by Scott Horton, Harper’s

1. “Asymmetrical Warfare”

When President Barack Obama took office last year, he promised to “restore the standards of due process and the core constitutional values that have made this country great.” Toward that end, the president issued an executive order declaring that the extra-constitutional prison camp at Guantánamo Naval Base “shall be closed as soon as practicable, and no later than one year from the date of this order.” Obama has failed to fulfill his promise. Some prisoners there are being charged with crimes, others released, but the date for closing the camp seems to recede steadily into the future. Furthermore, new evidence now emerging may entangle Obama’s young administration with crimes that occurred during the George W. Bush presidency, evidence that suggests the current administration failed to investigate seriously—and may even have continued—a cover-up of the possible homicides of three prisoners at Guantánamo in 2006.

Late in the evening on June 9 that year, three prisoners at Guantánamo died suddenly and violently. Salah Ahmed Al-Salami, from Yemen, was thirty-seven. Mani Shaman Al-Utaybi, from Saudi Arabia, was thirty. Yasser Talal Al-Zahrani, also from Saudi Arabia, was twenty-two, and had been imprisoned at Guantánamo since he was captured at the age of seventeen. None of the men had been charged with a crime, though all three had been engaged in hunger strikes to protest the conditions of their imprisonment. They were being held in a cell block, known as Alpha Block, reserved for particularly troublesome or high-value prisoners.

As news of the deaths emerged the following day, the camp quickly went into lockdown. The authorities ordered nearly all the reporters at Guantánamo to leave and those en route to turn back. The commander at Guantánamo, Rear Admiral Harry Harris, then declared the deaths “suicides.” In an unusual move, he also used the announcement to attack the dead men. “I believe this was not an act of desperation,” he said, “but an act of asymmetrical warfare waged against us.” Reporters accepted the official account, and even lawyers for the prisoners appeared to believe that they had killed themselves. Only the prisoners’ families in Saudi Arabia and Yemen rejected the notion.

Two years later, the U.S. Naval Criminal Investigative Service, which has primary investigative jurisdiction within the naval base, issued a report supporting the account originally advanced by Harris, now a vice-admiral in command of the Sixth Fleet. The Pentagon declined to make the NCIS report public, and only when pressed with Freedom of Information Act demands did it disclose parts of the report, some 1,700 pages of documents so heavily redacted as to be nearly incomprehensible. The NCIS report was carefully cross-referenced and deciphered by students and faculty at the law school of Seton Hall University in New Jersey, and their findings, released in November 2009, made clear why the Pentagon had been unwilling to make its conclusions public. The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report—a reconstruction of the events—was simply unbelievable.

Read the rest here.

by Jacob Sullum, Reason

Obama’s empty promise of due process for terrorism suspects

In a speech he gave a couple of months ago, President Obama said he was determined to guarantee “meaningful due process rights” for terrorism suspects. But it turns out he is committed to due process only when it achieves the result he wants.

Last week the Defense Department’s top lawyer declared that the president has the authority to detain people accused of belonging to or assisting terrorist groups even after they’re acquitted. The only point of prosecuting them, it seems, is to create an impression of due process while continuing Bush detention policies that Obama has repeatedly condemned.

We already knew that Obama plans to keep 90 or so of the 229 men who remain at the Guantanamo Bay prison, which he has promised to close by January, in “prolonged detention” without trial. In his May speech the president said these prisoners “cannot be prosecuted” because there is not enough admissible evidence against them yet cannot be released because they “pose a clear danger to the American people.”

But Obama promised to minimize the number of detainees who fall into that category. “Whenever feasible,” he said, “we will try those who have violated American criminal laws in federal courts.” If that’s not possible, he said, suspected terrorists can be tried by military commissions, which “allow for the protection of sensitive sources and methods of intelligence gathering” and “for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.”

Obama, who criticized the Bush administration for failing to give detainees due process, bragged about strengthening protections for the accused. Thanks to his reforms, he said, defendants tried by military commissions will have “greater latitude in selecting their own counsel” and “more protections if they refuse to testify”; introducing hearsay evidence will be harder, and statements elicited through “cruel, inhuman, or degrading interrogation methods” will be banned.

But how “meaningful” can such due process rights be when a conviction is the only outcome the government plans to respect? “If you have the authority under the laws of war to detain someone,” Pentagon General Counsel Jeh Johnson told the Senate Armed Services Committee last week, “it is true irrespective of what happens on the prosecution side….If a review panel has determined this person is a security threat [and] if for some reason he is not convicted for a lengthy prison sentence…we would have the ability to detain him.”

It’s hard to imagine a situation in which the government thinks it has enough evidence to convict someone on terrorism charges but doesn’t think he poses “a security threat.” Since only guilty verdicts count, Obama might as well go directly to “prolonged detention” by presidential order, except that would reveal how little difference there is between him and his predecessor in this area.

Although Obama faults the Bush administration’s “ad hoc legal approach,” he too is leaving his options open. “We are indeed at war with Al Qaeda and its affiliates,” he says. The implication is that anyone accused of ties to Islamic terrorism—which could mean anything from undergoing training or planning an attack to donating money or building a website—can be treated as a prisoner of war, held without trial until the “cessation of hostilities” (in effect, forever). Alternatively, he can be tried by a military commission for violating the laws of war, or he can be tried in federal court on a charge such as providing material support for terrorism.

“In our constitutional system,” Obama says, “prolonged detention should not be the decision of any one man.” Yet under the principles he and his underlings have laid out, the choice of how to treat a given terrorism suspect—whether apprehended here or abroad, on a battlefield or off, now or in the future—is entirely up to him.

In the end it may not matter much. When freedom is not a real possibility, due process is just for show.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.