What to Do About Guantánamo?

1.

How do the people who work for the US government at Guantánamo Bay Naval Base celebrate Christmas? This is what it looked like to Jessica Baen, a paralegal working with the Center for Constitutional Rights, in 2007:

Swathed in fake cotton-ball snow stand no less than fifteen synthetic Chrismas trees. Each tree has its own theme, collectively representing every facet of Guantánamo life, except, of course, for one. McDonald’s and Subway each have their own tree, which sport take-away boxes and paper cups as ornaments. The Guantánamo Youth Center has a tree, as do the Guantánamo Police and Fire Departments, with yellow police-tape garlands. The contractors have a tree festooned with electrical wire and toy trucks, with a hard-hat perched on top. There’s a “third-party national” tree decorated with foreign flags, representing the migrant laborers and refugees who provide Guantánamo with most of its civilian labor, and a “GTMO Latino Families—new generation” tree, with smiling photos of the new generation….

But wait, something’s missing. No barbed-wire garlands, no orange? Given the rather literal interpretations favored by the tree designers, it’s all too easy to envision the one tree they thought it best to omit.

Missing, of course, was what the island symbolizes for the rest of the world: a monument to lawlessness, a prison erected for detaining, interrogating, and brutalizing suspected terrorists without having to account for their status, condition, or treatment to anyone—not to the detainees themselves, their families, their countries of origin, the courts, or the American people. As originally conceived by the Bush administration, Guantánamo was a hole into which suspects would for all practical purposes disappear, never to be heard from again.

President Bush himself ultimately recognized that the image of Guantánamo was disastrous for American foreign policy, and admitted that he would have liked to close the prison there. Defense Secretary Robert Gates, the only Cabinet official to serve in both the Bush and Obama administrations, agrees. President Obama, on his second day in office, vowed to close the prison within one year. Yet more than a year and a half later, Guantánamo remains open, with no end in sight. One hundred seventy-six men remain imprisoned there, without trial and in most cases without criminal charges. Many if not most have been the victims of torture and cruel and degrading treatment at US hands. Some six hundred have been released, many because there was not sufficient evidence to justify their detention in the first place. Yet not a single inmate has received an apology, or an accounting, or justice for his brutal mistreatment.

The Guantánamo Lawyers: Inside a Prison Outside the Law, a collective account by the lawyers who have volunteered to represent the island’s prisoners, provides an invaluable perspective—or more accurately, perspectives, since more than one hundred lawyers contributed to the volume. These men and women, all working for nothing, have gained intimate access to those whom the United States sought to keep hidden behind strictly closed doors. The significance of what they have learned is reflected in how the United States treats them. They must obtain security clearances and be sworn to secrecy in order to see the detainees. The notes they take while meeting with their clients are deemed presumptively “classified,” and are subjected to official review and editing—“redaction”—before the lawyers can read them off the base. And they are barred from informing the detainees of any events occurring in the outside world without prior approval. One lawyer was reprimanded for showing a client a news clipping reporting that President Bush wanted to close Guantánamo, another for telling her client that his mother had died.

The stories these lawyers have been able to tell, adroitly edited by Mark Denbeaux and Jonathan Hafetz, offer a multifaceted portrait of life on the base. Sometimes they read as farce. Clive Stafford Smith, a British lawyer who has represented many detainees, was accused by a Guantánamo commander of smuggling “Under Armor briefs”—i.e., underpants—and a Speedo swimsuit to two of his clients. Smith responded in a letter that he had not sought to bring underwear to his clients; that he could not have done so even if he wanted to, since every visit is preceded by a thorough search and monitored by camera; and that as he and his cocounsel had not even seen one of the clients for a year, “it is physically impossible for us to have delivered anything to him that recently surfaced on his person.” But Smith was “unwilling to allow the issue of underwear to drop there,” and continued:

It seems obvious that the same people delivered these items to both men, and it does not take Sherlock Holmes to figure out that members of your staff…did it…. I have done a little research to help you in your investigations.

I had never heard of “Under Armor briefs” until you mentioned them, and my internet research has advanced my knowledge in two ways—first, Under Armour apparently sports a “u” in its name, which is significant only because it helps with the research.

