America’s Disappeared: Secret Imprisonment, Detainees, and the “War on Terror,” Seven Stories Press – Chapter Draft – PDF

2004 Chapter Draft America’s Disappeared: The Gitmo Prisoners

The Guantanamo Prisoners

It has been called an “American Gulag,” “A Lawless Human Warehouse,” “A Legal Black Hole,” “A Glimpse Into Our Future,” ” A Cold Storage Facility,” and the “First Off Shore Concentration Camp of the Empire.” The entire world knows it by these__ descriptions: It is the United States prison camp at Guantanamo Bay, Cuba. [symbol for all wrong in US]

It is a prison, or rather a number of prisons or rather a number of cages, that, as of this writing, hold approximately 660 human beings from over 40 countries. Most of the detainees were captured, or kidnapped, or arrested, oftentimes on the basis of unreliable information, during the war against Afghanistan and the Taliban following the attacks of 9/11. Most have been detained for over two years. They are being held incommunicado. We do not know most of their names, as the United States will not give out this information. None has been charged with any crime. Each detainee may have been interrogated 100 times. None have had access to an attorney or any contact with an attorney even by mail or telephone.1 None have had contact with their families. None have had access to any court or judicial process for asserting their innocence. They could be held forever. These are Executive detentions totally outside both domestic and international Law. The detainees are truly the disappeared in America.

How It All Began: Why Guantanamo?

In the late 1800’s the United States intervened in the Cuban fight for independence against the Spanish. Ostensibly, coming to the aid of the Cubans, the U.S. ultimately took control of Cuba at the end of the Spanish-American war. As one of the conditions for granting “independence” to Cuba, the United States insisted on what amounts to a perpetual lease on approximately thirty-one square miles of land in southeast Cuba, an area larger then Manhattan. This is the United States Naval Base at Guantanamo Bay. The lease gives the United States “complete jurisdiction and control” over the area and continues in perpetuity unless mutually abrogated.

Despite claims of national sovereignty made by Cuba over the area, the United States insists its occupation is legal and that it will remain in Guantanamo until it decides otherwise. The United States naval website accurately describes Guantanamo Bay as “a Naval reservation, which for all practical purposes is American territory.”2 This is unlike any other base the United States has in a foreign country. The United States is essentially sovereign over Guantanamo. Cuba and its courts have no authority over the base in any respect.

Over the years Guantanamo has been used for a number of different purposes. Initially, and according to the lease, the base was to be used soley as a “coaling station,” where ships could refuel. However, for many years the United States has gone beyond the limits of the lease and there is not much Cuba, or anyone else, can do about it. The immediate precursor to the recent post 9/11 detentions was the Guantanamo detention camp for Haitian and Cuban refugees, including the world’s first camp for HIV positive refugees. These detentions set the precedent for the Guantanamo detentions and demonstrate that using the base as a zone outside the law was not brainstorm of the current Bush II administration.

During the administration of Bush I, President Aristide was overthrown in Haiti and the ensuing bloodbath caused thousands to flee. The United States did not want these Haitian refugees coming to the United States and decided to hold them at Guantanamo. Guantanamo had great advantages for the United States, apart from its physical location near Haiti in the Caribbean. It could only be visited with the permission of the United States and was therefore off limits to reporters and relatives. It was close enough to the United States for it to shuttle soldiers and officials back and forth with ease. However, most importantly, in the view of the government it was a law free zone. That is to say, the Bush I administration and later the Clinton administration claimed that no court in the world could hear any cases brought on behalf of the refugees at Guantanamo. In effect, this meant that the U.S. government could treat detainees however it wished; it could beat them, punish them, send them back to their oppressors in Haiti and there was nothing any court or anyone could do about it.

This claim was soon tested by lawyers who brought suit in U.S. courts on behalf of refugees in danger of being sent back to Haiti and HIV refugees seeking release from the camp. The cases were bitterly contested by the government and ultimately the decisions were divided on whether or not the courts could hear claims by anyone held at Guantanamo. To the extent those courts concluded that the naval base at Guantanamo was more akin to United States sovereign territory, they permitted review and determined that the refugees had some constitutional protection.3

The courts that permitted review and found that the refuges had some constitutional rights viewed Guantanamo as effectively American territory, much like Puerto Rico or the Canal Zone. The naval base is a self-sufficient and essentially permanent city with approximately 7,000 military and civilian residents–an American enclave with all the residential, commercial, and recreational trappings of a small U.S. city. It has its own schools, generates its own power, provides its own internal transportation, supplies its own water, and has an airfield. Crimes committed by both civilians and foreign nationals living on the base are brought before courts in the mainland United States. Cuba and its courts have no authority over the base in any respect. The United States naval website accurately describes Guantanamo Bay as “a Naval reservation, which for all practical purposes is American territory.”4 This is unlike any other base the United States has in a foreign country. The United States is essentially sovereign over Guantanamo.

However, some courts found Guantanamo more akin to a foreign country, denied review and found that the refugees had no constitutional rights.’ The Supreme Court has never dealt with the Guantanamo issue and therefore it remains an open question—but not in the administrations view. [As we are writing this, in a surprising development, the Supreme Court has agreed to review the 9/11 detentions on Guantanamo with regard to whether or not any court in the U.S. can exercise jurisdiction over the cases. The case will be decided by July 2004.]

And that, in part, explains Guantanamo today. What a wonderful place for the Bush administration to imprison and interrogate people from the war in Afghanistan and from other places around the world: no reporters, no family, no lawyers and no courts. If Guantanamo were off the coast of Chile during the Pinochet years, it would be called a dictator’s dream.

Considering the status of Guantanamo, which for all intents and purposes is United States- controlled territory, it is difficult to accept an argument that what occurs there, should be exempt from United States court review. It is also difficult to accept the view that the United States can imprison people anywhere in the world, even in a foreign country, and be free from judicial oversight. In fact, judicial oversight should not depend on the location of where the United States government decides to imprison people. That would allow it to simply move detainees out of the U.S, and evade court oversight. Suppose, for example, the Supreme Court finds that Guantanmo is more akin to the U.S. and the 9/11 detainees have constitutional rights while imprisoned there. Should the U.S. be permitted to move the detainees to Bargram—the U.S. prison in Afghanistan—deny them rights? It does seem that if the U.S. government anywhere in the world detains someone, the courts ought to be there to insure the process is just and fair.

Who Was Captured and Taken to Guantanamo?

As of this writing there are approximately 660 people detained at Guantanamo from forty-four countries. Not all of these people were detained during the war against Afghanistan nor was Guantanamo necessarily the first place they were held; nor will it be the last place for a number of them. The detentions began in January 2001shortly after the end of the war against Afghanistan.

On October 7, 2001, the United States and its allies began their war against the Taliban rulers of Afghanistan and al Qaeda members who were present in that country. The United States allied itself with the Northern Alliance forces that had been opposing the Taliban for many years. During that brief war, thousands of Taliban and al Qaeda fighters were captured, primarily by the Northern Alliance. Many of these were detained in Mazar-e Sharif prison and in Shibarghan prison under appalling conditions.6 C.I.A.

6 One news story described the prisons as “three dank and overcrowded cell blocks, with a stench of unwashed bodies and from which erupt monotonous pleas for help and mercy, that more resemble cattle and other United States officials carried out extensive interrogations of the prisoners. The Northern Alliance later freed some of these prisoners; others remain in prison in Afghanistan.’ A number of prisoners are in Bagram, Afghanistan, a U.S. detention facility where abuse and torture of prisoners is apparently commonplace. 8

On January 11, 2002, the United States military began transporting some of these prisoners captured in Afghanistan to Camp X-Ray at the United States Naval Base, Guantanamo Bay, Cuba. Camp X-Ray is located in an isolated part of the naval base which itself is in a remote part of Cuba. The name, which is like a sick joke, accurately describes the camp; the guards could see everything a prisoner did at Camp-X-Ray as the cells are wire cages where the lights were on 24 hours a day. There were allegations of ill treatment of some prisoners both in transit and at Guantanamo, including reports that they were shackled, hooded and sedated during the 25-hour flight from Afghanistan and that their beards and heads were forcibly shaved.

