If there’s a civic hub on the naval base that the United States has occupied for 104 years on two spits of dry scrub land here on Cuba’s southeastern heel, it’s the section locally known as Downtown on the windward side of the bay. Downtown consists of “Cuba’s only McDonald’s,” as the franchise is often described, and a smallish mall with a supermarket, pizzeria, ATM, and video shop that displays a regularly updated selection of T-shirts poking ironic fun at “Gitmo,” as the base is known in navy talk. “The Least Worst Place,” proclaims the legend on the latest, repeating a solecism that stumbled off the tongue of Donald Rumsfeld last December. The defense secretary, trying to echo Churchill on democracy, had been explaining how Guantánamo got chosen as the warehouse for former Taliban fighters and supposed al-Qaeda terrorists picked up in Afghanistan and other precincts of the “Global War on Terrorism.”
Irony attaches to any description of the life on this isolated base but never to the “war” or the mission. Nor is it evoked by a familiar symbol on a flagstaff on the approach to Downtown: the black banner memorializing the POWs and MIAs lost in Vietnam more than three decades ago, especially those who might have been held in perpetual captivity after our own government perfidiously affirmed, according to truly diehard adherents of this faith, that all captives had been returned. Commonplace as it still is on military bases and across America, the black banner provides a small jolt in the least worst place, a reminder that the United States once championed the Geneva Convention on the treatment of prisoners of war. At the war’s end there were 50,000 prisoners of war, Vietcong guerrillas as well as regular North Vietnamese troops, in South Vietnamese camps visited regularly by the International Committee of the Red Cross (ICRC), which Hanoi (to use a verb recently favored by George W. Bush) stiffed.
At the United States Naval Station at Guantánamo Bay, by contrast, there is not a single certified prisoner of war among the 598 Taliban and al-Qaeda detainees. The procedures laid down by the convention have been overridden by fiat of the President, who determined at the start of the year that they didn’t apply in this case, that none of the detainees needed to be treated as prisoners of war under the terms of the convention, and, therefore, that there was no need to determine their status individually before the tribunals it prescribes, which are also prescribed by US military regulations. Otherwise, on February 7 the President decreed that Taliban captives would be treated humanely “in accordance with the Geneva convention.”
He had the grace not to say that it was better than they and their al-Qaeda brethren deserved and that we are prepared to hold the lot of them at Guantánamo until the distant day, if it ever comes, when Islamic terrorist networks have been universally uprooted; but that, basically, appears to be the administration’s position. What cannot be said in so many words becomes increasingly apparent as we reach the tenth month since the first detainees arrived last January at Guantánamo in shackles, ear muffs, and blackened goggles—that a system of preventive detention has been established in Cuba on the American side of the fence. Why Cuba? Two federal district courts, casting aside the due process arguments of humanitarian and civil liberties groups, have already bowed to the Justice Department’s contention that it is foreign territory and therefore beyond the jurisdiction of “any United States court,” as the administration’s lawyers put it in their formal response to a habeas corpus petition in the US District Court for the District of Columbia.
As a matter of international law, the American position can be called selective or balanced, tricky or nuanced. It can also be called careless, in that it probably was not necessary for the United States to act as if it were making up international law as it went along. Some experts in military law—including, there is reason to believe, some still in uniform—think a solid legal argument could have been made for a detention regime not all that different from the one that has been brought into being here. But as a matter of practical statecraft and political judgment, the American position contains its own rationale and calculations. These, however, can only be inferred or pieced together on the basis of occasional asides by various officials.1 Just because this administration is allergic to explanations, it doesn’t necessarily follow that it is without arguments on its side, or that the arguments it chooses not to make so as to avoid rebuttals in courtrooms or print are devoid of common sense.2 Its case, I believe, goes something like this:
Jihadists are different from other warriors, in that their struggles won’t obviously be ended by an armistice or surrender proclaimed from on high. The overriding objective of any detention regime in these circumstances has to be the gathering of intelligence about the network and its targets that may serve to prevent future attacks. Prevention is more important than prosecuting individuals for past actions. If you are looking to the future, it’s hard to say who among the detainees is important—that is, dangerous—and who’s not. If future actions are the primary concern, it would be reckless to release persons who have already shown themselves to be adherents of movements that directly or indirectly supported the suicide attackers of September 11.
None of these is a legal argument and, since there has been a dearth of reliable information about what has actually been happening inside the security fences and interrogation rooms at Guantánamo over the last ten months, none of them can be evaluated in the light of known results. But the underlying logic I attribute to the administration, in a temporary suspension of journalistic disbelief, leaves hanging the question of whether the toughness of the detention regime is a product of anything other than the legitimate security concerns raised by a combustible mix of hostile inmates.