Second, and rather more important, this line of underpants are very popular among the military…. It would be worth checking whether this lingerie was purchased from the NEX there in GTMO….

Tom Byrne, Under Armour’s director of new business development, told Army Times that “The product has done very well in PXes across the country….”

On the issue of the Speedo swimming trunks,…I cannot imagine who would want to give my client Speedos, or why. Mr. Aamer is hardly in a position to go swimming, since the only available water is the toilet in his cell.

In other accounts, the proceedings at Guantánamo sound like a charade, as in the report of Lieutenant Colonel Stephen Abraham, who served as a judge on one of the Combatant Status Review Tribunals (CSRT) hastily assembled to consider detainees’ cases after the Supreme Court in 2004 ruled, to the Bush administration’s surprise, that federal courts could review the legality of detentions. Abraham described the evidence offered to support Abdul al-Ghizzawi’s detention as follows:

What were purported to be specific statements of fact lacked even the most fundamental hallmarks of objectively credible evidence. Statements allegedly made by percipient witnesses had no detail. Reports presented generalized, indirect statements in the passive voice without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source.

Abraham’s tribunal found insufficient evidence to support detention. The military responded by ordering a “do-over.” As Candace Gorman, al-Ghizzawi’s lawyer, recounts:

The government claimed that after almost four years of captivity, it had suddenly found new information…. This was, as my mother would say, a bold-faced lie. I have seen the classified transcripts of the CSRT proceedings, and I know that no new information surfaced. The only new factor in the do-over tribunal was a new (and more compliant) panel of military judges. The new panel took the same information as the first panel, classified it as secret, and claimed it was new evidence. The predictable result: Mr. Al-Ghizzawi was found an “enemy combatant.”

And sometimes Guantánamo is simply arbitrary. One of the ways to escape Guantánamo, it turns out, is to be convicted of a war crime. David Hicks pleaded guilty to providing “material support” to al-Qaeda and the Taliban in exchange for being sent home to Australia. Salim Hamdan, convicted of similarly providing material support to al-Qaeda by serving as one of Osama bin Laden’s drivers, was sentenced to sixty-six months, given credit for sixty-one months “time served,” and released five months later. Meanwhile, well over one hundred other detainees, never charged with any crime, remain in prison. As one client told his lawyer, David Remes, “if he had known things would turn out so well for Salim [Hamdan], he too would have confessed to being Osama bin Laden’s driver.”

Most of all, Guantánamo is defined by the abuse of human rights. Many of its inhabitants were subjected to “extraordinary rendition”—kidnapped by the CIA and delivered to third countries for interrogation under torture—before being deposited at Guantánamo. Others were “disappeared” into secret prisons run by the CIA, where they were subjected to extended bouts of incommunicado interrogation, characterized by brutality and degradation—including being stripped naked, forced to wear diapers, shackled in painful stress positions, slammed into walls, waterboarded, and threatened with guns and power drills.

Interrogation tactics at Guantánamo were only somewhat less harsh, according to reports by FBI observers, Army interrogators, and the detainees themselves—though still sufficiently brutal to violate international and US prohibitions on torture, cruel, inhuman, and degrading treatment, and “inhumane” treatment of prisoners of war. Indeed, in May 2008 Bush’s chief military prosecutor at Guantánamo, Susan Crawford, dismissed all charges against Mohammed al-Qahtani, who had been suspected of being the would-be twentieth hijacker in the September 11 attacks, because she concluded that Guantánamo interrogators tortured him on authorization personally signed by Defense Secretary Donald Rumsfeld.

2.

But what of Guantánamo’s future? In an effort to close the facility, President Obama sought to acquire a state prison in Thomson, Illinois, to house Guantánamo’s inmates. But Congress has adopted a “not-in-my-backyard” approach to closing the Guantánamo prison camp, barring President Obama from spending any funds to transfer the detainees into the United States—an act of shortsighted domestic cowardice that will cost the US globally by prolonging Guantánamo’s existence. Meanwhile, human rights groups maintain that closing Guantánamo will be meaningless if it simply means moving the prison to the US without reforming its practices.

