From Guantánamo to NDAA: Obama Admin Bids to Preserve Indefinite Detention at Home and Abroad

Democracy Now*

HAVANA TIMES —  The Obama administration has filed an emergency appeal of a federal judge’s decision to block a controversial statute that gave the government the power to carry out indefinite detention.

Judge Katherine Forrest ruled against a provision in the National Defense Authorization Act, or NDAA, authorizing the imprisonment of anyone deemed a terrorism suspect anywhere in the world without charge or trial.

A group of journalists, scholars and political activists had brought the case, arguing the provision was so broad it could easily infringe on freedom of speech.

In a court filing on Monday, the government argued Judge Forrest’s ruling could go beyond the statute itself to curb the indefinite provisions contained in the legislation authorizing the so-called post-9/11 “War on Terror,” potentially jeopardizing the imprisonment of foreigners in Afghanistan without charge.

We look at the Obama administration’s support for indefinite detention at home and abroad with Empty Wheel blogger Marcy Wheeler.

AMY GOODMAN: We’re broadcasting from Grand Valley State University here in Grand Rapids, Michigan. We’re at the PBS station WGVU, as we turn to Marcy Wheeler, investigative blogger who lives here in Grand Rapids, Michigan. For years, she has written extensively about national security issues and civil liberties. Today we’re going to look at indefinite detention at home and abroad.

Earlier this month, a Yemeni man named Adnan Latif became the ninth foreign prisoner to die at Guantánamo since the military prison opened in 2002. Latif spent nearly 4,000 days at Guantánamo, despite being cleared for release on three separate occasions. In one ruling, a U.S. district court judge called the accusations against Latif, quote, “unconvincing” and said his detention was “not lawful.” Nevertheless, the Department of Justice appealed the district court’s decision and won. In a letter released in 2009, Latif wrote, quote, “I have seen death so many times. Everything is over. Life is going to hell in my situation. America, what has happened to you?”

Meanwhile, the Justice Department is also defending its right to indefinitely people inside the United States. Late last week, the Obama administration asked an appeals court for an emergency stay of a lower court ruling striking down a controversial statute that gave the government power to indefinitely detain anyone it considered a terrorism suspect anywhere in the world without charge or trial. Judge Katherine Forrest had ruled that the National Defense Authorization Act, or NDAA, cannot be used to hold people in indefinite military detention on suspicion of having “substantially supported” al-Qaeda or its allies.

For more on both these stories and for Michigan, the home of both Mitt and his father George Romney, who was governor here, we’re joined now by Marcy Wheeler, investigative blogger who runs emptywheel.net.

Welcome, Marcy, to Democracy Now!

MARCY WHEELER: Welcome to Grand Rapids, Amy.

AMY GOODMAN: It’s great to be here. Start off by talking about Guantánamo and what happened to this prisoner.

MARCY WHEELER: Yeah, so, Adnan Latif is a Yemeni who was born in 1980. In 1994, he had a head injury that cracked his skull. He went to Jordan for medical treatment, and it didn’t fix it. And he’s poor, and so he kept trying to figure out how he could get this debilitating head injury fixed. And a charity workers said, “If you go to Pakistan, I will help you get it fixed.” And that’s what led him in 2001 to go to Pakistan and then Afghanistan just before the war in Afghanistan broke out. And he was rounded up, like a bunch of other Arab men, on the border with Pakistan. This was at the period when the Pakistanis were getting bounties for turning in, quote-unquote, “Arab fighters.” And he was held. And he—you know, he had mental issues. He had this head injury. He was a longtime suicide hunger striker, so they were force-feeding him for years.

AMY GOODMAN: At Guantánamo.

MARCY WHEELER: At Guantánamo, so they—you know, they had the tube stuck up his nose. And when it came to his case, ultimately, the government said the main piece of evidence we have against this guy is an intelligence report that was done in Pakistan, in Pakistani custody in December 2001. There were obvious errors to it. We know, for example, they said he had a hand injury rather than a head injury. They said his friend was injured, not him. They couldn’t get the basic facts about him straight. But this was the only affirmative piece of evidence they had against him.

And ultimately, the legal argument that the government made—and this is something that should terrify Americans, because this is now the standard for D.C. Circuit—that said an intelligence report from the government, no matter how shoddy, no matter how obviously flawed, will be assumed to be factually correct unless you can prove that it was false. And even though there were problems with this one, that didn’t end up working. And so, in kind of a crazy ruling that accused the district court judge of being like the Wizard of Oz, the circuit court said, you know, people in the United States can now be held based on an intelligence report that the government does, and they can say, you know, anything. We’ve seen the intelligence reports that have come out of the CIA, which is what this was.

AMY GOODMAN: How is it that he was held at Guantánamo when he was cleared?

