Andy Worthington's Blog, page 59

New Close Guantánamo Video and Updated Campaign Song By Andy Worthington’s Band The Four Fathers

Please support my work as a freelance investigative journalist and commentator.

 

Yesterday marked the end of Donald Trump’s first month in office — surely, the most disastrous first month of a presidency in living memory, with a ban on immigrants and visitors from seven mainly-Muslim countries that has been blocked in the courts, a Russian-linked scandal involving Trump’s national security adviser, Michael Flynn, who has resigned, and a widespread understanding that Trump isn’t fit for the job, and that his administration is severely dysfunctional.

In amongst his machine-gun fire of dreadful policies have come unnerving hints about his proposals for Guantánamo — keeping the prison open and sending new prisoners there, including Islamic State prisoners, and, initially touted but since abandoned, a plan to revive Bush-era torture policies with new CIA-run “black sites.”

While we await further news about Trump’s plans, I’ve been marking his first month in office with a new campaign video for the Close Guantánamo campaign that I founded five years ago with the attorney Tom Wilner, who represented the Guantánamo prisoners in their Supreme Court cases in 2004 and 2008. The video is also available on Facebook.

The video features photos of dozens of campaigners holding posters asking Donald Trump to close Guantánamo, which I’ve been posting on the Close Guantánamo website — one every few days — since inauguration day. Please join us! Print off a poster, take a photo with it, and send it to us. Please also feel free to include a message to Donald Trump, and, if you wish, let us know where you’re from, to show the breadth of opposition to his plans across the US and around the world.

The video also features ‘Close Guantánamo (2017 mix)’, a slightly remixed and reworked version of the song I wrote and played with my band The Four Fathers (also find us on Facebook and Twitter), which was featured in a previous campaign video three months ago. The new version features a new verse about Donald Trump and his “dystopian views,” and is available to listen to — and to buy as a download if you’d like to support the band — via the link below:

Close Guantanamo (2017 mix) by The Four Fathers

Thanks for your support. These are difficult times, and Donald Trump needs resisting on almost every front imaginable, but it also remains important that Guantánamo is not forgotten, and that, if Trump tries to send new prisoners there, we are all prepared to resist as loudly as possible.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Review Boards Approve Ongoing Imprisonment of Three More Prisoners at Guantánamo, Even As Lawmakers Urge Donald Trump to Scrap Them

Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

The problem with Guantánamo has never been what right-wingers delude themselves into thinking it is — that it’s a perfect acceptable, secure facility for holding terrorists whose existence is undermined by liberals constantly trying to close it down, endangering America’s national security.

Instead, the problem is Guantánamo itself, a place of arbitrary detention, where very few of the 779 people held there by the military over the last 15 years have genuinely been accused of any involvement with terrorism, but where, because of the Bush administration’s contempt for internationally recognized laws and treaties regarding imprisonment, the majority of the men held — overwhelmingly, foot soldiers for the Taliban, and civilians, many sold for bounties — have been deprived of any rights whatsoever, and can only be freed at the whim of the executive branch.

For a brief period from 2008 to 2010, those held could appeal to the US courts, where judges were able to review their habeas corpus petitions, and, in a few dozen cases, order their release, but this loophole was soon shut down by politically motivated judges in the court of appeals in Washington, D.C., and the Supreme Court has persistently refused to revisit the positive rulings it made regarding the prisoners’ habeas corpus rights in 2004 and 2008, hurling the men back into a disgraceful legal limbo in which their only hope for release lies, yet, again, with the presidential whim.

While President Obama did nothing to challenge the judiciary, or, more particularly, to rein in the Justice Department lawyers who fought to keep every prisoner in Guantánamo as though their lives depended on it, he did introduce an administrative mechanism for assessing who should be released and who should be prosecuted, via the high-level, inter-agency Guantánamo Review Task Force that he established shortly after taking office for the first time in January 2009. Reviewing the cases of the 240 men he inherited from George W. Bush, the task force concluded that 156 should be released, and 36 should be prosecuted, and, of those 156 men recommended for release, all but three had been freed by the time Obama left office.

Alarmingly, though, the task force also created a third category of prisoner — 48 men who, they recommended, should continue to be held without charge or trial, because they were regarded as “too dangerous to release,” even though the task force members also conceded that insufficient evidence existed to put them on trial. In the real world, this meant that the so-called evidence was fundamentally unreliable, largely tainted by the use of torture and other abuse. However, when it came to the men held at Guantánamo, caution, based on a fear of releasing someone genuinely dangerous (which, in addition, was stoked by exaggerated recidivism reports emerging from within Obama’s own administration), and the prison’s foundational legacy of lawlessness meant that the extreme caution regarding these 48 men was considered acceptable.

It took two years — until March 2011 — for President Obama to come up with an executive order that purported to justify holding these 48 men indefinitely, and although that executive order was supposed to sweeten the bitter pill of indefinite detention by promising periodic reviews of the men’s cases, to be completed within a year, those reviews did not even begin for another two years and eight months.

When they did begin, in November 2013, 64 men still held at Guantánamo were deemed to be eligible for the Periodic Review Boards — 41 of the 48 men designated as “too dangerous to release” by the 2009 task force (after two died and five were freed in a prisoner swap), and 23 of the 36 men who had been recommended for trials — after the military commission trial system set up after 9/11 was almost entirely discredited in a handful of appeals that wiped out some of the few convictions secured in the commissions’ almost permanently troubled history.

Functioning like parole boards, the Periodic Review Boards sought to ascertain whether prisoners were capable of demonstrating contrition, and whether they could be trusted to establish constructive, peaceful lives after release, and, of the 64 men, 38 were approved for release between January 2014 and December 2016, including seven men whose ongoing imprisonment was recommended at their initial PRBs, but  whose release was later recommended when their cases were reviewed for a second time.

Crucially, the PRB process involves administrative file reviews every six months, and, every three years, full reviews in which the government officials on the mainland can once more speak to the men directly and discuss their cases with them by video conference — although for the full reviews it should noted that, in practice, they have generally been taking place between one and two years after the initial reviews.

Although the PRBs are a flawed process, they, like the deliberations of the task force before them, have proven to be a viable way of breaking through the inertia that otherwise permeates Guantánamo, condemning those held to lifelong imprisonment with no hope of release.

And yet, under Donald Trump, they are under threat. In his first week in office, a leaked draft executive order about Guantánamo established that, as well as wanting to bring new prisoners to Guantánamo, Trump also 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.” That wording was not included in a second leaked draft executive order, but last week eleven notoriously right-wing Republican Senators wrote to Donald Trump to support the ongoing use of Guantánamo, and to state their belief that the PRB process “should be suspended immediately.”

Exaggerating wildly, and with no evidence to back up their claims, the Senators wrote that the “standard and threshold” by which the PRBs decided whose release to approve was “dangerously flawed by subjectivity and broad interpretation,” and also called for the five men approved for release when Obama left office to continue to be held. The Senators wrongly described the five as having been made eligible for transfer by Periodic Review Boards, when, in fact, three were approved for release by the 2009  task force, and just two were approved for release by PRBs.

In further propaganda-laced passages in their letter, the Senators also stated that they “encourage a full and judicious review of the PRB’s role and responsibilities by examining the insufficient criteria that informs the inadequate standard and threshold to transfer GTMO detainees,” adding, “It is our belief that the transfer of any GTMO detainee must be prohibited until additional measures and policies are established that unequivocally certify the detainee does not pose a threat to our national security.” The Senators also suggest that analysis by “senior military leaders such as the Chairman of the Joint Chiefs of Staff and the Chiefs of Staff of the Armed Forces should be considered,” but all this is bluster, as the PRBs already feature representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff, who all take their responsibilities extremely seriously.

To confirm how distorted the Senators’ assessments are, the last two months have seen three prisoners whose ongoing imprisonment was recommended by PRBs, but who were then granted full reviews of their cases because “a significant question [was] raised as to whether [their] continued detention [was] warranted,” have their ongoing imprisonment recommended again, demonstrating the opposite of what the Senators claimed was a “dangerously flawed” process.

Moath al-Alwi’s second full review

The first of the three is Moath al-Alwi (aka Muaz al-Alawi, ISN 029, Yemen), who received a second full review on November 10. Al-Alwi was recommended for ongoing imprisonment in October 2015, after a PRB hearing the month before. A long-term hunger striker, he weighed just 97 pounds at the time of his PRB, and was regarded as a “compliant” prisoner, even though he was still on a hunger strike. He had also excelled as a sculptor and a chef, but the members of the review board found him to be “evasive and hostile in response to its questions as well as failing to acknowledge or accept responsibility for his prior actions.” Those “prior actions” are not significant, by the way, as al-Alwi was nothing more than a foot soldier for the Taliban.

For his second full review, his personal representative (a military officer assigned to represent him in his PRB) noted how he “is open minded and open to change,” and how he “ended his hunger strike and is working to gain weight and get physically fit,” adding that “he remains very positive and hopeful about his future.” Al-Alwi was also represented at his hearing by attorney Beth Jacob, working with Ramzi Kassem, who has represented him since 2009. Jacob reiterated some of the points made by his personal representative, elaborating on his talent as a sculptor, and pointing out that he has a supportive family who “will be a stabilising influence on him when he is released.”

Nevertheless, the board members, determining, on December 21, 2016 that “continued law of war detention … remains necessary to protect against a continuing significant threat to the security of the United States,” stated that they were “unable to determine whether the detainee has had a change in his extremist mindset due to his terse and vague responses to questions from Board members,” and also noted his “significant noncompliance” prior to July 2015, and his alleged “susceptibility to recruitment” by extremists, although they acknowledged his artistic skills and the fact that he had brought his hunger strike to an end, “as well as his engagement with his family on future plans.” They also encouraged him “to be compliant and provide more candid, thoughtful engagement in future reviews.”

Said Nashir’s second full review

The second of the three is Said Nashir (aka Hani Abdullah) (ISN 841, Yemen), who received a second full review on December 8. He is one of six men regarded as being part of an al-Qaeda cell in Karachi, after their capture in September 2002, who had to wait until their PRBs last year for the government to acknowledge that there was no al-Qaeda cell. The other five men were approved for release, and all were freed before President Obama left office, but Nashir had his ongoing imprisonment narrowly approved by his review board, in November 2016, seven months after his case was reviewed, because of his perceived support for violent jihad.

For his second full review, his personal representative spoke about how he was “his usual smiling self,” and also described him as “extremely good natured,” with good work prospects as an electrician, and as someone who, at Guantánamo, has studied computing. His attorney, Charles Carpenter, who has known him for 12 years, also drew the board’s attention to the fact that he “is a relatively simple, perhaps naive, man, not even to artifice or scheming,” for whom the PRB hearings are “highly stressful.”

Nevertheless, in a decision taken on January 11, 2017 (the 15th anniversary of the opening of Guantánamo), the board members approved his ongoing imprisonment,

having considered his “past ties with al-Qaida’s external operations planners and senior leadership, including 9/11 conspirator Walid Bin Attash,” and ignoring Carpenter’s plea for recognition that, at the time of his capture, Nashir was “in hiding, wary, and desperate to return home,” and “was not in a position to interrogate the man who threw him a life ring no matter how reasonable such questions may appear in 20-20 hindsight.”