Some prisoners, such as Khalid Sheikh Mohammed, the self-professed mastermind of the September 11 attacks, should be tried in civilian court for their crimes and, if found guilty, punished, preferably with life sentences that deny them the martyrdom they seek. The fact that Mohammed was waterboarded means that prosecutors cannot use any evidence obtained against him through such treatment. But as long as they can convict him with other evidence, a conviction should stand. In addition to Mohammed, the administration says that about three dozen other detainees may face prosecution in civilian or military court. In a September 10 press conference, President Obama continued to insist on retaining the option of holding some trials before “military commissions,” which deny defendants the legal process they would be guaranteed in civilian courts. But such commissions have been fraught with problems, legal and symbolic, and much like Guantánamo itself, are so tainted that their continued use hands al-Qaeda a propaganda victory and undermines the legitimacy of any effort to hold wrongdoers accountable.

Other detainees can and should be released, either because the government lacks sufficient reliable evidence that they are part of the al-Qaeda and Taliban forces with which we are fighting, and therefore were never properly detained in the first place, or because, even if they are or were part of those forces, they can be repatriated subject to conditions that mitigate the threat they pose in the future.

But the categories of those who can be criminally tried and those who should be released are not exhaustive. There are likely to be prisoners who cannot be tried but may nonetheless be lawfully detained. Parties to armed conflict routinely capture and detain the enemy, and the law of war has long recognized that such detentions may last as long as the conflict does. Defining “the enemy” and the duration of the conflict are more difficult in a struggle with guerrilla forces that are fighting outside the authority of any state; but that hardly means that the US must forgo the tactic of detaining the enemy. Thus, even if all the abuse that has poisoned Guantánamo were acknowledged and rectified, some men would remain appropriately detained without trial—as prisoners of war in the ongoing armed conflict with al-Qaeda and the Taliban in Afghanistan.

That is the position reflected in the Final Report of President Obama’s Guantánamo Review Task Force, completed in January 2010 but not publicly released until May 28, 2010. The task force—made up of representatives from the Departments of Justice, State, Defense, and Homeland Security, the Office of the Director of National Intelligence, and the Joint Chiefs of Staff—comprehensively reviewed all available evidence regarding the remaining detainees at Guantánamo. It concluded that 126 could be transferred to countries outside the United States, that forty-four could potentially be prosecuted, that forty-eight should be detained without trial, and that thirty detainees from Yemen should be detained “conditionally,” subject to improvements in that country’s security.

The most controversial category comprises those who are to be detained without trial. The task force recommended such detention only where (1) individuals could be lawfully detained under the Authorization to Use Military Force passed by Congress after September 11—in the administration’s view, those who are or were part of, or substantially supported, al-Qaeda, the Taliban, or associated forces with which the US is fighting; (2) the threat they posed could not be mitigated sufficiently except through continued detention; and (3) prosecution is infeasible.

As a general standard, this is largely unobjectionable, although much depends on how expansively the administration interprets “substantial support” and “associated forces.” (Some district courts, for example, have rejected “substantial support” by itself as a justification for detention and have required proof that the detainee was an active part of enemy forces.) But without knowing the factual basis for any particular decision, it is impossible to assess the reliability of the task force’s conclusions.

Thus far, the only place that the administration’s assertions have been subject to a detailed factual and legal assessment is in the federal district courts. Thanks to two Supreme Court decisions, Rasul v. Bush in 2004 and Boumediene v. Bush in 2008, the detainees have a right to seek a writ of habeas corpus. Accordingly, federal judges in Washington have been subjecting the administration’s evidence to its first independent test. Much of the evidence they review is classified, so public scrutiny is compromised. But what is clear is that the government is faring poorly. As of July 29, 2010, federal courts had ruled for the detainee in thirty-seven of fifty-two habeas cases, or more than 70 percent of the time.

This is a remarkable figure for several reasons. Even before the habeas reviews began, the United States had released nearly six hundred Guantánamo detainees, so the remaining detainees are those the military is least willing to release—and against whom its evidence is presumably strongest. Judges typically defer to the executive branch on matters of national security in the context of war. And the judges who have deemed the detentions unlawful include some of the courts’ most conservative members. That the administration is nonetheless losing so often only underscores how thin its evidence must be.

3.