Over the next months, more prisoners were taken to Guantanamo. It is assumed that at least in the early days most of these were allegedly associated with the Taliban or al Qaeda and taken from Afghanistan or Pakistan—essentially out of the theatre of the war. 9 However, prisoners from other places have been imprisoned in Guantanamo, including five Algerians and a Yemeni from Bosnia. This later group was obviously not composed of combatants captured in the theatre of war. They were suspected of planning attacks on the U.S. embassy in Sarajevo. These detentions indicate that Guantanamo is being used for more then just those picked up in Afghanistan and Pakistan, but will be used to detain others that United States officials suspect are dangerous, might have information, are allegedly involved in terrorism or with al Qaeda.

The fact that the government is using Guantanamo for prisoners other then those detained during wartime is especially frightening. Detainees who have no connection with the war against Afghanistan are now held there. The United States is going around the world, like a roving police force, kidnapping whom it chooses, ignoring extradition laws and taking those detained to Guantanamo or other detention facilities. Apart from the laws it is breaking in doing so, if those it detains are alleged criminals, then they ought to charged and tried as such and not taken to a detention camp where they are given no rights.

In late April 2002, the United States transferred the prisoners from Camp-X-Ray to nearby Camp Delta, a new longer-term prison camp that is designed to house as many as 2000 prisoners.” It is heavily secured with guard towers, searchlights and barbed wire and is described below. Every move by the inmates is watched by the military even in their cells where almost all their time is spent.

What We Know About the Detainees

Not much is known about those imprisoned in Guantanamo; certainly, nothing is known publicly as to whether particular detainees have allegedly committed crimes, are affiliated with the Taliban or al Qaeda, or are there by mistake. No attorneys, family or press are allowed to visit, but the International Committee of the Red Cross has a regular presence in Guantanamo and presumably has visited the prison and the detainees. As is standard with the Red Cross, it has said nothing regarding particular detainees.

The U.S. administration has made general statements regarding the alleged character of those detained, without allowing any of the detainees access to attorneys and without anyone bringing anyone before any kind of trial proceeding that could determine their status or their involvement with terrorism. At the time of the transfers to Guantanamo, Secretary of Defense Donald Rumsfeld called the detainees “hardened criminals willing to kill themselves and others for their cause.”12 He emphasized their dangerousness: “Every time people have messed with these folks, they’ve gotten in trouble. And they are very well trained. They’re willing to give up their lives, in many instances.”13

The United States military officials in charge of the prison said they were told to expect “the worst of the worst.” “These are the worst of a very bad lot,” said Vice-President Cheney. “They are very dangerous.”14 There may well be some terrorists among those imprisoned. However, the Bush Administration has refused to bring anyone before any kind of tribunal or court that can determine whether some are alleged terrorists, POWs, or innocent. 15 Based on the statements of some of the eighty or so persons that have been released, it appears that the administration is exaggerating by painting many of those at Guantanamo as terrorists. These releases, sometimes after two years in Guantanamo, demonstrate that the Administration’s sweeping rhetoric has been overblown. It should not have taken up to two years to determine that these men were not alleged terrorists.

In May??? of 2003 after over a year at Guantanamo the Bush administration freed prisoner number 671, Abassin Sayed.16 Who he was says a lot about those imprisoned in Guantanamo. After his release, the reporter who interviewed him found him in Afghanistan driving his taxi and playing Hindi music on his radio. While driving his taxi in April 2002 he had been stopped at a checkpoint by a gang of local Afghans. American soldiers were being ambushed in the area wanted to capture those responsible. The local Afghans were only too glad to help out even if those stopped were not involved in the attacks. Although he protested that he was only a taxi driver, he war turned over to the Americans.

Abassin Sayed never had a chance to prove that he was innocent and was never given any legal process. He was taken to the U.S. airbase base at Bagram, Afghanistan, spent a month in an Afghan jail, and then flown to Guantanamo where he arrived tied, gagged, masked and wearing dark goggles. As he said of his arrival, “It was the act of an animal to treat a human being like that. It was the worst day of my life.” He was put into small cell with the lights on 24 hours a day. As he said, “the lights were so strong, you couldn’t differentiate between day and night. If you tried to cover your face to sleep the soldiers came in and told you not to do that.” Once he exercised in his cell and was punished by being sent to solitary confinement for five days n a container where he had no blankets or anything else. He was interrogated 11 times for six or seven hours. He was punished in a similar fashion for not knowing the answers to questions. This number of interrogations is far fewer then others were subjected to; reports are that prisoners have been interrogated over 100 times. Abassin Sayed’s best friend, also a taxi driver, remains in Guantanamo. That friend had asked about what happened to Abassin Sayed after his arrest; just for asking the friend was turned over to the United States and is now in Guantanamo.

Abassin Sayed case is not unique. Others wound up in Guantanmo because rewards were paid to persons who identified members of Al Qaeda, and often innocents were detained to obtain bribe money. Leaflets were dropped by the U.S. military offering $20,000 to Afghans who turned in alleged terrorists. Many apparently took up the offer and turned in the innocent. a military interrogator at Camp Delta estimates that as many as 20% may be innocent!’ Dozens if not more of prisoners are described in U.S. intelligence reports as taxi, drivers, farmers, laborers and shoemakers.” According to these reports at least 59 persons from Afghanistan and Pakistan were take to Guantanamo although they did not fit the screening criteria for such a transfer.19 A number were picked up because of the offer of bounties. As one military official who was an interrogator said, “If they weren’t terrorists before, they certainly 20 could be now.”

In October 2002 three Afghani men were released, after almost a year at Guantanamo. One of the men released said that he was 105 years old. David Rhode, a New York Times reporter described him: “Babbling at times like a child, the partially deaf, shriveled old man was unable to answer the simplest questions.”21 When asked if he was angry with American soldiers he said that he did not mind, because they “took my old clothes and gave me new clothes.” A second Afghani man, released at that time, said that he was 90 years old and was described as a “wizened old man with a cane” who had been arrested in a raid on his village. 22

A third younger man said that he had been cut off from the outside world for eleven months and had only received a letter from his family three days before he was to leave Guantanamo. He said he was kept in his cell 24 hours a day with only two 15-minute breaks for exercise a week. This third man admitted that he had fought with the Taliban, but said that he had been forced to do so. After he surrendered, he said, soldiers of the warlord Abdul Rashid Dostum falsely told the United States that he and nine others were 23officials of the Taliban. His release appears to confirm the essential elements of his story. These men are hardly the “worst of the worst.” Here were men who should have never been taken to Guantanamo and yet they were imprisoned. Here were men, who had there been a hearing before some form of a tribunal, would have been freed long ago.

Information about other detainees is also known from families of the detainees and from delegations of officials from various countries. Some of the prisoners have been able to send short, censored letters through the Red Cross to their families. These letters appear to be few and far between. A few families that received letters have contacted lawyers, and lawsuits have been filed from which some information is known about the detainees.