The board members also considered Nashir’s “lack of credibility due to the his lack of candor and inconsistency in responses to questions from the Board, including: reasons for going to and leaving Afghanistan, and his views on violence.” The board members were also concerned about “his lack of detail regarding a plan for the future and his susceptibility to recruitment,” and stated that, “Due to his lack of credibility, truthfulness, evasiveness and vague answers lacking specifics,” they were “unable to assess [his] intentions for the future.”

Uthman Abd al-Rahim Muhammad Uthman’s second full review

The third full review was for Uthman Abd al-Rahim Muhammad Uthman (ISN 27, Yemen), whose second full review took place on December 15. Another Taliban foot soldier, Uthman had his ongoing imprisonment approved in May 2016, after a review the month before, when the board members found that he had demonstrated an “almost complete lack of candor” that “made it difficult for [them] to assess his current state of mind and intentions for the future.”

For his second full review, his personal representative spoke about a “very cordial and friendly person,” but one who “comes across as if he is saddened by the years spent here,” adding, “When you speak with him, time seems to have stood still. His responses flow over years unlike thinking in the here and now. I had to learn this by meeting with him over the last year. I would ask how he felt about something and his answer would be his feelings from thirteen years ago.”

I found this a poignant explanation for how Uthman is after his long years of imprisonment, but did not find it a source of worry from a security perspective, and it was also reassuring to hear the personal representative talk about how his family “is ready and willing to support him,” and how he “has put a lot of thought into a business plan that can be conducted n any country because everyone loves ice cream.”

Nevertheless, in a decision taken on January 17, 2017, the board members reiterated their previous concerns about him, although they added that they appreciated that he “was more candid in response to questions and provided a more realistic post-detention plan” than before, and they encouraged him to “continue to engage in the process, take advantage of educational opportunities while in detention, and continue to be complaint an cooperate with guards and interrogators” (and on that last point, I should note, I found it shocking that, 15 years after their capture, prisoners would be still be subjected to interrogation).

Omar al-Rammah’s second full review

On the day the Senators wrote their letter to Donald Trump, urging him to scrap the PRBs, another full review was taking place, the first under the Trump administration. The prisoner having his case reviewed was Omar al-Rammah (aka Zakaria al-Baidany, ISN 1017, Yemen), who had had his case reviewed in July 2016 and had been approved for ongoing detention in August. Al-Rammah had been captured in Georgia, in the former Soviet Union, in 2002, but for his PRB the US authorities, as I explained the time, “admitted that they had no information establishing that he was anything more than a low-level facilitator working with Muslim freedom fighters in Chechnya.” His PRB was also notable for the revelation, via his recent appointed attorney, Beth Jacob, that he had not been in touch with his family throughout 14 years in US custody.

Nevertheless, the board members approved his ongoing imprisonment because of his “general evasiveness,” and, ironically, because he had no post-release plans — even though post-release plans would have been close to impossible for someone like al-Rammah who had not been able to make contact with his family.

Al-Rammah had a file review on November 10, at which “a significant question [was] raised as to whether [his] continued detention [was] warranted,” leading to his second full review, for which his personal representative’s opening statement has been made public, but not that of his attorney. The personal representative described him as “a moderate Muslim who denounces violence, death and destruction caused by radicals,” and who also “enjoys western movies, sports and video games,” and “is continuing his education at GTMO by studying mathematics and English, and plans to continue his studies in Business upon his release,” with a plan to open a cafe.

The personal representative also revealed that he is now in touch with his family, who are “highly educated and well traveled,” and are “committed to assist him in gaining the necessary education and training to make this venture a success.” The family have also “offered both the emotional and monetary support necessary for Zakaria’s transition.” The personal representative added that, “Since learning that Zakaria was still alive, they have had several family meetings and developed a thorough plan to include having a family member by Zakaria’s side, regardless of where he is transferred to. The initial plan is to have Zakaria’s mother by his side while other family members rotate bimonthly.”

He was also described as “one of the better behaved detainees,” who “has had very few behavioral problems during his detention,” and “is described as calm and quiet by camp staff.” He also “feels a strong need to make up for all that he put his mother through and is hopeful that the Board will see that he is a changed man.” The personal representative concluded their statement by noting, “I do not feel that Zakaria represents a continuing or significant threat to the United States and I think he is a good candidate for repatriation.”

Will the Periodic Review Boards continue?

On February 17, Carol Rosenberg of the Miami Herald noted how, even if Omar al-Rammah’s review board decides to approve his release, spokesmen for the Defense and State Departments were unable to “explain how that would happen,” because the government “has dismantled the teams that negotiated resettlement arrangements” for 144 prisoners, who were sent to “such far-flung locations as Palau, Senegal and the Sultanate of Oman.”

As Rosenberg explained, “Paul Lewis, the former House Armed Services Committee counsel who since 2013 worked as the Pentagon’s special envoy on Guantánamo transfers, emptied his office and left the Department of Defense on Feb. 2. Lee Wolosky, who served as the third State Department Special Envoy for Guantánamo Closure, left his job at noon on Inauguration Day and has returned to his New York law firm.” She added, “Two State Department workers are still at Wolosky’s old office in a form of caretaker status, sometimes more than two if extra help is needed, according to one of the staffers,” but everything has pretty much ground to a halt since Donald Trump tweeted, on January 3, that there should be no more transfers from Guantánamo.

“Sometime after that,” Rosenberg notes, “a State Department staffer removed the sign from the ‘Office of the Special Envoy for Guantánamo Closure,’” adding, “The holder is empty now outside the office run by Tim Andrews, described as an on-again, off-again 30-year Foreign Service Officer with a background in counter-terrorism. Some describe him as Wolosky’s former deputy; others describe him as the acting special envoy. Either way, the previous deputy, Charlie Trumbull, is gone from the office but still represents the State Department at the Periodic Review Board.”

Rosenberg proceeded to discuss the two men approved for release by Periodic Review Boards who are still held — an Algerian, Sufyian Barhoumi, and a Moroccan, Abdul Latif Nasir, both approved for release last summer. With the three others approved for release by the 2009 task force, they are the five men, out of the 41 men that Obama left for Donald Trump, who have been approved for release. Just ten men are facing trials, and the other 26 had their ongoing imprisonment approved by PRBs.

Barhoumi and Nasir seem to have had their release thwarted at the last minute. Rosenberg noted how the State Department had “secured deals to repatriate [them] in the dwindling days of the Obama administration; but former Secretary of Defense Ash Carter declined to release them,” and she further explained how, right now, “career government spokesmen are unable to explain what is being done, if anything, to get those cleared men out of Guantánamo Bay,” adding, “Nor could State or Defense Department spokesmen say if there’s a way to arrange release, rehabilitation or resettlement if any more forever prisoners are cleared by the Periodic Review Board.”

Rosenberg also noted how this limbo is alarming not just because men unanimously approved for release are still held, but also because “transfers weren’t the only thing that Wolosky, who had the rank of ambassador, ran as the State Department Special Envoy.” At a public event at Fordham Law School this week, Wolosky also noted that, of “near equal importance” was “making sure that the transfer arrangements were being honored — work that required a staffer to pick up a phone or jump on an airplane to try to get a resettlement or repatriation on track.”

Wolosky called this “especially critical in light of the large number of transfers in the past two years,” adding that, although people can “agree or disagree” with whether or not the closure of Guantánamo is a good idea, it was important to note that “his office painstakingly negotiated ‘security measures’ for each transfer ‘and those were policed by my office.’”

Wolosky also noted that, at the height of his work, “he had 10 staff members at his State Department office — diplomats, lawyers and national security professionals skilled in negotiating deals and following up, to ‘make sure that the terms of the transfer are being honored, that the monitoring is being done,’” who looked at “everything from security-related stuff to making sure people were getting into vocational programs, the right vocational programs.”

He also explained that, “If someone was supposed to get a language course, a job, even making sure medical issues were addressed, his office would step in, ‘making sure the resettlements were a success.’” Rosenberg noted how the US “didn’t want a freed captive spending hours of idle time at an internet cafe, chatting with fellow captives, or seeking help from a radical mosque.”

As Wolosky said at Fordham, “If something bad were to happen, it’s going to be on the Trump administration.”

Rosenberg also spoke to Shane Kadidal, an attorney with the Center for Constitutional Rights, who represents Sufyian Barhoumi, and who told her that “an office dedicated to handling releases may not be necessary,” because George W. Bush “released more than 500 captives from Guantánamo without a special envoy.” For a time, Rosenberg pointed out, “that was part of the portfolio of United States Ambassador-at-Large for War Crimes Issues.”

As Rosenberg also explained, “diplomats arranged [Barhoumi’s] repatriation late last year only to have someone at the Pentagon put a hold on it.” Kadidal said, “It may come down to the Algerian foreign minister calling [new Secretary of State Rex] Tillerson and saying, ‘We want this guy back.’ Does that need a whole infrastructure of people to finish up a partially negotiated transfer? Probably not.”

In the New York Times, meanwhile, Charlie Savage, in an article about the PRBs, noted how Charles “Cully” Stimson, “a scholar at the conservative Heritage Foundation who was the top Pentagon detainee policy official in the Bush administration’s second term and who helped develop the predecessor Administrative Review Board,” argued that the Periodic Review Boards served a “valuable function.”

In a powerful assessment, which I hope the Trump administration will pay attention to, Stimson said, “Keeping those boards going is a separate and distinct issue from what criteria they should use and whether or not the secretaries are ultimately going to agree with any recommendation they make. I would caution the administration against scrapping them unless and until they study the issue more closely.”

Other reviews that have taken place or are scheduled to take place

The only other full review that is currently scheduled is for Sharqawi Abdu Ali Al Hajj (ISN 1457, Yemen) on February 28. Al-Hajj is an alleged al-Qaeda facilitator, whose ongoing imprisonment was recommended by a PRB in April 2016, so it was was somewhat surprising when, on November 1, he was recommended for a second full review on the basis that “a significant question [was] raised as to whether [his] continued detention [was] warranted.”

Two more full reviews have not been scheduled. One is for Saifullah Paracha (ISN 1094, Pakistan), a businessman, allegedly connected to al-Qaeda, whose ongoing imprisonment was recommended last April, but who was told in October, after a file review, that “a significant question is raised as to whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted.” The Periodic Review Secretariat initially scheduled that review for November 29, 2016, but the date was then removed from the website, and no new date has been set.

The other prisoner awaiting a second full review is Haroon al-Afghani (ISN 3148, Afghanistan), one of the last prisoners to arrive at Guantánamo, in 2007, whose ongoing imprisonment was approved last July. He had a file review on January 11, in which it was established that, “After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted.”

In addition, the purely administrative file reviews are still taking place every six months, and in the last month have approved the ongoing imprisonment of two men — Mohammed Abdul Malik Bajabu (ISN 10025, Kenya) on January 11, based on a file review on December 6, and Abd Al-Salam Al-Hilah (ISN 1463, Yemen) on January 13, based on a file review on December 14.

