January 10, 2012

President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Re: Detention Without Trial and Continued Operation of Guantanamo

Dear President Obama:

We write to you on the eve of the tenth anniversary of the detention facility at Guantanamo Bay to urge you to reaffirm your stated commitment to closing Guantanamo by prosecuting detainees in federal court and repatriating and resettling those who will not be prosecuted.

We are deeply disappointed that you chose to sign into law the National Defense Authorization Act (NDAA) despite your administration’s repeated threats to veto the bill if it contained detention provisions detrimental to the rule of law and US national security. The new law represents a complete rejection of the vision you outlined for counterterrorism policy when you took office. The final version of the bill, while amended slightly, seeks to upend the effective use of law enforcement for countering terrorism and replace it with a military detention system.

Your signing statement appended to the bill noted a number of deeply problematic areas which you have committed to interpreting in a manner that avoids constitutional conflicts and complies with the laws of war. Yet those problematic areas are the very reason you should have vetoed the bill, and why you must make repeal of those provisions a top priority for your administration this year. As long as the NDAA remains a part of US law, it can be used by future administrations to detain people indefinitely even in circumstances your administration has disavowed. While working towards this goal, we urge you to interpret the provisions in a manner consistent with international human rights and humanitarian law, and to exercise your discretionary powers to use civilian law enforcement tools to prosecute terrorism suspects. We recognize that repeal may be difficult. Nevertheless, we believe the strong bipartisan opposition to the detention provisions of the NDAA made clear that key members of Congress will support any efforts to repeal those provisions that are inconsistent with US values and the rule of law.

Your National Security Strategy explicitly recognizes that the United States’ “moral leadership is grounded principally in the power of [its] example.”[1] Your National Strategy for Counterterrorism recognizes the importance of adhering to US core values while fighting terrorism, including through the respect for human rights. As the strategy eloquently outlined, “Where terrorists offer injustice, disorder, and destruction, the United States must stand for freedom, fairness, equality, dignity, hope, and opportunity. The power and appeal of our values enables the United States to build a broad coalition to act collec­tively against the common threat posed by terrorists, further delegitimizing, isolating, and weakening our adversaries.”[2] In his speech at Harvard Law School in September 2011, counterterrorism advisor John Brennan affirmed that the guiding principle of all US action is to “uphold the core values that define us as Americans, and that includes adhering to the rule of law.”[3]

The example set by keeping Guantanamo open undermines the US government’s longstanding opposition to similar detention regimes in other countries. Over the years, the US has opposed detention practices that are inconsistent with basic principles of due process, openly criticizing detentions without trial by Saudi Arabia, Pakistan, Malaysia, and China. But such criticisms hold little weight when the US adopts its own indefinite detention regime. Zimbabwe’s Robert Mugabe, Russia’s Vladimir Putin, Bashar al-Assad of Syria, and Iran’s Mahmoud Ahmadinejad have all pointed to Guantanamo to deflect attention from human rights abuses in their own countries. In May 2010 your administration criticized Egypt’s extension of a state of emergency that has been continuously in effect since 1981. In responding to that criticism, the Egyptian government explained that its efforts were no different from the United States’ failure to close Guantanamo.[4] In December 2011, as part of a campaign to deflect criticism of its own human rights record, Russia criticized the US for, among other things, keeping Guantanamo open.

In the early months of your administration, many governments responded favorably to your stated commitment to closing Guantanamo, including by accepting detainees for resettlement despite the US government’s refusal to do the same. But in recent months, in meetings with senior government officials around the world, Human Rights Watch representatives have seen a resumption of criticism leveled against the US by countries with some of the most repressive human rights policies (such as Saudi Arabia, China, Libya under Gaddafi, and Egypt under Mubarak), who feel immune from criticism because the US engages in similar practices and has not held any high-level officials accountable for past abuse.