One of the most moving entries in The Guantánamo Lawyers is an account by Muneer Ahmad of his Canadian client Omar Khadr’s decision to fire him. Lawyers, Ahmad argues, take a long view, recognizing that what is ultimately at issue is a struggle to change cultural understandings and assumptions. For the detainees, however, kept isolated for years on end at Guantánamo, such change is altogether too abstract. Still, Ahmad insists,

It would be a mistake to say that Omar was concerned merely with short-term relief…while we were concerned with the long-term goal of his release. The difference between us was rather more profound and concerned competing judgments about how best to achieve the long-term goal. In the beginning of our relationship, Omar gave law, and us, the benefit of the doubt. But over time, he…came to see law as the government’s tool of oppression rather than his and the other detainees’ instrument for liberation.

How should we assess the legal campaign to bring justice to Guantánamo? On the one hand, lawyers have succeeded in bringing law—or at least its trappings—to matters that the Bush administration struggled mightily to maintain beyond the law. But Ahmad asks whether the introduction of legal process has merely legitimated Guantánamo, rendering what should be patently unacceptable a little less unpalatable, and thereby easing political pressure for more fundamental reform.

Relief has undoubtedly been slow in coming. But criticism that nothing much has changed is, I believe, wildly unrealistic. Not only have six hundred detainees been released, but reports of torture and abusive interrogation at Guantánamo have ceased. Many Guantánamo lawyers will say off the record that conditions are now actually pretty good—and almost certainly better than they will be if the detainees are brought to a maximum-security prison within the United States. The Obama administration abandoned its predecessor’s dangerous quasi-monarchical insistence on the inherent authority of the executive branch to detain people it designates as enemies, and instead predicates its authority more modestly on Congress’s Authorization to Use Military Force, interpreted in light of the laws of war. Judicial review has introduced a critically important check on executive discretion.

If one measures success by whether all Guantánamo detainees have been set free, success is admittedly a long way off. But that is a false benchmark, since there is a legitimate case for detention of enemy fighters during wartime, and the US remains in an armed conflict with al-Qaeda and the Taliban in Afghanistan. The most that we can ask for is that detention be under and pursuant to law—not that the administration forgo detention of the enemy as a tactic of war altogether.

4.

What remains entirely unremedied, however, is the Bush administration’s systematic reliance on torture and cruel and degrading interrogation tactics at Guantánamo and elsewhere. Much like a trial conducted in the wake of a coerced confession, the Guantánamo prison itself is profoundly tainted by these violations. The intense secrecy that has enshrouded it would not have been necessary if there had not been a desire to employ illegal tactics. The rules of evidence that governed both the Combatant Status Review Tribunals that assessed whether detainees were properly detained and the military commissions designed to try some of the detainees for war crimes were originally written to ensure that evidence obtained through coercion could be admitted.

The government’s inability to convict all but four of the detainees thus far of any crimes whatever is in significant part a result of the complications caused by the initial decisions to deny them the most basic human rights during their arrest, detention, and interrogation. The only ongoing war crimes trial, that of Omar Khadr, who was fifteen years old when captured, is already marred by the judge’s decision, on August 9, 2010, to admit a confession obtained after interrogators threatened him with rape and death if he didn’t confess. And federal courts have ordered the release of at least eight detainees in significant part because the testimony offered against them was coerced.¹

Even the physical design of the Guantánamo courtroom is shaped by the desire to conceal our own abuses. A soundproof glass wall separates the onlookers from the trial participants, so that the only way an observer can hear what is going on is through headphones with a forty-second delay. The reason, according to Denny LeBoeuf, an ACLU lawyer advising on the defense of several detainees, is “the Rule: detainees are forbidden from speaking about their torture.” Remarkably, the US government has declared “classified” anything that the detainees say about their torture, and has required the lawyers, as a condition of access to their clients, to keep secret all details of their clients’ treatment at the hands of their interrogators. But of course, the US cannot compel the detainees themselves not to speak of the unspeakable. The only way it can keep them from telling their stories is by keeping them detained, behind bars, behind glass, silenced.

