Month: June 2014

Fact – more gitmo detainees released in Bush years than Obama, despite GOP attacks on latest decision pic.twitter.com/yEnR7ogsYr

— PoliticsNation (@PoliticsNation) June 2, 2014

Max Fisher tackles the notion that Obama can or should use the executive powers he flexed in the Bergdahl deal as an end-run around Congress to shutter Gitmo. The debate, which the Dish has covered here and here, hinges on how we categorize the facility’s 149 remaining detainees:

If the US categorizes them strictly as combatants in a war, then while that gives the US authority to hold them for the duration of war, the United States’ war in Afghanistan is legally ending in 2014, which means Obama would legally have to release most or all detainees at that time. It would also mean that he’d need to try them in a military tribunal to have detained them in the first place, which in many cases he did not do for lack of admissible evidence. But if the US categorizes the detainees as terrorists, while that gives the US legal license to hold them far beyond 2014, the US would need to convict them in a civilian courtroom first.

So why can’t the president exploit that ambiguity to release the rest of the detainees, like he did with the five we traded for Bergdahl? One reason is the question of where they would go:

The US cannot legally take these detainees, most of whom are not Afghan nationals, and simply drop them off by the side of a random road in Kabul, like a family pet that bit the baby. So the Obama administration has to try to find a third country that will accept them. This is why, for example, it wrangled Bermuda into accepting a handful of Chinese detainees whom China had refused to take back.

Were Obama to declare all of the Gitmo detainees to be legal enemy combatants, he would make these problems harder to solve, not easier.

It’s one thing for the US State Department to call up the Bermudan foreign ministry and ask them to accept some Chinese detainees whom the US insists are harmless; it’s quite another to ask Bermuda to accept people whom we legally designate as active fighters in an ongoing war. Even if Obama decided it were worth the risk to jump dump the entire population of Guantanamo into the Taliban’s hands, it’s not at all clear that even the Taliban would accept the detainees, not all of whom fought with the group.

Drum’s takeaway from Fisher’s analysis is that “Obama is not going to close Guantanamo,” ever:

The legal loophole he used in the Bergdahl prisoner exchange—no matter what you think of it—flatly wouldn’t apply to shutting down the entire prison. Plus there’s the fact that Congress would go ballistic if he tried—including plenty of Democrats. Impeachment would go from a fever dream of the tea-party right to a very realistic bipartisan possibility.

Finally, there’s frankly never been much evidence that Obama cares all that much. He’d obviously like to shut down Guantanamo, but he just doesn’t feel that strongly about it.

So give it up. Guantanamo will be here through the end of Obama’s presidency, and quite possibly until its last prisoner dies. It’s fanciful to think anything else.

But Matt Welch insists that Obama can and should do his darnedest to shut it down:

When it comes to terrorism, apples-to-apples rates of recidivism may not be possible—all it takes is one murderous nutbag to kill scores of people, the “worst of the worst” are probably going to be worse than the first ones released, and it’s important to be clear-eyed about the risk here. But one risk that rarely gets mentioned by War on Terror hawks is the (to my mind) equal certainty that other people around the world will be inspired by the existence of America’s Kafkaesque prison to commit murder against Americans. Put another way, we will be able to “see” acts of terrorism committed by those who are sprung from Gitmo, but the “unseen” acts of terror that are partly motivated by the U.S. conducting itself as a superpower above the law are no less real.

It’s a messed-up paradox, and one of Republicans‘ making. Maybe next time we’ll think a bit more through the problem of snatching and torturing people and then realizing that such treatment makes them damnably hard to stand even military tribunals.

Frank Goldsmith – a lawyer who has represented five detainees, including one of the Taliban members traded for Bergdahl – stresses how few of these “terrorists” have ever been successfully charged with crimes:

In the cases of the Guantánamo detainees, we lawyers cannot discuss the specific facts publicly, because we were required to trade our free speech for access to the classified evidence necessary to represent our clients. But it is telling that after over a dozen years of detention, the government has managed to charge, try, and convict only a handful – fewer than ten – of the 779 men it brought to the base.

Five were convicted of minor charges (some that were not even crimes at the time of their detention) and have been released. One of the convictions was overturned on appeal; other appeals remain pending. This is not a record of ringing prosecutorial success. Of the five men I represented, including the Taliban political official just sent to Qatar, none was ever charged with even the most minor crime; they were simply held for years without charges until it pleased the government to send them back. Where is the evidence that they are terrorists?

About half of the 149 men still left at Guantánamo have long been determined not to be a threat and have been approved for transfer; the only impediments to their release are political.

Here’s my fear: that 2009 represented the high watermark for closing this obscenity down. A newly-elected president had a clear mandate to do it and yet the Congress simply vetoed it, with strong public support. Blaming Obama for that seems absurd to me. The sad truth is that Americans are perfectly fine with detaining innocent people indefinitely, if they have beards and funny names, and have no interest in sustaining democratic norms if it means one life lost to terrorism. The whole edifice of Western justice went out the window with one terror attack and because one major political party, the GOP, is only too willing to use this fear for political dividends, it will not be put back together again. We will, in fact, be lucky if a future Republican president doesn’t restore torture as a legal form of statecraft.

