Some Policies Don’t Change

Leonard C. Goodman

Oba­ma has changed the rhetoric of the Bush Admin­is­tra­tion. Unfor­tu­nate­ly, he has not changed the destruc­tive poli­cies that con­tin­ue to make us less safe and that increase the like­li­hood of future ter­ror attacks. Like Bush, Oba­ma claims the right to per­pet­u­al­ly detain any per­son deemed to be a threat with­out inter­fer­ence from the courts. Oba­ma is simul­ta­ne­ous­ly car­ry­ing on the Bush pol­i­cy of incin­er­at­ing any per­son deemed a threat by drone or air-strike. (Indeed, our CIA is present­ly con­duct­ing an unde­clared war on the Pak­istan-Afghanistan bor­der – a war that is claim­ing an untold num­ber of civil­ian casualties.)

Like Bush, Obama claims the right to perpetually detain any person deemed to be a threat without interference from the courts.

In response to 911, the Bush Admin­is­tra­tion round­ed up about 600 Mus­lim men and sent them to an off-shore prison camp for years of iso­la­tion and harsh inter­ro­ga­tion. The loca­tion of this camp, at Guan­tanamo Bay Naval Sta­tion, Cuba, was cho­sen because the Bush Admin­is­tra­tion lawyers believed it to be out­side the reach of the U.S. courts.

For sev­en years, the Bush lawyers fought to keep the detainees’ cas­es out of the courts and out of the press by mak­ing the false claim that to do oth­er­wise would jeop­ar­dize our nation­al secu­ri­ty. Sad­ly, the Oba­ma lawyers have car­ried on this mis­guid­ed and destruc­tive pol­i­cy. For exam­ple, to avoid dis­cov­ery dead­lines and evi­den­tiary hear­ings, Depart­ment of Jus­tice lawyers con­tin­ue to employ the tac­tic of mov­ing to stay” all court pro­ceed­ings based upon the mere promise to trans­fer the detainee out of Git­mo at some unspec­i­fied date in the future.

More than 90 per­cent of the Git­mo detainees (includ­ing my client, Shawali Khan) were cap­tured by for­eign­ers and turned over to the Unit­ed States, often in exchange for well-pub­li­cized cash rewards. In oth­er words, most of the detainees were sent to Git­mo because some for­eign war­lord or boun­ty hunter told our intel­li­gence offi­cials, sta­tioned in places like Afghanistan and Pak­istan, that the pris­on­er was Tal­iban or al Qae­da. In many cas­es, includ­ing in the case of my client, the U.S. offi­cials mere­ly accept­ed the word of the infor­mant with­out demand­ing any cor­rob­o­rat­ing evidence.

Approx­i­mate­ly 400 detainees have been released from Git­mo, near­ly all of them as a result of secret, back chan­nel nego­ti­a­tions with their home coun­tries rather than by any judi­cial process. Some released detainees have joined anti‑U.S. ter­ror groups. How­ev­er, because no court has ever looked at their cas­es, it is impos­si­ble to say whether these men were ter­ror­ists at the time they were sent off to Git­mo or whether they were inno­cent men who learned to hate the Unit­ed States after years of unjust incar­cer­a­tion and harsh inter­ro­ga­tion. These are impor­tant ques­tions that must be answered if we can ever hope to learn from our mistakes.

When the day final­ly comes that the veil of secre­cy is lift­ed from the Git­mo files, the Amer­i­can peo­ple will learn that our nation’s exper­i­ment in law­less­ness was an abject fail­ure. We for­feit­ed our rep­u­ta­tion as a leader of civ­i­lized nations and in return gained no use­ful intel­li­gence about any future plots on our home­land. The soon­er the Oba­ma admin­is­tra­tion stops assert­ing false claims of nation­al secu­ri­ty” and law­less doc­trines like pre­ven­ta­tive deten­tion” to bury these mis­takes, the soon­er we can begin to repair our great nation’s rep­u­ta­tion and put this sad chap­ter behind us.

Leonard Good­man is a Chica­go crim­i­nal defense lawyer and Adjunct Pro­fes­sor of Law at DePaul University.
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