[LST] Gitmo's Other Prisoner - NYTimes.com

http://opinionator.blogs.nytimes.com/2013/05/29/gitmos-other-prisoner/?nl=opinion&emc=edit_ty_20130530&pagewanted=print





MAY 29, 2013, 9:00 PM
Gitmo's Other Prisoner

By LINDA GREENHOUSE
On the front page of its Memorial Day weekend edition last Friday, USA
Today ran an arresting article under the headline: From Boyhood to the
Battlefield. The photo of a young boy with a baseball bat over his
shoulder, staring forthrightly into the camera, promised a feel-good
holiday story, a promise quickly dashed by the headline's smaller
type: "These children of 9/11 died fighting its war."

The article profiled three young men, too young at the time to have
grasped the import of the events of Sept. 11, 2001, who eventually
felt the call to military service. Each died this spring in
Afghanistan.

The article made no mention of President Barack Obama's speech the
previous day, in which the president declared that "this war, like all
wars, must end." Clearly, the editors planned and scheduled the story
some time ago, not in response to the president's speech at the
National Defense University. But if anything could underscore the
urgent necessity of the recalibration the president called for, this
was it.

President Obama's articulation and defense of his policy on targeted
killing by drones got the most attention. I was equally interested in
what he had to say about the Guantánamo Bay prison in Cuba, where most
of the 166 detainees are on a hunger strike. What the president said
was not particularly new: Guantánamo is terrible advertising for the
United States; he wants to close it and bring the detainees into the
United States for trial and maximum-security imprisonment; and
Congress won't let him.

"There is no justification beyond politics for Congress to prevent us
from closing a facility that should never have been opened," the
president said in obvious frustration, speaking an obvious truth. What
occurred to me is that he, too, has become a prisoner: imprisoned not
at Guantánamo but by it.

To test the validity of this observation, it's worth looking back at
the speech President Obama gave almost exactly four years earlier, at
the National Archives on May 21, 2009. That speech was in many ways
the more challenging assignment, a more audacious staking of ground.

The president, in office only four months, was untested on national
security. Osama bin Laden was still at large. The war in Iraq was
grinding on. There was no exit strategy in Afghanistan. In contrast to
the decimated terrorist leadership the president depicted last week,
he referred back then to the "nimble enemy" the country faced.

Yet despite those daunting circumstances, the new president's tone
four years ago was not only forceful but hopeful. There were 240
prisoners at Guantánamo then. He had earlier ordered the prison camp
closed within one year, and that goal appeared well within his grasp.
In the speech, the president outlined a multipart strategy:
transferring detainees to domestic prisons; bringing as many as
possible to trial in federal court; releasing those whom courts had
already ordered freed; sending others to custody and eventual release
in other countries; reserving military commission trials for those
charged with violating the laws of war.

It all sounded, on that long-ago spring morning, not exactly simple,
but straightforward and achievable. "As president, I refuse to allow
this problem to fester," Mr. Obama said, adding: "Our courts won't
allow it."

Except, of course, that the courts did.

There are many reasons Guantánamo is still with us: cynical
Republicans who conveniently forgot that closing Guantánamo was once a
bipartisan goal (President Obama saw around that corner, warning in
his speech about "the fear-mongering that emerges whenever we discuss
this issue"); timorous Democrats who failed to provide him with cover
when things got hot; disputes within the administration that resulted
in squandered momentum; understandable concern about releasing
detainees from Yemen, the biggest group among 23 nationalities
represented at Guantánamo, into the chaos there. (In last week's
speech, the president announced that he was lifting the moratorium on
transfers to Yemen.) The military commission system bogged down
hopelessly; while President Obama expressed wonderment in 2009 that
the system had produced only three convictions, four years later it
has yielded only four more, and several of those remain tied up in
appeals.

And then there were the courts. There are two courts that have
mattered in this saga: the United States Court of Appeals for the
District of Columbia Circuit and the Supreme Court. I don't mean to
suggest that judges and justices have been the main barriers to
clearing out Guantánamo. But their role — more precisely, with respect
to the Supreme Court, absence of a role — has played and continues to
play a part that shouldn't be overlooked as discussion resumes about
the future of the island prison.

It will be five years next month since the Supreme Court has had
anything to say about Guantánamo. In June 2008, the court decided
Boumediene v. Bush, declaring that Guantánamo detainees had a
constitutional right to challenge their confinement by means of habeas
corpus petition in federal court. The court was divided 5 to 4, and
the dissenting opinions were vigorous, but Justice Anthony M.
Kennedy's strongly worded majority opinion appeared to have some
teeth.