Does this lead me to despair? Well, not far off. We have learned a lot about this country these past few years. Gitmo – a torture and detention camp outside any norms of Western justice – is now a symbol of America across the world. It is our 21st Century city on a hill. It is, in many ways, an emblem of the death of America as an ideal. And one political party made that happen.

Was he actually a bit of a gung-ho warrior? As I noted last night, further reporting keeps complicating the Palinite meme:

To many of those soldiers, Sergeant Bergdahl was viewed as standoffish or eccentric, smoking a pipe instead of spitting tobacco, as so many soldiers do, and reading voraciously when others napped or watched videos. But he was not isolated from his platoon mates, some said. And while he was, like other soldiers in the platoon, often disappointed or confused by their mission in Paktika, some of his peers also said that Sergeant Bergdahl seemed enthusiastic about fighting, particularly after the platoon was ambushed several weeks before his disappearance.

“He’d complain about not being able to go on the offensive, and being attacked and not being able to return fire,” said Gerald Sutton, who knew Sergeant Bergdahl from spending time together on their tiny outpost, Observation Post Mest Malak, near the village of Yahya Khel, about 50 miles west of the Pakistani border. Mr. Sutton said he had struggled to square the popular portrayal of Sergeant Bergdahl as brooding and disenchanted with the soldier he knew. “He wanted to take the fight to the enemy and do the mission of the infantry,” he said, adding, “He was a good soldier, and whenever he was told to do something, he would do it.”

But Carpenter expects the right to stick to its story without regard for the evidence:

The Times adds that “Just how and why Sergeant Bergdahl disappeared remains a mystery to his fellow soldiers.” But it’s no mystery to the right. They have their story and they’ll stick to it–no matter how thumpingly it unravels–because not only does it mesh with their history of Obamian horrors, it must mesh.

Meanwhile, Tomasky knocks down the meaningless notion that “we don’t negotiate with terrorists”:

Every president since has said we don’t negotiate with terrorists. And every president has. And I would say prudently and reasonably so. When terrorists can give you information, for a certain price or because you have a shared enemy, take it. George W. Bush paid a ransom of $300,000  to a radical Islamist group in the Philippines that was holding two American missionaries, a married couple, captive. To get them to safety? I say, fine. Alas, however, the man was killed, even after we paid the money. So an American president ended up financing terrorist operations and overseeing a failed military mission. Imagine what Lindsey Graham would be saying today if Barack Obama had done that over the weekend.

It’s a mindless, right-wing electoral politics that make our politicians say “I won’t negotiate with terrorists.” It’s just like “I won’t let the Willie Hortons out of prison,” or, from an earlier time, “We won’t let the ChiComs take over Korea.”

David Rohde, who was kidnapped by the Taliban around the same time as Bergdahl and subsequently escaped, weighs in on our misguided approach to the issue:

Both sides in the furor over the Bergdahl case offer simplistic answers to the growing problem of abductions. Those who say the release of the five prisoners sets no precedent are downplaying the scope of this propaganda coup for the Taliban. Other militants around the globe will likely emulate them. At the same time, the argument that refusing to pay ransom or release prisoners will end all kidnappings is wishful thinking. Given the delusions of my captors, jihadists will remain convinced for years, if not decades, that secret ransoms are being paid.

The real solution would require a massive and difficult long-term effort to reduce the world’s pockets of ungoverned spaces. The Taliban who held Bergdahl and me felt no pressure to reduce their demands because they had a safe haven in the mountains of Pakistan.

And Dexter Filkins wonders about the extent of Pakistan’s involvement in the Bergdahl case:

So far, Pakistani officials have been silent about any role they played in either Bergdahl’s captivity or his release. But there are many questions that need to be answered. The Haqqani network, the group that was holding Bergdahl, maintains especially close ties to Pakistan’s Inter-Service Intelligence, or I.S.I. (The Taliban official who told me about Bergdahl was a leader of the Haqqani group.) That a Taliban-aligned guerrilla unit would be so closely tied to the government of our ostensible ally—to which we give more than a billion dollars each year—has long raised troubling questions about American policy in the region. …

Given the close connections that the I.S.I. maintains with the network, it seems inconceivable that the organization wasn’t well aware of Bergdahl’s condition, status, and whereabouts. Did the I.S.I. try, over the years, to free him? We don’t know. Could Pakistani intelligence officials have done more to help him? Did they do nothing? Likewise, we don’t know. Were they involved, and perhaps even instrumental in, gaining his final release? We don’t know. But, given the amount of American money that flows into Pakistan, we’re entitled to ask.

Recent Dish on the evolving Bergdahl story here. My take on the right’s hysterical reaction here, here, here, and here.

(Photo: a reaction to the military’s difficulties in interviewing someone immediately after five years of sometimes brutal captivity and stress.)