Why Guantánamo Must Be Closed

An edited version of this article was published in the first issue of the online magazine FLYP, in a section entitled “Face/Off,” in which two contrasting opinions are presented regarding current political issues. The question posed was, “Should Guantánamo Be Closed?” and my article was presented under the heading, “Its whole purpose is torture.” The opposing view — under the heading, “Moving the jails is not the solution” — was presented by James Jay Carafino, Ph. D., whose resumé includes a role at the Heritage Foundation.

The reason that Guantánamo must be closed is the same as it has been since the prison opened over six years ago, on January 11, 2002. In a country founded on the rule of law, it is completely unjustifiable to declare prisoners “illegal enemy combatants” and to hold them without charge or trial.

If these prisoners were, or are terrorists, as the government has persistently averred, they should have been charged as such, and subjected to trials as criminals on the US mainland. If, on the other hand, they were soldiers — even soldiers of an irregular army — who were captured on the battlefield, as the government has also maintained, they should have been held as Enemy Prisoners of War, as defined by the Geneva Conventions, and protected “against acts of violence or intimidation.”

What happened instead, as we have discovered in the long years since Guantánamo opened, is that hundreds of innocent men — charity workers, economic migrants, religious students and teachers — were rounded up in Afghanistan and Pakistan by the US military’s local allies, and were handed over for bounty payments averaging $5,000 a head.

Hundreds of Taliban recruits were also detained, although the administration has struggled to connect them in any meaningful way to al-Qaeda or the events of 9/11. The majority of these men had traveled to Afghanistan before 9/11, at the urging of fatwas issued by radical sheikhs in their home countries in the Middle East, to help the Taliban fight the Northern Alliance in an inter-Muslim civil war that began after the fall of the last remnants of the Soviet-backed regime in 1992, and continued after the rise of the Taliban in 1994.

There will never be any excuse for holding so many innocent men. According to Article 5 of the Third and Fourth Geneva Conventions, if there is any doubt about the status of prisoners captured during a war, they must be subjected to battlefield tribunals, designed to deal promptly with those captured by mistake. This has happened in all previous wars conducted by the United States since the Conventions were drafted. During the first Gulf War, for example, battlefield tribunals were held for 1,196 prisoners, and nearly three-quarters of them were subsequently released.

However, as Chris Mackey, a former interrogator at the US prisons in Afghanistan, has explained, no substantive screening process whatsoever took place at Kandahar and Bagram. On the orders of the high-level officials overseeing the transfer process at Camp Doha, Kuwait, all Arab prisoners were automatically sent to Guantánamo, and so too were the majority of the 220 Afghans who also ended up at Guantánamo, even though the majority had been betrayed by rivals or had been picked up in raids based on dubious intelligence.

Shamefully, when the prisoners failed to provide significant intelligence at Guantánamo, the authorities decided that it was because they had been trained by al-Qaeda to resist interrogation, and, with the blessing of defense secretary Donald Rumsfeld, introduced “enhanced interrogation techniques” — including prolonged isolation, forced nudity, sexual humiliation, religious abuse, the use of extreme heat and cold, and the use of excruciatingly painful stress positions — which, particularly in 2003 and 2004, transformed an offshore interrogation center holding prisoners without charge or trial (all illegal under the Geneva Conventions and international laws) into a prison where what was practiced was — under any definition other than the deliberately narrow one chosen by the administration — torture.

Legal attempts to redress these injustices have largely been ignored or overridden by the administration. When the Supreme Court ruled in June 2004 that Guantánamo — chosen as the location for the prison because it was presumed to beyond the reach of the US courts — was “territory over which the United States exercises exclusive jurisdiction and control,” and that the prisoners therefore had habeas corpus rights (the right to challenge the basis of their detention), the administration undermined the judgment by introducing military tribunals — the Combatant Status Review Tribunals — which were a cynical mockery of the Article 5 battlefield tribunals. These, of course, relied on a proximity to the place and time of capture, so that witnesses could be reasonably called, but in Guantánamo, although the authorities claimed that they had tried to call witnesses requested by the prisoners, no outside witness was ever called to back up the prisoners’ stories.

Moreover, the prisoners, though allowed access to lawyers after the Supreme Court ruling, were not allowed legal representation in the tribunals, and were also denied the opportunity either to hear or challenge the “classified evidence” against them. Last year, two military officers who had served on the tribunals submitted statements declaring that the tribunals relied on generalized and often generic evidence, adding, moreover, that most of the “evidence” consisted of “information obtained during interrogations of other detainees.”

So what of the truly dangerous prisoners at Guantánamo? According to dozens of high-level military and intelligence sources cited by the New York Times in June 2004, none of the prisoners “ranked as leaders or senior operatives of al-Qaeda,” and “only a relative handful — some put the number at about a dozen, others more than two dozen — were sworn Qaeda members or other militants able to elucidate the organization’s inner workings.” To these can be added some — or perhaps most — of the ten prisoners and 14 “high-value” prisoners, who were transferred to Guantánamo from secret CIA prisons in September 2004 and September 2006.

What will happen to these men is unclear. The Pentagon has, of course, just pressed charges against six of the “high-value” prisoners most closely associated with the 9/11 attacks (including Khalid Sheikh Mohammed, the self-confessed architect of 9/11), but the system chosen for their prosecution — trial by Military Commission — has yet to record a single significant success.

Dreamt up by Vice President Dick Cheney and his advisors in November 2001, as an alternative to both the criminal justice system and the military’s own judicial system, the Commissions, like the tribunals, are empowered to use hearsay evidence (and may use evidence obtained through coercion if approved by the government-appointed military judges). They have been condemned by one of their own military defense lawyers (Lt. Cmdr. William Kuebler) as rigged, ridiculous, unjust, farcical, a sham, and a lawless process. Another, Lt. Cmdr. Charles Swift, explained to Vanity Fair last March, “The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively — what some people call torture. Guantánamo and the military commissions are implements for breaking the law.”

Complicating matters, at least some, and perhaps the majority of these men have been subjected to “enhanced interrogation techniques,” including, in at least three cases, waterboarding, which is a form of controlled drowning. Despite the administration’s best semantic efforts, these techniques are torture, pure and simple. They remain illegal under domestic and international law, and evidence obtained through torture is legally inadmissible.

How the administration will deal with this inconvenient truth is, at present, unknown. If the Commissions collapse, these men will have to be moved to the US mainland to face prosecution in a recognizable court system, where their torture will cast a cloud over the integrity of their trials, even if juries can be secured who are prepared to ignore the fact that they were tortured.

What should have happened, and what should happen in future with any other alleged terrorists captured by the United States, is that they are handed over to skilled interrogators like the FBI’s Dan Coleman, who interrogated many of the terrorists captured before 9/11 (and convicted in the US courts) without resorting to “enhanced interrogation.” Fundamentally opposed to torture, because it is unreliable, and because it corrupts those who undertake it, Coleman, in 2005, delivered a brief condemnation of the methods employed by the government since 9/11, which should serve as an epitaph for the lawless aberrations of the last six years. Speaking to Jane Mayer of the New Yorker, he said, “Brutalization doesn’t work. We know that. Besides, you lose your soul.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.