This investigative report was originally published on Truthout.org on March 8, 2010.
At first it seemed Obama was on track to make good on his campaign promise of halting military commissions. Instead, he's reviving the same system he once abhorred.
The crowd at the Wilson Center in Washington, DC, gathered to hear their candidate outline his grand strategy for a new way forward and Barack Obama delivered.
"I will reject a legal framework that does not work," Obama said, his words slightly drowned out by the loud applause that erupted. "There has been only one conviction at Guantanamo. It was for a guilty plea on material support for terrorism. The sentence was nine months. There has not been one conviction of a terrorist act. I have faith in America's courts, and I have faith in our [Judge Advocate Generals]."
"As president, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions," he continued. "Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists ... Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary."
That was three long years ago, when the world was led to believe that Hope and Change was more than just a campaign slogan. But the cracks in the façade began to surface just a month after the presidential election on November 4, 2008.
It was then that President-elect Obama convened a meeting at his transition headquarters in Chicago to discuss policies related to detainees being held at Guantanamo Bay. In attendance were Republican Sens. Lindsey Graham and John McCain, who suffered a stinging defeat by the iconic Democratic challenger.
Obama is said to have told Graham, a former judge advocate general (JAG), that he needed his help shutting down Guantanamo and wanted him to enter into discussions with Rahm Emanuel, whom Obama tapped to be his chief of staff, about working on a bipartisan plan to turn that vision into a reality.
Emanuel and Graham did speak and the hard-charging, cutthroat political dealmaker soon realized that winning Graham's support as well the support of other Republicans to shutter Guantanamo would not be possible unless self-professed 9/11 mastermind Khalid Sheikh Mohammed was prosecuted before discredited military commissions established by the Bush administration.
The military commissions were set up after the invasion of Afghanistan in 2001. They were immediately discredited and challenged by civil liberties and human rights groups because they did not provide alleged terrorists with rights they would have received had they been prosecuted under the Uniform Code of Military Justice or in a civilian courtroom. After Obama's speech at the Wilson Center in August 2007, two more detainees were prosecuted before military commissions, resulting in sentences of less than a year. Two of those former detainees have since been released.
Meanwhile, since 2001, more than 300 suspected terrorists were successfully tried and convicted in federal courts for their crimes, a fact that Republicans critical of using the civilian justice system refuse to acknowledge.
Emanuel communicated to Obama the risk associated with a civilian trial and underscored how it would likely amount to political suicide for Democrats.
But Attorney General Eric Holder argued in favor of civilian trials. It was unknown then, a time when the public was still enamored with the stunning electoral victory of the country's first African-American president who made grand promises to gut his predecessor's unlawful counterterrorism and national security policies, but Graham wielded enormous influence over the administration's proposed plans for prosecuting alleged terrorists detained at Guantanamo.
Just days after he was sworn into office, Obama issued an executive order halting the military commissions at Guantanamo while he set up a task force and ordered a review of the more than 200 cases there to determine who should face criminal prosecution as part of a larger effort to permanently close the facility by January 2010. It appeared Obama was on track to make good on one of his key campaign pledges - reject military commissions.
But on May 15, 2009, following months of pressure from Defense Department and National Security officials, according to three knowledgeable sources, Obama changed course and announced that his administration would resurrect the Bush-era military commissions he had vowed to oppose. His decision followed a month of blistering attacks that Republicans and former Vice President Dick Cheney leveled against him and the Justice Department for releasing torture memos drafted by Bush administration lawyers.
Obama's reversal followed another high-profile flip-flop: an agreement to release photographs depicting US soldiers abusing prisoners in Iraq and Afghanistan. A federal appeals court ordered the administration to turn over the pictures to the ACLU after the Bush White House lost several legal challenges to keep the images under wraps. Obama agreed, but then swiftly decided against it when the attacks against him became more intense.
The White House attempted to sell the decision to revive the military commissions system by saying Obama intended to call on Congress to implement some legal safeguards in the military commissions law currently on the books that would ensure detainees received a fair trial. The changes included a prohibition on evidence obtained through torture and evidence obtained through hearsay, and providing detainees with more freedom in choosing their own military lawyers.
In a three-paragraph statement released after the announcement was made, Obama said, ''Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered."
Moreover, the White House spun Obama's about-face by saying his decision to add legal protections into the military commissions law was consistent with statements he made in September 2006 as a senator in which he voted in favor of a bill that included them and against a version of the bill that did not, which he called "sloppy" and which ultimately became law.
While that's true, it's not what Obama said in August 2007 when he riled up the crowd at the Wilson Center who hung on his every word.