If the overriding priority is intelligence-gathering, as clearly seems the case, it’s no great leap to conclude that it’s calculated as well to make the detainees less resistant to the ongoing interrogations by demoralizing them. (“If we put them in the Waldorf Astoria, I don’t think we could get them to talk,” one officer said during my visit to the base.) Could it also be a form of punishment for persons who have yet to be charged with crimes? The answer seems obvious enough. The interrogations by military intelligence agents, the FBI, and the CIA, among others, had hardly gotten underway here when President Bush voiced his blanket conclusion that the Guantánamo detainees were “killers.” Defense Secretary Rumsfeld said they were “hard-core, well-trained terrorists.” Attorney General John Ashcroft said they were “uniquely dangerous.”
Later on other officials started to allow for the possibility that these broad-brush conclusions might not, after all, apply to every single case. By March Paul Wolfowitz was telling Jim Lehrer that “some of them may turn out to be completely harmless.” Douglas Feith, undersecretary of defense, raised the hypothetical possibility that some of them might not be threats to Americans at all. What had they learned in the meantime that introduced this smidgen of doubt?
We still don’t know, but some indications of the basic demographics of the inmate population have begun to appear, like shadows on the wall of silence, making it possible to draw some surmises. Foreign officials have been allowed to visit and, in some cases, to interrogate their own nationals at the camp. The gesture President Bush made to the Geneva Conventions in February turned out to be more than cosmetic: the International Committee of the Red Cross has not just visited the camp where the detainees are held. It has maintained a permanent presence there (except for its sacred Swiss vacances in August) with regular access to the prisoners, most of whom avail themselves of the opportunity to exchange mail with their families through the Red Cross office in Geneva, which is also willing to transmit verbal messages.
The mail is subject to censorship and the visitors are extremely circumspect—especially the Red Cross, whose representatives are careful not to jeopardize their access—but information gets discreetly swapped around and a picture emerges. By now more than forty names out of 598 have come into the public domain, despite the obsessive secretiveness that marks the whole operation. It is now understood by those who try to keep abreast of what is happening at Guantánamo that among the thirty-four or forty-three nations from whom the detainees are drawn—the varying estimates may be explained by dual nationalities in some cases—the great majority are of Arab origin, and that among these Saudi Arabia accounts for by far the largest group in the camp, just as it did for most of the hijackers on the doomed September 11 flights. Fully a quarter of the camp’s population—150 persons—are Saudi in background, according to a Yemeni lawyer who has been gathering powers of attorney to represent them; another eighty-five are from Yemen. If there had been any Iraqis among the 598, that bit of data would probably have found its way into current debates. But the awkward facts pointing to Saudi Arabia and also to adjacent Yemen have been closely held.
It is also understood, by those who try to keep close track, that no non-Afghans are classified as Taliban and that there are fewer than a hundred Afghans in the camp; that everyone else is therefore presumed to be al-Qaeda; that more than half of the detainees were turned over to the Americans by the Pakistanis,3 which suggests that some of them, at least, might never have made it to Afghanistan; that some are younger than twenty years old—one reportedly as young as fifteen at the time of his capture—and that most of the detainees are in their early twenties.
Of these, more than a few appear to have left their homes after September 11 in response to calls at their local mosques to defend an endangered Muslim nation. It was enough that they answered the call; how much training they managed to get and how much action they managed to see before they were captured is open to question. It has also come to be understood, or at least widely presumed among those who try to stay informed, that the US officials screening captives in Afghanistan—because of language barriers and an eagerness not to let anyone significant slip through their hands—had a shaky grip on the actual identities of prisoners who, in some cases, were being turned over to them for money with assurances that they were really and truly dangerous or “interesting” from an intelligence standpoint, just as any rug that might catch your eye on Afghanistan’s storied frontier would turn out to be really and truly rare.
If these surmises correspond in some measure to reality, the intelligence officials by now, after months of interrogation, must have a more realistic idea of how many minnows and how many big fish, if any, they caught in their net.4 But any conclusions they may have drawn about individual detainees—how dangerous they are, how liable to be brought up on charges before the much-debated, yet still unnamed, military commissions or tribunals—have yet to produce any consequences. Preparations for the legal circus that has been anticipated for nearly a year now, ever since the White House issued President Bush’s order reinventing the system of military justice for the “war on terrorism,” are simply not in evidence in Guantánamo.
