Guantánamo Endgame

Authoritarian madness, strategic disaster, a national disgrace: the Bush Administration's Guantánamo experiment has been justly called all these things. Lately, it was condemned by five former Secretaries of State--Colin Powell, Madeleine Albright, Warren Christopher, James Baker and Henry Kissinger (a man whose own extravagant abuses of executive power suggest just how far beyond the pale Guantánamo really is)--as well as the nonpartisan American Bar Association, which expressed grave concern about the possibility of fair trials.

But a seedy, corrupt attempt at manipulating elections? That is the persuasive claim in the latest defense brief filed in the case of Salim Hamdan, Osama bin Laden's alleged driver. The evidence comes from Col. Morris Davis, whose conversion from chief prosecutor to chief whistleblower continues to shed a bright light on the tribunals. As defense lawyer Lt. Cmdr. Brian Mizer relates in his brief, Colonel Davis attended a meeting in September 2006--less than two months before the pivotal Congressional election--with Deputy Secretary of Defense Gordon England, a White House appointee, and William Haynes, Donald Rumsfeld's counsel. According to Davis, England's marching orders were clear: "We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election." Thus far, neither Haynes nor England has challenged the accuracy of Davis's testimony. White House control of the tribunals is incontrovertible: the tribunals are directed not by career officers but by Susan Crawford, a protégée of Dick Cheney.

Political interference at that level would lead to indictments in any other American courtroom. Yet while candidates McCain, Clinton and Obama have all made welcome broad-brush promises to shut down Guantánamo, the military commissions themselves have not been seriously questioned by candidates or Congress. They all cover their eyes and ears even as the Bush Administration rushes high-profile cases like Hamdan's to trial, hoping to get out in front of the presidential election. And ahead, too, of the crucial Supreme Court case argued in late March on the deprivation of habeas corpus rights of two American citizens held under US authority in Iraq, a separate but related reflection of this Administration's abusive overreach.

It has become painfully clear that the Administration's concern is to have not a credible, transparent trial of 9/11 conspirators but election-year convictions at any cost; the only "security" that officials hope to protect is their own freedom from embarrassment and accountability. In early April the Justice Department at last revealed former Office of Legal Counsel lawyer John Yoo's sweeping, previously classified 2003 memorandum declaring that the President's wartime power nullifies all laws and treaties against torture. That memo--which empowered the military to physically and psychologically torture detainees and suggested that interrogators would be immune from criminal prosecution--was rescinded for cosmetic purposes after nine months, but its underlying reasoning motivates the Bush Administration to this day. The Defense Department continues, in the face of a new lawsuit by the ACLU, to block release of unredacted recent testimony in which fourteen prisoners transferred to Guantánamo from "black sites" describe brutal treatment and torture.

This is the Guantánamo endgame: with the clock running down, George W. Bush and his team are trying to keep one step ahead of history and of criminal charges, as the full extent of their assault on the Constitution becomes known.

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