In addition, five other prisoners are awaiting the results of their file reviews — Said bin Brahim bin Umran Bakush (aka Saeed Bakhouche, ISN 685, Libya), whose review took place on January 4, Mohammad Mani Ahmad al-Qahtani (ISN 63, Saudi Arabia), whose review took place on January 18, Abdullah Al Sharbi (aka Ghassan al-Sharbi, ISN 682, Saudi Arabia), whose review took place on January 25, Abdul Rahim Ghulam Rabbani (ISN 1460, Pakistan), whose review took place on February 1, and Ismael Ali Faraj Ali Bakush (ISN 708, Libya), whose review took place on February 8.

And still to come are file reviews for Mohd Farik bin Amin (ISN 10021, Malaysia) on March 8, Encep Nurjaman (aka Hambali, ISN 10019, Indonesia) on March 15, Zayn al-Ibidin Muhammed Husayn (aka Abu Zubaydah, ISN 10016, Palestine/Saudi Arabia) on March 22, and Suhayl Abdul Anam al Sharabi (ISN 569, Yemen) on April 19.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Case of Al-Qaeda Suspect Captured in Yemen Seen As Test of Trump’s Plan to Send New Prisoners to Guantánamo

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Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

For the New York Times on Monday, in ‘Case of Captive in Yemen Could Test Trump’s Guantánamo Pledge,’ Adam Goldman, Matt Apuzzo and Eric Schmitt wrote about the case of Abu Khaybar, an al-Qaeda suspect, around 40 years of age, who was seized in Yemen last fall, and “is being held there by another country, according to four current and former senior administration officials.” The authors added that “[t]he circumstances of his detention are not clear, but he is wanted on terrorism charges in New York.”

However, Abu Khaybar may also be wanted by Donald Trump, to send to Guantánamo, to follow up on his pledge to send new prisoners to the prison. As the authors note, his “suspected affiliation with Al Qaeda gives the United States clear authority to hold him” at Guantánamo, where the detention of prisoners is approved by the Authorization for Use of Military Force, passed in the days after the 9/11 attacks, which authorizes the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

As the Times noted, the new Attorney General, Jeff Sessions, “has repeatedly said that terrorists should not be prosecuted in civilian courts,” a worrying stance given that the military commissions at Guantánamo have been a colossal failure, while federal courts have proven more than capable of successfully prosecuting terrorists, something they have done throughout the last 15 years, even when the Bush administration was most aggressively touting Guantánamo as a new paradigm of detention.

Sending Abu Khaybar to Guantánamo would begin to fulfill Donald Trump’s stated intention, in a recently leaked draft executive order on Guantánamo, to send “newly captured terrorism suspects” to the prison, for the first time since March 2008. President Obama failed to close Guantánamo as he promised, but, to his credit, he unwaveringly refused to send any new prisoners there, despite persistent pressure from Republicans.

However, as the authors of the Times article note, “trying to send Mr. Khaybar to Guantánamo Bay would put the administration at odds with career Justice Department prosecutors and FBI agents,” who reiterate what I discussed above — that federal courts “have proved more adept than military commissions at handling terrorism cases.” The authors point out that “[t]he military tribunal system has been troubled by setbacks,” and that, “A decade and a half after the Sept. 11, 2001, terrorist attacks, none of the men charged in that plot have even gone to trial.”

Glen A. Kopp, a former federal prosecutor in Manhattan told the Times that sending new prisoners to face military commission trials at Guantánamo “would be extremely demoralizing to the efforts of prosecutors and law enforcement dedicated to eradicating terrorism around the world.”

In addition, a “former senior Obama administration official who helped review the case” told the Times that “Justice Department prosecutors have expressed confidence in internal discussions that they can win a criminal trial against Mr. Khaybar.”

The Times also explained that Abu Khaybar “is one of many people the United States is trying to track, capture and prosecute,” adding that two US security officials said his case “had come to a head first, with others expected to follow.” No one knows if Jeff Sessions “has been briefed on the case since taking office last week,” or if the Trump administration will follow the pattern established by President Obama, who “decided whether to bring terrorism suspects to the United States after hearing from senior officials across the government.”

What is also unknown is the extent to which Donald Trump will be “willing to push his international counterterrorism allies.” The Times noted that allies including Saudi Arabia, the United Arab Emirates and Yemen “play a crucial role in the military campaign against Al Qaeda’s branch in Yemen,” but that some allies “are likely to resist being seen as helping to send a prisoner to Guantánamo Bay.”

The Times also noted that some allies, including countries in Europe, which provide crucial intelligence to the US, have explicitly “sought assurances that their collaboration will not result in prisoners being sent to Guantánamo.”

Turning to Abu Khaybar himself, the Times noted that he “is believed to be Sudanese,” but that little is publicly known about him. Former intelligence officials said that he “has longstanding ties to Al Qaeda,” with whom he was affiliated when he lived in Sudan. However, Osama bin Laden moved al-Qaeda to Afghanistan in 1996, when Khaybar would only have been around 20 years old. Officials who spoke to the Times added that, at some unspecified date, “he made his way to Somalia and then Yemen around 2015.”

The officials who spoke to the Times said that, after Abu Khaybar’s capture, his identity “was not immediately established,” but eventually intelligence officials “determined his name, and FBI agents pushed to prosecute him in New York.” Some officials said that they had “hoped to transfer him before the end of the Obama administration, but the complexity of the case and the review process made it impossible.”

Nevertheless, the Times noted that, despite the enthusiasm of Donald Trump and Jeff Sessions for sending new prisoners to Guantánamo and prosecuting them in military commission trials, the Justice Department “has become accustomed to winning important cases against foreign terrorists in federal court,” and, in addition, the FBI “has been working alongside commandos from the military’s Joint Special Operations Command to collect evidence” for prosecutors in federal court, who have a track record of securing “cooperation from admitted terrorists, such as Ahmed Abdulkadir Warsame,” who have provided information that “has then been used to prosecute others,” and, more worryingly from a legal point of view, to “launch drone strikes.”

The Times also pointed out how some of the successful prosecutions in federal court under the Obama administration included that of Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, who received a life sentence in September 2014, and Abid Nasser, born in Pakistan, who received a 40-year sentence in November 2015 for planning to bomb a shopping center in Manchester, and for plotting an attack on the New York Subway. In 2014, Irek Hamidullin, described by Charlie Savage of the Times as “a Russian army defector who joined the Taliban and was captured after a (spectacularly unsuccessful) assault on American and Afghan forces in Afghanistan in November 2009,” also received a life sentence, in Virginia, in what the Times this week described as “the first example of a foreign combatant captured on the battlefield in Afghanistan being prosecuted in federal court,” decision that led his lawyers to launch an appeal (ultimately unsuccessful), but on the correct basis that, as federal public defender Geremy Kamens told a three-judge panel of the 4th U.S. Circuit Court of Appeals. “The bottom line is that Mr. Hamidullin is a soldier, not a criminal.”

In contrast, the Times noted, Jeff Sessions criticized federal court trials as a Senator because, he said, “it gave terrorism suspects the right to lawyers, the right to remain silent and the right to a speedy trial,” and “[all] of those make it harder for interrogators to extract intelligence.”

This is the kind of tough talk that plays well in Republican circles, but that is much more difficult to defend as an active policy, as it tacitly endorses the use of torture.

It remains to be seen what will happen to Abu Khaybar, but, generously, the authors of the Times article noted that Sessions “has some wiggle room” in the case, being on record as stating that “foreign terrorists should be treated as prisoners of war ‘at least initially,’ and then a decision could be made later ‘as to whether to move them in federal court.’” The authors also explained how Abu Khaybar “has been held for months in Yemen, where he is most likely subject to questioning by the local authorities,” the extent of which is unclear, but which could lead to the US not seeking his transfer but allowing another government to handle his case. “That,” they wrote, “would be an unusual move for a case involving charges in American courts,” but it is an option.

More likely, I suspect, is the federal court option, and I have to hope that is chosen instead of the option of sending him to Guantánamo to face a military commission, as that is one door that should remain firmly shut.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

On Brexit, the British Public Finally Turns on Would-Be Tyrant Theresa May

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Last week was a particularly disastrous week for Parliament, when a horribly large majority of MPs voted to let Theresa May, the Prime Minister, do what she wants regarding Britain’s exit from the EU — and what she wants, as she has made clear, is as “hard” a Brexit as possible — one in which, in order to exercise some spurious control over immigration, we are forced to abandon the single market and the customs union, which will be insanely damaging to our economy.

The MPs’ unprovoked capitulation, by 494 votes to 122, in the vote allowing May to trigger Article 50, which launches our departure from the EU, came despite three-quarters of MPs believing that we should stay in the EU, and despite the narrow victory in last June’s referendum, which, crucially, was only advisory, although everyone in a position of power and authority has since treated it as though it was somehow legally binding.

The MPs’ capitulation was also disgraceful because, following the referendum, a handful of brave individuals engaged in a court battle to prevent Theresa May from behaving like a tyrant, and undertaking our departure from the EU without consulting Parliament. Both the High Court and the Supreme Court pointed out that sovereignty in the UK resides in Parliament, and not just in the hands of the Prime Minister, and that Parliament would have to be consulted.

Leave voters resented this intrusion of reality into their fantasy world, and the judges were subjected to widespread abuse for pointing out what Leave voters were supposed to have wanted all along (as they revealed that what they really want is a Tory dictator), but, shameful as this was, it was overshadowed by MPs’ craven refusal to accept their sovereignty, as they bowed down before Theresa May and gave her absolutely everything she wanted.

At the weekend, a handful of commentators expressed their dismay at this turn of events — although nowhere near enough, demonstrating the extent to which our mainstream media is plagued by a persistent right-wing bias. Two columns of note were in the Observer — ‘Parliament has diminished itself at this turning point in our history’ by Andrew Rawnsley, and ‘What use is sovereignty when MPs deny their conscience over Brexit?’ by William Keegan.

The only good news, however, came via a poll “conducted by ICM for the online campaigning organisation Avaaz on the day the House of Commons voted overwhelmingly to trigger article 50,” as the Guardian described it, which revealed that “[a] clear majority of the British public oppose Theresa May’s uncompromising Brexit negotiating position and are not prepared for the UK to crash out of the EU if the prime minister cannot negotiate a reasonable exit deal.”

In a result described as “a sign that public support for the government’s push for a hard Brexit is increasingly precarious,” just 35% of those who responded to the polling “said they backed Britain leaving the EU without an agreement with other states.” If no agreement is reached, the UK would have to rely on World Trade Organisation (WTO) tariffs, and, as the Guardian explained, MPs and business leaders have said that this will “devastate the economy.”

In contrast, in what was described as “a welcome boost for soft Brexit campaigners,” over half of those surveyed (54%) “backed either extending negotiations if a satisfactory deal could not be reached, or halting the process altogether while the public was consulted for a second time.”

34% said Theresa May “should continue negotiating” if a satisfactory deal could not be reached, while an addition 20% “backed halting the process pending a second referendum on the terms of the deal.”

Those backing a second referendum include the Liberal Democrats and “a cross-party group of MPs including the Labour MPs David Lammy, Heidi Alexander and Ben Bradshaw, as well as the Green Party leader, Caroline Lucas.”

Tom Brake, the Liberal Democrats’ foreign affairs spokesman, said the poll findings “proved the government’s position was indefensible.” He said, “Our best hope of stopping a ruinous hard Brexit that nobody voted for and few want is if the public rally round to fight it, as Brexit grows more unpopular. That means uniting many who voted leave but now want to avoid the economic catastrophe of quitting the single market, and who want to protect those European citizens who contribute so much to Britain’s economy and society.”