For example, according to his family, Mamdouh Habib, an Australian citizen, traveled to Pakistan in August 2001 to look for work and a school for his two teenage sons. On October 5, 2002, just before he was about to return to Australia and two days prior to the war, Pakistani officials detained him. He was transported to Egypt where Egyptian authorities detained him. Eventually he was turned over to the United States and taken to Guantanamo. Obviously, he was nowhere near the fighting in Afghanistan. A delegation from Pakistan that visited its citizens on Guantanamo for purposes of interrogation has also questioned the continued detention of many of the Pakistanis. The delegation concluded that almost all of the 58 Pakistanis detained were low-level foot soldiers and had no link to al Qaeda. Some of these may have been imprisoned because of United States reward money given to the members of the Northern Alliance in exchange for alleged member of al Qaeda. Because of its visit, Pakistan requested the release nearly all of the Pakistani prisoners.

Amazingly, it is not only adults that have been imprisoned in Guantanamo. Children are there as well. The number is unknown, but until late January of 2004, there were at least three children between 13 and 15. These three were recently freed. There remain an unknown number of children under 18 years old. The International Committee of the Red Cross said that Guantanamo was an inappropriate place to detain juveniles and that their detention was a grave risk to their well-being. In addition, detentions of juveniles under the conditions of Guantanamo violated the Optional Protocol to the Convention on the Rights of Children, which requires governments to rehabilitate former child soldiers (assuming this is what the captured children are). As Human Rights Watch said, “Rehabilitation does not happen at Guantanamo . “24

International law also requires that families are permitted to maintain contact with their children, the right to a speedy determination of their case, the separation of children from adults and that detention be used only as a last resort. It appears that the United States violated and is violating each of these requirements. (After a protest from human rights groups, the U.S. separated they youngest children into a separate house called Camp Iguana.)

These stories of the innocent, of detainees not involved in any fighting, of detainees who were no more then lowly foot soldiers, and of young children demonstrates the importance of a legal process for determining the status of those imprisoned on Guantanamo and of the callousness and inhumanity with which the United States is running Guantanamo.

Conditions of detention

Michael Ratner, one of the writers of this book, has had some personal experience with the living conditions in Guantanamo. In the early 1990’s, he represented Haitian refugees who were held there and visited the base a number of times. As he said then: “Its land is bleak and hardscrabble; little grows except cacti; the heat is intense, and scorpions, mosquitoes, and banana rats are abundant. It is out of the ninth circle of Dante’s Hell. For 14 months, the refugees have used portable toilets that are rarely cleaned, that are filled wit feces and urine. The camp is bleak—no grass, hardscrabble ground and temporary wooden barracks on concrete slabs. Within those “homes” 15 to 20 Haitians are huddled with only sheets hanging from the rafters. Rain, vermin and rats are other occupants.” 25

Imagine, if refugees were so treated, what could be expected of the U.S. treatment of what the Bush administration claims are alleged terrorists. When the Guantanamo detainees arrived at Guantanamo, the environment was much the same, but the conditions of detention were far harsher. Initially, they were housed in makeshift, small (8 feet by 8 feet), open air, wire cages that failed to protect against the elements.26 The cages were surrounded with fences topped by razor barbed wire, and the compound was encircled with watchtowers. In this early period, the detainees remained shackled when using the portable toilets or showers and temperatures frequently went above 95 degrees Fahrenheit. Halogen floodlights blazed all night so that they could be continuously monitored. The pictures released in January 2002 of the prisoners at Guantanamo show them kneeling in blazing Cuban sun, wearing blackened goggles, masks, ear covers and shackles. These photos caused a public outcry, as did the conditions under which they were being held.

Camp Delta, the longer-term prison camp, is apparently divided into five camps of which two are the primary camps: the main camp #3, and a smaller Camp #1 for the prisoners who cooperate. Judging from the few photographs that have been released, Camp Delta looks like rows of one-story, self-storage facilities. The cells for the majority of the detainees, are small (8 feet by x 6 feet, 8 inches), but they have running water and apparently better protect the prisoners from sun and rain. Each holds one prisoner dressed in an orange jump suit. The toilet is a hole in the ground. David Rose, a Vanity Fair reporter who visited Camp Delta in October of 2003, described a cell as a ” faded green metal box a little larger then a king-size mattress.” The cells are chain-link on three sides so that the guards, who are sometimes women, have a clear view of inmates at all times even when using the bathroom. Guards pass the cells every thirty seconds.

The camp for cooperators is in a separate wing where the prisoners are housed ten to dormitory type room and provided with more exercise, better food ( McDonalds from the base restaurant), thicker mattresses and books. These detainees are dressed in white jump suits. Not that much is known about Camp Delta as reporters only see it is on conducted tours where they views are limited and they cannot see (except at a distance) or speak with the detainees. In general, the press cannot see the building as a green screen has been erected to block any view.

The military and the Bush administration brags that the food and medical treatment at Guantanamo is good and that the prisoners are treated humanely. But, when all the circumstances are weighed, it is clear that Guantanamo has but one major purpose: to break prisoners spirits so that they can be interrogated. At Guantanamo this may not be done with physical torture or coercion, but it is nonetheless, mental torture. We have already noted the size and nature of the cells. Prisoners are isolated and not allowed to speak to other prisoners or guards. If they are deemed uncooperative, as are the majority, they exercise for only 15 minutes twice a week and shower just twice a week; both activities undertaken while they are shackled at the hands and legs Temperatures in the cells can reach more then 100 degrees and the lights are on all night making it difficult to sleep.

As one of the inmates, Mozzam Begg, wrote to his parents, in one of the few, heavily censored, letters they received from him through the Red Cross: “Boredom here is extreme. I have not seen the sun for over seven months except once for around two minutes.” Begg also described the camel spider, the only 10 legged spider in the world. He said, “it moves like a race car and has a bite that causes flesh to decay—if left untreated… and in the summer there were plenty here, running into the cells and clambering over people…Thank God it’s winter!”

Some information is known about the interrogation system, which occurs in separate trailers in Camp Delta. Detainees have been interrogated by as many as seven different U.S. intelligence agencies and have faced interrogation over a hundred times. Interrogations last for as long as 16 hours and possibly longer and sometimes an inmate is subjected to interrogation on a daily basis. Apparently, sleep deprivation is permitted, but under what circumstances and to what extent is classified. There is a reward system for cooperation, which could include food eg. dates, exercise, even a toothbrush and eventually removal to the cooperators camp.

These physical conditions are difficult, may well constitute cruel, inhuman and degrading treatment, if not mental torture, and are all flatly illegal, as will be explained, under the Geneva Conventions and the Convention Against Torture. As bad as these conditions are, apparently the most serious aspect of the detentions is the desperation and hopelessness felt by detainees who have no rights and no idea of what is going to happen to them. They are being held indefinitely with no sense of what is going to happen to them; already they have been imprisoned for over two years, have not seen their families or lawyers and never had a trial. As a result of these conditions there have been over 30 suicide attempts and as much of one-third of the 640 detainees are on anti-depressants.

In November of 2002, the Red Cross denounced the indefinite detentions, the failure to tell the detainees about their futures and the use of Guantanamo as an interrogation camp. Christopher Girod, the senior Red • Cross official in Washington, said “One cannot keep these detainees in this pattern, this situation, indefinitely.” He said that it was intolerable that Guantanamo was used as “an investigation center, not a detention center…and that the open-ended-ness of the situation and its impact on the mental health of the population has become a major problem.” Mr. Girod said that detainees regularly ask about what was going to happen to them. “It’s always the No. 1 question,” he said. “They don’t know about the future.” He said he was speaking out because of the failure of the United States to heed what the Red Cross had said privately to the United States.