At the time the order was issued, the White House was preparing for the imminent capture of Osama bin Laden and other al-Qaeda leaders. With the fate of the top leaders still unknown, it may seem less urgent to get the commissions rolling. No lawyers or judges have been appointed, no renovations are going on at the old military courthouse where the trials would presumably be held, and no one has been charged. What legal preparations are underway can presumably be found in a Pentagon petri dish, awaiting implantation here. For now, military justice does not seem to be a Guantánamo priority. The administration of justice, after all, is reflexively backward- looking, more concerned with what has already happened than what might happen and, therefore, not the most pressing issue in the view of security planners.
It’s even possible, perhaps even likely, that the first persons to be charged are still somewhere else. The United States has two significant al-Qaeda leaders in custody, Abu Zubaydah and Ramzi Binalshibh, each captured in Pakistan. The fact that they are being interrogated in other, as yet undisclosed, locations is another indication that Guantánamo Bay’s main function may be that of a holding camp, one where the great majority of inmates will simply be detained without trial for the foreseeable future. And if this is correct, it follows that the debate about the gestating military commissions has no bearing whatsoever on the fate of most of the detainees.
That holding camp has a name. It’s called Camp Delta and sits, at the southeastern corner of the Guantánamo base, on a low bluff above the Caribbean and a beach known in happier days as Kittery Beach. On the way to the shore, you pass one of the Guantánamo base’s few charming features, a yellow diamond-shaped crossing sign with a picture of an iguana. The shore is now laced with electronic sensors and is regularly patrolled by the Army and Coast Guard, on alert for a seaborne rescue attempt by suicidal al-Qaeda marines. On the inland side of the compound, the small trailer used by the nine representatives of the International Committee of the Red Cross—among whom eight languages are spoken—sits just outside the camp’s perimeter. Visiting journalists are ferried to the side of the camp facing the sea where they are asked to confine themselves to a “media observation point” marked off by strands of barbed wire and located roughly two hundred yards from the nearest cell block.
By day, you get an eyeful of glare off the metal roofs of the cell blocks and a view of guard posts and parallel lines of the high chain-link fences that surround the whole compound, topped and separated by razor-wire coils and covered with green plastic curtains to frustrate intelligence-gathering by the terrorist network. By night, the compound is bathed inside and out by eerie white light cast by halogen lamps on high poles, and sometimes it’s possible to make out flickering shadows behind the cell windows. These are covered by steel mesh, not glass, allowing, so you’re assured, the breeze off the sea to penetrate the cells, which can also be cooled by fans in the roof when military police guards are moved by their own discomfort, if not that of the detainees, to turn them on.
The flickering shadows, you’re told, may be actual al-Qaeda terrorists. It’s as close as reporters ever get these days to seeing them here. (Among the provisions of the Third Geneva Convention that the United States interprets rigorously is one discouraging public display of prisoners. This is out of respect for their “privacy,” military escorts explain.) Still, the crepuscular scene at Delta makes vivid the cramped detention regime in which the detainees have lived since the end of April, when they were moved from a warren of cages called Camp X-Ray several miles away. There they had initially been confined in plain, if distant, view of journalists who on one, and only one, occasion last March were allowed to get close enough to evoke shouted protestations of innocence.
Delta was thrown together for $9.7 million by a private contractor, Brown and Root Services—a division of Vice President Cheney’s old company, Halliburton—which flew in low-wage contract labor from the Philippines and India to get the job done, in much the same way that Asians were once brought to the Caribbean to harvest sugar cane. The cell blocks are assembled from the standard forty-foot steel boxes called connex containers that are used in international shipping: five cells to a container, eight containers to a cell block, with four lined up on each side of a central corridor where the lights and fans are installed. Welders cut away three sides of each container, replacing them with sidings of steel mesh, leaving the roof, floor, and one steel wall into which a window was cut. Floor-level toilets were installed—the kind requiring squatting, traditionally described as à la turque—and now these are sometimes mentioned as an example of American sensitivity to the cultural needs of the detainees. (Military police guards are the first to tell you that they are much to be preferred over the night soil buckets that they had to empty at X-Ray.)
The detainees are alone in their cells, sleeping on metal shelves fitted with thin mattresses of a sort used in US prisons. But through the chain-link walls they are able to maintain eye contact and conversation, assuming they have a common language, with five others—two on either side and three across the corridor. At 6.8 x 8 feet, each cell is only slightly smaller than the cells on Death Row in Brown and Root’s home state of Texas. There, however, the inmates are taken out one by one for an hour’s exercise and showers each day. At Guantánamo—where the detainees are never allowed to congregate under any circumstances and where they are periodically shuffled from cell to cell to keep cliques from forming—they are also taken out one by one to exercise and shower, but only twice a week, fifteen minutes each time. In other words, they are in their cells all but thirty minutes a week, unless they are summoned for interrogation. The detainees may be called to interrogation at night as well as during the day. Whenever they are removed from their cells, they are shackled. This regime is uniform for all detainees, except those who have shown defiance that caused them to be moved to “isolation,” a standard form of solitary confinement, where they are held in cells with four solid walls blocking any communication with other detainees. The isolation cells, being closed, are the only ones that are air-conditioned. The interrogation rooms are air-conditioned as well.