Bert Wander, Avaaz’s campaign director, said the results “showed May was at odds with the public over Brexit, and called for the House of Lords to ensure that Britons had the right to force May to continue negotiating.” As he pointed out, “Two-thirds of the public don’t want Theresa May dangling us over the Brexit cliff without a safety net and the Lords can intervene and save us from that fate. We need the right to send May back to Brussels if all she brings us is a bad deal for Britain.”

Yesterday, there was further cause for hope when Dick Newby, the leader of the Liberal Democrats in the House of Lords, said that he was “confident that enough peers would back amendments on issues such as the rights of EU citizens [to stay in the UK] and parliamentary votes on the final Brexit deal to defeat the government and force a rethink.”

This is good news, because, last week, when MPs voted overwhelmingly for Theresa May to trigger Brexit, they failed to secure a single amendment, leaving EU citizens in the UK facing a disgracefully uncertain future as “bargaining chips.” Their inability to secure any amendments also mean that their entire involvement in the Brexit negotiations is dependent upon the whims of the Prime Minister, who, as is becoming increasingly obvious, has no interest whatsoever in MPs’ involvement.

Newby said that he “expected around 230 Labour and Lib Dem peers to back an amendment on EU citizens, as well as most of the crossbenchers and at least two Tory peers,” and he added that, because some Tory peers are expected to abstain, the numbers should be sufficient to “easily defeat the government.”

He added, “There are a lot of members of the group for whom Europe is the big thing that has motivated them in politics,” and also admitted, “We were complacent, truth be told. But things have turned and people on our side feel very strongly about it.” He also said all peers “had been told to cancel leave or prior engagements.”

Labour peers have tabled “eight amendments on issues from EU nationals to quarterly reporting to parliament about the Brexit process” (similar to the thwarted amendments in the House of Commons), but with some important additions — former cabinet minister Peter Hain, for example, “has tabled several amendments, including one on the Northern Irish border, which Newby said was gaining traction,” as it deserves to, and another backed by crossbench peer Lord Pannick QC, who opposed the government in the Supreme Court over the need for parliamentary approval of the triggering of article 50. Pannick’s amendment “would require a parliamentary vote on the final Brexit deal, specifying that it should take place before any deal is approved by the European commission or parliament.”

Labour peers have, apparently, promised not to try to derail Theresa May’s plan to trigger Article 50 by the end of March, but Newby said that Labour peers “may be prepared to be more openly pro-European than Labour MPs because they did not have to answer to constituencies.”

As he explained, “What’s the point? If you’re 65 and a Labour peer and been pro-European all your life, why just sit on your hands? A lot of them are taking it into their own hands, because I talk to a lot of them.”

He also said of the Labour peers in general, “What have they got to lose? There are very many strong Europeans in the Labour party. They all know Corbyn is taking the Labour party down a destructive path, they are all beside themselves.”

Newby also addressed the threat by an unnamed government source, who said, “If the Lords don’t want to face an overwhelming public call to be abolished they must get on and protect democracy and pass this bill.” He called it an empty threat, and explained, “There is zero capacity in Whitehall to worry about House of Lords reform, it’s ludicrous to even contemplate it.”

As the Lords continue to discuss Brexit, the only other news of note since last week’s vote is a report by a new thinktank, Global Future, which suggests, damningly, that Brexit’s major aim — to return control of our borders — will not work, and will only lead to a “vanishingly small reduction” in the numbers of  immigrants. I have been staying this all along — and, of course, what is also overlooked by pro-leave evangelists is the extent to which immigrants are vital to the UK economy and their contribution is irreplaceable.

Global Future’s report “shows total net immigration, which at the latest official estimate was 335,000 in the year to June 2016, could be expected to fall by no more than 15%, to 285,000 a year,” as the Guardian described it, adding, that future free trade deals with non-EU countries suggest that “even this reduction could be wiped out.”

This was acknowledged last week by Liam Fox, the international trade minister, who accepted that “he did not know of any new free trade deal that did not also include liberalisation of migration rules between the two countries signing such agreements.” As the Guardian noted, “Australia and India have already indicated they will seek preferential access for their workers as part of a free trade deal,” despite Theresa May’s evident racism on a recent trip to India, when she made it clear how much she dislikes allowing any immigrants into the UK, unless, of course, they are wealthy.

The Global Future report concludes that, “While ending freedom of movement is psychologically appealing to those who want a sense of control of our borders, the reality is such a move would create more the illusion of control. People looking for substantial reductions are likely to be disappointed with the eventual figure of 50,000 or less.”

Its director, Gurnek Bains, added, “The extent to which this impact is worth the myriad of economic and political problems that pulling out of free movement would create needs to be reflected upon. In addition, promising more than can be delivered on migration risks creating a firestorm in the future.”

Tim Farron, the Liberal Democrats’ leader, who backed the findings of the report, said, “In return for this self-inflicted wound it is unlikely that the Conservative Brexit government will be able to deliver its promise of dramatically reduced immigration.”

My hope is that all of these blows to the government’s “hard Brexit” plans are inching us closer to where we need to end up — staying in the EU because leaving and engaging in the single biggest act of economic suicide in our lifetimes is too great  price to pay — but I’m not holding my breath. This is going to be a long struggle, because those of us who want to stay in the EU are up against spectacularly delusional nationalists, whose self-regard is so colossal that they are unable to comprehend how deluded they are.

Note: For further information about Brexit, please read Ian Dunt’s excellent article for Politics.co.uk, ‘Everything you need to know about Theresa May’s Article 50 nightmare in five minutes.’ Dunt is the author of the invaluable book, Brexit: What the Hell Happens Now?

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Court Rules That Donald Trump’s Disgraceful Immigration Ban Discriminates Against Muslims

Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

As a Russia-related scandal engulfs the White House, with the resignation of national security adviser Michael Flynn, Donald Trump’s disgraceful immigration ban continues to attract condemnation in US courts. The ban, which bars entry to the US to anyone from seven countries with mainly Muslim populations (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) for 90 days, and refugees for 120 days (with a total ban on refugees from Syria) was first subjected to a nationwide stay nine days ago, when District Judge James Robart, a senior judge in the United States District Court for the Western District of Washington, declared that the ban was unconstitutional, and granted a temporary restraining order against it that applied nationwide. Washington State’s Attorney General Bob Ferguson had successfully argued in court that the ban “violated the guarantee of equal protection and the first amendment’s establishment clause, infringed the constitutional right to due process and contravened the federal Immigration and Nationality Act,” as the Guardian described it.

Last week, three judges in the Ninth Circuit Court of Appeals in San Francisco upheld Judge Robart’s ruling, having found that the government had “pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States,” and added that, “[r]ather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all,” in the Guardian’s words.

Yesterday, in Virginia, a third blow for the government came when District Judge Leonie Brinkema, in Aziz v. Trump, issued a preliminary injunction against the order based specifically on the issue of religious discrimination.

The opinion, as the Washington Post explained, relied on “Trump’s own statements advocating a ‘Muslim ban,’ and those of his adviser Rudy Giuliani as evidence of the discriminatory intent underlying the order.”

Judge Brinkema also rejected the notion, put forward by lawyers for Trump – that “the ‘plenary power’ doctrine requires absolute deference to the president on national security and immigration issues.” As Judge Brinkema stated in her ruling:

Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights … Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.”

Judge Brinkema also made a point of asking “whether the EO was animated by national security concerns at all, as opposed to the impermissible motive of … disfavoring one religious group.”

Unlike the Washington State ruling, upheld by the Ninth Circuit, whose scope is nationwide, Judge Brinkema’s decision is limited to Virginia, but it will have wider repercussions as the cases against the ban proceed.

In San Francisco, as Reuters reports, “an unidentified judge” on the Ninth Circuit has requested that a full panel of judges should review the three judges’ earlier decision to uphold Judge Robart’s stay, and both sides in the case have been asked to file briefs by Thursday.

Meanwhile, in Seattle, yesterday, Judge Robart “said he would move forward with discovery in the case.”

Donald Trump has persistently reacted with rage to the court’s decisions, and most recently threatened to issue a new executive order, but nothing has been forthcoming — I suspect because there are simply no grounds whatsoever for anything resembling the blanket ban he wants to impose. As Arthur Hellman, a professor at the University of Pittsburgh School of Law who has studied the Ninth Circuit, told Reuters, “You would think [Attorney General] Jeff Sessions would do whatever he had to do to get this case ended as soon as possible.”

As we await further developments, I’d like to share with you below an extraordinary amicus submission to the Ninth Circuit, which was considered as part of the three judges’ ruling last week, and which was issued by ten prominent former government officials, including Madeleine Albright, John Kerry, Michael Hayden and Leon Panetta. As the Guardian noted, this was just one of several prominent amicus briefs submitted in the case — others included one by ninety-seven US tech firms, including Apple, Microsoft, Google and eBay, another by Harvard, Massachusetts Institute of Technology, Tufts, Boston University and other Massachusetts-based academic institutions, and another by the American Civil Liberties Union — but the former officials’ brief was extremely powerful, and I have never seen anything quite like it.

The former officials wrote that they were “unaware of any specific threat that would justify the travel ban,” and stated that it “ultimately undermines the national security of the United States, rather than making us safer,” as well as criticizing it because it “offends our nation’s laws and values.”

They also stated that there was “no national security purpose for a total bar on entry for aliens from the seven named countries,” explaining that, since 9/11, “not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order,” and “[v]ery few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all,” because “[t]he overwhelming majority of attacks have been committed by U.S. citizens.”

They added that the Trump administration “has identified no information or basis for believing there is now a heightened or particularized future threat from the seven named countries,” also adding, in a recognition of the fact that the ban is aimed specifically and unjustifiably at Muslims, “Nor is there any rational basis for exempting from the ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban remains one religious group (Muslims).”

The officials also described how, “As a national security measure, the Order is unnecessary,” because “[n]ational security-based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence and (3) thorough interagency legal and policy review.”

They also described it as “ill-conceived, poorly implemented and ill-explained,” and “of unprecedented scope,” and added, “We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people.” Crucially, “Even after 9/11, the U.S. Government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin, or religious affiliation.”

The officials’ joint declaration is below:

Joint Declaration of Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, and Susan E. Rice

1. We are former national security, foreign policy, and intelligence officials in the United States Government:

a. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997 and has been a member of the Central Intelligence Agency External Advisory Board since 2009 and the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.

b. Avril D. Haines served as Deputy Director of the Central Intelligence Agency from 2013 to 2015, and as Deputy National Security Advisor from 2015 to January 20, 2017.

c. Michael V. Hayden served as Director of the National Security Agency from 1999 to 2005, and Director of the Central Intelligence Agency from 2006 to 2009.

d. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.

e. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000-2004 and Acting Director of CIA in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.

f. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017.

g. Michael J. Morell served as Acting Director of the Central Intelligence Agency in 2011 and from 2012 to 2013, Deputy Director from 2010 to 2013, and as a career official of the CIA from 1980. His duties included briefing President George W. Bush on September 11, 2001, and briefing President Barack Obama regarding the May 2011 raid on Osama bin Laden.

h. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.

i. Leon E. Panetta served as Director of the Central Intelligence Agency from 2009-11 and as Secretary of Defense from 2011-13.

j. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009-13 and as National Security Advisor from 2013 to January 20, 2017.