Scott McClellan , the White House Press secretary was asked about the criticism by the International Red Cross of conditions of prisoners at Guantanamo Bay. Here is what he said:

Let us remember these individuals are enemy combatants. These individuals are terrorists, or supporters of terrorists, and we were at war with terrorism.” And, the reason for detaining enemy combatants in the first place during a war is to gather intelligence, is to make sure these enemy combatants do not return to help our enemies plot attacks, or carry out attacks on the United States,”

In effect, he is saying, they are all guilty and can be treated inhumanely.

What is law? Geneva etc

Status treatment and hearings

Cases

Policy

Tribunals

torture

1 One of the detainees, David Hicks, was designated for trial by a military tribunal. In December 2002 he was permitted a visit by his attorney and a telephone call from his parents. Ii is assumed that the five others designated for the tribunals will also see attorneys as the charging process against them goes forward.

2 The History of Guantanamo Bay, Ch. 3, at http://www.nsgtmo.navy.mil/gazette/History 98-64/hischp3.htm.

3 Haitian Ctr. Council v. McNary, 969 F.2d 1326 (2d Cir. 1992).

4 The History of Guantanamo Bay, Ch. 3, at http://www.nsgtmo.navy.mil/gazette/History 98-64/hischp3.htm.

5 Haitian Refugee Ctr. v. Baker, 953 F.2d 1498 (11th Cir. 1992).

6 “258 Afghan Taliban Soldiers Released,” Reuters, Mar. 23, 2002, at http://www.dawn.com/2002/03/24/topll.htm

7 Carlotta Gall, “A Nation Challenged: The Missing; Families Try to Trace Thousands of Missing Taliban, Many Forced to Fight” New York Times, Feb 21, 2002, p. A14.

8 Dana Priest & Barton Gellman, “US Decries Abuse but Defends Interrogations; ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities,” Washington Post, Dec. 26, 2002.

sheds or ill-kept stables than a jail.”

9 Initially most of the Guantanamo detainees were captured in Afghanistan, but by late 2002 the Department of Defense was unwilling to say from where additional captives were captured as the following dialog demonstrates

Q: “Did they come from Afghanistan?”

Victoria Clarke, Defense Department spokesperson: “Not saying.”

10 Viola Gienger, “Lawyers Contest Algerians’ Handover,” Chicago Tribune, Apr. 11, 2002, p. 4

11 Brown and Root Services, a division of the oil services company Halliburton, which was formerly headed by Vice President Cheney, is constructing the new prison. The contract may amount to 300 million dollars. Charles Aldinger, “Halliburton to Build Cells at Guantanamo Base,” Reuters, July 27, 2002.

12 Katherine Q. Seelye, “A Nation Challenged: The Prisoners; U.S. May Move Some Detainees to Domestic Military Bases,” New York Times, Jan. 4, 2002, p. A15.

13 George Edmonson, “‘Gitmo’ Gets A Makeover As POW Camp,” Cox Washington Bureau, Jan. 8, 2002, at http://www.coxnews.com/washingtonbureau/statredmonson/010802TER-GUANTANAMO.html

14 Rumsfeld: Afghan Detainees at Gitmo Bay Will Not Be Granted POW Status,” Fox News, Jan. 28, 2002, at http://www.foxnews.com/story/0,2933,44084,00.html.

15 As of this writing in February 2002, the President has designated six detainees for possible trial before military tribunals although none have yet been charged. At least one, David Hicks, has had visits from his military lawyer and a lawyer from his home country of Australia.

16 Return From Guantanamo Bay June 6, 2002.

http://news.bbc.co.u1c/l/hi/prpgrammes/mewsnight/2968458.stm

17 “Camp Delta: Guantanamo Bay,” 60 Minutes II Sept. 16, 2003 www.cbsnews.com/2003/09/16/60II

18 Greg Miller, “Many Held at Guantanamo Not likely Terrorists,” LA Times, Dec. 22, 2002

19 Greg Miller, “Many Held at Guantanamo Not likely Terrorists,” LA Times, Dec. 22, 2002

20 Greg Miller, “Many Held at Guantanamo Not likely Terrorists,” LA Times, Dec. 22, 2002

21 David Rhode, “Afghans Freed From Guantanamo Speak of Heat and Isolation,” New York Times, Oct. 29, 2002, at A18.

21 Id.

22 Id

23 Article 71 of the Third Geneva Convention states that POWs are permitted to send not less then two letters and four cards monthly; Article 72 of that Convention also allows them to receive individual and collective relief packages containing foodstuffs, clothing, articles of a religious nature and other similar

24 U.S.: Despite Releases, Children Still Held at Guantanamo, Human Rights Watch January 29, 2004

26 ratner article=-Harvard—intersection of law and politics

 

old material:

Imagine the following scenario. Somewhere in the world, the United States fights a war and captures and detains enemy soldiers; somewhere in the world, the United States captures and detains people it claims are terrorists. Those detained may have been arrested because of an informant’s tip or because of someone receiving money for information regarding alleged terrorists; the tip and the information may or may not be reliable. Consequently, those arrested may be completely innocent. These people are flown to the United States Naval Base, Guantanamo Bay, Cuba, and imprisoned for years.’ The captured soldiers are not accorded the rights of prisoners of war. The alleged terrorists are not charged with a crime. They do not have access to their families or attorneys.

Maybe, years later,2 a few will be released, others may remain in Guantanamo indefinitely and others, possibly, will be tried by a special military commission.3 That trial may occur at Guantanamo, or wherever the United States chooses, even on an aircraft carrier.4 The trial may be entirely in secret. If they are found guilty, they may be executed and their bodies disposed of, possibly at sea. They might be found not guilty by the tribunal. However, even then, Secretary of Defense Rumsfeld has said that they may not be released.6 He has announced that the United States is engaged in a long war against terrorism; it may be a fifty-year war and until that war is over, if it ever ends, some will remain imprisoned at Guantanamo.’ This scenario is not far-fetched. Some of this is already occurring and if the Bush Administration is to be believed, the remainder may unfold.

One might think such governmental actions, so seemingly at odds with notions of fairness and liberty, could be challenged in the courts. One might believe that a court in the United States would make, at least, a determination as to the legality of the detentions and trials of those imprisoned. However, one would be wrong.. In March of 2002 a petition for a writ of habeas corpus was filed on behalf of the detainees in Guantanamo, but the petitioners lost.8 They have lost not because the federal district court decided that what the government is doing is right, but because the court decided it could not even hear the case and determine whether the detentions were legal. Even though the detainees are imprisoned by the United States, the district court refused to look into their detentions. The federal court has ruled that it will not and cannot hear cases on behalf of non-citizens imprisoned at Guantanamo.9 It is as if Guantanamo is on another planet, a permanent United States penal colony floating in another world.

The above described scenario illustrates three of the most worrisome aspects of the United States’ war on terrorism: the indefinite detentions at the United States Naval Base, Guantanamo Bay, Cuba; the lack of any judicial review of those detentions; and the plan to employ military commissions to try some of those detained. As of November 2002, approximately 625 persons from 44 countries have been jailed at Guantanamo, many of them since January 2002.10 Their names are kept secret and the government has refused to permit visits by attorneys or family. No charges have been filed against them. Although many were captured on the battlefield,” they are not being treated with the rights the Geneva Conventions accords to prisoners of war (POWs) and may be held indefinitely. The United States has vigorously opposed court review of these detentions.12 The serious threat the detentions raise is not just to the rights of those detained at Guantanamo, but to all of us. They raise the specter of executive detentions not subject to review by any court and without any basis in law. It is fundamental to freedom that detentions must be pursuant to law and that courts are to act as a check on unbridled executive power. The right to be free from executive detention is in serious jeopardy.

