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What to Do About Guantánamo?

The Guantánamo Review Task Force Final Report

January 22, 2010, publicly released May 28, 2010
Joanne Mariner/HRW/Contact Press Images
Camp Justice at Guantánamo Bay on the day of President Obama’s inauguration, January 20, 2009


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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