2. We have collectively devoted decades to combatting the various terrorist threats that the United States faces in a dynamic and dangerous world. We have all held the highest security clearances. A number of us have worked at senior levels in administrations of both political parties. Four of us (Haines, Kerry, Monaco and Rice) were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the Jan. 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Order”).

3. We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the Administration has not shown to be inadequate. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values.

4. There is no national security purpose for a total bar on entry for aliens from the seven named countries. Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order. Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for believing there is now a heightened or particularized future threat from the seven named countries. Nor is there any rational basis for exempting from the ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban remains one religious group (Muslims). In short, the Administration offers no reason why it abruptly shifted to group-based bans when we have a tested individualized vetting system developed and implemented by national security professionals across the government to guard the homeland, which is continually re-evaluated to ensure that it is effective.

5. In our professional opinion, the Order will harm the interests of the United States in many respects:

a. The Order will endanger U.S. troops in the field. Every day, American soldiers work and fight alongside allies in some of the named countries who put their lives on the line to protect Americans. For example, allies who would be barred by the Order work alongside our men and women in Iraq fighting against ISIL. To the extent that the Order bans travel by individuals cooperating against ISIL, we risk placing our military efforts at risk by sending an insulting message to those citizens and all Muslims.

b. The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our obtaining the necessary information sharing and collaboration in intelligence, law enforcement, military, and diplomatic channels to address the threat posed by terrorist groups such as ISIL. The international criticism of the Order has been intense, and it has alienated U.S. allies. It will strain our relationships with partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, undermining years of effort to bring them closer. By alienating these partners, we could lose access to the intelligence and resources necessary to fight the root causes of terror or disrupt attacks launched from abroad, before an attack occurs within our borders.

c. The Order will endanger intelligence sources in the field. For current information, our intelligence officers may rely on human sources in some of the countries listed. The Order breaches faith with those very sources, who have risked much or all to keep Americans safe – and whom our officers had promised always to protect with the full might of our government and our people.

d. Left in place, the Executive Order will likely feed the recruitment narrative of ISIL and other extremists that portray the United States as at war with Islam. As government officials, we took every step we could to counter violent extremism. Because of the Order’s disparate impact against Muslim travelers and immigrants, it feeds ISIL’s narrative and sends the wrong message to the Muslim community here at home and all over the world: that the U.S. government is at war with them based on their religion. The Order may even endanger Christian communities, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war.

e. The Order will disrupt ongoing law enforcement efforts. By alienating Muslim-American communities in the United States, it will harm our efforts to enlist their aid in identifying radicalized individuals who might launch attacks of the kind recently seen in San Bernardino and Orlando.

f. The Order will have a devastating humanitarian impact. When the Order issued, those disrupted included women and children who had been victimized by actual terrorists. Tens of thousands of travelers today face deep uncertainty about whether they may travel to or from the United States: for medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows for the Secretaries of State and Homeland Security to agree to admit travelers from these countries on a case-by-case basis, in our experience it would be unrealistic for these overburdened agencies to apply such procedures to every one of the thousands of affected individuals with urgent and compelling needs to travel.

g. The Order will cause economic damage to American citizens and residents. The Order will affect many foreign travelers, particularly students, who annually inject hundreds of billions into the U.S. economy, supporting well over a million U.S. jobs. Since the Order issued, affected companies have noted its adverse impacts on many strategic economic sectors, including defense, technology, medicine, culture and others.

6. As a national security measure, the Order is unnecessary. National security-based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence and (3) thorough interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on (1) general bans (2) not supported by any new intelligence that the Administration has claimed, or of which we are aware, and (3) not vetted through careful interagency legal and policy review. Since the 9/11 attacks, the United States has developed a rigorous system of security vetting, leveraging the full capabilities of the law enforcement and intelligence communities. This vetting is applied to travelers not once, but multiple times. Refugees receive the most thorough vetting of any traveler to the United States, taking on the average more than a year. Successive administrations have continually worked to improve this vetting through robust information- sharing and data integration to identify potential terrorists without resorting to a blanket ban on all aliens and refugees. Because various threat streams are constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on individuals from certain countries in the visa waiver program –as has been done on occasion in the past – merely allows for more individualized vettings before individuals with particular passports are permitted to travel to the United States.

7. In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained. The “considered judgment” of the President in the prior cases where courts have deferred was based upon administrative records showing that the President’s decision rested on cleared views from expert agencies with broad experience on the matters presented to him. Here, there is little evidence that the Order underwent a thorough interagency legal and policy processes designed to address current terrorist threats, which would ordinarily include a review by the career professionals charged with implementing and carrying out the Order, an interagency legal review, and a careful policy analysis by Deputies and Principals (at the cabinet level) before policy recommendations are submitted to the President. We know of no interagency process underway before January 20, 2017 to change current vetting procedures, and the repeated need for the Administration to clarify confusion after the Order issued suggest that that Order received little, if any advance scrutiny by the Departments of State, Justice, Homeland Security or the Intelligence Community. Nor have we seen any evidence that the Order resulted from experienced intelligence and security professionals recommending changes in response to identified threats.

8. The Order is of unprecedented scope. We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after 9/11, the U.S. Government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin, or religious affiliation. In past cases, suspensions were limited to particular individuals or subclasses of nationals who posed a specific, articulable threat based on their known actions and affiliations. In adopting this Order, the Administration alleges no specific derogatory factual information about any particular recipient of a visa or green card or any vetting step omitted by current procedures.

9. Maintaining the district court’s temporary restraining order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal vetting processes that are currently in place. Reinstating the Executive Order would wreak havoc on innocent lives and deeply held American values. Ours is a nation of immigrants, committed to the faith that we are all equal under the law and abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, we sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, that applies no religious tests, and that measures individuals by their merits, not stereotypes of their countries or groups. Blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that we each took oaths to protect. Rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” does not disguise the Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values.

10. For all of the foregoing reasons, in our professional opinion, the January 27 Executive Order does not further – but instead harms – sound U.S. national security and foreign policy.

Respectfully submitted,

MADELEINE K. ALBRIGHT

AVRIL D. HAINES

MICHAEL V. HAYDEN

JOHN F. KERRY

JOHN E. McLAUGHLIN

LISA O. MONACO

MICHAEL J. MORELL

JANET A. NAPOLITANO

LEON E. PANETTA

SUSAN E. RICE

Note: See the Redbubble website for the poster.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Check Out the “Donald Trump No!” Photos on the Close Guantánamo Website, and Please Join Us!

Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

24 days into the Trump presidency, the tsunami of disgraceful executive orders that Trump has unleashed has threatened to drown out the lingering injustice of Guantánamo, where President Obama left 41 prisoners — five approved for release, ten facing trials, and 26 others in a legal limbo — reviewable (via Periodic Review Boards), but a limbo nonetheless, regarded as “too dangerous to release” or as candidates for prosecution, but in a system that is so broken that all efforts to prosecute them have been abandoned.

Trump intends to get rid of Obamacare, intends to build a wall between the US and Mexico, has approved the resumption of work on a number of contested pipelines, has approved what may be a colossal program of deportations for undocumented immigrants, has pledged a severe reduction in the number of refugees accepted din the US (including a total ban on refugees from Syria), and has introduced a ban on anyone arriving in the US from seven mainly Muslim countries (Syria again, plus Iraq, Iran, Libya, Somalia, Sudan and Yemen) that is so sweeping that it has provoked widespread protests, has sent shockwaves around the world, and, most crucially, has been blocked by a court in Washington State, a ruling upheld by the 9th Circuit Appeals Court in San Francisco.

In an effort to keep Guantánamo in the public eye, I set up a new page on the Close Guantánamo website (which I established five years ago with the US attorney Tom Wilner) shortly after Donald Trump’s inauguration on January 20. The new page features photos of celebrities and concerned citizens from across the United States and worldwide, telling Donald Trump to close Guantánamo, and not to keep the prison open and “load it up with some bad dudes,” as he promised on the campaign trail, a position that he has continued to support via a number of draft executive orders that are currently circulating around the relevant government departments.

In his first week, a draft order calling for CIA “black sites” to be reopened, and for new prisoners to be sent to Guantánamo was leaked, and in recent days another draft has appeared, this one dropping the torture suggestions, after a massive backlash, but retaining the promise to send new prisoners to Guantánamo — specifically, an contentiously, ISIS (Islamic State) prisoners, even though experts have warned him that there may well be no sound legal basis for doing so.

The Close Guantánamo poster and photo campaign follows last year’s Countdown to Close Guantánamo, in which we urged President Obama to fulfill the promise to close Guantánamo that he made on his second day in office back in January 2009. Over 700 photos were submitted during the year — see here for the celebrity photos, and here for the last of five pages of photos submitted by supporters across the US and around the world.

Please join us in demanding that Donald Trump abandon his plans and close Guantánamo for good. Print off a poster, take a photo with it, and send it to us. We’ll post the photos on the dedicated page on our website, and on our Facebook and Twitter pages.

We’re challenging this most troubling of presidents, regarding his plans for Guantánamo, by posting one photo every two or three days, to provide maximum exposure to those taking part, and we ask again: Please join us. Let’s show Trump that we know the difference between right and wrong, and demand that he closes this wretched prison that does so much damage to America’s reputation, and its ability to claim, both at home and abroad, that it is a nation founded on the rule of law.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

As 9th Circuit Judges Uphold Stay on Donald Trump’s Disgraceful Immigration Ban, 29 Experts from The Constitution Project Condemn Spate of Executive Orders

Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

There was great news yesterday from the Ninth Circuit Court of Appeals in California, as a panel of three judges unanimously upheld the stay on President Trump’s Executive Order barring entry to the US from seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) whose populations are predominantly Muslim. The stay was issued five days ago by District Judge James Robart, a senior judge in the United States District Court for the Western District of Washington, and he is one of several high-level heroes resisting Trump’s racist contempt for the constitution, previously discussed in my articles, Trump’s Dystopian America: The Unforgivable First Ten Days and Disgraceful: Trump Sacks Acting US Attorney General Sally Yates, Who Refused to Support His Vile Immigration Ban.

As the Guardian reported, the court found that “the government has not shown a stay is necessary to avoid irreparable injury.” In particular, its ruling noted “the government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all.”

In a press release, the Constitution Project (a Washington-Based non-profit organization whose goal is to build bipartisan consensus on significant constitutional and legal questions) noted that the court rejected the Trump administration’s argument that “the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections,” and stated, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” The Constitution Project also noted that the court added that Fifth Amendment protection against “deprivation of life, liberty, or property, without due process of law” applies to everyone within the United States, not just citizens.

The Guardian also noted that “the federal government can now ask the supreme court to review the ninth circuit’s ruling,” but added that the judges’ “unanimous ruling suggests that the Trump administration will face an uphill battle.”

Trump himself responded with predictable fury, tweeting, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

The Guardian also noted how the judges’ ruling was “scathing in parts, essentially calling into question the government’s credibility,” and proceeded to explain how, with reference to the confusion regarding permanent US residents who were caught up in the travel ban, the judges pointe out that they “cannot rely upon the government’s contention that the executive order no longer applies to lawful permanent residents.”