The ICRC simply does not speak about what it has learned about the treatment of the prisoners. But there has never been a hint that it has had to deal with complaints of physical abuse. I asked an army officer here whether the interrogators used the method of sleep deprivation to get the detainees to open up. He said he was not permitted to talk about interrogation methods. Then citing international rules that do not seem to exist, he volunteered that it was forbidden to keep someone under interrogation awake for more than twenty-four hours. It’s possible that the officer had an extremely dry sense of humor. It’s possible that he was telling me something. Confusing as his response was, I took it as an answer to my initial question.
According to the officers I spoke to, the rationale behind the tough detention regime is that there may be potential suicide killers among the detainees. Threats to the lives of the guards have been made, defenders of the administration’s procedures regularly assert, harking back to Attorney General Ashcroft’s contention that these detainees are “uniquely dangerous”—more dangerous, one would therefore presume, than those to be found in a maximum-security prison on the mainland. This view was probably colored by the fact that the first American killed in Afghanistan last November, the CIA agent Johnny Spann, was beaten to death in the prison uprising at Mazar-e-Sharif.
Actually, it appears, only one threat to the life of a guard has been reported and that was early on, during the stressful transfer of the first batch of detainees from Afghanistan to Cuba under marine guard.5 A reservist I met in New York following the completion of his Guantánamo tour was on the scene when the first detainees arrived. The marine guards, he said, would not allow them to talk or even raise their heads to look around. They had to kneel with their heads bowed. “They were so scared they couldn’t walk, so afraid they couldn’t stand,” the man said. Navy Seabees working near the compound were equally on edge and stayed that way. “We were just waiting for one of them to take someone’s eyes out, just waiting for it to happen,” he said. Once the detainees were in the X-Ray cages, or when they were summoned for interrogation, he said, some shouted defiance until they were restrained. A high official of the Taliban ministry of defense, he recalled, was especially obstreperous in those early days at X-Ray.
Since then, resistance has been limited to a bite on a guard’s arm, spitting, throwing water, and a hunger strike that gathered momentum early in March after a marine guard went into a cage while a detainee was praying in order to remove an improvised turban from his head, not understanding that Muslims cover their heads during prayer. The authorities eventually put two hunger strikers on IV drips in the hospital; one of the two didn’t finally relent until May 18, following his second round of forced feeding.
The reservist MPs who have been called up to take over guard duty at Camp Delta from the marines are now regularly told in their “cultural awareness” classes that they must never interfere with prayer and never touch the Korans that have been placed in every cell like Gideon Bibles in hotel rooms. Prayer caps are also now standard issue, as are foam rubber prayer mats. Among the reservists are experienced corrections officers from US prisons who have been less easily flustered, the officer I met in New York said, than the marines who were more given to shouting and displays of fury.
The fact is that Camp Delta has become largely an Army Reserve and National Guard operation—only one of six military police companies that guard it is Regular Army—with the called-up personnel changing every six months. When his tour is done, Brigadier General Rick Baccus, the commanding officer of the detention operation, will go back to his civilian job as director of veterans’ cemeteries in Rhode Island. The major assigned to escort journalists was an actor from Queens, one of whose roles was at Shea stadium as Mr. Met, the prancing team mascot with a large baseball for a head and a goofy smile. The spokesman for the task force handling the interrogations, a retired New York City fire marshal who lost many friends at the World Trade Center, was about to return to the martial arts academy he runs in Forest Hills. If there is any continuity of experience when it comes to learning about individual detainees, it has to reside with the interrogators.
American support for the practice of Islam at Camp Delta is not in the least grudging. Eager is the word, for it’s the most convenient way to demonstrate to the world (and, perhaps more to the point, ourselves) that the detainees are being treated humanely. A recorded call to prayer plays over the public address system in the cell blocks five times a day. All meals meet the standards of a Halal diet. An imam—a uniformed US Navy chaplain, among fourteen Muslim chaplains in the armed forces—regularly visits the cell blocks to talk to the detainees; two imams have been rotated out and Camp Delta is now on its third. A selection of religious readings in various languages has also been made available, in addition to the Koran.6 Colonel Joseph J. Perrone Jr., a retired Rochester police officer who is in command at the detention center, was enthusiastic about his plans for Ramadan, when Muslims fast between sunrise and sunset. He was already in negotiation with the contractors who have taken over kitchen duty in the all-volunteer army to ensure that the detainees get hot breakfasts at 4 AM for the month, two hours earlier than usual, and special meals after sunset.
