March-April 2012, Pages 24-25
The Many Reasons
Why the Guantánamo Detention Facility Must Close
By Delinda C. Hanley
The 10th anniversary of the opening of the infamous U.S. military prison at Guantánamo Bay, Cuba was marked by protests, debate, and even a 10-day fast in solidarity with the 171 remaining detainees. During the 2008 presidential campaign, candidates Barack Obama and John McCain both promised to close the detention center for terrorism suspects, which has held 779 detainees over the past 10 years. Two days after his inauguration, President Obama signed executive orders banning torture and directing the closing of the detention camp within a year.
So why is Guantánamo still open? Congress has blocked the transfer of detainees to U.S. federal courts and prisons and placed ridiculous restrictions on sending home the 89 prisoners cleared for transfer. Speakers in Washington, DC for the anniversary gave powerful reasons why policymakers on both sides of the aisle should agree to dismantle this facility.
Most of the "enemy combatants" detained at Guantánamo were low-level insurgents, providing material support, or even hapless innocents swept up in the post-9/11 frenzy of fear. According to criminal defense lawyer Nancy Hollander, who spoke Feb. 14 at Georgetown University's Alwaleed Bin Talal Center for Muslim-Christian Understanding, 85 percent of detainees were "captured" in response to U.S. leaflets dropped on Pakistan or Northern Alliance villages offering a $5,000 bounty to people who turned in their neighbors.
Only 5 percent were seized from an actual battlefield, she said. Some were captured far from battlefields, and others were transferred to the front, including one of her two Guantánamo defendants, Mohamedou Ould Slahi. Incarcerated since 2002, Slahi was snatched in his native country, Mauritania, handed over to Americans, "renditioned" to Jordan for eight months, then flown to Bagram Air Force Base in Afghanistan, and finally ending up in Gitmo.
Slahi first was suspected of being involved in a plot to bomb Los Angeles Airport in 2000. Later, when that accusation didn't pan out, he was charged with having associated with the Hamburg cell that recruited several 9/11 hijackers. After being tortured, Slahi falsely confessed to being involved with that group. In fact, torture is the second reason Guantánamo needs to go.
Hollander said interrogation logs show that her client Slahi, considered an HVD (high-value detainee), was subjected to sleep deprivation for more than 60 days, as well as to years of solitary confinement, waterboarding and military interrogations that resulted in several broken ribs. He was questioned blindfolded while hearing a drill or a gun being loaded. Interrogators once showed him a fake letter stating that his mother had been arrested. If he didn't cooperate, they told him, she would be sent to Gitmo—the only woman among all the male prisoners.
In fact, on his first tour of Guantánamo, Lt. Col. Stuart Couch (who volunteered to prosecute Slahi because his Marine buddy Mike Horrock was the co-pilot on the second plane to strike the World Trade Center on Sept. 11, 2001) was an inadvertent witness to Guantánamo interrogation methods.
Hollander described the event, which caused Couch to resign rather than to prosecute Slahi. While waiting to watch the interrogation of another suspect, Couch heard music blasting nearby. He thought he'd go tell some soldiers to quiet down, but instead he entered a room and found Slahi, shackled to the floor, in a pitch-black room with strobe-lights flashing, while hardcore rock music blasted from speakers. Slahi was rocking in a fetal position, praying. Two civilian interrogators made Couch leave.
Why can't the remaining detainees leave Guantánamo and be tried in a U.S. federal court? After all, in the last decade U.S. federal courts have tried more than 400 people on terrorism charges. Congress has blocked that idea, claiming the suspects are too dangerous to release and that 46 of them should be permanently imprisoned without charge or trial. But the truth is the evidence against the men can't be released in court because it's been obtained by torture.
Numerous studies have shown that torture victims will say anything to stop the pain. If courts can't convict these men, they should be released.
