Will Obama Ever Close Guantanamo?

by Michael Holtzman on January 11, 2016

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The day after his first inauguration, President Obama vowed that the military prison at Guantanamo Bay would be closed within one year. Seven years later, and with less than a year left before he leaves office, Guantanamo threatens to stand among his most high-profile failures. Why?

Time and again the Obama administration has trumpeted the same claim: Congressional inaction due to Republican obstruction is to blame. If only Congress would lift restrictions on transferring non-threatening detainees, the facility that has become synonymous with torture and injustice throughout the world would be closed.

It’s not just Congress

There is no doubt that both parties of Congress deserve substantial blame for the continuing operation of Guantanamo and giving Obama a convenient excuse for inaction. But inertia is also coming from within the executive branch, which Obama controls as Commander-in-Chief.

The previous defense secretary, Chuck Hagel, who was removed in part because of his opposition to closing Guantanamo, and his replacement, Ashton Carter, have both proved obstinate due to fears over releasing “dangerous” detainees. Recently, Reuters uncovered a “pattern” of bureaucratic hurdles deliberately placed by the Pentagon to prevent detainee transfers.

Similarly, the Department of Justice has consistently used its authority to prevent the release of prisoners even after orders to do so by federal courts under habeas petitions. Which is strange, because out of the 107 prisoners still being held, some for over 14 years, 48 have been approved for transfer by relevant military, law enforcement and intelligence agencies because they pose no danger or threat.

If detainees are to be held for one day longer, they should be tried immediately. As the New York Times editorial board recently argued: prosecutions should not be conducted before the “legal farce” of military commissions, but through a “well-established system [already] in place: the U.S. federal courts.”

The (real) Problem

The horrors at Guantanamo are well documented: solitary confinement for years on end, responding to hunger strikes with force-feeding (Tariq Ba Odah, who has spent nearly nine of his 14 years on hunger strike and stopped eating solid food in 2007, has dropped to 74 pounds), and the many acts of torture in the days after 9/11. But the feature of the Guantanamo regime that makes it such an enduring symbol of injustice is not the physical island facility in Cuba, but the very system of indefinite detention itself, where human beings are placed in a legal limbo, without being charged of any crimes.

Even if Congress capitulated to Obama’s request to shut down the facility and the Pentagon and DOJ stopped obstructing the transfer of prisoners, it would be something of an empty gesture: the 52 men, known as “forever prisoners,” who have never been charged with any crimes nor cleared for release, would remain POWs in an endless war. Re-locating these detainees to the mainland would probably make permanent some of the worst features of the Guantanamo regime by importing harmful legal principles, such as indefinite detention, into our own legal system.

Every day Guantanamo remains open reminds the world of this injustice, serving as a tool for terrorist recruitment and undermining American moral standing in the world. Since January 11, 2002, when the prison first opened its doors, 662 men have been released or transferred to other countries. This alone should serve as an admission of a horrendous mistake.

Obama can close GTMO

Despite having power under current law, Obama still has not exercised his authority to close Guantanamo for the simple reason that there is insufficient political pressure. Two-thirds of the American public opposes closing the detention camp, and the fear of holding “terrorists” on the mainland continues to hold sway.

For Obama to sign this executive order would be politically difficult but not impossible – he has taken similar action in the face of congressional inaction on issues like immigration and the minimum wage. Obama also knows that his legacy is at stake and indefinite detention (as well as a host of other crimes) is completely at odds with the United States’ constitutional and moral commitment to due process and human rights. While he inherited this problem from his predecessor, it is seven years past time for Obama to make the politically unpopular but morally necessary decision to close the detention facility at Guantanamo Bay for good.

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Facts, Opinions and the Echo Chamber of Epistemology

by Michael Holtzman on December 27, 2015

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The ideological battle to frame the Civil War has gone through a number of phases, with historians from opposing sides gaining the upper hand in controlling the narrative. From the 1920’s to 40’s, revisionists argued that the war could’ve been avoided but for blundering politicians and rigid abolitionists who were unable to compromise over key issues tied to the rights of Southern states. Civil Rights era historians, on the other hand, placed slavery and emancipation as the cornerstone of the Southern cause, a narrative that has become dominant in the American education system and popular culture.

The American public is as divided as ever on the issue: According to a recent McClatchy-Marist poll, 53% of Americans say slavery led the nation into civil war while 41% disagree.

But if both sides claim to be purporting a true interpretation of history, than which one is correct?

Historical vs. Scientific “Fact”

In science, a “fact” is “an observation that has been repeatedly confirmed and for most practical purposes accepted as ‘true.’’ The scientific method is the process by which one makes observations and weighs evidence to try to determine facts. To claim that a scientific “fact” is actually false, you must find convincing and repeatable evidence to prove the contrary.

