Thursday, June 12, 2014

How will the Bergdahl-Taliban prisoner swap impact Guantánamo?

How will the Bergdahl-Taliban prisoner swap impact Guantánamo?

Jeremy Varon
June 11, 2014

Demonstrators in Chicago call for the closure of Guantánamo and an end to torture in front of “The Bean” in Chicago’s Millennium Park on May 23. (WNV/FJJ)

On May 23, hundreds of people in more than 50 cities worldwide took to the streets to demand that President Obama close Guantánamo and end indefinite detention. The occasion was the one-year anniversary of Obama’s landmark speech renewing his pledge to close the prison. With our orange jumpsuits and signs reading “I’m Still Waiting” and “Release Those Unjustly Bound,” we battled against the greatest, chronic barrier to closing Guantánamo in the age of Obama: official neglect, enabled by public indifference.

That was before the Berdahl-Guantánamo prisoner exchange.

‘I’m still waiting’

Obama had long ago left unfulfilled his January 2009 executive order mandating that the prison close within a year. Soon thereafter, he stopped even trying. In January 2013, he finally retired the hapless State Department envoy tasked with securing transfers from the prison. It took the mass hunger strike of men at Guantánamo during the spring of 2013 to jolt the president to recommit to his own stated policy.

By the peak of the hunger strike, the media had caught up with key facts that activists had been repeating for years: that more than half the camp population had been “cleared for transfer” in 2009 by a governmental review that included the Pentagon and the CIA, and that the prison costs taxpayers hundreds of millions of dollars per year. Moreover, Guantánamo increasingly appeared the unseemly residue of the post-9/11 world, lacking an emotional charge among younger Americans, for whom the September 11 attacks are themselves only patchy memories. Even Republican hardliners — amply supplied with political ammunition against the president over issues like Obamacare and Benghazi — were backing off Guantánamo.

Through the force of their courage, the hunger strikers accomplished what no executive order, nor court ruling, nor media exposé, nor solidarity rally had been able to do: render their fate an urgent problem in need of solving. But things move slowly in Guantánamoland. Despite the efforts of new State Department and Pentagon envoys and softened congressional restrictions on detainee transfers, only 12 men had left Guantánamo since May 2013. The media again lost interest in the story, even as new lawsuits showed the macabre details of the forced-feedings of men still on hunger strike. So we were back at our protests, crying out against bureaucratic dithering and the capricious news cycle in hopes of sparking a second, hobbled promise.

Gardens of hope

At first, news of the prisoner swap electrified the human rights community with new hope. Everyone expected that the next men to leave Guantánamo would be from among the 78 prisoners already cleared for transfer by the U.S. government. Often simple victims of mistaken identity and false imprisonment, these men have drawn the greatest attention from human rights advocates, although others at Guantánamo are held on flimsy bases. In political terms, releasing those already cleared for transfer costs the president the least capital and carries the smallest risk of pushback from Guantánamo’s supporters.

The Taliban prisoners traded for Bergdahl, however, were among those several dozen detainees slated for indefinite detention without charge or trial — and thus among the hardest to move from the prison. With them now transferred to monitored residence in Qatar (and in the cross-hairs of U.S. drones, as Secretary John Kerry has reminded us), releasing less controversial prisoners suddenly appeared easier. Most auspiciously, President Obama had at last shown the daring resolve we had for years been urging.
Scorched earth

Almost as quickly, the firestorm of right-wing rage hit, turning the delicate landscape of Guantánamo politics to scorched earth. Politicians and pundits who had questioned Obama’s Afghanistan surge and for years said little or nothing about Guantánamo turned a prisoner of war exchange into something sinister. At its most base, the ginned-up narrative suggests that a crypto-Muslim, communist president has traded a traitor for terrorists so as to make literal war on the very country he leads.

Chief among the untruths being repeated is that the so-called “Taliban Five” — who are compared to Nazi leaders on Fox News — are all “battle-hardened” extremists sure to soon attack the United States. “There is no difference between the acolytes of Hitler and the followers of Jihad,” Bill O’Reilly intoned. In fact, one among these men was merely a provincial Taliban governor at the time of the 2001 U.S. invasion, guilty of no particular villainy toward the United States. Members of the both Afghan and U.S. governments have long thought he might play a constructive role in a potential, negotiated settlement with the Taliban. Moreover, as former Bush administration advisor John Bellinger has argued, with the imminent drawdown of most U.S. forces in Afghanistan, any legal justification for holding the Taliban captives as prisoners of war will soon vanish.

Also disturbing has been the damning of Sergeant Bergdahl. An anguished young soldier brutalized by captivity, he has been made a scapegoat, as if all the kill-the-traitor rhetoric is meant to somehow soothe the still-bleeding wounds of misbegotten and ill-executed wars from which the United States hardly emerged the victor.
With respect to policy, the demagoguery around Guantánamo threatens to scuttle the halting progress of the last year. Perhaps most insidiously, the current firestorm has reignited the great lie with respect to Guantánamo: that the prison houses only “the worst of the worst” among a terrorist enemy. Holding them forever in miserable detention — no matter if their particular crimes can be specified — is therefore a matter both of prudence and rough justice.

