The fate of detainees held in Guantanamo and other CIA prisons is central to President Obama's credibility as a reformer, argues Ahmed Naguib Roushdy*
As expected, President Barack Obama delivered a speech addressing the Arab and Islamic worlds during his visit to Cairo on 4 June. On one level the speech was widely praised in the Middle East, especially in Egypt. Obama captured the hearts of many people by giving them what they wanted to hear. He introduced himself as a Christian, but touched on the fact that he was descended from a Muslim family in Kenya (actually his Kenyan father was a Muslim who converted to Christianity after meeting Obama's American Christian mother), and that he spent his youth in Indonesia, the largest Muslim country in the world, where he used to listen to azan "at the break of dawn and at the fall of dusk".
He greeted the excited attendees in the grand auditorium of Cairo University with the Islamic salutation as-salamo alaykum. He referred to Prophet Mohamed's ascendance to Heaven and to his prayers with prophets Moses and Jesus, and followed the reference with the traditional saying of Muslims: may peace be upon them. He also quoted from the Holy Quran several times.
He made an overture to the Muslim world to start a frank dialogue with the United States and asserted that all nations could live together in peace. He quoted the Quranic saying: "O mankind. We have created you male and female; and we have made you into nations and tribes so that you may know one another." He hailed Islam for its moral values and acknowledged the impact of Islamic civilisation on the West. Although he stressed the close relationship between the United States and Israel, and the right of the latter to exist, he also emphasised the necessity of giving the Palestinians an independent state, an end to Israeli settlements, and for a permanent peace in the Middle East, promising that America would work to achieve that goal.
While this is undoubtedly a departure from the policy of the Bush administration, which sided all the way with Israel and earned the resentment of the Middle East's population, Obama's calibrated remarks left many uneasy, and sceptical about his campaign promises regarding, among other things, the rights of detainees in Guantanamo and other prisons.
Obama's call for democracy and pluralistic societies in the Islamic world was met with disappointment by many Muslims. Many observers, as well as articles in the American press, warned President Obama before he delivered his speech in Cairo that calls by past American presidents for human rights and democracy in the Muslim world had been anathema at time the US was busy allying itself to authoritarian regimes around the world, had done nothing effective to end Israel's occupation of and atrocities in Palestine, and had been busy destroying human rights in its own land since 11 September attacks.
It is hard to swallow Obama's call for democracy and human rights in the Middle East while he continues to allow the mistreatment of detainees in Guantanamo and in other prisons in the United States and CIA detention facilities abroad. In some aspects his policy differs little from that of the Bush administration. It contradicts his campaign promises to defend liberty and justice and his championing of the need for change. In the eyes of many he has already broken his oath of office, to "faithfully execute the office of President of the United States, and to protect and defend the Constitution of the United States".
It all started with Bush. Hate and anger against Arab Muslims spread among the majority of Americans, Republicans and Democrats alike, to the extent that some of the neoconservatives, mostly evangelicals with few Jews, who pushed George W. Bush into the White House, called for the arrest of all Arab Muslims in the United States, and their internment in concentration camps. President Franklin Roosevelt had done the same with approximately 110,000 Japanese Americans and Japanese nationals after the Japanese attack on the US navy base at Pearl Harbour in December 1941. In spite of the fact that the Japanese Americans demonstrated their loyalty to the US -- many of them enlisted in the US armed forces during World War II -- any apology to Japanese Americans was delayed until 1988 when the US Congress approved, and president Ronald Reagan signed, a statement saying that the internment had been based on "race prejudice, war hysteria and the failure of political leadership". The US government later dispersed $1.6 billion in reparations to surviving internees and their heirs.
Forgetting to appreciate that a majority of American Arab Muslims voted for him in his first term in office, Bush launched a fierce crusade -- his own term to describe the so-called war on terror -- against any opposition to his policy. After 11 September the Bush administration ordered massive surveillance on the telephone conversations and Internet messages of American citizens, then Congress enacted a law legalising such action.
As I explained in two articles published by Al-Ahram Weekly (25 November 2004 and 7 February 2005) the Bush administration detained suspects in the so-called war on terror at the US naval base in Guantanamo Bay in Cuba, in Abu Ghraib and other prisons in Iraq and Afghanistan, and in CIA secret prisons in friendly countries. As a matter of policy CIA interrogators and prison guards subjected prisoners to torture. (It was recently reported that the FBI refused to follow the CIA in its torture policy).
Torture methods varied. They included solitary confinement and stripping the detainees naked in cells without air conditioning in summer or heating in winter. Detainees were regularly beaten and sometimes sexually assaulted. They were denied solid food and medicine. They were subjected to water boarding, their faces and necks covered in bags as they were pushed down naked on wet floors. The interrogators then poured water from a bucket or hose on the detainees' heads until the latter thought they were drowning. The torture would be repeated until detainees were confessed to crimes they most probably did not commit, desperate to give any information to their interrogators. It was recently reported that two of the detainees faced waterboarding a total of 281 times in a single month. It was the Court of War Criminals in Asia, formed by the Americans and British to try Japanese war criminals after World War II, that first categorised waterboarding as a war crime.
The CIA also followed a policy of exporting detainees to friendly countries where they were systematically tortured. It has been reported that more than 100 detainees died from torture while in US custody, including an Iraqi General in Abu Ghraib. Should they survive the torture they could then be deported to countries where they faced indefinite detention or trial before illegal military commissions.