Still, the new plan had its supporters, namely Senator Graham, who said it was a step in the right direction.
''I continue to believe it is in our own national security interests to separate ourselves from the past problems of Guantanamo,'' Graham said at the time. "I agree with the president and our military commanders that now is the time to start over and strengthen our detention policies. I applaud the president's actions today.''
Civil liberties groups and legal scholars, however, pounced on the proposal, characterizing it as Bush-lite.
Zachary Katznelson, the legal director of Reprieve, a legal charity based in London that represents more than two dozen Guantanamo prisoners, said, as a constitutional scholar, "Obama must know that he can put lipstick on this pig - but it will always be a pig."
Constitutional law professor Jonathan Turley said no amount of spin from the White House could change the fact that Obama was politicizing the law.
"It is clear that Obama has determined that these men stood a chance of being released if they were given full legal protections and procedures," Turley wrote on his blog when the decision was announced. "Thus, he has discovered the value of extrajudicial punishment with indefinite detentions and tribunals. The tribunal system is run on rules written by the Bush administration to ensure convictions. It has even fewer protections than allowed in the military system and has been widely ridiculed, even by some conservatives, as a Kangaroo trial system."
"Broken Beyond Repair"
In the months that followed, Congress held hearings on the legal issues surrounding the military commissions and heard explosive testimony from Lt. Col. Darrell Vandeveld, a former prosecutor in the military commissions who resigned in protest in September 2008 because of, among other issues, the "slipshod, uncertain 'procedure' for affording defense counsel discovery."
His testimony before a House Judiciary subcommittee was blunt.
"I am here today to offer a single, straightforward message: the military commission system is broken beyond repair," Vandeveld said. "Even good-faith efforts at revision, such as legislation recently passed by the Senate Armed Services Committee, leave in place provisions that are illegal and unconstitutional, undermine defendants' basic fair-trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time-consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded."
"The military commissions cannot be fixed, because their very creation - and the only reason to prefer military commissions over federal criminal courts for the Guantanamo detainees - can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation," he added.
Congress made additional changes to the Military Commissions Act several months later, but kept many of the controversial Bush-era guidelines in place despite the alarm bells sounded by Vandeveld and a request by at least one defense attorney who represented detainees being prosecuted before the Guantanamo military commissions to further tweak the law.
The 9/11 Trial
But there was some progress. Last November, Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four 9/11 co-conspirators would be prosecuted in federal criminal court in downtown New York City. He also said five others suspected terrorists, including Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing, would be prosecuted before military commissions.
Holder singled out McCain and Graham in his public statements for their work on "reforming" the military commissions system. But three months before Holder unveiled details of the Justice Department's plan to prosecute Mohammed and other 9/11 co-defendants in federal court, Graham had already been briefed that was the direction Holder was headed toward and he was hard at work trying to thwart those efforts.
Along with McCain and Sens. Joe Lieberman (I-Connecticut) and Jim Webb (D-Virginia), Graham sent a letter to Obama, urging him to support the prosecution of Mohammed and other alleged "war on terror" detainees before military commissions.
A week before Holder's announcement, Graham introduced an amendment barring the Obama administration from prosecuting "anyone accused of plotting the 9/11 attacks on America in federal district court." The amendment failed.
Holder's decision to use a two-tiered system of justice to prosecute alleged terrorists had other critics as well, namely, the former chief prosecutor of the military commissions at Guantanamo, Col. Morris Davis.
In an op-ed published in The Wall Street Journal last November, Davis said "a decision to use both legal settings is a mistake.
"It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions," he wrote. "This will only perpetuate the perception that Guantanamo and justice are mutually exclusive."
Davis, like Colonel Vandeveld, resigned from the military commissions in October 2007 because he believed the system was fundamentally flawed and designed to win convictions based on weak evidence. At the time he published the op-ed, as well as a letter to the editor of The Washington Post, Davis, who spent 25 years in the Air Force, was working for the Congressional Research Service (CRS). He was fired shortly afterward for allegedly violating internal policies even though he was acting in the capacity of a private citizen when he wrote the letter and column. The ACLU sued CRS on his behalf for violating his civil rights, which a federal judge ruled was likely the case. However, the court stopped short of forcing CRS to reinstate him in his former position.
Still, Mayor Michael Bloomberg and other officials hailed the decision to prosecute Mohammed in New York City.
Rep. Jerrold Nadler (D-New York), who had chaired the House Judiciary subcommittee hearing four months earlier where he heard testimony from Vandeveld and others about the widespread legal problems with the military commissions system, said "it is fitting" to prosecute Mohammed and the four other 9/11 co-conspirators in New York.
