GUANTANAMO DETAINEES IN LEGAL, DIPLOMATIC LIMBO

By William Fisher

A top human rights advocate is characterizing as “a self-inflicted wound” the failure of the Bush Administration to find countries willing to grant asylum to Guantanamo prisoners it has cleared for release.

“The administration created this problem by repeatedly describing all Guantanamo detainees as ‘the worst of the worst’. “A lot of people are working very hard to find countries to take these people,” says Jumana Musa of Amnesty International USA in an exclusive interview with Truthout. But, she adds, “Given the misleading rhetoric our government has used to describe these prisoners, we shouldn’t be surprised that no one wants to take them.”

Musa, who is Amnesty’s director of domestic human rights and international justice programs, told Truthout that the Bush Administration has also failed to seek help in relocation from groups such as the United Nations High Commission for Refugees (UNHCR).

“In fact,” she says, “these groups have largely been shut out of any involvement in the relocation issue, despite their years of experience.”

In 2002, former Defense Secretary Donald Rumsfeld referred to Guantanamo prisoners as "the worst of the worst." In June 2005, he said, "If you think of the people down there, these are people, all of whom were captured on a battlefield. They're terrorists, trainers, bomb makers, recruiters, financiers, (Osama bin Laden's) bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker."

Other Bush Administration officials have been equally certain. For example, now retired Air Force Gen. Richard Myers, then chairman of the Joint Chiefs of Staff, said, "They were so vicious, if given the chance they would gnaw through the hydraulic lines of a C-17 while they were being flown to Cuba."

Nevertheless, of the approximately 760 prisoners brought to Guantanamo since 2002, the Pentagon reports that the military has now released all but approximately 385. Reliable evidence shows that, of the original number, many were not captured on the battlefields of Afghanistan, but kidnapped off the streets of Europe and various locations in the Middle East, and many others were "sold" to US authorities in Afghanistan and Pakistan for bounties. It has also become clear that others were simply in the wrong place at the wrong time.

The fiercely nonpartisan National Journal magazine reported, "Notwithstanding Rumsfeld's description, the majority of (Guantanamo prisoners) were not caught by American soldiers on the battlefield. They came into American custody from third parties, mostly from Pakistan, some after targeted raids there, most after a dragnet for Arabs after 9/11."

And a February 2006 report by Seton Hall law professor Mark Denbeaux and attorney Joshua Denbeaux found that 55 percent of the detainees were determined by the government to have committed no hostile acts against the United States or its coalition allies. Their report also asserted that only 8 percent of the detainees were classified by the government as al Qaeda fighters.

Not even the CIA bought into Rumsfeld's "worst of the worst" characterization. Michael Scheuer, who headed the agency's bin Laden unit through 1999 and resigned in 2004, said, "By the fall of 2002, it was common knowledge around CIA circles that fewer than 10 percent of Guantanamo's prisoners were high-value terrorist operatives ... Most of the men were probably foot soldiers at best" who were "going to know absolutely nothing about terrorism."

The Center for Constitutional Rights, whose lawyers represent many of the Guantanamo detainees, characterizes as “myth” the notion that “The US wants to transfer detainees to the custody of other countries, but no country will take them. “ The CCR says the fact is that countries are willing to accept detainees but many are not willing to unlawfully detain them, as the US is requesting they do.”

Of the prisoners who have been released, some have been jailed by their new host countries “pending investigations”, while others have simply been freed. In all cases, US authorities have sought “diplomatic assurances” that the released prisoners will not be subjected to torture in custody. But many have been released to countries repeatedly cited by the US State Department for their long histories of prisoner abuse.

The bottom line, Musa says, is that 385 people are still in detention, many having been held for years, designated as enemy combatants, but without charges or trials. “Many of these have long been approved for release, but they are still incarcerated,” she declares.

Musa also asserts that the Military Commissions Act of 2006 (MCA) “fails to provide any credible legal framework for assessing the status of these detainees, much less providing them with a fair trial.”

The Act, hurriedly passed by Congress after the Supreme Court struck down the administration’ s detention and adjudication policies because they lacked Congressional authorization, allows the use of hearsay testimony and evidence obtained through coercion and cruel, inhuman and degrading treatment, and bars detainees from filing habeas corpus petitions to challenge their detention in federal court.

But not everyone agrees with the positions taken by Amnesty and by other human rights and legal organizations such as Human Rights Watch, Human Rights First, and the Center for Constitutional Rights. For example, James Carafano, a senior research fellow at the Center for Foreign Policy Studies at the conservative Heritage Foundation, stated that he had heard the same kind of criticisms about U.S. policy during the Cold War.

"They were vacuous then and they are vacuous now," he told Cybercast News Service. "It is criticism without context or content. Carping from the sidelines by those who have no responsibility to do the job and have no respect for the magnitude of the challenge is not productive," Carafano added. "The challenge in any long war is to provide for security, promote economic growth, protect the liberties of your citizens, respect those of your allies, and promote human rights for all -- and win the war of ideas. Accomplishing all those tasks well is no easy challenge, but vital," he said. "US policies are trying hard to do all these equally."

The first legal action under the MCA was the “trial” of David Hicks, an Australian originally alleged to have conspired with the Taliban in Afghanistan to murder American soldiers. Hicks pled guilty to providing material support to terrorists and was given a given a seven year sentence with all but nine months suspended because of the plea agreement. His sentence will be served in an Australian prison. He also agreed to refrain from describing his detention to the media for a year.