The judges also noted that “in light of the government’s shifting interpretations of the executive order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”

Also in the opinion, the Guardian noted, “the judges wrote that ‘it is well established that evidence of purpose’ from a case’s context can be used in court – meaning that the states can cite Trump’s claims and tweets, for instance about his preference for Christians and call for a ‘complete and total shutdown of Muslims,’ as admissible evidence.”

In other words, “Trump’s long history of controversial statements, the court suggested, can therefore be used as legal weapons against him,” which is very good news indeed, considering how irresponsible Trump is in his tweets.

Below, I’m posting a statement by 29 experts from the fields of politics, law and the military, who are part of The Constitution Project’s Liberty and Security Committee and its Task Force on Detainee Treatment. The experts criticize the immigration ban and other recent executive orders, noting that they “threaten to harm fundamental constitutional rights, American values, and innocent people, without any evidence that they will benefit national security.”

As well as the immigration ban, the statement criticizes the executive order targeting undocumented people for deportation, which also calls for the publication of weekly lists of “criminal actions committed by aliens,” another approving the creation of a wall between the US and Mexico, which also calls for the construction of detention facilities, and a draft executive order calling for the prison at Guantanamo Bay to stay open, and for new prisoners to be sent there, which I have written about here and here.

Statement on Recent Executive Orders

By 29 experts from The Constitution Project’s Liberty and Security Committee and its Task Force on Detainee Treatment

In December 2015, in the wake of a series of horrific terrorist attacks around the world, The Constitution Project’s Liberty and Security Committee issued a statement asking Americans, and particularly their political leadership, to respond in a way that upheld our laws and values. We asked that they consider proposals calmly and deliberately; uphold the right to dissent and the free exercise of religion; resist attempts to target vulnerable groups; and act consistently with the Constitution at all times.

An unprecedented series of executive orders recently signed by President Trump, or whose proposed text has been published in the press, violates all of these core principles, in the name of protecting national security. This occurred almost immediately upon President Trump taking office, rather than in reaction to a known, specific terrorist threat or attack on the United States.

Executive Order 13,769, issued on January 27, 2017, bans all nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for at least 90 days, forbids the admission of Syrian refugees into the United States indefinitely, and suspends all U.S. refugee admissions for at least 120 days. The order is misleadingly titled “Protecting the Nation from Foreign Terrorist Entry Into the United States”; in fact, it primarily targets on the basis of religion and nationality individuals whom the U.S. government has already determined not to be a threat.

Two other sweeping executive orders regarding immigration were issued on January 25. Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” would overhaul the immigration enforcement system in a way that invites abuse. Instead of prioritizing removal of individuals convicted of serious crimes, the order requires the Secretary of Homeland Security to give equal priority to removing individuals convicted of, charged with, or accused of minor offenses, or deemed a threat by any immigration officer. In effect, this empowers federal and state law enforcement officials to designate any undocumented person as a criminal. The order also instructs the Department of Homeland Security to publish weekly lists of “criminal actions committed by aliens,” and tells agencies to deny non-U.S. persons the protections of the Privacy Act. These steps are particularly disturbing given recent reports of increasing hate crimes and threats against minorities.

Executive Order 13,767, “Border Security and Immigration Enforcement,” directs the construction of a physical wall along the United States’ border with Mexico. Moreover, it requires the Secretary of Homeland Security to construct detention facilities and detain all individuals facing removal proceedings. At a time when 40,000 people are already detained and immigration courts are facing backlogs so severe that hearings can be postponed for years, this carries a steep fiscal cost and an even higher humanitarian cost on the men, women, and children subjected to it. It would seriously impede individuals’ ability to obtain legal representation or meaningful court review of any claim for relief from removal.

The press has published several versions of another draft executive order issued in the name of national security. The first version would have withdrawn the prohibition on the CIA operating overseas prisons, expanded military commissions, and instructed the Secretary of Defense to end all transfers from Guantanamo and prepare to send newly captured detainees there. The second version removes all reference to interrogation policies and military commissions, but maintains the requirement that the Defense Secretary continue to use Guantanamo, including for new captures.8

It is unclear what, if any, legal and policy review these orders received before they were signed. It is clear that they threaten to harm fundamental constitutional rights, American values, and innocent people, without any evidence that they will benefit national security.

We call upon President Trump to withdraw the executive orders entirely, or suspend them pending a thorough legal and policy review by all relevant departments and agencies to address these concerns. We also call upon him to respect any court decisions limiting or overturning his executive orders, and refrain from attacks upon judges’ integrity or independence. We call upon him to act with more deliberation and care before taking future executive action, and avoid actions that target minorities, chill dissent, or threaten other core constitutional guarantees.

We ask Congress to use its lawmaking, appropriations, oversight, and advice-and-consent powers on a bipartisan basis to enforce our constitutional safeguards and protect individuals’ fundamental rights.

We ask the courts to defend their independent constitutional role and act as a check on the executive, as they have begun to do in the context of the seven-country travel ban.

Finally, we call on individuals employed by executive agencies to uphold their responsibility faithfully to execute our laws at all times, and comply fully and promptly with all court orders.

David Cole, National Legal Director, American Civil Liberties Union; Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown University Law Center

Phillip Cooper, Professor of Public Administration, Mark O. Hatfield School of Government, Portland State University

Talbot “Sandy” D’Alemberte, Partner, D’Alemberte & Palmer; Professor, Florida State University; President, Florida State University, 1993-2003; President, American Bar Association, 1991-92; Member, Florida House of Representatives, 1966-1972

John W. Dean, Counsel to President Richard Nixon; former Goldwater Chair of American Institutions at Arizona State University

Mickey Edwards, Vice President, Aspen Institute; Lecturer at the Woodrow Wilson School of Public and International Affairs, Princeton University; former Member of Congress (R-OK) and Chairman of the House Republican Policy Committee

Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress (Ret.)

Michael German, former F.B.I. Agent (1988-2004)

Dr. David P. Gushee, Distinguished University Professor of Christian Ethics; Director, Center for Theology and Public Life, Mercer University

Azizah al-Hibri, Professor Emerita, The T.C. Williams School of Law, University of Richmond; Founder, KARAMAH: Muslim Women Lawyers for Human Rights

David Irvine, Brigadier General (Ret.), U.S. Army; former strategic intelligence officer, U.S. Army Reserve; taught prisoner-of-war interrogation for 18 years at the Sixth U.S. Army Intelligence School; former Republican state legislator (Utah)

James R. Jones, former U.S. Ambassador to Mexico; former Member of Congress (D-OK)

Christopher Kelley, Lecturer in Political Science, Miami University (OH)

Claudia J. Kennedy, Lieutenant General (Ret.) U.S. Army; former Deputy Chief of Staff for Intelligence at Headquarters, Department of the Military

Alberto Mora, Senior Fellow, Carr Center for Human Rights Policy, Harvard Kennedy School; Former General Counsel, Department of the Navy.

Joe Onek, Principal, The Raben Group; Senior Counsel, Speaker of the House Nancy Pelosi, 2007-2011; Senior Coordinator for rule of law, State Department, 1999-2001; Principle Deputy Associate Attorney General, Department of Justice, 1997-1999; Deputy Counsel, President Jimmy Carter, 1979-1981

Mary O. McCarthy, Consultant, Freedom of Information and Privacy Act; Associate Deputy Inspector General, Investigations, Central Intelligence Agency, 2005-2006; Visiting Fellow, Center for Strategic and International Studies, 2002-2004; Senior Policy Planner, Directorate of Science and Technology, Central Intelligence Agency, 2001-2002; Senior Director, Special Assistant to the President, National Security Council, 1998-2001; Director for Intelligence Programs, National Security Council, 1996-1998; National Intelligence Officer for Warning (Deputy 1991-1994), 1994-1996

Thomas R. Pickering, former Under Secretary of State for Political Affairs, 1997-2000; United States Ambassador and Representative to the United Nations, 1989-1992; former Ambassador to the Russian Federation, India, Israel, El Salvador, Nigeria, and Jordan

Paul R. Pillar, Nonresident Senior Fellow, Center for Security Studies, Georgetown University; Intelligence Officer (positions included Deputy Chief of DCI Counterterrorist Center, National Intelligence Officer for the Near East and South Asia, and Executive Assistant to the Director of Central Intelligence), Central Intelligence Agency and National Intelligence Council, 1977-2005

Deborah N. Pearlstein, Associate Professor of Law, Cardozo Law School, Yeshiva University

Jack N. Rakove, W. R. Coe Professor of History and American Studies and Professor of Political Science, Stanford University

Peter Raven-Hansen, Glen Earl Weston Research Professor of law, George Washington University Law School

Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center

David Skaggs, Adjunct Professor of Law, University of Colorado Law School; former Member of Congress (D-CO) and Member of the Appropriations Committee and Permanent Select Committee on Intelligence

Nancy Soderberg, President and CEO, Soderberg Global Solutions; Distinguished Visiting Scholar, University of North Florida; President, U.S. Connect Fund, 2009-2013

Neal R. Sonnett, Member, ABA Board of Governors, 2009-2012; Chair, American Bar Association Task Force on Treatment of Enemy Combatants and Task Force on Domestic Surveillance in the Fight Against Terrorism; former United States Attorney and Chief of Criminal Division for the Southern District of Florida; former President, National Association of Criminal Defense Lawyers

Gerald E. Thomson, MD, Professor of Medicine Emeritus, Columbia University; former President, American College of Physicians

Don Wallace, Chairman, International Law Institute, Georgetown University Law Center

John W. Whitehead, President, The Rutherford Institute

Lawrence B. Wilkerson, Col. (Ret.) U.S. Army; Distinguished Visiting Professor of Government at the College of William and Mary; Former Chief of Staff to Secretary of State Colin Powell

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

On Brexit, MPs Give Away Sovereignty, Vote to Allow Theresa May to Do Whatever She Wants

Please support my work as a freelance investigative journalist and commentator.

 

What a disgrace the majority of MPs have shown themselves to be, as they have voted, by 494 votes to 122, to pass the government’s derisory little bill allowing Theresa May to “notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.”

Although numerous amendments were tabled — seven by Labour, others by other parties — all failed to be passed. On Tuesday, an amendment by Labour’s Chris Leslie, stating that “the government should not be allowed to agree a Brexit deal until it has been passed by both Houses of Parliament,” was defeated by 326 votes to 293 — a majority of 33 — including seven Tory rebels: as well as serial Brexit rebel Ken Clarke, the rebels were Heidi Allen, Bob Neill, Claire Perry, Antoinette Sandbach, Anna Soubry and Andrew Tyrie.

And last night, before the final vote, there was another blow — this one not to the hard-won sovereignty of Parliament, given away by MPs as though it was nothing, but to the three million EU nationals who live and work in the UK, when the amendment by Labour’s Harriet Harman, in her capacity as the chair of the Joint Committee on Human Rights, guaranteeing EU nationals the right to stay in the UK, was defeated by 332 votes to 290 — a majority of 42. On this amendment, there were three Tory rebels — Ken Clarke, Tania Mathias and Andrew Tyrie.