Attorney General Ashcroft has stated: “Foreign terrorists who engage in war crimes against the United States do not deserve constitutional rights.”13 Apparently, the Attorney General has determined that the people he calls “suspected terrorists” are guilty before they are tried. Their guilt can then be confirmed by trials in front of military commissions that are more likely to convict because they do not fully protect constitutional rights. It’s reminiscent of the famous trial scene in Alice in Wonderland. “No, no!” said the Queen. “Sentence first—verdict afterwards.”

It is fundamental to freedom that those accused of crimes are tried before regularly constituted courts that are impartial, guarantee a defendant’s rights, are public and allow appeal to a higher court. Yet, some of those detained at Guantanamo will apparently be tried before military commissions that will not fully guarantee these rights.” These special courts are ad hoc commissions in which the President designates the defendants for trial, the Secretary of Defense chooses judges (who are the jury as well), the trials can be closed, and no court appeal is permitted, even from a sentence of death. The employment of military courts could be widely expanded beyond those imprisoned at Guantanamo. The administration has already spoken of employing them against alleged terrorists in the United States.15 The last time military commissions were employed was almost sixty years ago, and those precedents have been widely criticized.16 Until recently, the United States itself was highly critical of countries such as Peru that employed such military commissions. Trial before such commissions represents not justice, but a threat to liberty.

Many in the United States do not seem concerned by this scenario!’ This is, in part, because the detentions are occurring outside of the United States with little or no press access to inform us of what is transpiring. Many people are unconcerned because it is not happening to them, but to non-citizen Muslims picked up from around the world. Many also believe those on Guantanamo must be guilty of something. In addition, in an environment in which we are all frightened of the next act of terrorism, many are willing to give the government more leeway, believing that its actions will make us safer.

This turning a blind eye to lawless action flowing from the government is dangerous, and not only for those imprisoned in Guantanamo. The government also has applied its detention policies to citizens, holding them without charges. Currently, citizens Jose Padilla, a suspected terrorist, and Yaser Hamdi, a suspected enemy combatant, are being held in military brigs in the United States and have no access to attorneys or family.18 Under the government’s rationale, it can treat citizens it imprisons in the United States the same way as it treats non-citizens at Guantanamo. It need simply label them as enemy combatants, whether citizens or not, as it has done with Hamdi and Padilla. That designation, according to the government, allows them to be held with the same lack of legal rights as are non-citizens on Guantanamo. The only difference is that Hamdi and Padilla, unlike the non-citizens detained at Guantanamo, can obtain minimal court review of their designation as enemy combatants.19 This minimal review may not be the result of their citizenship, but rather their presence in the United States. Were Hamdi and Padilla held in Guantanamo, they might not even be permitted that limited court review.

The Detainees’ Legal Status and the Right to “Competent Tribunals”

The situation of the prisoners at Guantanamo needs to be examined under two bodies of international law. First is the law that applies in times of armed conflict, which is called humanitarian law. The primary sources for that law are The Geneva Conventions of 1949, treaties ratified by the United States and most of the countries of the world. The Geneva Conventions concern, among other topics, the treatment of people captured on the battlefield or in the theatre of war. This body of law is applicable initially to those persons captured in the war with Afghanistan. This would include primarily the Taliban soldiers and militia fighting alongside them.

As to detainees from outside the theatre of war, such as those Guantanamo detainees arrested in Bosnia-Herzegovina, the Geneva Conventions do not apply. International human rights law determines their rights. They must be formally charged, given access to counsel, and tried. This would include alleged international terrorists.

The key principle is that some body of law applies to every person detained and gives him or her a legal status and certain rights under international law. The international prohibition on arbitrary detention prohibits detentions in violation of existing law. No one can be treated in whatever manner a country decides.

The Geneva Conventions apply whenever there is an armed conflict between two or more parties to the Conventions, even if one of the parties, here the Taliban, was not diplomatically recognized by the United States. The Conventions establish that captured combatants, as prisoners of war (POWs), have the “combatant’s privilege.” That privilege gives a soldier the right to shoot at soldiers of the enemy forces; without that privilege, a soldier could be tried for murder. POWs can be interned, but not imprisoned, unless it is demonstrated, on an individual basis, that there are security risks. They have significant rights to humane treatment as well as communication by letter with their families. POWs can still be questioned and they can be prosecuted for war crimes, but they retain their POW status. Importantly, POWs cannot be tried by military commissions for war crimes; they must be tried by the same courts as American soldiers would be tried. That would mean trial by courts-martial, which grant substantially more rights then military commissions.

Although resistant at first, the Bush Administration finally grudgingly acknowledged that the Conventions applied to those captured on the battlefield in Afghanistan, but with caveats that eviscerated the application of the Conventions. The White House announced that although the U.S. would apply the Geneva Conventions to soldiers that it decided were from the Taliban, it would not extend the protections to prisoners it believed were members of al Qaeda.21 However, in reality, the Bush Administration would not apply the terms of the Conventions to any of the Guantanamo prisoners. Specifically, the U.S. refused to apply Article 4 of the Third Geneva Convention that requires that all regular members of a government’s army be granted POW status; and that members of a militia fighting alongside those armed forces would receive such status. This might well include members of al Qaeda captured on the battlefield. So by refusing to apply this key provision, the Bush Administration was in fact refusing to apply the Geneva Conventions in a meaningful way.

The United States decision that neither the Taliban fighters nor the militia fighting alongside them were POWs was made without following the procedures specified in Article 5 of the Third Geneva Convention. That article requires the convening of a “competent tribunal” to determine the status of each individual captured “should any doubt arise” as to his status. (Such “competent tribunals” are not the military commissions that the United States is establishing to try war crimes.) The United States never held such “competent tribunals,” but made a blanket determination that no one captured on the battlefield was a POW. The Third Geneva Convention also requires that all such prisoners be treated as POWs pending such hearings. The United States has repeatedly refused the entreaties of the international community to treat all the detainees under the Article 4 and 5 procedures established under the Third Conventions.22

Nor was there any reason for the United States not to employ such tribunals. Prior to the war the United States military had adopted regulations for these tribunals, which are staffed entirely by its military personnel. Such tribunals were used in Vietnam and over a thousand such tribunal hearing were held during the 1991 war against Iraq. Had such tribunals been held, it could have been determined that some of those imprisoned on Guantanamo were wrongly detained. As to THE others, it would have been determined that they were POWs with rights and protections afforded them under the Geneva Conventions.

The United States has tried to justify its position legally, but in a manner that is inconsistent with international law. It has labeled those detained as enemy combatants and claims that the military’s authority to capture and detain enemy combatants is well settled. But, enemy combatants are a general category, not a status under the Geneva Conventions. Under the Geneva Conventions, enemy combatants are either prisoners of war with all of the rights that attach to that status or they are not, in which case they come under the protections of the Fourth Geneva Convention.

The Fourth Convention treats such non-POWs as civilians, but if the person is suspected of activities hostile to the state, he can be detained and denied certain rights, such as the right to communicate (write letters). In addition, anyone captured, POW or otherwise, can still be criminally prosecuted. This means that members of al Qaeda and any other person captured in the theatre of war and found not to be POWs can still be detained. However, these determinations must be made individually.

By deciding unilaterally that it would not apply the actual terms of the Geneva Conventions to those captured in the theater OF war, the U.S. has violated international humanitarian law. Its position raises serious questions as to the legal authority under which the Guantanamo detainees are being held. If, as the United States claims, the detainees have no status under the Geneva Conventions, then the rules of international human rights law apply. However, those rules require that they be arrested, charged, represented by attorneys and tried. Obviously this is not occurring, since, as explained above, U.S. domestic criminal law is not being applied. The United States is holding these people outside both international and domestic law.