"New York has waited far too long for the opportunity to hold these terrorists responsible," Nadler said. "We have handled terrorist trials before, and we welcome this opportunity to do so again. Any suggestion that our prosecutors and our law enforcement personnel are not up to the task of safely holding and successfully prosecuting terrorists on American soil is insulting and untrue. I invite any of my colleagues who say that they are afraid to bring detainees into the United States to face trial to come to New York and see how we handle them."
Then Christmas happened.
The Underwear Bomber
On December 25, Nigerian Umar Farouk Abdulmutallab allegedly attempted to blow up a Northwest Airlines jet he boarded in Amsterdam that was bound for Detroit with a bomb concealed in his underwear. Aside from the intelligence failures enacted during the Bush administration that allowed Abdulmutallab to board the jetliner undetected, Republicans blasted the Obama administration for turning the al-Qaeda sympathizer over to the FBI for questioning after he was treated at a hospital for his injuries, a decision that Holder ultimately made after consulting the FBI, the Pentagon and the CIA.
Republicans issued statements saying he should have been treated as an "enemy belligerent" and accused the administration of "criminalizing" the war against al-Qaeda. Sen. Susan Collins (R-Maine) and Lieberman falsely asserted that because Adulmutallab was read his Miranda rights and provided with a lawyer, intelligence officers were unable to obtain valuable information about al-Qaeda in the Arabian Peninsula where he was radicalized. Collins and Lieberman demanded that Abdulmutallab be turned over to the Department of Defense and prosecuted before military commissions.
Justice Department spokesman Matthew Miller issued a terse statement January 21 accusing Republican lawmakers of hypocrisy.
"Those who now argue that a different action should have been taken in this case were notably silent when dozens of terrorists were successfully prosecuted in federal court by the previous administration," Miller said. "Furthermore, neither detaining Abdulmutallab under the laws of war nor referring him for prosecution in military commissions would force him to divulge intelligence or necessarily prevent him from obtaining an attorney."
But the issue became a rallying cry for Republicans to cast Democrats as weak on national security and they used the Abdulmutallab case and the federal trial of planned civilian trial of Mohammed to make their case. And it appears to have made an impact.
The campaign to force the Obama administration to fully embrace military commissions for Mohammed and other detainees accused of planning the 9/11 attacks was about to take off.
On January 28, a day after Mayor Bloomberg withdrew his support for holding the trial in New York, citing costs, the White House ordered the Justice Department to find a new venue, while still insisting that it would be held in a civilian setting. News reports suggested that Obama would personally be involved in choosing a new venue for the trial.
Emanuel Politicizing DOJ
With Graham leading the charge, Democrat and Republican senators turned up the pressure on the Obama administration, introducing legislation in early February aimed at prohibiting federal funds from being used to prosecute Mohammed and others alleged to have planned the 9/11 attacks in federal court.
In a letter sent to House Speaker Nancy Pelosi and Republican Minority Leader John Boehner February 25, Holder and Secretary of Defense Robert Gates urged them to block legislation that would cut off funding and derail efforts to transfer Guantanamo detainees to the US to face trial.
"The exercise of prosecutorial discretion has always been and should remain an Executive branch function," their letter said. "We believe it would be unwise and would set a dangerous precedent for Congress to restrict the discretion of our Departments to carry out specific terrorism prosecutions. Indeed, we have been unable to identify any precedent in the history of our nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes."
Around this time, several news reports began to surface suggesting Rahm Emanuel, a close ally of Graham, had clashed with Holder over his decision to prosecute Mohammed in federal court. In each one of those stories, several of which were based on unnamed sources, Emanuel is said to have indirectly communicated to Holder his opposition to prosecuting Mohammed in federal court because it would alienate Graham and thwart the administration's efforts to close Guantanamo.
It seemed that the Justice Department was being politicized once again.
In a report published on the New Yorker's Web site in early February, Jane Mayer, quoting an unnamed source, wrote, "Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people."
"Rahm had a good relationship with Graham, and believed Graham when he said that if you don't prosecute these people in military commissions I won't support the closing of Guantanamo.... Rahm said, 'If we don't have Graham, we can't close Guantanamo, and it's on Eric!'"
Emanuel said as much in an interview with The New York Times last month.
"You can't close Guantanamo without Senator Graham, and KSM was a link in that deal," Emanuel said, referring to Mohammed. Graham told The Times the issue "is the one that could bring the presidency down."
By publicly stating his own position on the Mohammed trial, Emanuel seemed to be suggesting that the White House no longer supported Holder's decision.