Despite your stated commitment to closing Guantanamo, in your May 2009 speech at the National Archives you outlined several categories of detainees, including a category of those who allegedly “cannot be prosecuted yet who pose a clear danger to the American people.” The Guantanamo Detainee Review Task Force (“Task Force”) recommended 48 detainees for continued detention without charge (now 46 due to the deaths of two of those detainees). On March 7, 2011 you issued an Executive Order for the Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for the Use of Military Force (“Executive Order”). While we have long opposed indefinite detention without trial, we commended your administration for limiting the order to those detainees already at Guantanamo, as we believed it was a signal that your administration remained committed to ending the system of indefinite detention that Guantanamo has come to represent.

We acknowledge that you inherited a complicated problem from the previous administration and that you have committed not to expand the population of detainees at Guantanamo. But we regret both your decision to sign into law the NDAA and thereby potentially expand indefinite detention without trial, and your acceptance of indefinite detention without trial for certain detainees already at Guantanamo, as well as detainees in Afghanistan. While we sincerely hope you will revisit those decisions, including by following through on your statement that you will seek repeal of the rights-infringing provisions of the NDAA, there are also steps we believe you can and should take now to mitigate existing harmful policies. 

First, we urge you to improve the process under which the detainees in Guantanamo or Afghanistan can challenge their detention. The Executive Order did provide for some additional process protections for persons currently detained at Guantanamo, but instead of providing for the assistance of counsel at periodic review boards, it provides only for a government-appointed military representative. This is a blatant denial by your administration of basic due process rights—a denial that is already occurring in Afghanistan. As in the so-called administrative review of detention in Afghanistan, detainees subject to the new review process at Guantanamo are to be denied access to classified evidence, even if it is used to justify their continued detention. Further, we note that the Executive Order required the Secretary of Defense, in consultation with the Attorney General, to issue implementing guidelines governing the review process. As the Executive Order required initial review to commence no later than one year from the date of the order, we would expect to see draft guidelines available for public comment soon, in advance of the March 7, 2012 deadline for implementing the order.

Section 1024 of the NDAA requires that a military judge oversee status determinations for persons “who will be held in long-term detention under the law of war pursuant to the Authorization for the Use of Military Force.” Your signing statement indicates that you interpret section 1024 as granting the Secretary of Defense broad discretion to decide whether status determinations in Afghanistan are covered by this section. We urge you to find that all status determinations conducted by US forces are covered by the procedures of section 1024; in particular, the determination currently made at the initial Detainee Review Board conducted within 60 days of capture, as well as the bi-annual reviews conducted thereafter. Further, while section 1024(c) makes the provision of a military judge and lawyer optional for detainees who have access to habeas corpus review (i.e., those currently held at Guantanamo), we urge you to implement procedures guaranteeing all persons held in US military detention access to a lawyer and a judge.

Second, you should affirm your commitment to closing Guantanamo by transferring those detainees already cleared for release or resettlement as soon as possible. We understand that your administration found the certification requirement contained in the NDAA for FY11 to be too onerous to sign. While the NDAA for FY12 contains a similar requirement, it also includes a national security waiver that can be exercised by the Secretary of Defense. We urge your administration to immediately commence completing the certifications necessary to permit the transfer of the 89 detainees in Guantanamo already cleared for transfer by the Task Force, either through the certification process or the national security waiver. Your decision to impose a moratorium on repatriations to Yemen following the attempted bombing of an airliner by Umar Farouk Abdulmutallab (who has since pleaded guilty in federal court) significantly hampered your ability to close Guantanamo. The moratorium was based on conduct wholly unrelated to that of the dozens of Yemeni detainees cleared for transfer by the Task Force. It paved the way for Congress to act similarly by seeking to prevent repatriations based not on any factors relating to a particular detainee’s past conduct but instead on alleged acts of recidivism by citizens of the same nation. We urge you to formally lift this moratorium (independent of any certification requirements related to the NDAA) and exercise your discretion to commence the repatriation to Yemen of Yemeni citizens who have been cleared for transfer by the Task Force.