Americans may be pious about piety but few people on duty here seem to question the basic proposition that they are dealing with a pack of homicidal fanatics. Conversation between the guards and the detainees is discouraged even when it’s possible; that is, when a detainee speaks English. By now, guards say, most of the detainees understand the limited repertoire of commands. Outside of the interrogation rooms, where they speak through military and contract interpreters, that’s all they get, except for occasional encounters with the chaplain or the Red Cross.
I was told that about a third of the MPs on duty at Camp Delta worked in their civilian incarnations as police and corrections officers. I asked to speak to some who worked in prisons in civilian life in the hope of getting their more seasoned reactions to what they were experiencing here. Two women, one white and one black, from the same National Guard unit in central Georgia were selected. Sergeant Diane Sanford, the white woman, works at the Frank C. Scott Jr. State Prison in Hardwick; Specialist Tamara Poole, at the Hancock State Prison in Sparta. The regimen at Delta, they said, was tough but then it was also tough in central Georgia. The time the detainees were doing here was a little harder than conditions in what’s termed segregation where the women normally worked—where prisoners considered threatening were housed—but easier, they said, than Georgia-style isolation. They would call it “high security,” the two soldiers said. Whatever it was called, it didn’t seem especially new to them.
A similar thought was voiced by Captain Albert J. Shimkus Jr., who is in charge of the health services for the detainees as well as the uniformed men on the base. Yes, it was true, Captain Shimkus said, that some of the detainees—about 5 percent—were on antidepressant medication. But this would probably be true in any large American prison, he said. Detention is seldom uplifting, I found myself privately conceding, for anyone, anywhere. Captain Shimkus said he thought his unit might have to put more detainees on antidepressants as time wore on.
Of course, the two guards had heard inmates threaten the lives of guards in Georgia—that was one way to get into isolation, and, of course, they had seen Muslims praying there too. Here or at home were they able to tell who’s really dangerous? I asked. “In my mind, I consider all of them are,” Sergeant Sanford said flatly. “That’s just the way I know I have to think if I’m going to get my people out without any problems.”
There were two obvious and fundamental issues that the guards were not asked to consider, by the Army or me. One was that the Georgia system has five grades of detention from the lowest level of security to the highest. So far, Guantánamo is basically satisfied with a one-size-fits-all approach. Another was that the inmates in Georgia prisons have all been convicted of felony crimes. They’ve some idea, unlike the detainees here, of when or if they’re getting out. The Lawyers Committee for Human Rights, in a careful analysis of the consequences for civil liberties of the war on terror, domestically and internationally, notes that the military order signed by President Bush on November 13, 2001, nowhere requires that persons detained under the order be tried by the military commissions it was establishing. “And so,” the Lawyers Committee found, the order “authorizes indefinite detention without trial.”
But then so do the Geneva Conventions, at least until the end of a conflict. The standard version of the Geneva regime is nothing other than a fairly benign form of preventive detention. Humanitarian organizations, notably Human Rights Watch, take the view that the war in Afghanistan is all but over and therefore that the United States under settled international law faces, or is about to face, a choice between charging or releasing the Camp Delta detainees. Since they have not been granted prisoner-of-war status, the advocacy groups also argue, they should be charged in criminal courts rather than before the promised military commissions, which they view as legally flawed by American as well as international standards. In that case, if they were dropped into the jurisdiction of the federal judiciary, lawyers for the detainees might be able to seek their release on grounds that they had not been read their Miranda rights in Arabic or Pashto, let alone their rights under the Geneva Conventions, before being subject to interrogation here. Amnesty International says the present conditions at Camp Delta “may amount to cruel, inhuman or degrading treatment in violation of international law.” Amnesty said the Guantánamo interrogations should be halted until the detainees had an opportunity to consult lawyers.
These groups, along with many authorities on military justice, have also maintained that the United States had no choice, under the Third Geneva Convention of 1949, but to grant all the captives prisoner-of-war status until “competent tribunals” settled the fate of those whose status as members of an organized fighting force of a nation- state might be open to doubt.
