Anniversary of Shame and Disgrace

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It was six years ago, January 11, 2002. Shackled, handcuffed, goggled and hooded, the men came shuffling off the big gray C-141 Starlifter cargo jet that had sped them from Afghanistan to the southeastern coast of Cuba, to Guantánamo Bay. Only 20 arrived that first day, but, eventually, some 800 prisoners wound up behind the razor wire at Camp X-Ray, Camp Delta, Camp Iguana, Camp Echo. They included gnarled old men with no teeth whose beards their captors had forcibly shaved. And boys too young for whiskers.

Designated “unlawful enemy combatants,” they were delivered to a bit of land permanently pried from Cuba a century earlier specifically because the Cheney-Bush administration wanted them held beyond the rule of law, confined incommunicado in a jurisdictionless no-man’s land and subject to the whims of a single person, the president of the United States of America. Out of reach of the Geneva Conventions, of the U.S. Constitution, of civilization itself, they were held in a military prison perched on the stolen land of a country that this same irony-challenged president would soon list as part of his “axis of evil.”

More than four years would pass before Washington officially made 558 of the prisoners’ names public. Not a single one was innocent, the camp boss, Rear Admiral Harry Harris, would tell ABC News in 2006.  

Easy to say when you don’t hold trials. Only one person has been convicted at Guantánamo, and he only because of a plea agreement. Officials admit that more a hundred prisoners have gone on hunger strikes and been force-fed, dozens have attempted suicide, and four have succeeded in committing suicide, although their kin is suspicious of that claim for their deaths.

Prisoners have been dehumanized, brutalized and tortured. All of it excused as necessitated by the war on terror, all of it justified by tortuous legalistic rigamarole.

While Guantánamo has been transformed from a camp with buckets for toilets and mats for beds to one of the most high-tech prisons on the planet, several hundred of its captives have been released, in most cases after years of arbitrary detention. But many who have been cleared for release still haven’t been repatriated. In some cases, that’s because their home country doesn’t want them back, a situation exacerbated because U.S. officials repeatedly called the Guantánamo prisoners the “worst of the worst” and never admitted to mistaken detentions.

Some prisoners cannot be released because it is prohibited to send them to places – like China – where they might be tortured or otherwise abused. Yet some have been repatriated to countries such as Libya, where torture occurs frequently. The most recent release was of 10 Saudi nationals repatriated in late December. Another 13 Saudis could be released soon. As of today, about 275 prisoners remain at Guantánamo.

Meanwhile, Washington has doubled the number of “unlawful enemy combatants” held at Bagram military base in Afghanistan to about 630 detainees, with at least 32 of them having been released from Guantánamo last year. The Independent says Bagram is subject to the same complaints about prisoners being “held incommunicado for weeks or months, the lack of recourse to any system of legal redress, and persistent reports of prisoner mistreatment that many human rights campaigners have characterised as torture.” Among the critics has been the International Red Cross, which says it has been barred from inspections or visits for months at a time.

Tomorrow, from Boston to Waikiki, protesters in 19 U.S. cities, in England and elsewhere will call for the closing of this affront to the justice for all that our nation claims to stand for. You can find out about those protests here.

You can sign a pledge that already has 550,000 names on it here to …

affirm my commitment to the American values of justice and liberty for all. I believe in the core values enshrined in the U.S. Constitution – that no person should be subjected to the use of torture, orcruel treatment, or indefinite and arbitrary detention. I call for the U.S. government to CLOSE GUANTÁNAMO.

From the beginning, lawyers, human rights and civil rights organizations, including the American Civil Liberties Union, have fought the constitutionality of detaining “illegal combatants,” with some limited successes. The first came in June 2004 when the Supreme Court ruled 6-3 in Rasul v. Bush that the federal courts had habeas jurisdiction over Guantánamo.

There was also the case of Salim Ahmed Hamdan, a Yemeni who was formerly a driver for Osama bin Laden. His first prosecution was halted in November 2004 after a federal district court judge ruled military commission proceedings against him were outside the law. In Hamdan v. Rumsfeld, in June 2006, the Supreme Court upheld the district court decision 5-3. Antonin Scalia refused to recuse himself even though he had said prior to oral arguments, “I had a son on that battlefield and they were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.”

Cheney-Bush officials have done their best to get around the rulings in these cases, and Congress has done a fine job of enabling them with the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. The first keeps Guantánamo prisoners from seeking any new statutory habeas claims. Under the second, any non-citizen whom the president labels an “unlawful enemy combatant” cannot seek release from detention with a habeas corpus challenge. That means any of the estimated 12 million legal resident aliens in the United States is barred from challenging his or her detention. According to a few critics, including Oregon Rep. David Wu and Bill Goodman of the Center for Constitutional Rights, the wording of the law might even be construed to apply to U.S. citizens.