In the first two years following Boumediene, the majority's message
seemed to resonate as federal district judges within the D.C. Circuit
took seriously Justice Kennedy's injunction to "conduct a meaningful
review" of the basis for each detainee's continued imprisonment. In
those years, the trial judges granted habeas corpus petitions more
often than not — 20 of the first 34 petitions. In ruling for the
detainees, the judges typically found that the government's evidence
didn't even meet the low standard of proof required — "preponderance
of the evidence," meaning only "more likely than not," a far cry from
the criminal-trial standard of "beyond a reasonable doubt."

This pattern changed in mid-2010 when the appeals court, in Al-Adahi
v. Obama overturned a grant of habeas corpus and instructed the
district judges to take a more forgiving approach to the government's
evidence. A case against a detainee typically involves numerous
elements such as the individual's travel history, connections with
others, motivation and circumstances of capture. In the Al-Adahi case,
the appeals court instructed the district judges not to require the
government to prove every allegation — not to require every piece of
the puzzle to fit — but rather to look at the evidence as an
integrated whole. The Supreme Court denied review in early 2011.

The Al-Adahi ruling figured to be a game-changer, and it was. The rate
of habeas corpus grants plummeted as the district judges absorbed the
message. Of the next 12 petitions, only one was granted, and the D.C.
Circuit reversed that decision. In its ruling in that case, Latif v.
Obama, the appeals court established a still more deferential standard
for reviewing the government's evidence. Judges should presume that
the government's evidence was reliable, the appeals court ruled, in
effect shifting to the detainee the burden of refuting that
presumption.

Last June, the Supreme Court refused to review the Latif decision.
Several months later, the detainee, Adnan Farhan Abdul Latif, a Yemeni
who had been held at Guantánamo for 10 years, was found dead in his
cell of an overdose of psychiatric medication, a possible suicide.
When Mr. Latif had been captured by Pakistani police near the Afghan
border in 2001, he claimed to have left Yemen in search of medical
care for a head wound suffered in a car accident. He had his medical
records with him, and no weapon. In granting his petition for habeas
corpus in the ruling that the appeals court overturned, Federal
District Judge Henry H. Kennedy Jr. had found Mr. Latif's account
plausible and the government's evidence to the contrary "not
sufficiently reliable."

It bears noting that the Obama administration has not been a passive
observer of these developments. Most of the time, when habeas corpus
has been granted, the Department of Justice has not only appealed to
the increasingly friendly D.C. Circuit but has also opposed the
detainees' efforts to obtain Supreme Court review. (One major appeal
in a military commission case will be argued before the D.C. Circuit
in September. ) In the one case since 2008 that the justices did agree
to hear, the Obama administration changed the facts in a way that led
the Supreme Court to dismiss the case.

That case, Kiyemba v. Obama, was an appeal brought by a group of
Uighurs, Chinese Muslims who had taken refuge in Afghanistan from
Chinese persecution before 9/11 and who were sold for a bounty to the
United States military in the chaos that followed. The Bush
administration had eventually conceded that the Uighurs had never been
enemy combatants, but it appealed a federal district judge's decision
ordering them released into the United States.

The D.C. Circuit overturned that ruling and the Supreme Court agreed
in mid-2009 to hear the Uighurs' appeal, over the opposition of what
was now the Obama Justice Department. In February 2010, two days
before its brief was due at the court in advance of the scheduled
argument, the administration managed to persuade the Swiss government
to admit the two remaining Uighurs for whom no other home had been
found. The justices then dismissed the case, thus avoiding — and
permitting the Obama administration to avoid — a potentially
consequential clash of executive and judicial authority.

And still Guantánamo festers. And yet, although the president's speech
last week drew the usual negative responses from the usual suspects it
could well be that time, at last, is on his side. Polls in recent
weeks indicate that public opinion is shifting, for the first time
since 9/11, on the appropriate balance between individual liberty and
national security. A Fox News poll last month found more people
unwilling than willing to sacrifice personal freedom in order to
reduce the threat of terrorism. A Washington Post poll, also last
month, found more people worried that the government would go "too far
in compromising constitutional rights in order to investigate
terrorism" than worried that the government wouldn't go far enough. A
Rasmussen Reports poll, conducted, as were the others, after the
Boston Marathon bombing, found a majority of the respondents more
worried about the economy than about terrorism.

What this suggests is there are, finally, diminishing returns for
political demagoguery on Guantánamo and other terrorism-related
issues. In his speech last week, President Obama invited the American
public to reclaim its pre-9/11 equilibrium — not by assuming that the
country faces no threat at all, but by recognizing that the threats it
faces have been and can be managed smartly. If the public accepts that
invitation, we will see not only Guantánamo closed, but the president
himself freed from Guantánamo's chains.

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Saurav Datta

Twitter: SauravDatta29
Mobile : +91-9930966518

"To those who believe in resistance, who live between hope and
impatience and have learned the perils of being unreasonable. To those
who understand enough to be afraid and yet retain their fury."

Sent from my Amazon Kindle Fire

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