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In Guantánamo

1.

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.

  1. 1

    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.

  2. 2

    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.”

  3. 3

    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.

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