The Geneva Conventions were created to provide, among other things, humane conditions and limits on the duration of confinement. POWs, which is what many of those in Guantanamo appear to be, may only be detained until the “cessation of active hostilities.” That circumstance has occurred with regard to the war in Afghanistan. As to non-POWs, they may be held until the “general close of military operations,” which arguably has also occurred in Afghanistan.

The U.S. argues that it was fighting not just a war against Afghanistan but also an international war against al Qaeda that may not end for many years.2 This argument does not address the rights of former Taliban combatants now in custody. Furthermore, there is a serious question as to whether the efforts to disable and destroy al Qaeda constitute a war under international law. A war, other then a civil war, is between states. It is not defined as between a state and a terrorist organization. That type of activity is an international law enforcement effort, akin to tracking down drug dealers, and is subject to international human rights law that requires charges and trials.

Detainees at Guantanamo who were captured outside the theatre of the Afghanistan war are examples of the legal twilight surrounding the “war” on al Qaeda. There is very little information available regarding these people, except for six prisoners who were arrested in Bosnia-Herzegovina and taken to Guantanamo. Five Algerians and a Yemeni were taken from a prison in Sarajevo in January 2002, despite a local court order releasing them for lack of evidence. The United States claims, “their activity posed a credible security threat to U.S. personnel and facilities and demonstrated involvement in international terrorism.”24 The Geneva Conventions do not apply to these six men, but their rights should remain are protected under international human rights law.

The United States is trying to avoid treating these and others as human rights law requires by calling them all “battlefield detainees.” 25 This is obviously incorrect. The United States is or was fighting a war in one part of the world, Afghanistan, but that does not permit it to capture people anywhere in the world and label them combatants without showing they were involved in the armed conflict. These and others have been captured because of their alleged role in international terrorism. They are suspects. Their capture should be treated as a matter of criminal law and they should be charged, permitted to have counsel, and tried. Otherwise, they should be released. To do otherwise is to hold them arbitrarily in violation of international human rights law.

There is one exception under which the United States could hold alleged international terrorists including members of al Qaeda for some period without charges and trial. Article 4 of the International Covenant on Civil and Political Rights permits such detentions in a very narrow class of cases: during a public state of declared emergency threatening the life of the country. To avail itself of this exception the United States must notify, through the U.N. Secretary General, the other countries that are parties to the treaty. The United States has neither declared such an emergency nor has it notified the Secretary General.

The administration has yet to announce charges or trials for any of the Guantanamo detainees, Taliban or otherwise, and has stated that they will be held indefinitely.26 According to Secretary of Defense Rumsfeld, this means until the war against terrorism is over, which could be many years, that is, until “we feel that there are not effective global terrorist networks functioning in the world….”27 Although military commissions may eventually try some of those at Guantanamo, Rumsfeld has said that even if such commissions acquitted certain captives, the government planned to keep some at the base. In other words, the Administration considers itself entitled to capture, arrest, and detain people from anywhere in the world, interrogate them, refuse them access to lawyers and family, not charge them or bring them before any courts, not release them even if tried and acquitted, and imprison them indefinitely, year after year.

Legal Challenges

There have been three U.S. court challenges to the detentions at Guantanamo,28 one in the United Kingdom,29 and one before the Inter-American Commission of the Organization of American States. As of January 2003, the request to the Commission by various human rights groups was the most successful. While the Commission is not a court, its mission is to enforce the principal regional human rights treaty, the American Declaration of the Rights and Duties of Man, the provisions of which protect the right to life, fair trial, due process and freedom from arbitrary detention. In its decision of March 13, 2002, the Commission urged the United States to “take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.”31 The Commission explained that everyone that is captured by a state must have a legal status and that it is for a tribunal and not a government to determine that status. In strong language the Commission found that the detainees remain entirely at the unfettered discretion of the United States government. Absent clarification of the legal status of the detainees, the Commission considers that the rights and protections to which they might be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the state.32

Although the Commission has ruled that member states of the OAS are under an “international legal obligation” to comply with its decisions, the United States has refused to do so. The Commission reiterated its order mandating commissions in July 2002 and held a hearing on the failure of the United States to implement this ruling. The United States has still not complied, and there is no power in the Commission to compel compliance.

The challenge to the detentions filed in the courts of the United Kingdom was on behalf of one of the detainees, Ali Abbasi, a citizen of England. Although the British Court could not order a remedy for the detentions because the Untied States government was not a party to the lawsuit, it described the detention situation in stark terms: “[I]n apparent contravention of fundamental principles recognized in both jurisdictions [U.S and U.K.] and by international law, Mr. Abbasi is at present arbitrarily detained in a `legal black hole.'”33 The Court was especially critical of the U.S. government’s claim that there was no court in the United States that could review the indefinite detentions in a territory over which the United States had exclusive control. It hoped that the appellate courts in the United States will find otherwise, which as of January 2003, they have not.

The two cases filed in federal court in Washington D.0 on behalf of Australian, English and Kuwaiti citizens detained in Guantanamo are the critical cases, for the United States government must adhere to any final court rulings. As of this writing, the federal court decisions have been favorable to the government, but the appeals, which may ultimately be heard by the Supreme Court, have not been completed. In ruling on these cases, the federal judge accepted the government’s argument that her court had no jurisdiction to hear the cases and therefore could not rule on the legality of the detentions. She found that American courts could not hear cases brought on behalf of aliens held by the Untied States outside the territory of the United States, thus determining that, despite the U.S. government’s “complete jurisdiction and control” of Guantanamo Bay, the Naval base was outside the U.S. courts’ authority.34 The cases are on appeal. Without any court review of the legality of the detentions, there is no check on the actions of the government. It can, and apparently is, acting above the law.

Trials by Military Commissions

On November 13, 2001, President Bush signed a military order establishing military commissions to try members of al Qaeda and suspected international terrorists.35 Under this order, non-citizens, whether from the United States or elsewhere, who are accused of membership in al Qaeda or of aiding international terrorism, can be tried before one of these commissions at the discretion of the President. The Bush Administration has said that it will try some of those held on Guantanamo by these military commissions. As of December 2002, the Department of Defense was working on final preparations for the commissions.

Although military commissions were employed during and in the aftermath of World War II, their use was always restricted to defendants associated with the armed forces of a state who were alleged to have violated the laws of war. The military commissions established by the Bush Administration are aimed at defendants who are not combatants on behalf of a state and who, therefore, as a matter of law, cannot commit violations of the laws of war. Violations of the laws of war, in general, can only be committed by state actors. If a non-state actor, such as a member of al Qaeda or an alleged international terrorist murders people, it is a crime, but it is not a war crime. Such alleged criminals, terrorists or otherwise, should be tried by regular criminal courts and under U.S. criminal statutes of which the United States has abundance. To the extent the Bush Administration plans to try alleged international terrorists by military commissions, whether they are members of al Qaeda or not, it is proceeding contrary to law. No U.S. Supreme Court case and no rule of international law permit military commissions to try crimes that do not constitute war crimes.

A second major problem with the commissions is the procedures employed at the trials. The proposed commissions are not courts-martial, which provide far more protections for the accused, although less then those required in civilian trials. Courts-martial require that arrests be made upon probable cause and mandate an investigation and hearing before a trial can occur. The accused can request a specific military counsel and can choose his civilian counsel. Hearsay evidence and involuntary confessions are not permitted. A unanimous verdict is required for offenses in which the death penalty is mandatory. Trials are public and there are two levels of appeal including an appeal to the U.S. Court of Appeals for the Armed Forces, which is composed of civilian judges. The defendant can request the Supreme Court of the United States to hear an appeal. 6

Although the Bush Administration has said why it prefers military commissions rather then civil courts for trials of alleged enemy belligerents and alleged international terrorists, it has not fully explained why trial by courts-martial would not allay most of its concerns.37 Courts-martial, like commissions, do not require civilian jurors, judges or courts and can dispense justice relatively rapidly. Unlike military commissions, they are established courts and would not be subject to the criticism that they are ad hoc commissions set up as a means of obtaining convictions more easily.

