- Aren’t the prisoners at Guantánamo “the worst of the worst”?
- Shouldn’t the government hold the prisoners until the end of hostilities?
- “Enemy combatants” aren’t entitled to habeas corpus, are they?
- Weren’t the combatant status review tribunals (CSRTs) designed to separate the innocent from the guilty at Guantánamo?
- Aren’t the men being held at Guantánamo for intelligence-gathering about the enemy?
- Aren't enhanced interrogation methods needed to uncover plots aimed at killing Americans, such as ticking time bombs?
- I’ve heard the conditions at Guantanamo are humane, and the food is excellent, so what’s the problem?
- What does the Pentagon mean when it says there are about 100 Guantánamo prisoners who “can’t be tried” but who are “too dangerous to release”?
In 2002, Defense Secretary Donald Rumsfeld labeled all prisoners brought to Guantánamo as “the worst of the worst,” declaring them guilty without any battlefield vetting or other legal process for assessing guilt or innocence. The administration soon learned that Mr. Rumsfeld’s charge was not true. According to Colonel Lawrence Wilkerson, who was then the chief of staff to Secretary of State Colin Powell, no meaningful attempt was made on the battlefield in Afghanistan to discriminate between fighters and innocent people who were simply in the wrong place at the wrong time.1 He stated that all but a few dozen were innocent, had little or no intelligence value, and should be released. Seven years later, many of those men are still at Guantánamo Bay prison or at Bagram air base in Afghanistan.
Most of the men who were sent to Guantánamo were not picked up on the battlefield by the U.S. military but were sold to the military in exchange for bounties that the military offered in exchange for “terrorists.” The bounty program resulted in a horrendous number of errors. As of May 20, 2009, about two-thirds of the 774 prisoners brought to Guantánamo have been released, four have committed suicide, and one other man has died in prison. Of the 240 remaining prisoners, 60 have been found innocent and cleared for release, years ago in some cases, yet they remain there.
Why do you say the U.S. government should charge or free prisoners seized on the battlefield who were killing Americans? Shouldn’t it hold them until the end of hostilities?
Whether the suicide attacks on the World Trade Center and the Pentagon were crimes or acts of war can be debated. But declaring a “global war on terror,” with no termination date, as President Bush chose to do, does not empower him as “commander in chief” to kidnap anyone, anywhere in the world, call the person an “enemy combatant” without judicial checks, and hold that person indefinitely, in violation of U.S. laws and international treaties to which the U.S. is a signatory.
Men who were fighters are entitled to treatment according to Common Article 3 of the Geneva Conventions. Men who were not fighters, such as men who were sold to the U.S. military by bounty hunters who falsely claimed that the men were terrorists, were entitled to battlefield vetting that they never got. On the basis of falsehoods told to the military, many of the men still at Guantánamo have been held for more than seven years, sometimes in solitary confinement.
First, “enemy combatants” is not an accepted legal concept but one created by President George W. Bush, who claimed the power to hold any person whom he declared an “enemy combatant” until the end of hostilities in the so-called “global war on terror.” Second, the U.S. Supreme Court disagreed with the Bush administration’s determination that so-called “enemy combatants” had no right to habeas corpus review, which is mandated by the U.S. Constitution for prisoners held by the U.S.2 From the Supreme Court syllabus of Boumediene et al. v. Bush, decided in June 2008:
The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177.
Weren’t the combatant status review tribunals (CSRTs) designed to separate the innocent from the guilty at Guantánamo?
In June 2004, the Supreme Court ruled in favor of Guantánamo prisoners in Rasul v. Bush, determining that the prisoners were entitled to habeas corpus in federal courts. The Defense Department created CSRT’s as a substitute for habeas corpus that falls far short of ‘the great writ.’ The executive summary of “No Hearing Hearings”3 contains a list of the CSRT’s shortcomings.
Lt. Colonel Stephen Abraham had firsthand knowledge of the CSRTs following his appointment to audit them. In an affidavit4 that played a key role in the Supreme Court’s decision to hear the Boumediene case, Abraham wrote that he saw repeated signs that hearsay evidence was regularly used to confirm that a prisoner was an “enemy combatant” and that exculpatory evidence (evidence that would clear the prisoner of guilt) was regularly withheld from CSRTs. When he served on a three-judge panel of a CSRT that cleared a prisoner due to lack of evidence, another CSRT was held with different judges on the panel, and the same prisoner was found to be an enemy combatant.
The Supreme Court, in its ruling on Boumediene v. Bush5 (June 2008), once again asserted the right of Guantánamo prisoners to habeas review. CSRTs were not an adequate substitute.
The Bush administration has made that claim, and the men at Guantánamo have been interrogated hundreds of times. We do not know what useful information, if any, has been provided through that process. It seems unlikely that men who were not involved with Al Qaeda or other terrorist organization or who were at very low levels, with no involvement in planning attacks, would still have timely information to share after seven years of imprisonment. A recent article in The Times states that about 90 current detainees are interrogated voluntarily to provide the military with information to “keep [the] guards safe.”
Didn’t the U.S. devise "enhanced interrogation methods" to uncover plots aimed at killing Americans? If the terrorists won’t give that information to interrogators willingly, aren’t interrogators obligated to do whatever they need to do to stop the “ticking time bomb.”
If that was the intention, the facts do not bear it out. The coercive methods used at the notorious Abu Ghraib prison, photos of which have shocked the world, were first used at Guantánamo. The so-called “harsh interrogation tactics” approved in four memos by the Office of Legal Counsel, released by the Obama administration in April 2009, were “reverse-engineered” by CIA and Special Operations Command psychologists from a Pentagon program known as Survival, Evasion, Resistance and Escape (SERE). The SERE practice exercises were, in turn, adapted from treatment that U.S. soldiers experienced when they were captured in Southeast Asia and forced to endure interrogation methods that violate the Geneva Conventions.