Until now, these requirements have not been an issue for the United States. Without hesitation or controversy, the armed forces efficiently ran more than one thousand such tribunals after the 1991 Gulf War. In its broadest interpretation, prisoner-of-war status guarantees captives a panoply of protections and rights not to be found at Camp Delta: the right to congregate, to elect a leadership to represent the group to the detaining authority, to prepare their own food, to have musical instruments and even knives, to labor for pay and—best known of all the convention’s provisions—to withhold information beyond name, rank, and serial number. Not least of all, the convention provides for the posting of these rights in languages understood by the prisoners. Instead, the United States classified the Delta detainees as “unlawful enemy combatants”—“a term not found in international law,” according to the Lawyers Committee.7
Thus it seems plain that if the administration—with a view to preventing future terrorist attacks—was bent on interrogating and detaining its captives, it was not going to have an easy time with the Geneva Conventions. Its first instinct was not even to try to square what it conceived to be its operational requirements with treaties the United States has long accepted. The administration argued instead that the shadowy terrorist networks it was fighting—with their global reach, tiny sleeper cells, and potential access to weapons of mass destruction—were simply not protected by the established rules of war. Some close observers believe that this view was especially strong at the Justice Department and less strong among military lawyers at the Pentagon, where there is a constant worry about what’s termed reciprocity: the danger that other states might also be tempted to step outside the established conventions when dealing with a downed pilot—in Iraq, for instance—or other American prisoners.
If only to sustain the coalition it summoned for its “war on terror” the administration had been interested in showing what was once called “a decent respect for the opinion of mankind,” it might have paid more attention to its experts on military law. The conventions and legal precedents, US leaders might then have heard, are not as hard and fast, as unresponsive to pressing security concerns, as its own civilian lawyers—along with the advocacy groups—appear to have concluded. In other words, there was room for the United States to make a legal case that it had a right under the Geneva Conventions, given the unusual threat it was facing, to establish a system that denied most of the privileges that the Geneva Conventions spell out for prisoners of war.
The monitors of the Geneva regime are repeatedly warned in the actual treaties not to second-guess the detaining authority on issues of security. For instance, Article 8 of the convention on prisoners of war warns delegates of the International Committee of the Red Cross that they must “take account of the imperative necessities of security of the State wherein they carry out their duties.” Article 126 acknowledges “reasons of imperative military necessity” that might interfere with the Geneva regime. A Red Cross commentary on these provisions goes on to say, “Humanitarian principles must take into account actual facts if they are to be applicable.” The commentaries also say that the question of what is actually a military necessity “is a matter for the detaining power alone to decide.”
What these deliberately elastic treaty formulations suggest, in the view of persons familiar with ICRC procedures and guidelines, is that Red Cross representatives would have had to take seriously any administration argument that Delta’s presumed terrorists represented a singular new threat and that therefore it could not be expected to give them the kind of privileges that the Geneva regime envisions for a conventional war and that films from Grand Illusion on have portrayed.
Sir Adam Roberts, an Oxford professor of international relations and an authority on the law of war, sees “rank amateurism in both the White House and the humanitarian organizations.” At issue here is their reading of Articles 4 and 5 of the Third Geneva Convention, which define the legal attributes of prisoners of war and provide for the “competent tribunals” that the detaining authority is supposed to set up in order to resolve cases of doubt. The humanitarian organizations, along with various academic commentators, read these provisions as requiring that each captured belligerent must be classified as a prisoner of war until a tribunal decides otherwise. For its part, the White House appears to have been looking for a way not to grant prisoner-of-war status, even temporarily, to anyone connected to al-Qaeda, so it got itself into the position of denying the need for any tribunals at all.
Professor Roberts argues that the law of war does not divide captive belligerents into just two classes: prisoners of war and those whom tribunals have found not to deserve that status. He believes there can be another class: captive belligerents who clearly do not qualify as prisoners of war, and who therefore don’t have to be brought before tribunals because no doubt arises about their status. He would place anyone connected to al-Qaeda in that category. The notion of an “unlawful combatant” has more standing in international law, in his view, than either the White House or the Lawyers Committee appears to have appreciated. An “unlawful combatant” is much the same as an “unprivileged belligerent,” a classification accepted in international law, so he maintains, since it was first used a half-century ago. Article 75 of the First Geneva Protocol of 1977, Professor Roberts notes, covers the treatment of such prisoners and therefore could have been applied to the treatment of most of the Delta detainees.8 In this view, it would seem, the law of war is not about civil liberties but about restraining human beastliness.
International law experts and lawyers will continue to debate such issues. The point here is really a political one. It’s that the Bush administration appears not to have understood, or cared to understand, that it had more legal arguments—and, therefore, at least arguably, more legal options—than it brought to bear when it decided that Geneva, by and large, didn’t apply or was too much trouble to apply. Here, as in its confrontation with the new International Criminal Court, which the administration is sworn to resist and never to recognize, it has shown zero interest in influencing the development of what is termed “international humanitarian law,” as the law of war is euphemistically known nowadays.