By contrast to even the limited rights of courts-martial, the military commissions alter or eliminate many of these rights. This remains so even after the Department of Defense issued a set of procedures, in March 2002, that modified some of the more egregious aspects of the commissions as set forth in the President’s order.38 Under the new procedures the President still designates the suspects who are to be tried; there is no preliminary hearing or indictment. The Secretary of Defense appoints the judges, most likely military officers, who act as judges and jury deciding both questions of law and fact. Unlike federal judges who are appointed for life, these officers have little independence. Normal rules of evidence, which provide some assurance of reliability, do not apply. Hearsay and even evidence obtained from involuntary confessions is admissible. Defendants can be found guilty of a crime carrying a potential death penalty by a two-thirds vote of the judges, although unanimity is required to impose the death penalty. If a defendant can afford a civilian counsel (he is entitled to military counsel), that attorney must be determined by military authorities to be eligible for access to classified information. The only appeal from a conviction is to the President or the Secretary of Defense, although that appeal goes first to a three-person military review panel that then gives a “recommendation” to the Secretary of Defense or the President. Thus, there is no review by a civilian court and the final decision remains in the hands of the President or Secretary of Defense.

Incredibly, the entire process, including the carrying out of the death penalty can be carried out in secret. Although the procedures state that the proceedings will be open unless the presiding officer determines otherwise, the circumstances under which trials can be closed are broad and open to abuse. Trials can be closed in the interests of “national security” and other similar reasons. The trials can be held anywhere the Secretary of Defense decides, presumably even on board an aircraft carrier. Access by the press is not guaranteed; the procedures state that the judge “may also allow attendance by the public and press.”39

These new commissions represent such a departure from fair and impartial courts that there was a broad outcry against their use both in the United States and Europe.° Even an important conservative United States columnist, William Safire, was highly critical. 41 This outcry was probably a factor in the government’s decision to have the so-called twentieth hijacker, Zacarias Moussaoui, tried in a regular federal court in the United States.

While military commissions were used during and immediately after World War II, their use since that time does not comply with important international treaties. The International Covenant on Civil and Political Rights as well as the American Declaration of the Rights and Duties of Man require that persons be tried before regularly constituted courts established in accordance with pre-existing laws. In addition, the Third Geneva Convention requires that POWs be tried under the same procedures as United States soldiers for similar crimes. United States soldiers are tried by courts-martial or civilian courts and not by military commissions. This may be one important reason the United States is refusing to classify the Guantanamo detainees as POWs; if they were POWs, the government would not be free to use military commissions.

Surprisingly, some law professors have argued in favor of these commissions, saying that secrecy is necessary for security.42 The primary argument is that it might be necessary to disclose classified information in order to obtain convictions. But in fact, procedures for safely handling classified information in federal courts have been successfully used, as in the trial of those convicted in the 1993 bombing of the World Trade Center. The 1993 trials also demonstrate that trials of suspected terrorists do not require military commissions, but can safely be held in federal courts.

Trials before military commissions will not be trusted in either the Muslim world or in Europe, where previous terrorism trials have not required the total suspension of the most basic principles of justice. It would be much better to demonstrate to the world that the guilty have been apprehended and fairly convicted in front of impartial and regularly constituted courts.

A Note On The Use of Torture

In some way, those sent to Guantanamo may be the lucky ones; as, far as we know, torture is not used on Guantanamo during interrogations. Since September 11, dozens of prisoners have been sent to third countries including Egypt or Jordan, which maintain close ties to the CIA. 43 These people have been transported without going through normal extradition procedures in a process akin to kidnapping. They are sent to Egypt and Jordan where these agencies engage in interrogation tactics such as torture and threats to families that are illegal in the United States.44 As one American official said of this practice of sending captives to foreign countries for interrogation: “We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.”45 In addition, thousands of others have been arrested with U.S. assistance and detained in foreign countries known for their brutal treatment of prisoners.46

Even if U.S officials are not themselves involved in the actual torture of detainees, they may be complicit in torture and guilty of a crime. The Convention Against Torture prohibits torture carried out at the “instigation of or with the consent or acquiescence” of officials. 47 Handing someone over with to a foreign intelligence service with the knowledge that the person will be tortured would certainly fit within the prohibitions of the Convention. One U.S. official who is involved with sending detainees to foreign countries admitted he knew they were likely to be tortured: “I …do it with my eyes open.,,48 Torture is also a violation of U.S. criminal law and is punishable by death or life in prison.49

It also appears that U.S. officials engage in the treatment of detainees that may constitute torture. Witnesses have reported that captives are “softened up” by the U.S. military. The detainees are “blindfolded and thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep. There is resistance the use of torture even from law enforcement officials. One former FBI Chief of Counter Terrorism said in an October interview: “Torture goes against every grain in my body. Chances are you are going to get the wrong person and risk damage or killing them.”51

Conclusion

With regard to the Guantanamo detainees, the Bush administration is openly disregarding a legal framework that is fundamental to not only to defendants’ rights, but to the rights of all people. Its assertion of the power to imprison people indefinitely, without charges and court review, is the very conduct the United States has forcefully condemned in other countries. The prohibition against executive detentions is the key to human liberty. It is no small matter to see an administration ignore that prohibition. The Bush Administration’s plan to try some of the Guantanamo detainees and others by ad hoc military commissions undercuts a system of justice and procedures that is necessary to insure fairness, and that it is the guilty, not the innocent, that are punished. Finally, any use of torture or methods of interrogation akin to torture should be anathema to all societies that have any claim to call themselves civilized. Without a legal framework, the violations of the rights of Guantanamo detainees will continue, and will continue to threaten the rights of others who depend on the fair application of the law.

1 John Mintz, “Extended Detention in Cuba Mulled,” Washington Post, Feb. 13, 2002, p. A16.

2 Id.

3 Frank Davies, “U.S. Readies Tribunals for Terrorism Trials,” Miami Herald, Dec. 26, 2002, p. 15A.

4 Greg Goldin “Assault on America II,” LA Weekly, Nov. 30, 2001, p. 110.

5 Id.

6 Secretary of Defense Donald Rumsfeld, DOD News Briefing on Military Commissions, March 21, 2002; “Guantanamo Forever? Preparing for Long- Term Detentions,” Miami Herald, Dec. 3, 2002, p. 6B.

7 Rumsfeld News Briefing, supra note 6; Douglas Waller, “Ready for the 50-Year War?” Time Magazine, Dec. 31, 2001, p. 28.

8 Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002).

9Id.

10 David Rohde, “Threats and Responses: The Detainees; Afghans Freed from Guantanamo Speak of Heat

and Isolation,” New York Times, Oct. 29, 2002, p. A18.

11 Katherine Q. Seelye, “A Nation Challenged: At Guantanamo,” New York Times, Apr. 3, 2002, p. A13.

12 “Respondent’s Motion to Dismiss Petitioners First Amended Petition For Writ of Habeas Corpus” in Rasul v. Bush, at http://campxray.net/03.18.02%20Gov’t%2Oresponse%20to%20Writ.PDF.

