By William Fisher
Will we always have GITMO? Will it always be the 800-pound gorilla in the room?
This week, the world marks the fifth anniversary of the arrival of the first detainees at the U.S. naval facility at Guantanamo Bay, Cuba. And still a growing number of people and organizations – from military officers to religious leaders to legal scholars to human rights groups – continue to label the prison a black hole of injustice and demand that it be closed.
The facility, established following the war in Afghanistan in the wake of the Sept. 11, 2001, attacks on New York City and the Pentagon, has been controversial throughout the world as the U.S. Department of Defense (DOD) imprisoned hundreds of alleged terrorists. It has been widely condemned for prisoner abuse and for the absence of any meaningful process to separate genuine wrongdoers from people detained because they were in the wrong place at the wrong time.
Recently departed Defense Secretary Donald Rumsfeld repeatedly declared all the detainees “the worst of the worst.” But from its peak inmate population of 773, several hundred detainees have been released – mostly because the DOD concluded that they no longer represented a threat to U.S. national security -- the camp continues to house more than 400 prisoners.
While the US military claimed Guantanamo inmates were captured “on the battlefield” in Afghanistan, and designated by the Bush Administration as enemy combatants, there has been mounting evidence that a number were victims of what is known as “extraordinary rendition” – capturing a person and sending him to a site recognized for practicing torture.
President George W. Bush has implicitly admitted that others, including 14 so-called “high value” prisoners said to have played significant roles in the 9/11 attacks and other terrorist act, were sent to Guantanamo after long detentions in the CIA’s “black hole” secret prisons in Afghanistan, Eastern Europe, and other locations.
None of these prisoners have been tried nor have any charges been brought against them.
Mary Shaw of Amnesty International USA, a human rights group that has labeled Guantanamo as the “American Gulag,” told us, “The U.S. administration chose Guantanamo as the location for this detention facility in an attempt to hold detainees beyond the reach of U.S. and international law. For five years, the vast majority of these men have been held in indefinite detention, without charge or trial. For five years, we have heard stories of torture and ill-treatment. And for five years, we have been assured that these detainees were captured ‘on the battlefield’ and represent the ‘worst of the worst’. Yet the U.S. government's own tribunals have determined that over half of those detained never committed any hostile acts against the United States. And most of those held at Guantanamo were not captured on any battlefield, but were handed over to the U.S. by others in exchange for cash rewards. Undoubtedly, this practice of paying bounties for prisoners has led to mistakes; yet for five years the U.S. government has denied that these men have the basic right to challenge their detentions.”
Or, as well put to us by Elizabeth de la Vega, author of the recent book, “U.S. v. Bush,” “Even before the drafting of the United States Constitution, since John Adams's famous decision to represent the British soldiers who were accused of the Boston Massacre, the right to counsel for all defendants -- regardless of the crime with which they are charged--has been a bedrock of the American criminal justice system. The vast majority of prisoners at Guantanamo, however, have not been charged with anything at all. By abolishing habeas corpus and now, with the casual change of a regulation, the Bush Administration has effectively prevented an entire group of people, many of whom may well be innocent, from having any means of redress whatsoever. Every American should be appalled by these actions."
Over the past five years, there has also been increasing disclosure of prisoner abuse, violating the Geneva Conventions. This evidence has flowed the testimony of released prisoners and from documents provided by the Federal Bureau of Investigation (FBI) in response to a Freedom of Information Act lawsuit brought by the American Civil Liberties Union. This evidence centers on written communications from FBI agents who witnessed ”cruel, inhuman and degrading” prisoner treatment and interrogation, and reported it to their FBI superiors.
There have been three suicides among prisoners and hundreds have been force-fed to keep them alive during intermittent hunger strikes. The Department of Defense has acknowledged 41 suicide attempts among 29 prisoners.
The New York Times has reported that, while the June 10, 2006, suicides were the first inmate deaths at Guantanamo, “some prisoners tried suicide almost immediately after their arrival in 2001. By mid-2002, there had been numerous suicide attempts, and DOD renamed these acts as ‘self-injuries’."
In January 2005, the Times reported that there had been 350 incidents of "self-harm" in 2003. Of those, 120 were attempts by prisoners to hang themselves. Twenty-three prisoners participated in a simultaneous mass-suicide attempt.
President Bush has said he would like to close the facility, but the U.S. military has recently completed construction of new buildings to house cellblocks.
Among the most widespread criticisms of Guantanamo is the system set up by the Bush Administration for adjudicating individual cases.
That process began with the establishment of CSRTs – Combatant Status Review Tribunals -- in July 2004, more than two years after most detainees were imprisoned there. The CSRTs, while deeply flawed according to many military and civilian legal authorities, have been responsible for the release of some prisoners. In some cases, they concluded that the detainees had been captured by Afghan militias, Pakistani border guards and other surrogates, and some had been turned in for bounties, intelligence officials have said.