There is a crying need, a layman might think, for that law to address terrorist acts of mass murder launched across international boundaries. But still unresolved are the questions of whether the war on terror is really a war in some sense that the Geneva Conventions might be stretched to cover, and if it is, who gets to decide when it’s over. Kenneth Roth, the director of Human Rights Watch, argues that it’s no more a war than the war on drugs and therefore that the criminal law must prevail as it does in drug cases. (A former prosecutor, Mr. Roth believes it would be possible to use the conspiracy statutes against al-Qaeda that have been used against organized crime.) This is a principled stand but brings to mind reports that US authorities failed to take custody of Osama bin Laden in 1996 when Sudan hinted he might be made available because the Justice Department didn’t think it had enough evidence at that stage—before the 1998 embassy bombings in East Africa—to make a case. Federal prosecutors have shown that they can successfully convict plotters responsible for attacks like the 1993 bombing of the World Trade Center. They cannot reasonably be asked to prevent future atrocities.
Whether the detention regime and interrogations at Guantánamo are preventing future atrocities will probably always be an unanswerable question, but it seems safe to predict that the Delta detainees are not going to be released anytime soon. (It would be “the mother of Willie Hortons,” a lawyer remarked, if a released detainee were subsequently connected to an attack.) Yet, for all the evasions and ambiguities in the administration’s stand on these issues, it still pays lip service to Geneva and therefore can be said to have left the door ajar for the possibility that it might one day engage in a serious effort to reconcile its procedures at Camp Delta with international law. That is what the humanitarian organizations say they have been seeking. It’s the administration’s failure to respect international law as expressed in the various Geneva agreements, they argue, that brings the legality of the detention regime at Camp Delta into question. For its part, Congress has shown zero interest in the Guantánamo detainees who, after all, are not merely aliens, like the persons detained for immigration infractions in the Justice Department’s big roundup following September 11, but foreigners picked up in suspicious proximity to Afghan battlegrounds.
That leaves the present stressful situation at Camp Delta and the question of how long it can be sustained; how long it makes sense to treat all detainees here as potential suicide killers, confined to their small cells for six days and twenty-three and a half hours a week. This is especially so—as a matter of fairness and justice to individuals—if we now believe that some of them are “harmless,” as Paul Wolfowitz suggested half a year ago that they might be. Even Secretary Rumsfeld, in a rare acknowledgment of human complexity on the other side, once conceded that his collection of “well-trained, hard-core terrorists” might include someone who had been picked up “unintentionally,” someone “who just happened to be in there that didn’t belong in there.”
If such people exist, what plans are being laid to ease their conditions of detention, let alone release them?9 New cell blocks on the existing connex container model are being thrown up this month with a view to bringing Camp Delta’s capacity up to 812 detainees by the end of October. The idea of expanding the camp’s capacity to two thousand has also been mentioned, but in recent months the pace of flights from Afghanistan with new detainees has actually slowed: only thirty-four new arrivals have been registered since June.
There is, as yet, no sign of any phase two at Guantánamo involving an effort to sort out the hard-core from the rest or build different kinds of facilities for those deemed to be least threatening. “It’s at the stage where it’s being seriously discussed and looked at,” said Colonel Perrone, the former Rochester police commander, when I asked whether any thought was being given to the evolution of a detention regime that is now intended to last until that distant day when the United States has proclaimed victory in the war on terror. Only then, it seems, will we discover how few or how many cases of stark injustice existed behind Camp Delta’s fences. For now, the administration’s basic position seems to be to show no sign of relenting, perhaps so that the name Guantánamo can register in the imaginations of young Arabs as something to be avoided, becoming in itself a kind of deterrent. “It’s our Devil’s Island, it’s our Robben Island,” suggested Eugene Fidell, a Washington lawyer who is president of the National Institute of Military Justice.
On the evening I went down after sunset to the “media observation point” to view Camp Delta with two Turkish journalists and the major who was escorting us, the former Mr. Met, the spectacle got to be more striking for its son than for the lumière of the halogen lamps: once my ears managed to sort out the sounds of crickets, a nearby white owl, distant air conditioners, and the lapping surf, I realized I was also listening to a chorus of human voices. Perhaps because of the interventions of guards, the volume tended to fall soon after it rose, but there were still distinct tonal differences among the snatches that came our way on the soft evening air. Sometimes they seemed to be singing, sometimes there were shouts. Variously, I imagined that I heard lamentations, calls to friends further down the cell block, protests, exhortations, and prayers. Even if the words had been distinct, of course, I wouldn’t have known.
Then, after a half-hour, as we were giving up on our hopes of actually seeing detainees or their shadows and starting to board our van, the call to prayer sounded over the loudspeakers and we clambered down. It was a recording, but live voices rose to greet it. The Turkish journalists pulled out their videocameras. This was going to be gripping television in Istanbul, the sound of the evening prayers over the ghostly spectacle of Camp Delta. I shut my eyes for a moment, and it was easy to imagine that I was standing on the outskirts of Cairo or Lahore. Finally we drove off and then the Turkish journalists started to play back their tape. It was a crushing disappointment. They had the images they wanted but their microphone had not been strong enough to pick up the prayers. The sound of the detainees could not be caught.