Thus, when the scientific process confirms in study after study that humans evolved from apes, vaccines do not cause autism, and climate change is a real phenomenon caused by humans, then these observations should be accepted as fact unless it can be reliably proved otherwise.

A historian, on the other hand, uses evidence from the past to form a hypothesis or interpretation about the meaning and significance of historical events in the present. But this process is less certain than the scientific method. Historical events only happen once, and historians cannot travel back in time to observe the event with their senses. Counterfactuals of historical events, or speculations on what “could have been”, are thus merely thought exercises. Historical facts may be well-argued and sensible interpretations, but they are far less conclusive than scientific facts.

The result is that this process of historical interpretation is open-ended and, to a degree, fundamentally uncertain. Historians, like the rest of us, are individuals who view the world through a set of biases: Two academics often can examine the same historical documents and draw entirely different conclusions.

So does this mean that all historical interpretations are equally valid and every school district should have the choice to teach whatever they want?

The Heavy Weight of Scholarly Consensus

Even if historians are somewhat confined by their subjective perspectives, we tend to give weight to their interpretations because they have spent a good portion of their lives synthesizing and analyzing the best available evidence on a topic. And when there is a consensus view among the experts on a topic, we should give that view even more weight.

As I wrote in my previous post on this subject, there is a long established scholarly consensus among credible historians that slavery was the primary cause of the Civil War. This may not necessarily mean that it is a “fact” in the scientific sense, but it’s probably as close as we can get in the field of history.

The Echo Chamber of Epistemology

Perhaps the more relevant inquiry is how individuals form ideologies and value systems that make them more open to or closed off from established knowledge, whether it is in the form of scientific facts or historical interpretations. Epistemology – the study of how we go about accepting certain ideas as “truth” – provides a few potential approaches including “aesthetic resonance, divine revelation, tribal affiliations, [and the] scientific method.”

In the end, our epistemological orientation sorts out the imperfect knowledge we accumulate over the course of our lives, helping us understand reality as best we can. Deciphering how someone’s epistemological understanding affects their views may open up room for more fruitful debate than our current thundering echo chambers of public discourse.

Maybe new evidence will come to light that conclusively proves (or at least proves better than existing evidence) that the Civil War was not primarily about slavery. If that happens, scholars will go through another stage of revisionism as paradigms shift again. But until that day, just because we cannot conclusively determine the truth does not mean our best guess is invalid.

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How to Rewrite History 101

by Michael Holtzman on December 3, 2015

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It turns out that the old cliché “history is written by the victors” may not actually be true.

This fall, five million public school students in Texas began using new social studies textbooks based on state academic standards that barely touch on the issue of racial segregation, do not mention the Ku Klux Klan or Jim Crow, and soften the role slavery played in causing the Civil War.

It’s almost as if, 150 years later, these students are living in an alternate-universe twilight zone episode called the “Confederate States of America.”

So what will these children be learning?

Don’t Mess with Texas

According to page 126 of a high school textbook titled “World Geography,” in a section about immigration, Africans brought to American plantations from 1500-1800 were referred to as “workers.” In fact, the Texas State Board of Education (TBOE) issued guidelines for teaching that “sectionalism, states’ rights and slavery” (in that order) were the cause of the Civil War. Pat Hardy, a Republican member of the TBOE, has stated, “There would be those who would say the reason for the Civil War was over slavery. No. It was over states’ rights.”

However, the 1861 “declaration of the causes which impel the State of Texas to secede from the Federal Union” articulates exactly what “state’s right” Pat Hardy was referring to:

“We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.”

Considering that Texas, and for that matter every other Southern states’ declaration of secession explicitly states that they were leaving the union to protect the (states’) right of white citizens to own black slaves, there is no ambiguity or room for debate as to what should go into our history books. The Civil War was fought over slavery, period.

So why does it feel like it was actually Ulysses S. Grant who surrendered to Robert E. Lee at Appomattox Courthouse on April 9, 1865?

The War that Never Ended

Ever since the Civil War ended in defeat and Radical Reconstruction was forced upon the South, there has been a concerted attempt by conservatives in Texas and other southern states to change the narrative from one of plunder and enslavement to one based on a noble and heroic campaign of self-defense against an oppressive central government. This phenomenon can be seen in the relatively recent proliferation of the Confederate flag (whose symbolism of white supremacy directly influenced the Charleston shooter Dylan Roof), public monuments glorifying the deeds of Southern generals, and the still abundant Civil War reenactments many of which carry a racist undertone.

