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Status unchanged for Gitmo detainee, despite pledges

Daniel Malloy, Washington Bureau
Pittsburgh Post-Gazette
March 08, 2010

WASHINGTON -- Not much has changed for Fayiz al-Kandari since Barack Obama became president a little more than a year ago.

The Kuwait native, who was nabbed in Afghanistan in 2001 and has been in a small cell in Guantanamo Bay, Cuba, for eight years, still does not know when he will be able to review evidence against him or defend himself before a judge.

When Mr. Obama took office, he pledged to close Guantanamo and end extraordinary legal practices authorized by George W. Bush's administration to deal with suspected terrorists captured since the Sept. 11, 2001, attacks. But in the past year, he hasn't strayed much from the positions of his predecessor.

Mr. Obama failed to meet his self-imposed one-year deadline for closing the controversial prison. He barred U.S. agents from using extreme interrogations, but his Justice Department declined to prosecute anyone who had done so in the past. Most galling to Mr. Kandari and his military attorney, National Guard Lt. Col. Barry Wingard, is the continuing endorsement of indefinite detention for foreign terror suspects.

"They came in and made all these grandiose statements," said Col. Wingard, who also is a public defender in Allegheny County and splits his time between Dormont and Washington, D.C. "And they've been going backwards ever since."

On Jan. 22, 2009 -- less than a week into his presidency -- Mr. Obama signed executive orders announcing the closure of Guantanamo and overseas CIA prisons, and taking a hard line on torture.

"The orders I sign today should send an unmistakable signal that our actions in the defense of liberty will be as just as our cause and that we the people will uphold our fundamental values as vigilantly as we protect our security," Mr. Obama said that day.

Yet change has been incremental and followed a trajectory similar to that of the previous administration, argued Brookings Institute scholar Benjamin Wittes.

CIA "black sites" that Mr. Obama closed held no detainees, and Congress -- through a 2005 amendment sponsored by Sen. John McCain -- had forcefully banned torture, though Mr. Bush claimed a right to circumvent that law in extreme circumstances.

"The difference is merely a difference in what conceptual latitude they allow themselves in theory," Mr. Wittes said.

In addition, there was a large effort to move or prosecute Guantanamo detainees in the later years of the Bush administration.

"They were never able to bring themselves to say the word that the end goal of that project was closure of that facility altogether," Mr. Wittes said. "But they did a lot of the heavy lifting of the process that became the closure process."

According to Obama administration figures, more than 580 detainees have departed Guantanamo since 2002 -- only 52 since Mr. Obama took office. Today, there are 188 detainees in the prison.

Mr. Obama's executive order created an interagency task force to identify which detainees to transfer, which ones to prosecute in military commissions or civilian trials, and which ones to hold indefinitely.

An Obama administration official, who requested anonymity because he is not authorized to discuss the full scope of the administration's efforts, said that when suspects are held without trial it is usually because the evidence against them comes from foreign intelligence that cannot be revealed in court.

The task force completed its work in January but its dispositions for each detainee -- including that of Mr. Kandari -- remain classified. According to his attorneys, the government filed military commission charges against Mr. Kandari in September 2008, but "they are just hanging out there," said Washington, D.C., attorney David Cynamon, who represents Mr. Kandari in proceedings challenging his detention.

"If the United States thinks that Mr. Kandari is guilty of war crimes, they ought to give him a chance to answer them," Mr. Cynamon said.

A petition challenging Mr. Kandari's detention is pending in federal district court in Washington. Mr. Cynamon and Col. Wingard said the government has provided little detail about the charges Mr. Kandari faces, often in heavily redacted documents.

The government is alleging Mr. Kandari was involved in some way with al-Qaida -- though prosecutors at times have offered conflicting depictions of him as a trainee or a major figure, Col. Wingard said.

Col. Wingard said that Mr. Kandari told him he was picked up by foreign forces near Tora Bora in late 2001 then turned over -- likely sold -- to Americans. Col. Wingard said his client was beaten during his captivity in Afghanistan and has been accused of the vague crime of providing "material support" to a terrorist organization.

"Basically that's like being Arab in Afghanistan," Col. Wingard said.

The Justice Department declined to provide information on individual detainees.

Legally, the Obama administration is claiming a narrower detention power under the Afghanistan war authorization, rather than the sweeping definition of executive power Mr. Bush preferred.

"Some people think that matters, some don't," said University of Texas law professor Robert Chesney, who has studied detainee issues.

The legal landscape for detainees to challenge their detention is largely unsettled. Without clear direction from Congress, judges have great leeway in cases like that of Mr. Kandari in ruling on the circumstances of indefinite detention.

"The oddity of this is not that we're detaining people, preventively, for a long period of time," Mr. Wittes said. "The oddity is we're refusing to have a serious discussion about how we're going to do it."

The discussion has been mostly in the form of heated political debates.

The proposal to close Guantanamo and to move detainees to a new secure prison in Illinois met enormous backlash. Releasing detainees to other nations has had its own pitfalls, including isolated reports that they have rejoined the fight against America. Last week, The Associated Press reported that released Guantanamo detainee Abdul Qayyum is a leading candidate to become No. 2 in the Afghan Taliban hierarchy.

The most vociferous and bipartisan criticism accompanied the decision by Attorney General Eric Holder to try the alleged mastermind of the Sept. 11 attacks, Khalid Sheikh Mohammed, in civilian court in lower Manhattan. Complaints about cost, logistics and the potential for another attack forced Mr. Holder to back off; the administration is reviewing its options for trying Mr. Mohammed.

Mere speculation that the trial could end up in Pennsylvania because United Flight 93 crashed in Somerset County caused Keystone State politicians to stand in near-unanimous denunciation of the idea.

Now the White House is quietly trying to build consensus terror policies with centrist members of the House and Senate, including Sen. Lindsey Graham, R-S.C.

"Closing Gitmo safely makes sense, and by safely I mean a legal system that recognizes people are not common criminals but have been involved in acts of war against the country," Mr. Graham said last week in an interview.

"Safely means a legal system that recognizes some folks need to be detained for a very long period of time because they present national security threats and having said that, due process will be afforded to every detainee. And I think the only way you can close Gitmo is to do it safely. That's my message to the White House."

On Thursday, Sen. Joseph Lieberman, I-Conn., and Mr. McCain, R-Ariz., introduced legislation -- without consultation with the White House -- that, among other provisions, would bar detainees who are determined to be "enemy belligerents" in the global war on terror from being tried in civilian courts.

The bill attempts to solidify still-murky detention law in a way that would keep many prisoners in judicial limbo.

"The bill will also affirm -- re-affirm really -- the president's authority to retain unprivileged enemy belligerents for the duration of this war," Mr. Lieberman said at a news conference Thursday.

"That's what normally happens with prisoners of war. I know that may be a long time, but that's the nature of this war."

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