A new book by Charles and Gregory Fried offers important insight on why Guantánamo is so tainted. Charles Fried is one of the nation’s leading conservative scholars, a Harvard Law professor, and a former solicitor general under President Reagan, who supported George W. Bush in the 2000 election. He wrote Because It Is Wrong with his son, a philosophy professor at Suffolk University, to address what they together consider the most pressing moral issues of the time, because “what is at stake is who we choose to be as citizens of a republic.”

They argue that as a moral matter, torture and all forms of cruel or degrading treatment are absolutely forbidden, without exception. They insist that torture can never be justified, because it violates the sacredness of humanity, and does violence to man made in “the image of God.” (They maintain, however, that their argument does not require a religious commitment, as “the ‘image of God’ may be taken as a metaphor for the ultimate value of the human form as it is incorporated in every person.”) They dismiss utilitarian justifications of torture as “the lesser evil” where a ticking time bomb is about to go off. They also reject both Harvard Professor Alan Dershowitz’s proposal that torture might be permissible if authorized by judicial warrants and the Bush administration’s position that degrading tactics “short of torture” were permissible. In the Frieds’ view, all cruel and degrading interrogation tactics are always off limits; the critical distinction is not between torture and coercion short of torture, but between “techniques that seek to influence a person’s will [and] those that seek to destroy it.”

The Frieds’ moral argument that torture is always wrong is clearly and gracefully presented, though its reliance on quasi-religious moral absolutism is unlikely to convince utilitarians. But it is not new. In fact, it could be said to reflect the declared consensus of most nations today. The Convention Against Torture takes the same absolutist position and has been signed by virtually every nation in the world, although it has often been disregarded. What is most significant about Because It Is Wrong is that a well-respected conservative thinker and former Bush supporter has taken an unequivocal public position that “the Bush administration broke the law in ordering torture, mocked the Constitution in its interpretation of executive authority, and outraged common decency.”

More significant still is what the Frieds insist must follow from this assessment. If torture can never be justified, then we are morally obligated to account for it. As they maintain, “If we do not condemn, prosecute, punish the torturers and those who ordered them to torture, we become accomplices after the fact.” Father and son disagree only on the details of the form that such condemnation should take. Gregory advocates prosecution of those who authorized the torture, including presumably the former president and vice-president themselves, as well as the lawyers who wrote memos to provide legal cover. Charles says that prosecution should remain an option, but is willing to entertain the possibility that a range of considerations, including the pressures of the time, might excuse, though could never justify, the wrongs. Yet even if prosecution might not be required, Charles insists that at a minimum, “there should be an accounting, exposure, and repudiation.”

That is precisely what there has not yet been. President Obama has argued that we must look forward, not back, and has resisted all proposals for an official commission that would investigate and account for the crimes committed in our name. His administration has thus far also successfully blocked all civil lawsuits seeking damages for torture and other forms of abuse committed in the “war on terror.” And it has narrowly restricted its criminal investigation of torture to the CIA interrogators who strayed beyond the abuse authorized by Justice Department lawyers and Bush Cabinet officials, despite a binding legal obligation imposed by the Convention Against Torture to investigate all credible claims of torture, not simply those lodged against underlings. For its part, the American public does not seem impelled to demand an investigation. In the Frieds’ words, we are all “accomplices after the fact.”

On September 8, 2010, a divided panel of the US Court of Appeals for the Ninth Circuit upheld the Obama administration’s assertion that because the CIA’s “extraordinary rendition” program was a secret, individuals abducted and tortured in that program could not have their claims heard in court—even though that program is probably the world’s worst-kept secret. As Andrew Sullivan said in a blog for The Atlantic, “There are legitimate trade-offs between national security and liberty. But the protection of war criminals where no secrets are at stake except the scandal of torture itself is not one of them.”

The challenge posed by what to do about Guantánamo is inextricably tied to our collective failure to confront the wrongs of the past. As long as we fail to look back, Guantánamo’s future—and the future of our policies regarding “enemy combatants” held there and at other detention sites around the world—will continue to be tainted, encased in soundproof glass, a secret hidden from no one but ourselves. Successfully restoring the rule of law in our struggle against terrorism may not require the release of all detainees held without criminal conviction, but it does require accountability for the crimes committed by some of the United States’ highest officials.

—September 14, 2010