Happy New (Four) Years

Only a few days ago, on January 20th, Americans said Happy New (Four) Year(s), with the inauguration of Barack Obama.

Before the place closes, I might have a couple more opportunities to get down to Guantánamo Bay. Nothing very much has changed. Some of the soldiers have become disillusioned, knowing that their orders place them on the wrong side of history. They talk more, they try to make life a little easier on the prisoners. Their commanders have become more dogmatic, if that were possible, like dogs who refuse to give up a bone.

In a way, I am going to miss Guantánamo Bay. It’s an odd notion, but I’ve been there more than 20 times, more than six months in all. Sometimes, the true joy of tilting at windmills comes when there is an ogre in the White House. Now they are gone, George W. Bush, Dick Cheney, and Donald Rumsfeld, the entire Axis of Evil.

Only a few days ago, on January 20th, Americans said Happy New (Four) Year(s), with the inauguration of Barack Obama. Already some of the left-wing naysayers are sharpening their knives for Obama, and that is a shame.

Obama is a remarkable man. Anyone who doubts this should read his first book, Dreams from my Father, written long before he had overt political ambition. It puts flesh on the basic outline that we know, the man who graduated at the very top of his Harvard Law School class, who eschewed a prestigious clerkship at the Supreme Court to cut his teeth doing civil rights work in Chicago.

As President, Obama immediately demonstrated that he means business. He took a break between dances at ten Inaugural Balls to start issuing Executive Orders. The first 24 hours saw him issuing four decrees: the closure of Guantánamo Bay (within a year), a review of US detention policies (including the closure of CIA Black Sites), a review of US “transfer” policies (the euphemism for extraordinary rendition), and an evaluation of what position the Administration should take in the case of Ali al Marri, the only person held in extrajudicial detention on US soil for more than seven years in the “War of Terror” (as Borat calls it).

Obama did more for the rule of law in one day than George W. Bush did in eight years, and it would take a Human Rights Scrooge to deny this.

However, there is a rampant delusion that leads some to herald a new dawn as the end of the day. If there is one lesson that must be learned from Bush’s catalogue of mistakes it is that we should not go hanging up the ‘Mission Accomplished’ banner in too much of a hurry.

Bush made his infamous announcement on the USS Abraham Lincoln on May 1, 2003, only 41 days after the invasion of Iraq. Almost six years later, it is sobering to note that more than 96 percent of the US and coalition casualties came after Bush claimed that it was all over.

The battle for human rights is no more easily won. It is folly to think that Obama can sign four orders and fix an entire era of human rights abuses. A president, no matter how well-intentioned, can only achieve his goals if he has the necessary information and political support. In terms of information, Obama’s limited sources have to be a concern. With each policy review that he has ordered, he has named the players who will issue the report: the Attorney General, the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff. For the most part, these are the very institutions that created the problem in the first place.

Nowhere does this take into account those who have struggled for change.

There are plenty of interest groups opposed to a close analysis of the recent past. There are others who remain convinced that the al Qaida presents a different paradigm to anything previously encountered, one where the rule of law must give way.

Those convinced that nothing remains but the shouting should recall the missed opportunities of History, where a smug sense of satisfaction led the victors to stand on their own metaphorical aircraft carriers and declare the battle done. From Armistice Day in 1918 to the West’s failure to engage with Russia in the aftermath of the fall of the Soviet Union we have always paid a heavy price when we have failed to grapple with the causes of our recent misery; the same will be true this time around. We must uncover what led so many to go along with Bush’s regressive policies, just as we should identify the grievances (valid or imaginary) that led to September 11th.

Consider some of the challenges ahead. Obama has ordered the closure of Guantánamo Bay. There are various challenges ahead of him on this. The first group is the easiest – roughly 140 prisoners who can just be repatriated. Ninety-seven are from Yemen, and they would be home already if only the Bush Administration had talked to President Saleh.

The second group are refugees who need resettlement, around sixty, most of whom were picked up in Pakistan for bounties. Here, Obama needs help from his allies to offer them sanctuary, and it is sad that David Miliband announced earlier this week that Britain felt it had done enough already. A country that played so integral a part in supporting the mess created by Bush might feel a greater obligation to clean it up.

Last, there is the group of prisoners who will be tried, perhaps forty of them. President Obama has ordered that the Guantánamo Military Commissions be suspended. Now looms the struggle over formulation of a process to replace them. Even liberals in the US are talking about a Security Court, a notion that would sound Orwellian, were it not for the fact that Britain already has such a body – SIAC, the Special Immigration Appeals Commission, with all its secrecy and its special advocates, all beyond the public eye.

Why do we have to have such little faith in the institutions we have built over centuries? The US civilian courts have handled terrorism trials before, the 1991 (first) World Trade Center bombing being one of many. The trials of Soviet spies involved genuine secrets, such as how to build a nuclear bomb, but the courts were considered competent to consider the evidence (sometimes in camera) and hand down judgments.

But as Guantánamo closes, will we learn from Bush’s mistakes? Or will we, for example, accept the Pentagon’s most recent press release – that 61 former prisoners have gone “back to the fight” – and clamour for “preventive detention”? Looking behind the headline, it is another official lie: the list of recidivists includes three British former prisoners whose subsequent “terrorism” involved making a film with Michael Winterbottom about their experiences. As for the tiny group who really have come out of Guantánamo embittered and angry, will we recognize that it was our misguided experiment that made them so? And here in Britain, will we see that the hypocrisy of detention in Belmarsh provokes more people to extremism than could ever be locked behind its austere walls?