It can also be seen in their education system. As the Thomas B. Fordam Institute explains in “The State of State U.S. History Standards,” the TBOE consistently “distorts and suppresses less triumphal or more nuanced aspects of our past,” like slavery and segregation. Texas, whose history standards are given a rating of “D,” is particularly guilty of presenting a “politicized distortion of history” based on an “evangelical Christian right agenda promising to inculcate biblical principles, patriotic values, and American exceptionalism.”

In shaping the state curriculum and history standards according to its political views, the SBOE has at best ignored the expertise of historians and scholars and at worst shown hostility and contempt for them. But are school boards even qualified to decide which facts belong in history textbooks or which scientific ideas are valid?

“Who controls the past controls the future; who controls the present controls the past”

The above quote from George Orwell’s classic novel 1984 exemplifies how history can be used as a weapon to distort uncomfortable truths about our past in order to both shape our perspective in the present and the future we can create from it. If African “workers” and “migrants” were simply “immigrating” to America from 1500-1800 in search of a better life, then maybe their lives weren’t so bad and Lincoln was using slavery as a pretext to impose his will on the South? In terms of the present, perhaps we really do live in a colorblind post-racial society and all this talk of police brutality and murder is just an exaggeration?

Of course, at times the line that separates historical “fact” versus “opinion” can become blurred. Did the U.S. provoke Japan into bombing Pearl Harbor? Were humans happier as hunter-gatherers? Is Washington or Lincoln (or someone else) the greatest President in American history? But when there is a scholarly consensus of slavery’s primary role in starting the Civil War, the line is clear as day.

The primary purpose of teaching history is to show younger generations who they are and where they come from. So it should be extremely disconcerting when famous historian and two-time Pulitzer Prize winning author, David McCullough, says, “we’re raising young people who are, by and large, historically illiterate.” And the worst part is that our historical illiteracy – unlike our dropping math and science scores on the international stage – is an entirely self-inflicted wound.

Of course, different textbooks can tell different versions of history; the same is true of different teachers. But facts are facts, regardless of whether they are uncomfortable, negative or embarrassing. We may not like our history, but it is still our history.

 

* A version of this article was originally published at Avvo Naked Law Blog

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On ‘isms’

September 2, 2015

The process of exaggerating differences between people – categorizing people, and organizing the categories into a hierarchy that we collectively come to view as ‘the way things are’ – is the root of social inequality, of isms. [I define isms as systemic oppression and individual discrimination based on social categories: sexism, racism, ethnocentrism, sizeism, ageism, ableism, […]

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Is the Word “Chick” Sexist? (and other thoughts on patriarchy and language)

May 11, 2015

Disclaimer: I am male and therefore occupy a place of privilege and power. If some of what follows sounds ignorant, well, that’s probably because it is. There is so much outside of my experience that I will never understand, not because I don’t want to, but because empathy has limits. This piece evolved out of […]

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Notes from the Trenches: Protesting for Black Lives Matter

December 21, 2014

This past Saturday, a herd of holiday shoppers frantically navigating Chicago’s Magnificent Mile in search of hot bargains and Christmas gifts were confronted with something they likely weren’t expecting. Between two and three hundred of their fellow citizens were engaging in activity that forms one of the cornerstones of democratic governance: nonviolent peaceful protest. With […]

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Obama’s War and the Limits of Reason

October 8, 2014

Upon accepting the Nobel Peace Prize in 2009, newly elected President Obama humbly claimed that he was unworthy of such an honor, stating: “to say that force is sometimes necessary isn’t a call to cynicism, it’s a recognition of history, the imperfections of man, and the limits of reason [emphasis added].” In recent weeks, Obama […]

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A Beginners Guide To Slaughter In Gaza: The Role of Zionism in American Politics

September 12, 2014

“Israel has been a key regional asset and military ally of the United States for more than 50 years. That relationship must continue, even and especially in the post-9-11 era. It is a partnership of democracies devoted to the war against terrorism and the fight for freedom.” –The Israel Project Part 2: The Role of Zionism […]

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A Beginner’s Guide To Slaughter In Gaza: “America’s Commitment to Israel Is Based on Our Shared Democratic Values”

September 7, 2014

“The language of Israel is the language of America: “democracy,” “freedom,” “security,” and “peace.” These four words are at the core of the American political, economic, social, and cultural systems, and they should be repeated as often as possible because they resonate with virtually every American. This is not rhetoric. It is fact. Despite the […]

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We are in Denial

August 26, 2014

Dear White America, As you fill my Facebook feed with videos of ice buckets being dumped on your heads, I cannot help but notice your silence (with a few exceptions) regarding the events taking place in Ferguson, Missouri. While raising money for ALS research is undoubtedly a noble pursuit, there are some slightly more pressing […]

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