Originally published by the Future of Freedom Foundation.
How messed up is American politics? Well, here are a few clues.
Two weeks ago, the U.S. House of Representatives passed a $1.1 trillion continuing resolution, which funds the government through to September 30 next year. As The Hill explained, the resolution was needed “because Congress failed to pass any of the 12 regular appropriations bills for 2011, in addition to failing to pass a budget resolution at all for the first time since 1974.” How many people even knew that?
As The Hill also noted, the bill “freezes 2011 discretionary appropriations at the current level, providing $45.9 billion less than President Obama requested for the year.” Funding for the Department of Defense — at $513 billion overall — makes up almost half of the bill’s financial provisions, which “includes $159 billion for the wars in Iraq and Afghanistan, as Obama requested.”
As I reported last week, the bill also includes sections designed to prohibit the president from spending any money to transfer Guantánamo prisoners to the U.S. mainland — a specific prohibition on bringing prisoners to face trials, which mentions Khalid Sheikh Mohammed by name — or to acquire facilities to hold them on U.S. soil. Both of these are aimed directly at intentions announced by the Obama administration a year ago — federal court trials for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, and plans to buy a prison in Illinois as a replacement for Guantánamo.
Such is the indifference to Guantánamo in the mainstream U.S. media that it was difficult to work out who had inserted the sections relating to the prison.
Just before the bill was passed, White House spokesman Reid Cherlin said, “We strongly oppose this provision. Congress should not limit the tools available to the executive branch in bringing terrorists to justice and advancing our national security interests.” Moreover, the day after, Attorney General Eric Holder wrote a letter to Senate leaders, “calling the provision ‘dangerous’ and asking that it be stripped before the Senate votes on the bill.” Holder wrote, “This provision goes well beyond existing law and would unwisely restrict the ability of the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States.”
According to The Hill, the provisions in the bill caught Democrats by surprise. Rep. Jim Moran (D-Va.), a member of the defense appropriations subcommittee, said, “This is a lack of leadership on the part of Obama. I don’t know where the f*** Obama is on this or anything else. They’re AWOL.” According to Moran, “Rep. Jane Harman (D-Calif.), a leading voice on national security issues, and the four top Democrats on the Judiciary Committee found out during the vote on the rule…. At one point, the rule governing the bill was hanging by just one vote while Majority Leader Steny Hoyer (D-Md.) and Speaker Nancy Pelosi (D-Calif.) rushed around the floor doing damage control.”
However, according to TPMMuckraker, “sources on both sides of the House Appropriations Committee, which had purview over the legislation,” said that “the bill was written entirely by the Democratic side. It was revealed to Republicans only hours before the vote. No amendments were allowed on the House floor. No Republicans voted for it. And, the committee sources said, the White House would have seen the final package — including the transfer ban — and would have had the chance to object.”
So what’s going on? The answer, it seems clear from further scrutiny of the passage of the bill, is the most dismal sort of horse-trading, required in a deeply polarized Congress to ensure that legislation passes at all. Something of this can be gleaned from the floor statement made by Rep. David R. Obey (D-WI), the outgoing chairman of the House Committee on Appropriations, as he introduced the bill:
There are at least fifty decisions in this bill that I am flatly opposed to. There are many arguments in this bill that I have lost. But the fact is, sooner or later, if you’re going to be responsible, you have to set aside your first preferences and simply do what is necessary in order to keep the government open so that Congress doesn’t become the laughing stock of the country. The only responsible vote to cast on this proposition is an “aye” vote. I urge support for the resolution, with all of its shortcomings.
The House enacts further restrictions on Guantánamo in the defense authorization bill
Further evidence of the extent of horse-trading required to pass any sort of law can also be seen from reports of the negotiations involved in a second bill passed by the House last week (the annual defence authorization bill), and in negotiations relating to the passage of both the appropriations bill and the defence authorization bill in the Senate.
On Friday, the House of Representatives passed the defence authorization bill by 341 votes to 48, even though, as Politico reported, it prohibits the transfer of prisoners from Guantánamo to the United States “for any reason,” “contains language that would effectively ban civilian trials for … prisoners at Guantánamo and place[s] new limits on transfers from Guantánamo to other countries.” Politico also noted, “A total of 42 House Democrats voted no, including some of the best-known liberals…. Six Republicans also voted against the bill.”
As Politico also reported:
The defense policy bill had been carefully negotiated by Sens. Carl Levin (D-Mich.). John McCain (R-Ariz.) and Rep. Ike Skelton (D-Mo.) to strip not just the repeal of “don’t ask don’t tell” [DADT], but a host of other controversial items in the bill after it was defeated over concerns about the repeal of “don’t ask don’t tell.”
In terms of reversing legislation against gay people, securing the repeal of DADT is a great triumph, although anti-war activists — myself included — can only conclude that, in practical terms, this great breakthrough does nothing more than allow gay people to die pointlessly, or kill other people pointlessly, in wars that shouldn’t even be taking place.
However, in order to secure the repeal of DADT, huge compromises were needed. As Politico also explained, the bill “came under threat from Sen. Mark Kirk (R-Ill.), who sought to place a hold on the bill in the Senate over detainee transfer language,” and as a result, “Skelton and Rep. Buck McKeon (R-Calif.), the incoming chairman of the House Armed Services Committee, worked together Friday morning to toughen the language, according to McKeon spokesman Josh Holly.”
