Pure Kafka

An Obama administration report explains detainees will continue to be imprisoned despite a lack of evidence


Glenn Greenwald
May 29, 2010 5:30PM (UTC)

The first paragraph of today's New York Times article by Charlie Savage:

The 48 Guantánamo Bay detainees whom the Obama administration has decided to keep holding without trial include several for whom there is no evidence of involvement in any specific terrorist plot, according to a report disclosed Friday.

The Report itself, in a matter-of-fact-tone, describes the individuals to be kept in a cage indefinitely without charges this way:



They can't even be prosecuted in the due-process-abridging military commissions we invented out of whole cloth for those who can't be convicted in a real court.  In other words:  of course we'll provide a fair tribunal for proving your guilt -- as long as we're certain we can convict you -- otherwise, we'll just imprison you indefinitely without charges.  All this even though 72% of Guantanamo detainees have been found to be wrongfully held since the Supreme Court compelled habeas hearings in 2008.  And then there are the numerous Yemeni prisoners who have been cleared for release but who will be kept in a cage anyway because we arbitrarily decreed that we're not going to release even innocent prisoners back to Yemen

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Here's one other passage from Savage's article worth noting:

Of that group, the 48 whom the administration has designated for continued indefinite detention without trial have attracted the greatest controversy, in part because many Democrats sharply criticized that policy when the Bush administration created it after the terrorist attacks of Sept. 11, 2001.

Yes, I also vaguely recall the days when Democrats criticized the policy of imprisoning people indefinitely without charges.  Harper's Scott Horton has more on all of this:

The Obama Administration came to Washington promising to clean up the Bush-era detentions policy and make it conform to the clear requirements of law. Then it seems to have decided that the law wasn’t so convenient and that simply providing for unbridled executive authority à la Bush-Cheney wasn’t such a bad idea after all.  In terms of Washington power politics, that decision seems to have taken the form of letting Robert Gates make the call on all these issues. The two figures in the Administration who took the most credible stance for implementing the Obama campaign-era promises on detentions policy -- Greg Craig and Phil Carter -- resigned within a few weeks of one another, offering no believable reasons for departing. Then press reports began to appear about secret prisons, operated by JSOC and DIA and applying rules different from those applied in the "normal" DOD prisons, including plenty of torture-lite techniques under Appendix M of the Army Field Manual (PDF).

This passage in the National Security Strategy makes clear that Barack Obama and his team have abandoned the promises they made to reform detentions policy in the 2008 campaign. Even the commitment to stop torture does not appear to have been fully implemented, given the unaccountable practices of JSOC and the DIA in Afghanistan. Barack Obama’s belief in the rule of law apparently takes the back seat to Barack Obama’s belief in his own ability to make the right call as executive. History will judge whether his confidence in his own abilities is warranted, but the distortion of the constitutional system presents a continuing challenge for those who believe in the older and more fundamental principle of accountability under the law.

Yes -- being as sentimental as I am -- I, too, harbor nostalgia for that "older principle of accountability under the law":  you know, that idealized time when everyone was entitled to be charged with crimes before being imprisoned forever (rather than only those for whom prosecution was "feasible") and when Presidents weren't actually allowed to target American citizens for murder without at least some due process being granted.  Anyway, did Sarah Palin post something to her Facebook page today?  And isn't that Glenn Beck crazy?


Glenn Greenwald

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