Of the 171 men still imprisoned, who have been there since 2001 or 2002, most of the 89 cleared for release are Yemeni. Lawmakers have placed an absurd contingency on their repatriation: the U.S. defense secretary must certify that a freed "individual cannot engage or re-engage in any terrorist activity." The Defense Department has claimed that about one in four of detainees released are known or suspected of subsequently joining militant groups. More than four in ten U.S. offenders return to state prison within three years of their release, Andy Worthington, author of Guantánamo Files: the Stories of 774 Detainees in America's Illegal Prison, told a New America Foundation audience in DC on Jan. 10. Imagine what would happen if no prisoner from the state of Colorado could be released if one Coloradan committed a second crime, he said. It's not possible to get out of Gitmo through legal means, Worthington added: "The last two people to leave Guantánamo left in coffins."
We have a justice system and it works, Hollander told her Georgetown audience, many of them law students. Indigent defendants are appointed public defenders. They can call or have visits from their lawyer and family.
In sharp contrast, these accused men can't receive a fair trial, Hollander argued. The rules are ever-changing for lawyers working pro-bono for Guantánamo defendants. They must plan expensive air travel to the base 20 days in advance and have to have a "minder" on phone calls, to make sure they don't discuss classified information. Guards are permitted to "scan" attorney-client mail, and the notes Hollander takes while meeting with her clients must remain in a special "secure room" in Washington, DC. She cannot discuss the case with co-workers or read mail from her client without going to another "safe" room on a military base, somewhat closer to her Albuquerque firm. This places a huge burden on the defense, she explained.
Also speaking at the New America Foundation panel was Col. Morris Davis, who resigned in 2007 as chief prosecutor for military commissions at Guantanamo because of his objection to the use of evidence obtained by torture and growing political interference in the military commissions. He offered another reason to close the prison: "I'd like to have my country back."
Panelists described the National Defense Authorization Act, signed by President Obama on Dec. 31, which explicitly authorizes the federal government to indefinitely imprison without charge or trial American citizens and others picked up inside and outside the United States. Not only is this a foreign policy embarrassment, but it also undermines the constitutional rights of all American citizens, Colonel Davis stated. The Supreme Court ruled in 2004 that non-citizens, including alleged "enemy combatants," have the right to habeus corpus, he noted, so a strong case can be made for the unconstitutionality of this act.
If Americans are captured in Cuba or Iran, or anywhere in the world, the U.S. government expects them to have the right of a trial. They can't just be detained. Guantánamo lowers the bar.
"We want our justice system back," Hollander concluded her presentation by saying. "Torture is a crime. No one is being prosecuted for trashing our constitution." Guantánamo has destroyed America's reputation in the Middle East. Arabs who once admired us ask how we could do this? "We need to take back our justice system," she urged. "Only people can do that."
Security experts say Guantánamo hurts U.S. security and bolsters al-Qaeda's recruiting efforts. Charles C. Krulak and Joseph P. Hoar, retired four-star Marine generals, called Guantánamo "a morally and financially expensive symbol of detainee abuse."
"Given the facts, a majority of Americans would agree Guantánamo must be closed," Congressman Jim Moran (D-VA) told listeners at the New America Foundation discussion. "This is all part of the politics of fear of the unknown and bigotry against Muslims," he added. According to Moran, Congress is operating in an "echo chamber of conservative media" which is hammering away saying Guantánamo contains the "worst of the worst," while in truth many should not have been picked up or detained in the first place. They're held in detention without the ability to defend themselves or to know what they're accused of. It's the most expensive prison in the world, Moran stated, costing American taxpayers $800,000 per year per detainee.
To change the current political reality, Americans need to become more educated and push President Obama to show leadership and use his bully pulpit. In this election year, voters have the opportunity to demand that candidates work to close this facility immediately. Guantánamo compromises our foreign policy and the ideals that define the United States, Moran concluded. "We're Americans and we're better than this."
Delinda C. Hanley is news editor of the Washington Report on Middle East Affairs.