Skelton then “touted the restrictions [on Guantánamo] as the toughest ever,” which was a fair call, as the language that Skelton and McKeon came up with not only prevents the transfer of any Guantánamo prisoner to the U.S. mainland for any reason, but also empowers lawmakers to prevent the president from releasing prisoners “to any country that has received a detainee and allowed that detainee to return to the battlefield.” Skelton’s full statement is below:
It prohibits the release of detainees into the United States or its territories. It prohibits the transfer or release of detainees into the United States or its territories. It prohibits the use of any DoD funding to build or modify any DoD facility in the United States for the detention of any Guantánamo detainee. This restriction applies not only to Thomson, Ill., but to the whole country. It prohibits the transfer or release of any Guantánamo Bay detainee to any country that has received a detainee and allowed that detainee to return to the battlefield. This is the most thorough and comprehensive set of restrictions ever placed on the transfer and release of detainees. It is substantially stronger than current law, and voting against this bill will have the effect of making it easier to bring detainees into the United States and easier to transfer them to countries that have failed to hold them in the past.
Alarmingly, as TPMMuckraker reported, the provision allowing lawmakers to prevent prisoners from being transferred “to any country that has received a detainee and allowed that detainee to return to the battlefield” includes prohibitions on transfers to Afghanistan, Pakistan, and Yemen. This is deeply disturbing because it so clearly refutes the president’s right to release prisoners who were specificallycleared for release by the interagency Guantánamo Review Task Force, which spent a year studying the Guantánamo cases. It also goes much further than the present law, implemented last year, which allows Congress 15 days to review the cases of any prisoner that the administration wants to free — even if those prisoners have had their release ordered by a U.S. court after winning their habeas corpus petitions (a move that was described as “Congressional depravity” by the law professor and former Guantánamo military defence attorney David Frakt, who noted that Congress has “no Constitutional authority” to do so in the cases of prisoners ordered released by the courts).
It is also deeply disturbing because it amounts to nothing less than guilt by nationality, and, in the cases of the 58 Yemenis cleared for release by the Task Force, adds to the unacceptable situation that has already existed since January this year, when President Obama announced a moratorium on any further Yemeni releases, after it was revealed that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had trained in Yemen, and lawmakers responded with unseemly but influential hysteria.
How politics is dictated by savage compromises, and why the Senate may not be immune
The extent of the compromise required to secure the repeal of DADT (and to sacrifice the Guantánamo prisoners) was explicitly spelled out by Rep. Barney Frank (D-Mass.), a liberal who would normally have been expected to vote against Republican-inspired proposals regarding the Guantánamo prisoners. Frank, however, “spoke on the House floor in support of the bill,” and later told Politico that “agreeing to ban detainee transfers was part of a larger House-Senate compromise that also involved passing ‘don’t ask don’t tell.’” Speaking of the detainee transfer ban, Frank said, “I didn’t like that,” but he conceded that “passing the bill to allow gays to serve openly in the military was more important,” and added that “the detainee language would have returned in a spending bill.” He told Politico, “We would have gotten stuck with that anyway.”
Both bills must now pass the Senate, and it is unclear if Eric Holder’s appeals to Senators not to “unwisely restrict the ability of the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States” — as well as doubts about the wisdom of imposing restrictions on the Executive’s right to release cleared prisoners as it sees fit — will fall on deaf ears.
According to Politico, horse-trading may mean that all of these unacceptable amendments remain, effectively bringing any movement on Guantánamo to a halt for a year — with no trials, and, very probably, not a single prisoner released, even though over half of the remaining prisoners were cleared for release by the Task Force.
In another distressing example of the kind of monstrous compromise needed to pass any kind of law, Sen. Dick Durbin (D-Ill.), described as “[o]ne of the leading supporters of civilian trials for some Guantánamo prisoners and of bringing detainees currently there to the U.S. mainland,” told Politico that “the Senate is likely to concur in a House-passed measure that effectively bans both those options for the rest of this fiscal year.”
On Saturday, Durbin said, “I think that issue has been resolved. I think it’s necessary to include the language. The reason is that we hope at the end of the day … to still work out an agreement and the bureau of prisons so they will buy this Thomson prison which has been sitting vacant for so many years.” Last December, after the Obama administration encountered fierce opposition to its plans to buy the empty Thomson Correctional Center in Illinois to house “detainees currently being held indefinitely at Guantánamo” and also, possibly, to host military commission trials, Durbin “settled on a fallback proposal to have the Justice Department buy the prison solely for use by ordinary federal prisoners.” As Politico explained, “The Obama administration planned to pay $170 million for the prison. The House voted to approve $95 million for the purchase last week as part of a full-year continuing budget resolution. That measure has stalled in the Senate, but Durbin said he still wants funding to buy the prison — at least as a first step.”
“It won’t go through unless that language clearly says Guantánamo detainees cannot be sent there,” Durbin told Politico. “I supported the president’s position on that initially — that issue has been resolved politically, and this bill, the language in it, reflects the political reality.”
“The political reality.” That, in a nutshell, is the problem with Guantánamo. Whether through ferocious and unprincipled opposition to any attempts to close the prison by trying prisoners, freeing them or transferring them to the U.S. mainland, or whether through calibrated negotiations involving trading progress on Guantánamo for progress in other areas — like DADT, for example — the prisoners at Guantánamo have been abandoned.
As the ninth anniversary of the prison’s opening approaches (on January 11, 2011), the latest betrayals in the House and the Senate are ill-timed and very bad news indeed for the 174 men remaining in the prison, all of whom deserve better than this, be they the 33 men scheduled to face trials, the 48 designated for indefinite detention without charge or trial, or the 90 men cleared for release. Everyone involved should be ashamed that closing Guantánamo — and trying those genuinely accused of involvement in acts of international terrorism — has become politically inconvenient, or a bargaining chip to be traded for something regarded as more important.
As a result, America will enter 2011 with Guantánamo still present as a stain on its reputation, and as a beacon of injustice still beaming its depressing message around the world.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at:www.andyworthington.co.uk.