13 Dr. Reginald Shareef, “Ashcroft on a Slippery Slope,” Roanoke.com, Nov. 19, 2001, at www.roanoke.com/columsnists/shareef/4041.html, citing Nightline (ABC television broadcast, Nov. 18, 2001); Vice President Dick Cheney, defending the idea of military commissions for terrorists, said that terrorists “don’t deserve the same guarantees and safeguards” of the American judicial system. “Bush Officials Defend Military Trials in Terror Cases,” CNN, Nov. 15, 2001, at http://www.cnn.com/2001/LAW.

14 Davies, supra note 3.

13 Neil A. Lewis, “Threats and Responses: Military Justice; Administration’s Position Shifts on Plans for Tribunals,” New York Times, Nov. 2, 2002, p. A8.

16 Ronald Dworkin, “The Threat to Patriotism,” New York Review of Books, February 28, 2002:

The government should be embarrassed to appeal to the Quirin decision [upholding a military tribunal] as justification for its treatment of aliens now, because that decision, like the Court’s 1944 decision permitting the detention of Japanese-Americans, is widely regarded as overly deferential to the executive and, in a crucial part, wrong. (Justice Frankfurter, in a bizarre and embarrassing memorandum to his fellow justices, had pleaded with them to ignore legal niceties and do what Roosevelt asked as part of the war effort.) The case is a useful reminder of how shortsighted and, in the long run, self-defeating the appeal to judges to show unity with the executive often is.

17 The Center for Constitutional Rights and I have received a great deal of hate mail because of our representation of the Guantanamo detainees. The content of this mail demonstrates that many people appear willing to set aside the Constitution with regard to the detainees at Guantanamo. Two examples of the scores of letters and e-mails make the point:

I believe that you are misguided. As a U.S. Citizen, I do not believe that there is any legal or moral necessity to give the rights granted by the U. S. Constitution to those detained at Camp X. The more these persons are questioned, the less future WTC-type incidents will occur. There are 6 billion persons outside our borders; do you wish to grant them our constitutional rights?

Stop coddling the murderers at Guantanamo and spend your time doing something worthwhile for society. They are entitled to exactly the same consideration they gave the workers at the World Trade Center and Pentagon. Why don’t you try doing pro bono work for the families of the victims rather than advocating the so-called “rights” of the barbarians who would end our way of life?

See, e.g. David B. Rivkin Jr. & Lee A. Casey, “It’s Not Torture, and They Aren’t Lawful Combatants,” Washington Post, Jan. 11, 2003, p. A19; Joshua Muravchik, “The European Disease: Irrational Anti-Americanism Takes Root Across the Atlantic,” American Enterprise, Dec. 2002, p. 24; Ruth Wedgwood, “The Case for Military Tribunals,” Wall Street Journal, Dec. 3, 2001, p. A18.

18 Padilla v. Bush, 2002 U.S. Dist. LEXIS 23086 (S.D.N.Y. 2002); Hamdi v. Rumsfeld, 2003 U.S. App. LEXIS 198 (4h Cir. 2003).

19 The court in the Hamdi case required the government to file an affidavit setting forth some facts underlying the basis for his designation as an “enemy combatant.” Hamdi v. Rumsfeld, supra note 18. In the Padilla case, the federal district court held that the government needed to support its designation of Padilla as an enemy combatant with “some evidence.” The court also allowed a consultation with his attorney, although as of this writing in January 2003, the government is rearguing that aspect of the decision. Padilla v. Bush, supra note 18.

20 For a detailed look at the law, see Human Rights Watch, “Press Backgrounder, Background Paper on Geneva Conventions and Persons Held by U.S. Forces,” Jan. 29, 2002, at http://www.hrw.org/backgrounder/usa/pow-bck.htm.

21 Press Release, White House, Fact Sheet Status of Detainees at Guantanamo (Feb. 7, 2002), at http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html.

22 See, e.g., on February 8, 2002, the day after announcement of the United States’ position, Darcy Christen, a spokesperson for the ICRC, said of the detainees: “They were captured in combat [and] we consider them prisoners of war.” Richard Waddington, “Guantanamo Inmates Are POWs Despite Bush View – ICRC,” Reuters, Feb. 9, 2002.

23 Department of Defense Briefing, Federal News Service, June 21, 2002.

24 “Bosnia Suspects Headed for Cuba,” BBC, Jan. 18, 2002, at http://news.bbc. co.uk/ 1 /hi/world/europe/1 767554. stm.

25 Peter Ford, “Fate of ‘detainees’ hangs on US wording,” The Christian Science Monitor, Jan. 17, 2002,

See e.g., Richard Sisk, “Airport Gun Battle Firefight Erupts As Prisoners Are Flown To Cuba,” New York Daily News, Jan. 11, 2002, p. 27.

27 Katherine Q. Seelye, “Rumsfeld Backs Plan to Hold Captives Even if Acquitted,” New York Times, Mar. 29, 2002, p. A18.

28 Two cases were filed in federal court in Washington D.C. and consolidated for the argument and the decision: Rasul v. Bush and Al Odah v. United States, 215 F.Supp2d 55 (D.D.C. 2002). A third case, Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir. 2002) was filed in California.

29 The Queen on the application of Abbasi & Anor. v. Secretary of State for Foreign and Commonwealth Affairs, Case No. c/2002/0617A:0617B (Dec. 6, 2002).

30 Request By the Center for Constitutional Rights et al. for Precautionary Measures Under Article 25 of the Commission Regulations, filed Feb. 25, 2002.

31 Decision of the Inter-American Commission on Human Rights of the Organization of American States, Detainees in Guantanamo Bay, Cuba, (Mar. 13, 2002).

32 Id.

33 The Queen on the application of Abbasi & Anor. v. Secretary of State for Foreign and Commonwealth Affairs, [2002] EWCA Civ. 1598

34 Rasul, supra note 8.

35 Press Release, White House, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” Nov. 13, 2001, at http://www.whitehouse.govinews/releases/2001/11/20011113-27.html. The order can also be found in the Federal Register at 66 Fed Reg.57831 (2001).

36 Uniform Code of Military Justice, 10 U.S.C.801 et seq (2002).

37 Alberto R. Gonzales, “Martial Justice, Full and Fair,” New York Times, Nov. 30 2001, p. A27.

38 Department of Defense, Military Commission Order No. 1, Mar. 21, 2002.

39 Id.

40 For example, Senator Leahy received a letter signed by over 400 law professors from all over the country, expressing their collective wisdom that the military commissions contemplated by the President’s Order are “legally deficient, unnecessary, and unwise.” Senator Patrick Leahy, Chairman of Senate Judiciary Committee, “The Continuing Debate on the Use of Military Commissions,” Senate Floor, Dec. 14, 2001.

41 William Safire, “Seizing Dictatorial Power?” New York Times, Nov. 15, 2001, p. A31.

42 See, e.g., Remarks of Yale Professor Ruth Wedgewood, at
http://www.justicetalking.org/shows/show195.asp.

43 Dana Priest & Barton Gellman, “US Decries Abuse but Defends Interrogations; ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities,” Washington Post, Dec. 26, 2002, p. A1.

44 Rajiv Chandrasekaran & Peter Finn, “U.S. Behind Secret Transfer of Terror Suspects,” Washington Post, Mar, 11,2002, p. A1.

45 Priest & Gellman, supra note 70.

46 Id.

47 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. I (1984).

48 Priest & Gellman, supra note 70.

49 18 U.S.C. §§ 2340 & 2340A (2002).

50 Priest & Gellman, supra note 70.

51 Walter Pincus, “Silence of 4 Terror Probe Suspects Poses Dilemma for FBI,” Washington Post, Oct. 21, 2001, p. A6.