The supposed remedy for prisoners is federal review of the so-called Combatant Status Review Tribunals, which determine whether a detainee is actually an “unlawful enemy combatant.” Weak medicine, indeed, since, as Human Rights Watch points out, “the CSRTs are under the chain of command of the president, who has already publicly announced that all Guantánamo detainees are enemy combatants.”

In an Op-Ed in July 2007, James Ross, Legal Director of Human Rights Watch wrote:  

It’s not every day that a 26-year veteran in U.S. military intelligence puts his career on the line by publicly criticizing a high-profile operation. But Lt. Col. Stephen Abraham, an Army reservist and lawyer, did just that last week in a Supreme Court affidavit that challenges the court’s refusal to hear the claims of Guantánamo Bay detainees.  

Abraham spent six months in 2004-2005 as a panelist on the Combatant Status Review Tribunals, or CSRTs, at Guantánamo, which were created to determine whether individual detainees were ”enemy combatants.” His statement, claiming that determinations were based on outdated, generic intelligence that was rarely case specific, captures the extent to which the Bush administration has been willing to ignore if not manipulate the facts in pursuing the ”global war on terror” — even if it undermines those very efforts. …

To date three-member military tribunals at Guantánamo have processed the cases of 572 detainees. Only 38 were found not to be enemy combatants. Unlike habeas proceeding, where the burden is on the government to show that the detention is lawful, the CSRTs required the detainee prove he was not an enemy combatant. And the CSRT rules prohibited the detainee from having the assistance of a lawyer or seeing most of the evidence against him.  

But it turns out that the military panelists had not much more access to the evidence than did the detainees. Abraham says his repeated requests for information that would shed light on specific cases were routinely rejected. ”What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” he stated.

Last month, the Supreme Court heard oral arguments in two related cases, Boumediene v. Bush and Al Odah v. the United States. At issue once again is whether the detainees can bring habeas challenges.

Only 10 of the remaining men at Guantánamo have been charged with anything. Only three are pending trial, the first of which starts in May. David Hicks, the only person convicted so far – of “providing material support for terrorism” – was shipped home to Australia last April after a plea bargain and served nine months at Yatala Labour Prison. He was released December 29, nearly six years after arriving at Guantánamo.

The so-called Seton Hall University School of Law study, A Profile of 517 Detainees through Analysis of Department of Defense Data by Professor Mark Denbeaux and Attorney Joshua Denbeaux found that:

1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.

2. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.

3. The Government has detained numerous persons based on mere affiliations with a large number of groups that in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably. Eight percent are detained because they are deemed “fighters for;” 30% considered “members of;” a large majority – 60% — are detained merely because they are “associated with” a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners their nexus to any terrorist group is unidentified.

4. Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies.

This past May Sen. Tom Harkin introduced the Guantanamo Bay Detention Facility Closure Act of 2007 and was joined by six Democrats, including Joe Biden and Christopher Dodd. On June 29, 2007, 145 members of the House of Reps sent a letter to Mister Bush urging him to close Guantánamo. Only one Republican signed that letter, Congressman Walter Jones of North Carolina.

Every one of the Democratic presidential candidates has called for the closing of Guantánamo. So has Republican Senator John McCain, and, no surprise, Representative Ron Paul. Governor Mitt Romney, on the other hand, says: “My view is, we ought to double Guantanamo,” and “The food down there is unbelievable.” Governor Mike Huckabee says, “If anything, it’s too nice.”

The remaining prisoners at Guantánamo ought to be released or given fair trials. That includes the 15 “high value” detainees who are considered the greatest security risks. Needed now is a narrowly focused, carefully crafted, wise means of dealing with the growing number of terrorists – some of them recruited in part because of disgraces like Guantánamo.

But closing one prison goes only part way to what is really required. For six years, the Cheney-Bush administration has operated ghost planes and ghost prisons, engaged in torture and watched over foreign surrogates so engaged, dismantled some of our most precious Constitutional protections, accumulated as much power as a flaccid Congress would allow, and generally behaved like warlords. While they took this farther than ever before, the American exceptionalism and imperial arrogance that have characterized their reign originated long before the September 11 event they have used to justify their actions. Renouncing and uprooting both is essential to our future well-being and of everyone else around the planet.