A
Dark Anniversary
By William Fisher
11 January, 2007
Countercurrents.org
This
week, as the world marks the fifth anniversary of the arrival of the
first detainees at the U.S. naval facility at Guantanamo Bay, Cuba,
a growing number of people and organizations – from military officers
to religious leaders to legal scholars to human rights groups –
continue to label the prison a black hole of injustice and demand that
it be closed.
The facility, established
following the war in Afghanistan in the wake of the Sept. 11, 2001,
attacks on New York City and the Pentagon, has been controversial throughout
the world as the U.S. Department of Defense (DOD) imprisoned hundreds
of alleged terrorists. It has been widely condemned for prisoner abuse
and for the absence of any meaningful process to separate genuine wrongdoers
from people detained because they were in the wrong place at the wrong
time.
Recently departed Defense
Secretary Donald Rumsfeld repeatedly declared all the detainees “the
worst of the worst.” But from its peak inmate population of 773,
several hundred detainees have been released – mostly because
the DOD concluded that they no longer represented a threat to U.S. national
security -- the camp continues to house more than 400 prisoners.
While the US military claimed
Guantanamo inmates were captured “on the battlefield” in
Afghanistan, and designated by the Bush Administration as enemy combatants,
there has been mounting evidence that a number were victims of what
is known as “extraordinary rendition” – capturing
a person and sending him to a site recognized for practicing torture.
President George W. Bush
has implicitly admitted that others, including 14 so-called “high
value” prisoners said to have played significant roles in the
9/11 attacks and other terrorist act, were sent to Guantanamo after
long detentions in the CIA’s “black hole” secret prisons
in Afghanistan, Eastern Europe, and other locations.
None of these prisoners have
been tried and only ten of them have been charged.
Mary Shaw of Amnesty International
USA, a human rights group that has labeled Guantanamo as the “American
Gulag,” told IPS, “The U.S. administration chose Guantanamo
as the location for this detention facility in an attempt to hold detainees
beyond the reach of U.S. and international law. For five years, the
vast majority of these men have been held in indefinite detention, without
charge or trial. For five years, we have heard stories of torture and
ill-treatment. And for five years, we have been assured that these detainees
were captured ‘on the battlefield’ and represent the ‘worst
of the worst’. Yet the U.S. government's own tribunals have determined
that over half of those detained never committed any hostile acts against
the United States. And most of those held at Guantanamo were not captured
on any battlefield, but were handed over to the U.S. by others in exchange
for cash rewards. Undoubtedly, this practice of paying bounties for
prisoners has led to mistakes; yet for five years the U.S. government
has denied that these men have the basic right to challenge their detentions.”
There has also been increasing
disclosure of prisoner abuse, violating the Geneva Conventions. This
evidence has flowed the testimony of released prisoners and from documents
provided by the Federal Bureau of Investigation (FBI) in response to
a Freedom of Information Act lawsuit brought by the American Civil Liberties
Union. This evidence centers on written communications from FBI agents
who witnessed ”cruel, inhuman and degrading” prisoner treatment
and interrogation, and reported it to their FBI superiors.
There have been three suicides
among prisoners and hundreds have been force-fed to keep them alive
during intermittent hunger strikes. The Department of Defense has acknowledged
41 suicide attempts among 29 prisoners.
The New York Times has reported
that, while the June 10, 2006, suicides were the first inmate deaths
at Guantanamo, “some prisoners tried suicide almost immediately
after their arrival in 2001. By mid-2002, there had been numerous suicide
attempts, and DOD renamed these acts as ‘self-injuries’."
In January 2005, the Times
reported that there had been 350 incidents of "self-harm"
in 2003. Of those, 120 were attempts by prisoners to hang themselves.
Twenty-three prisoners participated in a simultaneous mass-suicide attempt.
President Bush has said he
would like to close the facility, but the U.S. military has recently
completed construction of new buildings to house cellblocks.
Among the most widespread
criticisms of Guantanamo is the system set up by the Bush Administration
for adjudicating individual cases.
That process began with the
establishment of CSRTs – Combatant Status Review Tribunals --
in July 2004, more than two years after most detainees were imprisoned
there. The CSRTs, while deeply flawed according to many military and
civilian legal authorities, have been responsible for the release of
some prisoners. In some cases, they concluded that the detainees had
been captured by Afghan militias, Pakistani border guards and other
surrogates, and some had been turned in for bounties, intelligence officials
have said.