Much of the most important work over the last decade has been to beat back such nonsense with carefully referenced facts, whose recitation feels to veterans of Guantánamo debates like catechism: that fewer than 5 percent of Guantánamo prisoners were captured “on the battlefield” by the U.S. military; that many men were simply in the wrong place at the wrong time, or sold for bounty, or had been bit soldiers waging conventional war; that the interrogations became a cesspool of false accusations, with some detainees informing on others under conditions of torture; that a Guantánamo camp commander admitted that “sometimes, we just didn’t get the right folks”; that “high value detainees” like Khalid Sheik Mohammed were brought from black sites to Guantánamo only in late 2006 so as to aid the passage of the Military Commissions Act; and so on.

But in moments of high-anxiety, patient reasoning based in fact may count for little. Post-exchange, the broad brush of indiscriminate accusation threatens to blacken out a complex reality and tar all the men still at Guantánamo with the taint of evil.

‘Returning to the fight’

The bandying of grossly exaggerated “recidivism” figures — the percentage of released detainees who allegedly “return to the battlefield” or “to the fight” — completes the triptych of right-wing reaction. Seton Hall Law School researchers have revealed the inflated nature of, and shoddy methodology behind, years of U.S. government estimates of Guantánamo recidivism. And many detained men, activists are careful to point out, were never part of “the fight” in the first place, scrambling the very nomenclature of threat assessment.
The most recent evaluation by the U.S. Office of the Director of National Intelligence holds that as many as 30 percent of the 600-plus men released from Guantánamo are either known or suspected to have then engaged in terrorist activity. A more reliable study from the New America Foundation puts at 6 percent the ratio of former Guantánamo captives engaging in anti-U.S. hostilities.

Clinging to the highball estimates, the right portrays a revolving door between prison cells and terrorist cells, greased by Obama’s purportedly reckless drive to close Guantánamo. Under the screaming headline “Bamnesty,” last Sunday’s New York Post cherry-picked testimony in a recent Periodic Review Board hearing to make the absurd claim that Guantánamo “terrorists” are “to be freed ‘because they took up yoga.’” (The Periodic Review Boards, activated just this year, were established in a March 2011 executive order authorizing the president to indefinitely detain terror suspects. In them, a military panel may consider diverse testimony in determining if men slated for open-ended imprisonment may be made eligible for transfer, as was the ruling in this case.)

The Guantánamo double bind

The firestorm following the exchange underscores a tricky truism to the politics of Guantánamo. If neglect of the issue serves to keep the prison open, too much of the wrong kind of attention can be devastating as well. The last season of outrage followed the capture on Christmas Day in 2009 of a young African man trained by al-Qaida in Yemen trying to detonate a commercial airline near Detroit. The fallout was an executive moratorium on repatriations from Guantánamo to war-torn Yemen and onerous legislative restrictions — subsequently fought over in a tiresome political dance — on the transfer of detainees from the prison. Presenting real, if surmountable, obstacles, such restrictions have also permitted Obama to fecklessly claim he could do little to close Guantánamo because Congress had tied his hands. Flourishes of outrage, in sum, allow for years of inaction.

Given this dynamic, anti-Guantánamo activists have long pursued a careful two step — to work Guantánamo back into the conscience of the president and onto his policy agenda, while keeping it below the radar of right-wing propagandists and their congressional flacks. Knocking out the second step, the recent firestorm feels like a nightmare made real.

The road from Guantánamo

How much longer the road from Guantánamo has now become for the men still there is impossible to say. The danger is that the prisoner swap will enter the right-wing pantheon of timeless Obama treachery, repeated — Benghazi-style — in political attacks against all Democrats.

Those congressional Democrats facing tough elections will run scared, distancing themselves even from the president’s tentative efforts to close the prison. New restrictions on transfers will enter this year’s National Defense Authorization Act, choking off transfers of cleared prisoners already in the pipeline. Obama himself will hesitate to push the issue and claim again that his hands are tied. And the next president will inherit the hot mess of Guantánamo, chastened in any desire to close the prison by the failures of Obama. News stories warning that “Bergdahl Swap May Make Closing Guantánamo Harder,” replete with congressional threats to block further transfers, are already giving shape to this narrative.

In a second scenario, the outrage blows over, with the right moving on to other, more durable passions. As cooler heads prevail, closing Guantánamo becomes again the grind of transfer-diplomacy with nations potentially receiving detainees, wonkish separation of powers arguments, and the careful expense of political capital. Faith in this future was the position staked out by the stalwart Guantánamo attorney David Remes in a recent interview. Eager for the same faith, I nonetheless fear it may be so much wishful thinking.

A third possibility is on the horizon, one new in the annals of Guantánamo politics: that the President fights like hell for his own policy, navigating the nation through a protracted, steadily more rational debate about the fate of the prison and its place in the country’s history. Such a scenario is its own tall order. It requires that President Obama care more about his legacy than his popularity or in pursuing his quixotic dream of being judged a great compromiser. It means that Obama would honor the work of his charges, like State Department envoy Clifford Sloan, who are deeply invested in finishing the tough job they were handed. Perhaps above all, it asks that Obama for the first time take true ownership of a moral disaster he has both mismanaged and worsened, but still has time to mitigate. To do so, he must double-down on an embattled policy at a moment of crisis.

While the president and the country decide where next to turn, luckless men linger in a sun-drenched gulag. “It’s all political. It’s all theatre,” lamented Moath al-Alwi, held without charge at Guantánamo since 2002, when reflecting on the furor over the prisoner exchange and its possible bearing on his future. By taking the humanity of such men as our compass, we may yet chart our way to the shores of a truer justice.

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