But the CSRT process itself proved to be ineffective. The New York Times reported that “Information about detainees’ identities and actions was often vague and secondhand. Physical evidence, if any existed, was sometimes lost before reaching Cuba.” Information obtained by coercion was allowed to be admitted as evidence.
The CSRTs required three military officers to decide cases by majority vote, based on a “preponderance of the evidence.” Midlevel officers – not military lawyers -- were ordered to help detainees prepare for their hearings.
Lawyers for detainees contended that the military placed insurmountable obstacles to their defense. For example, more than a week after a hearing for a Pakistani businessman accused of ties to Al Qaeda, a civilian lawyer who had been trying to help him said he had not been advised of the hearing.
Amidst growing international criticism, the Bush administration in May 2004 set up an annual parole system, called Administrative Review Boards, to assess whether a detainee represented a continuing threat or had intelligence value.
But before those hearings ever began, the Supreme Court ruled that the Bush Administration must conduct a one-time review of all Guantánamo detainees using the sort of panels called for by Army regulations — and by the Geneva Conventions. This year’s round of parole-type review hearings ended last month. Most of the detainees eligible to appear at these hearings have reportedly stopped trying because of the perceived bias in the procedure and the haste with which hearings are carried out.
Meanwhile, in an effort to restrain President Bush from claiming inherent powers to determine what kinds of treatment constituted cruel or inhumane treatment of prisoners, Congress passed the Detainee Treatment Act. The President signed the bill into law, but at the same time issued a “signing statement” that essentially claimed that the commander-in-chief could disregard the law when he deemed it not in the national interest to do so.
Last year, the Supreme Court also played a pivotal role in rejecting President Bush’s assertion that his commander-in-chief authority gave him inherent power to establish Military Commissions to try Guantanamo detainees.
In a landmark decision in a 2006 case known as Hamdan v. Rumsfeld, the court ruled that the military commissions set up by the Bush administration "violate both the military’s Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions." The suit was brought by Salim Ahmed Hamdan, a Guantanamo detainee.
The case considered whether the United States Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law, and whether courts can enforce the articles of the 1949 Geneva Convention.
On June 29, 2006, the Court ruled 5-3 that it had jurisdiction and that the federal government did not have authority to set up these particular military commissions.
Congress then quickly passed the United States Military Commissions Act (MCA) of 2006, which was signed by President George W. Bush in October 2006. The Act's stated purpose was to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes."
Under the MCA, the Bush administration and the US Congress retroactively shielded from prosecution for illegal criminal activities those who have been involved in illegal detention, torture, and rendition.
But Senators John McCain (R-Ariz.), John Warner (R-Va.) and Lindsey Graham (R-SC), strong backers of the MCA, agreed to the administration's "alternative" definitions of torture, which essentially meant that torture techniques could continue to be used by the U.S. military, the CIA, and contract employees. Attempts by the Senate Judiciary Committee to preserve the rights of habeas corpus hearings for detainees also failed.
Headlined by these and other lawmakers as a “compromise” with the president, the MCA essentially gave the administration all the powers it had claimed previously, as well as a few others. Congress allowed the president to prevent prisoners from appealing to the U.S. courts, and immunized government personnel from prosecution for all but the most serious abuses.
The new Democratic Party-controlled Congress is reportedly considering whether to challenge the suspension of habeas corpus hearings for detainees.
The Bush administration claims it plans to charge up to 70 Guantanamo detainees in the military commissions authorized by the MCA. But legal experts point out that this still leaves more than 300 men held in Guantanamo without charge and without any clear explanation of what they are accused of doing.
Amidst the continuing uncertainty about this and other issues at Guantanamo, pressure for its closure is likely only to increase over time.
But what then? Where do we put the prisoners? And what do we do with them? And will anyone know?
At a bare minimum, and no thanks to the Bush Administration, we know where GITMO is and we know a lot of what has gone on there. GITMO’s “justice system” is a travesty, but arguably it is better than no system at all – and that might be the consequence of sending all the detainees to other facilities. With world attention focused on this Caribbean Devil’s Island over such a long period of time, it might just be that the Bush Administration finally understands that it has no place to hide – it has to run a model prison. Or be subjected to still more scorn from friends and adversaries alike.
Along with Abu Ghraib, GITMO has become emblematic of the colossal blunders our government has made in conducting the so-called War on Terrorism and in following the president’s messianic vision of a world chockablock with liberal Western-style democracies.
If the president still believes in this vision – mandated, as he said, by “a higher father” – he is truly delusional. If he is not, what he needs to do now is ensure that prisoners left at GITMO receive justice with due process and the right of appeal. Congress can now play a role by amending the MCA. Then the remaining cases should be swiftly and transparently adjudicated. Justice not only must be done; it must be seen to be done.
How Mr. Bush handles this issue will be a significant part of his legacy, about which every president must be concerned. Doing the right thing at GITMO – now -- could help remove a bit of the tarnish that promises to characterize his legacy. And begin to rebuild a little of the respect the world once had for our country.