But the CSRT process itself
proved to be ineffective. The New York Times reported that “Information
about detainees’ identities and actions was often vague and secondhand.
Physical evidence, if any existed, was sometimes lost before reaching
Cuba.” Information obtained by coercion was allowed to be admitted
as evidence.
The CSRTs required three
military officers to decide cases by majority vote, based on a “preponderance
of the evidence.” Midlevel officers – not military lawyers
-- were ordered to help detainees prepare for their hearings.
Lawyers for detainees contended
that the military placed insurmountable obstacles to their defense.
For example, more than a week after a hearing for a Pakistani businessman
accused of ties to Al Qaeda, a civilian lawyer who had been trying to
help him said he had not been advised of the hearing.
Amidst growing international
criticism, the Bush administration in May 2004 set up an annual parole
system, called Administrative Review Boards, to assess whether a detainee
represented a continuing threat or had intelligence value.
But before those hearings
ever began, the Supreme Court ruled that the Bush Administration must
conduct a one-time review of all Guantánamo detainees using the
sort of panels called for by Army regulations — and by the Geneva
Conventions. This year’s round of parole-type review hearings
ended last month. Most of the detainees eligible to appear at these
hearings have reportedly stopped trying because of the perceived bias
in the procedure and the haste with which hearings are carried out.
Meanwhile, in an effort to
restrain President Bush from claiming inherent powers to determine what
kinds of treatment constituted cruel or inhumane treatment of prisoners,
Congress passed the Detainee Treatment Act. The President signed the
bill into law, but at the same time issued a “signing statement”
that essentially claimed that the commander-in-chief could disregard
the law when he deemed it not in the national interest to do so.
Last year, the Supreme Court
also played a pivotal role in rejecting President Bush’s assertion
that his commander-in-chief authority gave him inherent power to establish
Military Commissions to try Guantanamo detainees.
In a landmark decision in
a 2006 case known as Hamdan v. Rumsfeld, the court ruled that the military
commissions set up by the Bush administration "violate both the
military’s Uniform Code of Military Justice (UCMJ) and the four
Geneva Conventions." The suit was brought by Salim Ahmed Hamdan,
a Guantanamo detainee.
The case considered whether
the United States Congress may pass legislation preventing the Supreme
Court from hearing the case of an accused combatant before his military
commission takes place, whether the special military commissions that
had been set up violated federal law, and whether courts can enforce
the articles of the 1949 Geneva Convention.
On June 29, 2006, the Court
ruled 5-3 that it had jurisdiction and that the federal government did
not have authority to set up these particular military commissions.
Congress then quickly passed
the United States Military Commissions Act (MCA) of 2006, which was
signed by President George W. Bush in October 2006. The Act's stated
purpose was to "facilitate bringing to justice terrorists and other
unlawful enemy combatants through full and fair trials by military commissions,
and for other purposes."
Under the MCA, the Bush administration
and the US Congress retroactively shielded from prosecution for illegal
criminal activities those who have been involved in illegal detention,
torture, and rendition.
But Senators John McCain
(R-Ariz.), John Warner (R-Va.) and Lindsey Graham (R-SC), strong backers
of the MCA, agreed to the administration's "alternative" definitions
of torture, which essentially meant that torture techniques could continue
to be used by the U.S. military, the CIA, and contract employees. Attempts
by the Senate Judiciary Committee to preserve the rights of habeas corpus
hearings for detainees also failed.
Headlined by these and other
lawmakers as a “compromise” with the president, the MCA
essentially gave the administration all the powers it had claimed previously,
as well as a few others. Congress allowed the president to prevent prisoners
from appealing to the U.S. courts, and immunized government personnel
from prosecution for all but the most serious abuses.
The new Democratic Party-controlled
Congress is reportedly considering whether to challenge the suspension
of habeas corpus hearings for detainees.
The Bush administration claims
it plans to charge up to 70 Guantanamo detainees in the military commissions
authorized by the MCA. But legal experts point out that this still leaves
more than 300 men held in Guantanamo without charge and without any
clear explanation of what they are accused of doing.
Amidst the continuing uncertainty
about this and other issues at Guantanamo, pressure for its closure
is likely only to increase over time.
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