Guantanamo: Six years of injustice need to end

Guantanamo: Six years of injustice need to end

By Andy Worthington

Commentary by

Friday, January 11, 2008

Six years ago today, one of the most depressing icons of the 21st century opened for business. On January 11, 2002, the first of nearly 800 prisoners arrived at a hastily erected prison in the United States naval base at Guantanamo Bay, Cuba, which was specifically chosen because it was presumed to be beyond the reach of American courts.

It was there that the Bush administration unveiled its novel approach to justice in the wake of the 9/11 attacks. Declaring that the prisoners were the "worst of the worst," President George W. Bush insisted that he had the right to hold them not as prisoners of war protected by the Geneva Conventions, but as "unlawful enemy combatants," who could be imprisoned indefinitely without charge or trial.

If trials were deemed necessary, these too would be innovative proceedings that owed nothing to international or domestic law. Under the terms of a military order signed by Bush in November 2001, the trials, known as Military Commissions, were empowered to draw on secret evidence obtained through torture, coercion or hearsay, which could be withheld from the detainee and his lawyers.

As hundreds of detainees arrived at Guantanamo in early 2002, the government's rhetoric was undermined when Brigadier General Mike Lehnert, the prison's first commander, admitted, "A large number claim to be Taliban, a smaller number we have been able to confirm as Al-Qaeda, and a rather large number in the middle we have not been able to determine their status." In August 2002, a senior intelligence official also confirmed that all was not well, explaining that the authorities had netted "no big fish" in Guantanamo, and that some of the prisoners "literally don't know the world is round."

Despite this, the administration was adamant that the reason that its offshore interrogation center was not providing a wealth of information about Al-Qaeda and its operations was because the detainees had been trained to resist interrogation, and not because most of them had no information to offer. It was only revealed later that the majority had not been captured by US forces on the battlefield, but had been sold to them by their Afghan and Pakistani allies, when bounty payments of $5,000 a head for Al-Qaeda and Taliban suspects were widespread.

In an attempt to increase the intelligence yield, Defense Secretary Donald Rumsfeld approved the introduction of torture techniques - euphemistically referred to as "enhanced interrogation techniques" - which included prolonged solitary confinement, forced nudity, sexual and religious humiliation, sleep deprivation, the use of extreme heat and cold, and the use of painful stress positions. These techniques increased the amount of information produced, but Lieutenant-Colonel Anthony Christino, a senior military intelligence officer who analyzed the intelligence from Guantanamo, explained that there was no dramatic improvement in its quality, only an attempt to "improve the way it was packaged."

It was not until June 2004 that attempts by lawyers to make Guantanamo conform to US law, which had begun almost the moment the prison was opened, reached the Supreme Court. In a momentous decision, the justices ruled that the detainees had the right to challenge the basis of their detention, demolishing, along the way, the administration's long-cherished belief that Guantanamo did not count as US territory.

This decision finally allowed the detainees to have access to legal representatives, but the administration refused to allow them anywhere near a courtroom. Instead, the Pentagon introduced military tribunals to review their status. These drew largely on the forced confessions produced in the "enhanced interrogations" - both in Guantanamo and in secret prisons where other "high-value" detainees were held - and their less severe, but equally worthless counterparts: confessions produced in return for favorable treatment, which only encouraged the creation of another web of lies.

Nevertheless, the story of Guantanamo on its sixth anniversary is not as grim as it could have been. Through diplomatic negotiations, and to a lesser extent decisions made in the tribunals, 492 detainees have now been released from Guantanamo, and the majority are at liberty in their home countries.

For the 281 detainees who remain, however, the prison is still a horrendous affront to justice. As many as 70 have been cleared for release, but cannot be repatriated because of fears that they will be tortured on their return. Unable to find other countries to accept these men, the Bush administration has resorted to signing "memoranda of understanding," designed to guarantee the detainees' humane treatment, with countries including Tunisia and Libya, whose human rights records are notoriously poor.

At present, the authorities' callous attempts to wash their hands of their own responsibility for the fates of these men have been put on hold. After two repatriated Tunisians received prison sentences following trials that were regarded by observers as grossly unjust, a US district court judge prevented the return of a third Tunisian, and it remains to be seen what new plan the administration can conceive of to rid itself of its own mistakes.

The administration also proposes that 80 of those still held - including the few dozen, like Khalid Sheikh Mohammad, who can be objectively regarded as truly dangerous - will be tried by Military Commission, but it has yet to be established that the commissions can actually function. Plagued by setbacks, including a Supreme Court defeat in 2006, criticism from its own judges, and implacable opposition from the detainees' military lawyers, their only success was in March last year, when the Australian David Hicks accepted a plea bargain, admitting to "material support for terrorism" and dropping his well documented claims of abuse by US forces, in exchange for a nine-month sentence in Australia, which has just come to an end.

As for the rest of the detainees, the prevailing injustice at Guantanamo is best summed up by the manner in which they are regarded by the Bush administration: as too dangerous to be released, but not dangerous enough to be charged. Six years after Guantanamo opened, it's time that such arrant, unprincipled and highly damaging nonsense came to an end.

Andy Worthington is the author of "The Guantanamo Files: The Stories of the 774 Detainees in America's Illegal Prison" (Pluto Press). He wrote this commentary for THE DAILY STAR.