those concerned with the closure of Guantánamo need to be particularly focused on is the proposal to prevent the release of the five men still held who are approved for release, and the threat that the Periodic Review Boards may not continue for the 26 other men who are eligible for reviews every six months. To be frank, however, with so many men released in Obama’s last year, the population of Guantánamo is close to what the Obama administration itself regarded as an "irreducible minimum" of men who should not be released, even though, shamefully, 15 years after the prison opened, no one in a position of power and authority has any idea of how to deliver anything resembling justice to these allegedly dangerous individuals, or their alleged victims.

Donald Trump should learn from this how the primary lesson of Guantánamo is that breaking laws and treaties is nothing short of disastrous for everyone involved, and should finish what President Obama started, and close Guantánamo once and for all.

Note: For further information about the draft executive order, see this additional New York Times article. And if you're in the U.S. and are concerned about the torture proposals, please visit this Roots Action page and ask your Senators and Representatives which side they are on.