The SERE tactics are widely known to produce false testimony. According to several sources:
- Professional interrogators decry the methods as ineffective, unreliable and slow.6 The FBI obtained useful information from Abu Zubaydah without employing harsh methods. When Zubaydah was transferred to the CIA, where the cooercive methods were used, he clammed up, then gave them false leads that sent them all over the globe. The CIA waterboarded Zubaydah 83 times.
- The Bush administration claims that waterboarding Khaled Sheikh Mohamed yielded information about a planned terrorist attack on the Library Tower in Los Angeles, but that is chronologically impossible. The Library Tower attack plan was uncovered and halted in 2002; Mohamed was captured in 2003. The CIA waterboarded Mohamed 183 times.
Even if the Bush administration puts forward an important piece of information that was obtained through coercion, it does not prove that the same information could not have been obtained through legal, humane methods. Professional interrogators and victims of torture overwhelmingly decry torture as producing unreliable information to satisfy the torturer and to make the torture stop. Furthermore, the U.S.’s practice of methods that violate the Geneva Conventions actually makes the world less safe, and it endangers U.S. soldiers captured by countries that do as the U.S. does rather than our government’s false claims that “the U.S. does not torture.”
I’ve heard the conditions at Guantanamo are humane, and the food is excellent, so what’s the problem?
The five-member “Extreme Repression Force” continues to beat prisoners for infractions as minor as “having two Styrofoam cups in their cell,” and forced feeding of prisoners on hunger strikes are considered torture.7
But seven years of captivity with no legal means to challenge the detention is sufficiently inhumane. Here is an excerpt from the May 20, 2008, testimony of attorney Sabin Willett before the House Committee on Foreign Affairs' Subcommittee on International Organizations, Human Rights and Oversight, describing his contact with his clients at Guantánamo:
[Y]ou try talking to a man who only wants to see the sun. You will never forget the experience. . . . In [his] cell, [Huzaifa Parhat] can crouch at the door, and yell through the crack at the bottom. The fellow in the next cell may respond, or he might be curled in the fetal position, staring at the wall. Another Uighur told us of the voices in his head. The voices were getting the better of him. His foot was tapping on the floor. I don't know what's happened to him: he doesn't come out of the cell to see us anymore.
Conditions and food at Guantánamo vary among cell blocks, and food, water, clothing and even bedsheets and blankets, and toothbrushes and toothpaste, have been withheld in whole or in part to coerce prisoners into “cooperating” with interrogators and guards.8 For example, prisoners have been rewarded with better conditions and treatment by falsely “confessing” to having been to a terrorist training camp, where they claim to have seen other prisoners now being held at Guantánamo.
For most men at Guantánamo, even those who are innocent, may mean solitary confinement, being chained to the floor during interrogations or meetings with their lawyer, and denial of liberty, justice, and hope to be reunited with their families and friends after suffering, in most cases, seven years of imprisonment under harsh conditions without any fair legal process.
What does the Pentagon mean when it says there are about 100 Guantánamo prisoners who “can’t be tried” but who are “too dangerous to release”?
The Pentagon claims it cannot charge and try the prisoners for lack of evidence. In some cases, this may mean they lack evidence obtained without coercion, since evidence gathered using torture or other coercion is inadmissible in court. When they claim the prisoners are dangerous to release, we cannot say with certainty whether they pose a danger to society or whether their treatment or mistreatment would embarrass the Pentagon or other parties.
We believe not only that all terrorism suspects held by the U.S. government have the right to be charged and tried or released. It would also benefit the U.S. government to do so in order to avoid suspicions that it is hiding inconvenient facts and embarrassing treatment by holding men in permanent, preventive detention.
1 “Guest Post by Lawrence Wilkerson: Some Truths About Guantanamo Bay,” The Washington Note, March 17, 2009, http://www.thewashingtonnote.com/archives/2009/03/some_truths_abo/
2 Habeas corpus is the nearly 800-year-old right of prisoners to challenge their detention to ensure that they are being properly held. It forces the person or entity holding the person to show evidence to an impartial judge.
3 Mark Denbeaux et al., Seton Hall University School off Law, “No-Hearing Hearings: CSRT: The Modern Habeas Corpus?, http://law.shu.edu/news/final_no_hearing_hearings_report.pdf
4 Lt. Colonel Abraham’s afffidavit appears on pages 8 through 15 of this court filing with the Supreme Court: http://www.scotusblog.com/movabletype/archives/Al%20Odah%20reply%206-22-07.pdf
5 Supreme Court opinion, Boumediene v. Bush, June 12, 2008, http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf
6 According to the written testimony of Ali Soufan, a former FBI interrogator, presented to a subcommittee of the Senate Intelligence Committee on May 13, 2009. Soufan told the subcommittee that he gathered actionable intelligence from Abu Zubaydah minutes after beginning his first interrogation. http://judiciary.senate.gov/hearings/testimony.cfm?id=3842&wit_id=7906.
7Jeremy Scahill on Democracy Now!, “Little Known Military Thug Squad Still Brutalizing Prisoners at Gitmo Under Obama”, http://www.democracynow.org/2009/5/19/jeremy_scahill_little_known_milit…, May 13, 2009.
8 Suggested reading: Center for Constitutional Rights, “Current Conditions of Confinement at Guantánamo: Still in Violation of the Law,” February 23, 2009, http://ccrjustice.org/files/CCR_Report_Conditions_At_Guantanamo.pdf