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In Guantánamo

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.

3.

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

  1. 6

    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.

  2. 7

    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—

  3. 8

    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.”

  4. 9

    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).

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