On this amendment, the Guardian tried to claim that “[t]he fact that MPs have voted this down does not mean the MPs want EU nationals to have to leave the EU after Brexit. It means they accept Theresa May’s argument that Britain should not give any commitments until it can reach a deal with other EU countries ensure that Britons living on the continent are also guaranteed the right to say where they are.”

However, I simply don’t accept this argument, as I’m imagining the insecurity felt by EU nationals living and working here, many who have been here for decades, and I find it unacceptable that, for any reason, they can be reduced to being bargaining chips.

So let’s just recap on how we got here, shall we? Theresa May, the accidental Prime Minister, first refused to accept that the UK cannot leave the EU without Parliament being consulted, spending months fighting in the courts to prevent what Brexit was supposedly about — restoring sovereignty to the UK, because, in the UK, sovereignty resides with Parliament and very specifically not with just the Prime Minister.

Then when, after three months, the Supreme Court confirmed the High Court’s November ruling that Parliament must be consulted, May and her chief Brexiteer, David Davis, put together that derisory two-paragraph bill for MPs to endorse, which they expected them to pass without much discussion, instantly relinquishing the sovereignty that the Supreme Court had just confirmed resided with them.

Adding insult to injury, the government refused to issue a white paper until after the vote, and MPs dutifully humiliated themselves by voting by 498 votes to 114 to give Theresa May the power to trigger the UK’s exit from the European Union without having seen any detailed plans whatsoever. 47 Labour MPs voted against the bill, even though, absurdly, Jeremy Corbyn had insisted that all his MPs vote with the government, and they were joined by just one Tory (Ken Clarke), 50 SNP MPs, seven Liberal Democrats, and nine other MPs including Green MP Caroline Lucas.

However, as I explained at the time, in an article entitled, On Brexit, What a Pathetic, Leaderless Country We Have Become, 75% of MPs supported staying in the EU at the time of the referendum, including 185 Tory MPs and 218 Labour MPs, and to represent the 16.1m of us who voted to stay in the EU (48.1% of those who voted), at least 294 MPs should have voted against this bill, not just 114 of them — and last night’s vote on the third reading, at which that number was bumped up to 122, does little to suggest to the 16.1m of us who voted to Remain that Parliament has any notion of doing anything to represent us.

To make matters worse, when the white paper — ‘The United Kingdom’s exit from and new partnership with the European Union’ — arrived, it was, as the Guardian explained in an editorial, “full of platitudes and empty rhetoric,” and served only to confirm that the government “is engaging in a troubling form of politics, where ministers can pursue their interest without compromise.” The Guardian’s editors added, “The executive has revealed nothing but contempt for institutional parliamentary forms. The white paper offers no scrutiny, no mechanisms to hold ministers to account, no ways of influencing the Brexit process.”

Moreover, Theresa May’s introduction to the white paper was an deeply insulting effort to co-opt the 16.1m of us who voted Remain into her disgraceful isolationist Little England project. In amongst the frothy, nonsensical optimism of her view of the UK, as “[o]ne of the world’s largest and strongest economies,” with “the best intelligence services” and “the bravest armed forces,” she had the nerve to state, “And another thing that’s important. The essential ingredient of our success. The strength and support of 65 million people willing us to make it happen. Because after all the division and discord, the country is coming together.”

That, of course, is patently untrue, and like numerous other people, I am enraged that Theresa May should seek so cynically to co-opt me and the rest of the 16.1 million people who voted to stay in the EU into her nationalist fantasy world, and dismayed that, last night, Parliament voted to hand her the power to trigger Article 50 without promising that EU nationals can stay in the UK, and without giving any meaningful power to MPs to challenge her on any basis whatsoever.

This is my opinion despite the optimism shown by Keir Starmer, the shadow Brexit secretary, who claimed that Theresa May “will not be able to resist pressure to go back to the negotiating table if parliament rejects her Brexit deal with the EU,” as the Guardian described it.

The Guardian added that Starmer “dismissed the government’s claims that MPs would only be offered a vote on the deal on a ‘take it or leave it’ basis, meaning they could either accept the terms struck by May or proceed to Brexit without a deal at all.” He told BBC Radio 4’s Today programme, “The idea the prime minister would seriously say in 2019: ‘Well, rather than go back and see if I can improve and satisfy parliament I will simply crash out’ that would be a reckless act.”

Nevertheless, Chris Leslie, the former shadow chancellor, said the government “was still not offering a meaningful choice for MPs on its Brexit deal.”

“The government’s so-called concession falls short of giving parliament a meaningful vote,” he said, adding, “Ministers have failed to produce a new amendment, so their commitment will not be binding. The minister refused to give parliament the option to reject the deal and tell the government to go back to negotiate a better one. And on the nightmare scenario – that we could leave the EU with no deal at all, and face damaging barriers to trade with Europe – it seems parliament could have no say whatsoever.”

I’m with Chris Leslie, and I cannot but conclude that Parliament has desperately let down the 48.1% of voters in the EU referendum who do not want to leave the EU, and who regard the decision to do so as what it was — an advisory outcome that Parliament should be able to refuse to implement if, as has happened, an array of experts demonstrate that doing so will be an act of economic suicide unprecedented in our lifetimes.

As we wait to see if the Lords will do anything meaningful with the bill — with the Guardian noting that Labour and Liberal Democrat peers “will press for concessions on key issues including the status of European Union citizens living in the United Kingdom” — below is the full list of the 122 MPs who voted against the Article 50 bill at its third reading, including Clive Lewis, the shadow business secretary and the fourth shadow cabinet member to resign rather than vote in favour of the bill.

These ought to be difficult times for the other MPs in constituencies that voted to Remain, and I hope those constituents will mobilise to prevent the disaster of a “hard Brexit” — and, hopefully, still to prevent Brexit from happening at all. As the Guardian notes in an editorial today:

It is tempting to say that MPs have been weighed in the balance and found wanting. That is because in many respects they have. Faced with a bill that sets in motion the UK’s withdrawal from the EU, which is as profoundly mistaken a decision as any that the UK parliament has taken in the postwar era, MPs have essentially said that last year’s referendum is sovereign and that they are powerless to put their foot on the brake or choose a different route.

Too many on both sides of the Commons nonsensically deployed their experience and expertise to vote for a bill they admitted to not supporting. Too many MPs genuflected to a referendum decision that sets Britain against its neighbours and its own place in the world and puts the UK economy at hazard.

The 122 MPs who voted against triggering Article 50 at the bill’s third reading

Labour – 52

Heidi Alexander (Lewisham East)

Rushanara Ali (Bethnal Green and Bow)

Graham Allen (Nottingham North)

Dr. Rosena Allin-Khan (Tooting)

Luciana Berger (Liverpool, Wavertree)

Ben Bradshaw (Exeter)

Kevin Brennan (Cardiff West)

Lyn Brown (West Ham)

Chris Bryant (Rhondda)

Karen Buck (Westminster North)

Dawn Butler (Brent Central)

Ruth Cadbury (Brentford and Isleworth)

Ann Clwyd (Cynon Valley)

Ann Coffey (Stockport)

Neil Coyle (Bermondsey and Old Southwark)

Mary Creagh (Wakefield)

Stella Creasy (Walthamstow)

Geraint Davies (Swansea West)

Thangam Debbonaire (Bristol West)

Stephen Doughty (Cardiff South and Penarth)

Jim Dowd (Lewisham West and Penge)

Maria Eagle (Garston and Halewood)

Louise Ellman (Liverpool, Riverside)

Paul Farrelly (Newcastle-under-Lyme)

Vicky Foxcroft (Lewisham, Deptford)

Mike Gapes (Ilford South)

Kate Green (Stretford and Urmston)

Lilian Greenwood (Nottingham South)

Helen Hayes (Dulwich and West Norwood)

Meg Hillier (Hackney South and Shoreditch)

Dr. Rupa Huq (Ealing Central and Acton)

Peter Kyle (Hove)

David Lammy (Tottenham)

Clive Lewis (Norwich South)

Rachael Maskell (York Central)

Kerry McCarthy (Bristol East)

Alison McGovern (Wirral South)

Catherine McKinnell (Newcastle upon Tyne North)

Madeleine Moon (Bridgend)

Ian Murray (Edinburgh South)

Chi Onwurah (Newcastle upon Tyne Central)

Stephen Pound (Ealing North)

Virendra Sharma (Ealing, Southall)

Tulip Siddiq (Hampstead and Kilburn)

Andy Slaughter (Hammersmith)

Jeff Smith (Manchester, Withington)

Owen Smith (Pontypridd)

Jo Stevens (Cardiff Central)

Stephen Timms (East Ham)

Catherine West (Hornsey and Wood Green)

Dr. Alan Whitehead (Southampton, Test)

Daniel Zeichner (Cambridge)

Conservatives – 1

Kenneth Clarke (Rushcliffe)

Scottish National Party – 52

Tasmina Ahmed-Sheikh (Ochil and South Perthshire)

Richard Arkless (Dumfries and Galloway)

Hannah Bardell (Livingston)

Mhairi Black (Paisley and Renfrewshire South)

Ian Blackford (Ross, Skye and Lochaber)

Kirsty Blackman (Aberdeen North)

Philip Boswell (Coatbridge, Chryston and Bellshill)

Deidre Brock (Edinburgh North and Leith)

Alan Brown (Kilmarnock and Loudoun)

Dr. Lisa Cameron (East Kilbride, Strathaven and Lesmahagow)

Douglas Chapman (Dunfermline and West Fife)

Joanna Cherry (Edinburgh South West)

Ronnie Cowan (Inverclyde)

Angela Crawley (Lanark and Hamilton East)

Martyn Day (Linlithgow and East Falkirk)

Martin Docherty-Hughes (West Dunbartonshire)

Stuart Blair Donaldson (West Aberdeenshire and Kincardine)

Margaret Ferrier (Rutherglen and Hamilton West)

Stephen Gethins (North East Fife)

Patricia Gibson (North Ayrshire and Arran)

Patrick Grady (Glasgow North)

Peter Grant (Glenrothes)

Neil Gray (Airdrie and Shotts)

Drew Hendry (Inverness, Nairn, Badenoch and Strathspey)

Stewart Hosie (Dundee East)

George Kerevan (East Lothian)

Calum Kerr (Berwickshire, Roxburgh and Selkirk)

Chris Law (Dundee West)

John McNally (Falkirk)

Callum McCaig (Aberdeen South)

Stewart Malcolm McDonald (Glasgow South)

Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East)

Roger Mullin (Kirkcaldy and Cowdenbeath)

Angus Brendan MacNeil (Na h-Eileanan an Iar)

Anne McLaughlin (Glasgow North East)

Carol Monaghan (Glasgow North West)

Dr. Paul Monaghan (Caithness, Sutherland and Easter Ross)

Gavin Newlands (Paisley and Renfrewshire North)

John Nicolson (East Dunbartonshire)

Brendan O’Hara (Argyll and Bute)

Chris Stephens (Glasgow South West)

Alison Thewliss (Glasgow Central)

Mike Weir (Angus)

Dr. Eilidh Whiteford (Banff and Buchan)

Dr. Philippa Whitford (Central Ayrshire)

Corri Wilson (Ayr, Carrick and Cumnock)

Pete Wishart (Perth and North Perthshire)

Tommy Sheppard (Edinburgh East)

Angus Robertson (Moray)

Alex Salmond (Gordon)

Kirsten Oswald (East Renfrewshire)

Steven Paterson (Stirling)

Liberal Democrat – 7

Alistair Carmichael (Orkney and Shetland)

Nick Clegg (Sheffield, Hallam)

Tim Farron (Westmorland and Lonsdale)

Sarah Olney (Richmond Park)

Mark Williams (Ceredigion)

John Pugh (Southport)

Tom Brake (Carshalton and Wallington)

Green Party – 1

Caroline Lucas (Brighton, Pavilion)

SDLP – 3

Margaret Ritchie (South Down)

Mark Durkan (Foyle)

Dr. Alasdair McDonnell (Belfast South)

Plaid Cymru – 3

Jonathan Edwards (Carmarthen East and Dinefwr)

Hywel Williams (Arfon)

Liz Saville Roberts (Dwyfor Meirionnydd)

Independent – 3

Michelle Thomson (Edinburgh West)

Lady Hermon (North Down)

Natalie McGarry (Glasgow East)

The tellers for the noes were: Marion Fellows (SNP – Motherwell and Wishaw) and Owen Thompson (SNP – Midlothian)

What happens next?