MARCY WHEELER: Yeah, so he was cleared by the Bush administration in 2006 and 2008, and then, more interestingly, he was cleared by Obama’s Gitmo task force, which started in 2009. And so, he was in a group of 29 Yemenis who, even though there were problems with Yemen and they didn’t want to transfer them back, the Obama administration said these people are a priority. We don’t have—we should not be keeping these people. And yet, because of the underwear bomb, they put—they held off on any transfers back to Yemen.

What Obama could have done, and why Obama bears direct responsibility for Latif being in Gitmo, is Obama could have taken that habeas win and said—when Latif was granted habeas, and said, “OK, you know, we’ve done this with another Yemeni. We’ve been told by a district court judge we have to let him free.” They could have done that, and they chose not to do that. And now they have a dead body on their hands by somebody who obviously was troubled, obviously was not a terrific threat, if at all, to the United States. And that’s—you know, his lawyer, David Reems, has said he’s now the face of indefinite detention, and I think that’s absolutely right.

AMY GOODMAN: You know, Clint Eastwood, in that unscripted address at the Republican convention, raised that Obama said he would close Guantánamo but then didn’t. And many people do have that criticism. It was just surprising to hear it from the stage of the Republican convention. But what about that? What has Obama done? And how has it been different than under President Bush?

MARCY WHEELER: Well, you know, he made an effort in 2009, but by 2010, he was—when Latif won his habeas petition, they were already backing off of that, because—partly because of the underwear bomb, partly—you know, if you look at what Obama has done in Bagram in Afghanistan, where there have been no restrictions from Congress, where Congress has actually said, “We want you to do legitimate reviews of the detainees in Bagram,” he hasn’t even done that. He’s resisted that. So it’s clear that Obama has actually gotten less interested in closing these indefinite detention prisons. And just recently, Obama wouldn’t hand over some of the detainees in Bagram to Afghanistan, even though we’ve agreed to do that. So, I think that Obama’s—you know, Obama continues to say he’d like to close Gitmo, but when you look at his record as a whole, it’s clear that he would rather do the cowardly thing and just keep the detainees where they are.

AMY GOODMAN: The NDAA, the National Defense Authorization Act, and the latest court ruling?

MARCY WHEELER: Yeah, and actually, just last night, the Second Circuit did issue a stay in that. So, Friday night, the judge issued an injunction saying you can’t hold anybody according to this NDAA. The government immediately said they were going to appeal. There are some interesting legal issues about whether the government appeal—should have been able to appeal, but nevertheless, judges in this country continue to say, you know, “As soon as the president says ‘national security,’ we’re going to do whatever you say.” And they did that in this case. They’ve issued—they’ve issued a stay, which means they can go ahead and use the NDAA.

And what it means is this kind of vaguely defined—the government hasn’t even been able to define it—this vaguely defined category of people who substantially support al-Qaeda, Taliban, other terrorist organizations can be indefinitely detained. U.S. citizens, Obama has said, wouldn’t be held in military custody, but there’s a lot of gray area there, and I think people are right to be concerned.

AMY GOODMAN: One of the plaintiffs in the lawsuit against the NDAA is Chris Hedges, a former foreign correspondent for the New York Times. He discussed the lawsuit earlier this year. He talked about it on Democracy Now!

CHRIS HEDGES: And I think we have to ask, if the security establishment did not want this bill, and the FBI Director Mueller actually goes to Congress and says publicly they don’t want it, why did it pass? What pushed it through? And I think, without question, the corporate elites understand that things, certainly economically, are about to get much worse. I think they’re worried about the Occupy movement expanding. And I think that, in the end—and this is a supposition—they don’t trust the police to protect them, and they want to be able to call in the Army.

AMY GOODMAN: That’s Chris Hedges. Marcy Wheeler?

MARCY WHEELER: Yeah, and Chris has made a really compelling argument. The judge said that because he’s done reporting with terrorists, he might be at risk. We’ve seen Jeremy Scahill has been also on this program and talked about how journalists in Yemen, for example, have been held, on Obama’s order, for reporting closely from al-Qaeda. So, I think Chris has a legitimate concern. And I think that the judge made a really compelling argument. I mean, what was stunning about this case is, in a hearing in March, when the government came before her, and the judge said, you know, “Can you tell me whether any of these plaintiffs would be held under the NDAA?” and they were like, “No, we can’t.” Since then, they’ve tried—and on their appeal, to this—to this day, they have tried to say, “No, we guarantee none of these plaintiffs will be held, if what they told us is true, if they’re acting independently.” But even one of the other plaintiffs in this is Birgitta Jónsdóttir, who’s got ties to WikiLeaks. We know that the government has subpoenaed her communications. We know that Bradley Manning—

AMY GOODMAN: She is the Icelandic member of parliament.

MARCY WHEELER: Parliament, who was involved in the “Collateral Murder” video. And we know, for example, that Bradley Manning is being accused of helping al-Qaeda for allegedly leaking WikiLeaks. So, if they’re making those accusations about Bradley Manning, then anybody with ties to WikiLeaks, I think, has a legitimate fear of being prosecuted under NDAA.