Amnesty and many other human rights groups point out that because of his guilty plea, Hicks never had a trial.

And Amnesty’s Musa also questions the timing of the Hicks case. She told Truthout that it’s “curious” that Hicks “will be sitting in an Australian jail, barred from talking to the media, until well after the election of the next Australian prime minister.”

The case has become an election issue for Australian Prime Minister John Howard, a stalwart ally of President George W. Bush. He has been criticized for not doing more to secure Hicks’ release from Guantanamo.

Meanwhile, the MCA remains a contentious political issue in the US. A number of legislators have drafted measures to repeal the Military Commissions Act and to restore habeas corpus rights to detainees. The effort is being led by the Democratic chairman of the Senate Judiciary Committee, Sen. Patrick Leahy of Vermont, and the committee’s top Republican, Sen. Arlen Specter of Pennsylvania. Similar legislation has also been introduced by Sen. Chris Dodd of Connecticut, who is a candidate for the Democratic presidential nomination.

Amnesty’s Musa declined to predict the outcome of this proposed legislation. She told Truthout, “We see politicians acting like politicians, and the degree of resolve of the full Congress remains unclear.”

Musa’s comments came on the heels of Amnesty’s release of a new report on detainee conditions at Guantanamo.

The report charges that many detainees who remain at Guantánamo Bay are “held in cruel conditions of isolation.”

“Most detainees have suffered harsh treatment throughout their detention, confined to mesh cages or maximum security cells. Moreover, a new facility that opened in December 2006, known as Camp 6, has created even harsher and apparently more permanent conditions of extreme isolation and sensory deprivation,” the report alleges.

Guantánamo Bay, it says, “is the festering symbol of the Bush administration’s continued contempt for international law and disregard for human rights - further diminishing our country’s moral standing," says Larry Cox, Amnesty International USA executive director.

"The administration continues to think that it can justify ongoing human rights violations in the name of national security. Perhaps President Bush needs to think again, because the voices calling for the closure of this disgrace to American values are only getting louder," Cox adds.

According to the Amnesty report, “Detainees are reportedly confined for 22 hours a day to individual, enclosed, steel cells where they are almost completely cut off from human contact. The cells have no windows to the outside or access to natural light or fresh air. No activities are provided, and detainees are subjected to 24-hour lighting and constant observation by guards through the narrow windows in the cell doors. They exercise alone in a high-walled yard where little sunlight filters through; detainees are often only offered exercise at night and may not see daylight for days at a time.

US authorities have described Camp 6 as a "state of the art modern facility" that is safer for guards and "more comfortable" for the detainees, Amnesty says. But the advocacy group believes that the conditions, as shown in photographs and described by detainees and their attorneys, “contravene international standards for humane treatment. In some respects, they appear more severe than the most restrictive levels of ‘super-maximum’ custody on the US mainland, which have been criticized by international bodies as incompatible with human rights treaties and standards.”

Amnesty’s report says, “It appears that around 80 percent of the approximately 385 men currently held at Guantánamo are in isolation - a reversal of earlier moves to ease conditions and allow more socializing among detainees.”

According to the Pentagon, 165 detainees had been transferred to Camp 6 from other facilities on the base by mid-January 2007. A further 100 detainees are held in solitary confinement in Camp 5, another maximum security facility, the report asserts.

“As many as 20 detainees are also believed to be held in solitary confinement in Camp Echo, a facility set apart from others on the base, where conditions have been described by the International Committee of the Red Cross as "extremely harsh."

The report concludes, “While the United States has an obligation to protect its citizens and those living within its borders from attacks by armed groups, that does not relieve the United States from its responsibilities to comply with human rights and the rule of law. By rounding up men from all over the world and transporting them to an isolated penal colony, holding them without charge or trial, the United States has violated several US and international laws and treaties.”

Statements by the Bush administration that these men are "enemy combatants," "terrorists" or "very bad people" do not justify the complete lack of due process rights,” Amnesty says.

Says Jumana Musa, "It seems that detainees are being placed in extreme lockdown conditions not because of their individual behavior, but because of harsher camp operating procedures. Even men who have been cleared for release are being held in isolation."

Amnesty is urging the Bush administration to close the facility and either charge and try detainees under international fair trial norms or else release them. “US authorities must take immediate steps to ensure that no detainee is subjected to prolonged isolation in conditions of reduced sensory stimulation and allow detainees more association and activities as well as regular contact with their families with opportunities for phone calls and visits,” the organization declares.

It is also calling for independent health care professionals and human rights experts to be able to examine and visit detainees in private.

"Secretary of Defense Robert Gates is the latest US official, including President Bush, to say that Guantánamo should be closed. There's no reason to dawdle ... there's no reason to delay ... but there are many reasons to end one of the worst blemishes on the United States' human rights record," says Amnesty’s Larry Cox.

Asked by Truthout if closing Guantanamo might lead to its current detainees being transferred to ‘secret prisons’, Amnesty’s Musa says, “It’s hard to ‘disappear’ people whose names we already know. Now that the existence of the CIA’s ‘black sites’ has been acknowledged by President Bush, it is unlikely that any Guantanamo prisoner could be spirited away without public scrutiny.”