As the Guardian explained recently, Parliament is in recess between 9 February and 20 February, but after that the House of Lords “is expected to begin its scrutiny process with a two-day debate on the day parliament returns from recess. Further amendments could be agreed during the committee stage of the Lords, between 27 February and 1 March. Any amendments agreed by the Lords will need to be approved by the Commons, and the bill will pass back to MPs. This back and forth will continue until both houses agree, and the earliest this could effectively happen is 7 March. May’s self-imposed deadline for triggering article 50, agreed by parliament, is the end of March.”

If you’re a supporter of Britain staying the EU, and your constituency voted to Remain, but your MP supported the passage of the Article 50 bill, I’d say now is a good time to send them a strongly worded email suggesting that they should not take for granted your support or that of other constituents in the future – for Tory MPs, the fate of Zac Goldsmith ought to be instructive. And if your constituency voted Leave, but your MP was a Remain supporter, then I think you should encourage them to fight for what is right, and not to just think about how to save their seat.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Donald Trump Reportedly Close to Finalizing Executive Order Approving Imprisonment of Islamic State Prisoners at Guantánamo

Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

In shocking news from the Trump administration regarding Guantánamo, the New York Times has obtained a new draft executive order, “Protecting America Through Lawful Detention of Terrorist and Other Designated Enemy Elements,” directing the Pentagon to bring Islamic State prisoners to Guantánamo.

Two weeks ago, the Times published a leaked draft executive order, “Detention and Interrogation of Enemy Combatants” (which I wrote about here), calling for two executive orders issued by President Obama when he first took office in January 2009 to be revoked — one banning the CIA’s use of “black sites” and torture techniques, and the other ordering the closure of the prison at Guantánamo Bay. The draft order also called for new prisoners to be sent to Guantánamo, and for “any existing transfer efforts” to be suspended “pending a new review.”

After a huge outcry regarding the torture proposals, these were dropped from a  revised order that Charlie Savage was told about, which he discussed in an article on February 4.

Now, however, with the leaking of the new draft executive order, it has become clear that, although Trump has given up on his torture plans, he is close to telling defence secretary James Mattis to bring Islamic State prisoners to Guantánamo, “despite warnings from national security officials and legal scholars that doing so risks undermining the effort to combat the group,” as Charlie Savage described it.

In addition, unlike the version of the draft executive order that Savage wrote about on February 4, this latest version “explicitly revokes” President Obama’s executive order ordering the closure of Guantánamo within a year, and also drops “references to revitalizing the use of the military commissions system at Guantánamo for prosecuting terrorism suspects” — although that does not mean that we should not expect that proposal to resurface at some point.

The latest draft executive order calls for the imprisonment of suspected members of “Al Qaeda, the Taliban, and associated forces, including individuals and networks associated with the Islamic State.”

The reference to Islamic State — also mentioned in the first draft — has been retained despite officials warning that bringing any IS members to Guantánamo “would give federal judges an opportunity to reject the executive branch’s theory that the war against the Islamic State is legal,” in Charlie Savage’s words. Congress has never explicitly authorized war against IS, but the issue, as Savage put it, could arise if a prisoner filed a habeas corpus petition, which it is almost certain they would do.

As Savage noted, the Obama administration argued in summer 2014 that the Authorization for Use of Military Force, which was passed by Congress in the days following the 9/11 attacks, and which authorizes the pursuit and imprisonment of individuals considered to be members of Al-Qaeda, the Taliban and associated forces, also covered Islamic State, but as he explains, “while the Islamic State got its start as Al Qaeda’s affiliate in Iraq more than a decade ago, that theory is disputed because the two groups later split and went to war with each other.”

Jack Goldsmith, a Harvard Law School professor and a former Assistant Attorney General in the Office of Legal Counsel under George W. Bush, pointed out that the proposed scope of the executive order “raises huge legal risks,” adding, “If a judge says the Sept. 11 authorization does not cover such a detention, it would not only make that detention unlawful, it would weaken the legal basis for the entire war against the Islamic State.”

Savage also explained that, although Congress “bolstered the government’s power to imprison suspected members of Al Qaeda, the Taliban and associated forces by authorizing such detentions without reference to the Sept. 11 attacks” in the annual National Defense Authorization Act in 2012, lawmakers have “never explicitly authorized combat or detention operations” against Islamic State, despite providing funds for military operations against the organization.

When IS first entered Iraq from Syria and began its military conquests in 2014, President Obama “launched a bombing campaign to curtail its advances” and “put forth the theory that the group’s early ties to Al Qaeda were sufficient to bring it under the Sept. 11 war authorization without new action from Congress.”

However, in 2015, Obama officially asked Congress to enact a new Authorization for Use of Military Force against the Islamic State, but it never happened. Lawmakers were divided about whether any authorization “should place limits on the use of ground forces or impose an expiration date.” Moreover, despite Republicans having a majority throughout this time, “Congress has continued to give no sign that it has the will or the consensus to explicitly authorize war on the Islamic State.”

Charlie Savage also noted how, last year, Army Capt. Nathan Smith “sued Mr. Obama, arguing that the war was illegal because Congress had not authorized it.” District Judge Colleen Kollar-Kotelly (who ruled on several Guantánamo habeas corpus cases before the appeals court gutted habeas corpus of all meaning for the prisoners) “dismissed the lawsuit without ruling on the legal merits,” in Savage’s words, “saying the plaintiff lacked standing to bring the case.”

However, as he also noted, “any Islamic State detainee at Guantánamo would have legal standing to get a court to rule on the question of whether the group is legitimately part of the war against Al Qaeda.”

In addition, Savage spoke to Ryan Goodman, a New York University law professor who worked at the Pentagon during the Obama administration, and who told him that there were other reasons why “bringing an Islamic State detainee to Guantánamo for indefinite detention, as opposed to prosecuting him in civilian court, might raise problems.” He said that foreign allies of the US “might refuse to turn over prisoners or assist in detention operations if that was the administration’s goal,” although, even if that doesn’t turn out to be the case, he added, the legal risks of bringing a suspected member of the Islamic State to Guantánamo were “very serious.”

“If I were in the administration, I would advise that bringing ISIL fighters to Guantánamo raises too many legal risks,” Goodman said, adding, “If a court finds the 2001 statute does not apply to ISIL because of the extraordinarily remote links between ISIL and the original Al Qaeda, then it would put into legal jeopardy the executive branch’s basis for lethal operations as well as detention operations.”

I hope Donald Trump and his officials will take note of this criticism, and that the plans for bringing any new prisoners to Guantánamo will be abandoned. No new prisoner has been brought to the prison since March 2008, and that is as it should be. What remains for Donald Trump to do is to close the prison for good, as President Obama tried and failed to do, and not to consider expanding it in any way.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Radio: Andy Worthington Discusses Life in Trump’s America and the Future of Guantánamo with Chris Cook on Gorilla Radio

Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

Last week, I was delighted to speak to Chris Cook of Gorilla Radio, based in British Columbia, about life in Donald Trump’s America, and the current situation regarding the prison at Guantánamo Bay. The hour-long show is available here as an MP3, and my interview took up the first 24 minutes.

Chris and I have spoken many times before — generally at this time of the year, to reflect on the situation at Guantánamo around the time of the anniversary of its opening, on January 11. Check out our interviews in January 2014, January 2015 and January 2016.

For this year’s interview, I ran though the dying days of the Obama administration, pointing out how, despite President Obama’s promise, on his second day in office in January 2009, to close the prison, it remained open as he left office primarily because he had persistently failed to prioritize its closure throughout the previous eight years.

I acknowledge that Congress made life as difficult for him as possible, passing laws that prevented him from bringing any prisoners to the US mainland for any reason, and which also raised as many hurdles as possible to prevent the release of prisoners to other countries, but as the president, Obama could and should have engaged with Congress earlier in his presidency, and with greater urgency and indignation than he ever showed.

We also spoke about what awaits the Guantánamo prisoners under Donald Trump, and I explained how I hope that, despite the leak of a draft executive order promising to keep Guantánamo open, and to send new prisoners there, Donald Trump will have trouble justifying any effort to revive Guantánamo, primarily because federal courts have established that they are the best venue for prosecuting terrorists.

Chris also asked me for my impressions of Trump’s America, as experienced during my annual visit last month to campaign for the closure the prison on an around the anniversary of its opening, representing the Close Guantánamo campaign, and I explained how genuinely shocking it was to be there as Trump, a bully, racist, sexual predator and corrupt businessman, who is so spectacularly unqualified to be president, took over from Obama. I also mentioned how disturbing his white supremacist advisors are (like Steve Bannon, for example), and I focused in particular on his immigration ban, an outrageously racist policy that, as I noted, could only be justified if some state of national emergency existed, whereas, in reality, there is no emergency, and in fact, no terrorist acts have been committed by anyone from the seven countries Trump has banned.

Chris also asked me about Shaker Aamer, the last British resident in the prison, whose release I campaigned for over many years, and particularly in the last year of his imprisonment via the We Stand With Shaker campaign that I co-founded in November 2014 with the activist Joanne MacInnes. Shaker was finally released in October 2015, and to explain his story I ran through a brief history of how prisoners were rounded up for bounty payments, and tortured to provide information about themselves and their fellow prisoners, because the US authorities knew nothing about them, having shamefully discarded the Geneva Conventions, which have safeguards designed to prevent the inappropriate imprisonment of civilians, and because the Bush administration took the position that, if prisoners failed to provide useful information, it was not because they know nothing (as was most likely), but because they had been trained by al-Qaeda to resist interrogation.

As an outspoken and eloquent man, who insisted that the authorities should treat the prisoners according to international and domestic laws and treaties, Shaker Aamer came to be regarded as a significant figure in al-Qaeda, when in reality his leadership was because of his courage and his indignation, and his unquenchable thirst for justice, something that has become apparent to me on those occasions I have met him since his release.

It was great to talk to Chris again, and I hope you have time to listen to the show — which included journalist Peter Lee talking about Obama, Trump and China after my interview — and to share it if you find it useful.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.