—October 10, 2002
Asked in a television interview on February 17 whether the detainees might be held indefinitely, Deputy Secretary of Defense Paul Wolfowitz replied, “I think that’s probably a good way to think about it.” A few weeks later Assistant Attorney General John Yoo concurred, asking, “Does it make sense ever to release them if you think they are going to continue to be dangerous even though you can’t convict them of a crime?” See Warren Richey’s article in the Christian Science Monitor, April 9, 2002. Following briefings he got on the way to Guantánamo, Alabama Republican Senator Jeff Sessions said: “If these people are committed terrorists who are going to take release as an opportunity to attack again, then it would be insane to release them.” See Bob Drogin’s article in the Los Angeles Times, January 27, 2002. ↩
Two weeks before visiting Guantánamo Bay, I approached the Pentagon with a request for a background conversation on such matters as the operational considerations that led to the present detention regime and what had been gained from this approach that might have been sacrificed by closer adherence to the framework of the Geneva Convention. I also said I wanted to discuss the possible evolution of the present regime. I said I was interested in hearing an authoritative explanation of the administration’s position and would not insist on attributing what I heard to official sources. A definite response came after I was already in Cuba. It said that “much of the information you requested was at a level of detail that we cannot provide.” ↩
The total was 328, according to Ahmed Rashid; see his article in The New York Review, October 10, 2002. An interview with the Yemeni lawyer, Jamil Muhammad Ali Murshid, appeared in Al-Sharq al-Awsat, an Arabic newspaper published in London, on September 28. A translation was published by the BBC Monitoring Service on October 1. ↩
A Los Angeles Times report on August 18 said that American intelligence officials were deeply disappointed by the gleanings from Guantánamo, which they attributed to the relative insignificance within the terrorist network of the detainees who were described as “low- and middle-level.” By contrast, in an interview in Le Monde timed to appear on the first anniversary of the September 11 attacks, the head of the French counterespionage agency, the DST, Pierre de Bousquet de Florian, indicated that French officials had gained valuable new information from their interrogations of the six French nationals at Guantánamo. ↩
According to the Australian press, the man charged with making the threat was a soldier of fortune from Adelaide named David Hicks who converted to Islam after fighting with the Kosovo Liberation Army and later joined a Muslim group seeking to infiltrate Kashmir called Lashkar-e-Taiba. The Herald Sun, an Australian paper, reported on July 8 that Hicks’s family had received a letter from him dismissing the allegation as “a load of crap.” The letter went on: “My interrogators admitted that the story was a lie.” ↩
Only lately has the command, prodded by the ICRC, agreed to let in secular material such as manuals and novels in the full range of languages, which, in addition to Arabic and Pashto, includes English, French, Persian, Russian, Urdu, Uighur, Turkish, and the Turkik languages of Central Asia. The ICRC is providing some of the material. The Pentagon is putting up $20,000 to buy books, according to Colonel Perrone. These won’t include any material touching on politics, world affairs, or current events, about which the detainees have been systematically kept in the dark. In the days running up to September 11 this year the guards were careful not to let slip that the anniversary was approaching. ↩
Administration lawyers apparently found the term “enemy combatant” in a 1942 Supreme Court ruling (Ex parte Quirin, 317, US 1, 1942), which concerned the case of eight Nazi saboteurs who landed on Long Island and were tried before a military commission set up on the order of President Roosevelt. The commission condemned the eight to death after the Supreme Court declined to stop the proceedings. Six of— ↩
Although the 1977 protocols have never been accepted by the United States, Article 75 has been recognized in US military law. The article provides for humane treatment and a legal framework for the detention of “persons in the power of a party to the conflict and who do not benefit from more favorable treatment under the Conventions.” It also lists the legal rights of a detainee in the event that he is charged with a crime, including his “right to be informed without delay of the particulars of the offense alleged against him.” ↩
US officials had spoken of turning over detainees to countries that undertook to prosecute them for terrorist activities. Britain and Australia, among others, have sent officials to Guantánamo Bay with a view to starting cases. For its troubles the British government was sued for violating the rights of its nationals by interviewing them without a lawyer present. So far no government has been able to give the United States the assurances it apparently seeks that prosecutions might not lead to acquittals and the release of the detainees. As a result, no one has been released except one Afghan named Abdul Razeq who was diagnosed as schizophrenic and sent home (Newsweek, May 27, 2002). ↩