The US Supreme Court ruled in 2004 that the right of due legal process be given to Guantanamo prisoners who had sued the US government. Many of the detainees had been in custody for more than six years, refused due process of law guaranteed by the fifth amendment and the ten amendments of the US Constitution, known as the Bill of Rights, and by Geneva Convention No 4 of 1949 on Prisoners of War. Guarantees pertaining to the detainee's right to be charged with a specific crime, to consult with a lawyer who will defend him in court, to have a fair trial before a neutral court and to be given the right to be visited by his family and representatives of the Red Cross were all violated. The violations of these guarantees by the Bush administration were exposed in appeals before the US Supreme Courts, filed by lawyers hired by the families of some prisoners, in writs of Habeas Corpus according to Article 1, Section 9, Paragraph 2 of the US constitution. In these writs federal courts can order the government to explain why it is detaining the prisoner and why it is denying him due process. They can also order the release of a prisoner if there is no actual charge against him.
The issue of torturing detainees was not raised before US federal courts when writs of habeas corpus were first filed in 2004, but was included later, in some cases that reached the Supreme Court, such as Al-Marri V. Pucciarelli, a habeas corpus action, in which Ali Salah Al-Marri, a citizen of Qatar and a legal resident of the United States, challenged the executive's claim to unchecked authority to indefinitely detain a legal resident in the United States without any charge of wrong doing, and Al-Marri V. Gates, where Al-Marri contested his treatment and torture during interrogation, and the conditions of solitary confinement in which he was kept after President Bush declared him an enemy combatant in 2003. Judgements in the two cases are still pending.
This year, the issue of the torture of detainees was revisited after Congress started to consider investigating the CIA's treatment of detainees and the Bush administration's denial of due process of law.
This is the law and judicial system and foreign policy invented by President Bush and bestowed to his successor, President Barack Obama. The latter was not frugal when it came to pledging change during his election campaign. He promised to return to the system of law and order and transparency the country had enjoyed before the Bush years. Obama was aware that many American jurists, law professors, human rights organisations and the media, in addition to millions of his young voters, had been urging him to make those who were responsible for the authoritarian regime of the Bush years accountable for their crimes. They also asked Obama to fulfil his campaign promise to close Guantanamo and other prisons in the United States and abroad where detainees were confined and tortured. (Abu Ghraib prison was closed after the torture scandal broke by the media in 2004). The Bush policy regarding the detainees was one of the issues that Obama criticised during his term as a US senator. But after he assumed the presidency the picture changed.
It is true that after his inauguration on 20 January Obama announced the closure of Guantanamo Bay prison within a year, as well as the immediate closing of CIA prisons abroad. He was reported as saying Guantanamo Bay detainees would be transferred to other prisons in the United States and would be put on trial before federal courts. He also set a time schedule to withdraw troops from Iraq, starting July of this year, though he decided to send 20,000 more troops to Afghanistan. Most importantly, Obama ordered the end to all torture of detainees and insisted the CIA's interrogation and treatment of detainees follow the Uniform Code of Military Justice which respects basic international rules and requires transparency in interrogations. He also ordered the suspension of trials before the military commissions formed by Bush.
These decisions were received with fanfare by those who voted for Obama and by people abroad. But the last few months have brought disappointment. It appears that Robert Gates, who served as secretary of defence in Bush's second term and who was kept in his post by Obama, had a different opinion about closing Guantanamo. He is reported to have asked Obama to keep a little more than 100 detainees in indefinite detention there on the grounds they constituted an immediate danger to the security of the US but could not be put on trail since any court would dismiss whatever evidence had been secured against them on the grounds that it was extracted under torture. If these detainees were released, Gates said, they would rejoin Al-Qaeda or other terrorist groups and attack the US again. From media reports in April it seems that Obama had acceded to consider Gates's request. Yet in his speech in Cairo Obama said he had decided to close Guantanamo Bay prison by early next year, giving the impression that he was going to release all prisoners. But is this really the case?
We must look to two of President Obama's appointees to cast light on the new administration's policy regarding the detainees. Secretary of Justice Eric Holder, the first African American to hold the post, said in his confirmation hearing before the Senate, that he endorsed the continuation of the rendition programme under which the CIA used to send detainees to friendly countries to be interrogated.
Leon Panetta, the new CIA director, said the same before Congress, but added that he would ask the foreign governments not to torture the prisoners. How Panetta would ensure that these foreign governments, in whose countries torture is standard practice, abided by his request, is anyone's guess. The only reason for rendition is that the CIA believes that meting out treatment -- i.e. torturing -- prisoners in a way that is illegal in the US is the only means to secure the information it is seeking. If this is not the case, why bother?
The secretary of justice and the CIA director would not have made their statements before clearing them with Obama. Obama told his audience in Cairo, and by extension the Islamic world, that he had outlawed torture. Yet as long as the CIA's rendition programme remains, that claim is untrue.
Many did not notice that during his presidential campaign in July 2008, the then senator Obama voted in the Senate to extend the 2006 law granting the Bush administration authority to continue the eavesdropping programme that allows the CIA and the FBI to listen to telephone calls and view Internet messages sent by American citizens.
The president also announced last month that he would not put on trial CIA agents who tortured detainees, on the premise that they were following legal opinions given by Department of Justice advisors, though he left the door open to consider investigating the advisors themselves. This begs the question whether the law can incriminate a person for his opinion given the first amendment of the US constitution guarantees freedom of expression unless malice or impunity be proved. The Congress, as reported, has opted for a different path: it is going to take steps to open an investigation into torture committed by the CIA.
President Obama is entitled to the same treatment allowed all new presidents. They should not be criticised too harshly in the early months of a new administration. But human rights and due process of law cannot wait. Obama will win neither Muslim hearts nor minds until he cleans his own house first and then works hard to make Muslim rulers listen to their own populations' calls for democracy and respect their own peoples' rights.
* The writer is a New York-based attorney.