Third, we believe your decision to resurrect the discredited military commissions was also a major mistake. While your administration worked with Congress to improve the military commissions, they remain an unacceptably flawed alternative to the federal courts. Among other flaws, military commissions retroactively define crimes, admit hearsay evidence that is inadmissible in federal courts, and have ever-changing procedures without the benefit of established precedent. The prosecution of Omar Khadr made the US the first Western nation to prosecute someone for alleged war crimes committed as a child, and because the conduct with which he was charged had never before been considered a violation of the laws of war, his case discredited the entire system. The only case currently pending before the military commissions, that of Abd-al Rahim al-Nashiri, is one in which the prosecution is seeking the death penalty. The prosecution of a capital case will only exacerbate the defects of the military commissions, furthering the denial of a fair trial to the defendant and providing additional fodder to terrorist recruiters, who will proclaim al-Nashiri a martyr if executed.

Prosecution in US federal criminal court remains the most effective way to neutralize and punish terrorists. The Justice Department’s protocol for trying Guantanamo detainees recognizes that trial in an Article III court is the preferred option. Nevertheless, the only former Guantanamo detainee to be transferred to the US for trial was Ahmed Ghailani, who faced a pre-existing indictment in the Southern District of New York. Congressionally-imposed restrictions on the use of funds to transfer detainees to the US operate as an effective ban on federal court trials, at least for this fiscal year. You have twice pledged to work with Congress to repeal those restrictions. We urge you to redouble your efforts and to refuse to sign any further such restrictions into law. Article III courts are the most effective way to prosecute terrorism suspects, and their use is key to maintaining foreign ally support, which is necessary in the fight against terrorism and for the closure of Guantanamo.

Guantanamo is a mistake you inherited. The 171 remaining detainees at Guantanamo are the last of a terrible legacy left by the previous administration. They should be the last people in US custody to ever be subjected to a detention regime that strayed so far from the values and principles embodied in the US Constitution and international law. This regime must be so thoroughly repudiated that no future administration would ever consider reviving it. Statements that your administration will not send additional detainees to Guantanamo, while important, are not enough. You must take firm and decisive action to make clear that future detention in Guantanamo is not an option for this or any future administration.

The last year has seen momentous changes around the world. Ordinary people rose up, largely peacefully, to reject repressive governments and restore, or instill, democratic institutions, particularly in the Arab world. In the past many have looked to the US for leadership and guidance in the promotion of human rights. But now, instead of seeing adherence to the rule of law and respect for human rights, they see a lack of accountability for past abuse, codification of indefinite detention, and the militarization of law enforcement. Not only are your actions important for upholding fundamental rights in the United States, they also send a message to other nations around the world about what the international community expects of democracies.  

We urge you to act on your stated commitment to justice and the rule of law by redoubling your efforts to close Guantanamo once and for all. We call on you to put into practice your statement that you will seek repeal of the rights-infringing provisions of the NDAA and that you will refuse to authorize any further encroachments on the rule of law.

 

Sincerely,

Kenneth Roth
Executive Director
Human Rights Watch
 


[1]“National Security Strategy,” United States report, May 2010, http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (accessed January 2, 2012).

[2]“National Strategy for Counterterrorism,” United States report, June 2011, http://www.whitehouse.gov/sites/default/files/counterterrorism_strategy.pdf (accessed January 2, 2012).

[3]“Strengthening our Security by Adhering to our Values and Laws,” John Brennan, September 16, 2011, http://www.lawfareblog.com/2011/09/john-brennans-remarks-at-hls-brookings-conference (accessed January 2, 2012), video available at http://www.youtube.com/watch?v=RruVxY2mxB4 (accessed January 2, 2012).

[4]“Egyptian Emergency Law Is Extended for 2 Years,” New York Times, May 11, 2010,   http://www.nytimes.com/2010/05/12/world/middleeast/12egypt.html (accessed January 2, 2012).