Next, Obama ordered the closure of CIA prisons. This is an interesting comment on his predecessor’s candour, since Bush assured us in September 2006 that there were no more prisoners in CIA detention. Yet we cannot merely announce to the Agency that its shady game is over. There are several prisoners who have disappeared. Together with other human rights organisations, Reprieve drafted a report called ‘Off the Record’ which featured 39 people who have vanished into US custody. Only two have surfaced. 37 remain ghosts.

The story of Ibn Sheikh al Libi is an example of how the osmotic pressure of politics can result in prisoners being shuffled quietly off to a terrible fate. Al Libi was seized in November 2001, and soon rendered by the CIA to Egypt, where torture elicited the “fact” that al Qaida and Saddam Hussein were in league on WMD. Bush cited this as a reason to invade Iraq; Colin Powell repeated it in the UN. When 15 ‘High Value Detainees’ appeared in Guantánamo Bay in September 2006, Ibn al Libi was not among them; what he might say to a lawyer was just too embarrassing for the Administration. So he was rendered to disappear in Libya, where Reprieve has now tracked him down. His story must be told – both to expose the consequences of torture, and how Libya is being used to spare Bush’s blushes.

Notwithstanding such important individual stories, the directive to close CIA prisons is only of passing relevance. The overwhelming majority (more than 99 percent) of the roughly-20,000 prisoners still held in US custody, beyond the rule of law, have never been in a “CIA prison”. Guantánamo is not a CIA prison, yet 240 prisoners remain there. Bagram Air Force Base is not a CIA prison, yet the US military continues to hold 680 prisoners without any due process. In Iraq, far from being given a fair trial or freed, prisoners are being turned over to an Iraqi government that shows little respect for human rights.

There is also the question of the proxy prisons. The outsourcing of torture and imprisonment may have been the greatest horror of the Bush years, as British resident Binyam Mohamed learned when he found himself in a Moroccan chamber of horrors for 18 months. And there are proxy prisons that have never been part of the public debate, including a particularly unpleasant one in Uzbekistan. Other countries – most notably Jordan and Egypt – continue to serve secret American interests. Are the crimes in these prisoners to be silently ignored?

Furthermore, it would be unwise to assume that Obama’s policy review is going to eliminate the practice of rendition. This was not a Bush brainchild; as far back as Ronald Reagan, suspects had been ‘snatched’ – the preferred term – from abroad. There was enthusiasm for rendition during the Clinton era. Richard Clarke, counter-terrorism tsar to both Democrats and Republicans, relates an infamous story in his book Against all Enemies:

The first time I had proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the argument on both sides for Gore: Lloyd says this. Dick says that. Gore laughed and said, "That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass."

The euphemisms – ‘rendition to justice’ is a favourite one, when someone is ‘snatched’ and brought to face trial in the US – cannot disguise the fact that there is no legal distinction setting it apart from kidnapping.

President Obama has ordered an end to torture, requiring that all interrogations abide by the Army Field Manual. The ink was barely dry on his directive before talk of adding more coercive techniques to the Manual began. The lessons just have not been learned. I have been keeping a log of all the different “enhanced interrogation techniques” that have been used in the past seven years, along with their genealogy. Hanging someone up by the wrists, the toes touching the ground, may not sound too bad until you remember that it was called strappado by the Spanish Inquisition. It is a truth recognized in the law for centuries that even minor threats or inducements invalidate a confession, for good reason: the New York Innocence Project reports that a quarter of all prisoners exonerated by DNA gave a confession. In those cases, any coercion used to extract this false statement was mild compared to what is being meted out in the “War on Terror.”

President Obama has said nothing about accountability. With a wink and a nod, before his inauguration, there were signs that he had already come under pressure from both sides of the aisle not to look too carefully at the criminal practices of the Bush Administration. That Bush pardoned nobody on this score is eloquent testimony to the fact that there is no stomach in Washington to bring the perpetrators of torture and rendition to justice.

Obama’s reticence is understandable enough. He is embarking on a daunting four-year mission, that may extend to eight, and he must seek allies where he can find them. Digging up the skeletons of the past might have suited the Democrats in the run-up to the election, but if they want Republican cooperation now the prospect is less appealing.

Yet we cannot act the ostrich, since the only universal lesson of History is that we do not learn from History. Benefiting from those lessons becomes even less likely when we do not know what that history actually entailed. Prosecutions for the crimes of the Bush Administration might actually hide the facts, with the abusers intent on saving their skins. But there can be no legitimate argument against a truth commission.

Such a commission will not easily be born. A systematic structure of secrecy – couched in national security terms – may be the most dangerous and long-lasting legacy of Bush and Tony Blair. I have a US security clearance, and while I obviously cannot reveal classified material, I can state without hesitation that the overwhelming majority of it would not remain hidden in a sane world. Does evidence that our own security services were complicit in crimes deserve the shroud of secrecy? Yet this is a story that the media rarely covers – for the simple reason that the facts are unknown.

Looking to the future, much as it is enormously exciting to have a US President who is so powerfully in favour of human rights, it is unclear whether he could sustain his approach in the face of (for example) a further terror attack on US soil. It would be very unwise to discount the possibility of such an attack, as al Qaida must realize that a decent president is a danger to their cause, just as Bush’s policies provided the most effective recruiting sergeant to their banner that they could imagine.

La lutta continua.

This article also appeared in the New Statesman.