AMY GOODMAN: I want to turn to the upcoming elections, to Mitt Romney, who has defended Obama’s approval of the NDAA, saying he would have done the same thing. This is Mitt Romney speaking earlier this year at the South Carolina Republican debate.

KELLY EVANS: Governor Romney, as president, would you have signed the National Defense Act, as written?

MITT ROMNEY: Yes, I would have. And I do believe that it’s appropriate to have in our nation the capacity to detain people who are threats to this country, who are members of al-Qaeda. Look, you have every right in this country to protest and to express your views on a wide range of issues, but you don’t have a right to join a group that has challenged America and has threatened killing Americans, has killed Americans and has declared war against America. That’s treason. And in this country, we have a right to take those people and put them in jail.

AMY GOODMAN: That was Mitt Romney earlier this year. Marcy Wheeler? He and President Obama agree.

MARCY WHEELER: Yeah, and Mitt Romney in—you know, as problematic as Obama has been on things like indefinite detention, when you look at Romney’s aides, they’ve got people like Cofer Black, who really invented the counterterrorism program that we’ve been using since 9/11. You’ve got Steven Bradbury, who was one of the writers of the—

AMY GOODMAN: Cofer Black, who used to be an official with Blackwater.

MARCY WHEELER: Yeah, he went from the CIA to the State Department to Blackwater. But he’s the guy who invented targeted killing, who invented torture, who invented—I mean, he’s the architect of our entire counterterrorism program—top Mitt Romney aide. You’ve got Tim Flanigan, who’s another one of the architects of the torture program. So, if you you look at the people who are close to Mitt Romney, and if you look at what he said—he’s also said that he thinks we should bring back torture—it’s clear that, if anything, he’s going to be worse than Obama on these issues. We don’t—we don’t have a great choice on these issues at the top of the ticket in November.

AMY GOODMAN: Speaking of Mitt Romney, here we are in Michigan. Actually, speaking of Blackwater, we’re not far from Holland, where the Prince family is, although Erik Prince left the country.

MARCY WHEELER: Although his sister-in-law is a big person in this town, so—I mean, his sister is.

AMY GOODMAN: Talk about Mitt Romney and his father, George Romney, who was governor of Michigan.

MARCY WHEELER: Yeah, I think one of the things that people outside of the Midwest missed for a big part of this election was how little people in Michigan and in Ohio were going to respond to Mitt after the “Let Detroit go bankrupt.” George Romney was well loved. If you go to Lansing, there’s all sorts of buildings named after him. He was a great moderate governor. And I think Mitt really—I mean, recently he was back in Michigan, and he said, “Well, I was born here, so I don’t have to show you my birth certificate.” I thought it’s really—my response to that was, no, your house got torn down, just like so many others in downtown Detroit, the house you were born into, because of the kind of globalization and looting out of Michigan that has happened since.

And as soon as Mitt said, “Let Detroit go bankrupt,” you know, whatever people out around the country think about the big—I call them 2.5, since Chrysler has gotten so small, they really are the lifeblood of this state. Even here on the western part of the state, there’s still a lot of auto manufacturing business. And what Mitt has done throughout his career is shut down these companies that are trying to make things in the United States and outsource them overseas. And, you know, he just—he had difficulties here in the primary against Rick Santorum, because Santorum has a better manufacturing record than Mitt Romney. I don’t know why Mitt never understood about manufacturing, having grown up with it, but he certainly didn’t.

AMY GOODMAN: And these latest—this video that Mother Jones released of Mitt Romney saying to a crowd of donors that he thinks 47 percent of Americans are dependent on government and see themselves as, quote, “victims.”

MARCY WHEELER: Right, and something like 61 percent of these people are the working poor, people who do draw benefits and may get an earned income tax credit, but they’re working. And Mitt Romney just accused them, who pay more in taxes, because once they pay their Social Security, they’re actually paying more than his 13 percent in taxes—he’s accusing them of being moochers.

AMY GOODMAN: He also said, interestingly, at a private fundraiser—called the Middle East peace “almost unthinkable” and says he would kick the ball down the field.

MARCY WHEELER: Right, and he said very different things in public. He’s not backing off of those statements, but it’s really interesting what he admits to when he—you know, when the cameras are rolling behind the curtain. I mean, the thing—the thing about his 47 percent comment that I think is most important is, even at the RNC, he bragged about the Staples jobs he created. Those are $9-an-hour jobs. In his same speech, he said $9-an-hour jobs, you can’t live off of it; you need two of those jobs. So Mitt Romney has admitted that the jobs he created were jobs that require people to work two jobs, and yet he’s making fun of the working poor as moochers.

AMY GOODMAN: Marcy Wheeler, I want to thank you for being with us. Marcy Wheeler, investigative blogger who runs emptywheel.net.

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