And that's the impression Holder gave to The Washington Post in an interview published February 12, three days before the Times story appeared, where he left the door open for prosecuting Mohammed before a military commission.
"Trying the case in an article III court is best for the case and best for our overall fight against al-Qaeda," he said. "The decision ultimately will be driven by: How can we maximize our chances for success and bring justice to the people responsible for 9/11, and also to survivors?"
Democrats for the most part remained silent while Republicans spent months attacking the decision to prosecute Mohammed in federal court. However, on February 11, Senate Judiciary Chairman Patrick Leahy and Senate Intelligence Committee Chairwoman Dianne Feinstein sent Obama a letter saying they believe that whether [the 9/11] trial is held in New York City or another location, these men should be brought to justice in a federal court."
Holder continued to lobby for civilian trials. On February 22, federal prosecutors secured a guilty plea in New York against Najibullah Zazi, a native of Afghanistan and permanent legal resident of the US, who admitted he was recruited by al-Qaeda to plan an attack on New York City's subway system.
At a news conference following the announcement of Zazi's agreement to plead guilty to three criminal charges, which included providing material support to al-Qaeda, Holder said the case "demonstrates that our federal civilian criminal justice system has the ability to incapacitate terrorists, has the ability to gain intelligence from those terrorists and is a valuable tool in our fight against terrorism.
"To take this tool out of our hands to denigrate the use of this tool flies in the face of the facts, in the face of the history of the use of that tool and is more about politics than it is about facts," Holder said.
But the writing was already on the way. Or so it seemed.
It would appear that the half-dozen or so news reports published over the past two months that detailed the infighting and disagreements between Emanuel and Holder over the 9/11 trial were coordinated by the Obama administration as a way of softening the blow for what lay ahead.
Last Friday, The Washington Post, citing unnamed sources, said Obama's "advisers" are close to recommending that Mohammed be prosecuted before a military commission.
"The president's advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said," according to the Post. "If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the US military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States."
Justice Department spokesman Dan Boyd told Truthout that the "case is under review. There hasn't been a final decision made, and I can't speculate on what the department might or might not do until that happens," Boyd said.
Civil liberties groups, however, wasted no time condemning the anticipated move.
"If this stunning reversal comes to pass, President Obama will deal a death blow to his own Justice Department, not to mention American values," said Anthony Romero, executive director of the ACLU. "If the president flip-flops and retreats to the Bush military commissions, he will betray his campaign promise to restore the rule of law, demonstrate that his principles are up for grabs and lose all credibility with Americans who care about justice and the rule of law.
"Even with recent improvements, the military commissions system is incapable of handling complicated terrorism cases and achieving reliable results. President Obama must not cave in to political pressure and fear-mongering. He should hold firm and keep these prosecutions in federal court, where they belong."
Human Rights First arranged a conference call with reporters with three retired military officials who warned the Obama administration about caving in to political pressure and embracing a system of justice that is rife with flaws.
"I think it's sad and a mistake that we should politicize these decisions and get Congress involved in what is clearly the constitutional responsibility of the president," said US Navy Rear Adm. John D. Hutson, a retired judge advocate general and longtime critic of the Bush-era military commissions, who testified about the issue before a Senate Armed Services Committee hearing last July. "The president has to push back and say, this is the right thing to do and I'm going to do it that way. I'm not going to succumb to the political pressure of people who are trying to undermine the administration."
Maj. Gen. William L. Nash of the US Army said if Obama reversed Holder, it "would give aid to our enemies, it would lessen our reputation with our allies who have been extremely happy with the reverse course that we've taken.
"This is not the time to be scared," Nash said. "This is not the time to accommodate those who have led this country under an aura of fear for eight years. And it's time to do the right thing and persevere through."
On Sunday, the ACLU ratcheted up the pressure and delivered a blunt message to Obama in the form of a full-page ad in The New York Times, which posed the question: "What will it be Mr. President? Change or more of the same?"
The ad showed showed a picture of Obama morphing into George W. Bush across four panels.
Senator Graham, in an appearance Sunday on CBS News' "Face the Nation," responded to the ACLU's ad, saying it shows how Obama is getting "unholy grief from the left."
Graham then put his offer on the table, the same one that Emanuel told Obama to seriously consider 15 months earlier after the president met with Graham at his transition headquarters in Chicago and the same one Emanuel has been publicly lobbying for the past few months.
Graham said he told the White House that if Mohammed is prosecuted before a military commission, "I will help you in getting the Republican votes that are needed to close Guantanamo."
A decision is expected to be announced before Obama leaves for Indonesia March 18.