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The Permanent Injustice of Guantánamo

by Andy Worthington 

When the prison at Guantánamo Bay, Cuba opened on January 11, 2002 as part of the Bush administration’s global “war on terror,” in response to the terrorist attacks of September 11, 2001, it was not immediately apparent that it was a dangerous aberration from recognized laws and treaties that would tarnish America’s name forever.

There had been hints that this was the case — primarily, the fact that a war had been declared when a crime had taken place, and the military order issued by the President in November 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” in which he stated that members of al-Qaeda or those who harbored them could be held by the US military and, if required, subjected to military trials.

Also worrying, when Guantánamo opened, were the photos of the first prisoners to arrive at the prison, shackled in orange jumpsuits, and subjected to sensory depravation, with their eyes and ears closed with blackout goggles and headphones. The photos shocked many of America’s supporters, if not Americans themselves, who were used to orange jumpsuits from their domestic prisons, and had been primed relentlessly since the 9/11 attacks to enthuse over Wild West-style vengeance, and not to ask too many questions.

How discarding the Geneva Conventions led to the filing of Guantánamo with “Mickey Mouse detainees”

In addition, for those paying particularly close attention, it was noticeable that there had been no word officially about the use of competent tribunals under Article 5 of the Geneva Conventions to make sure that those being sent to Guantánamo as “the worst of the worst” were not, in fact, civilians seized by mistake.

Held close to the time and place of capture, competent tribunals were designed after the Second World War to separate combatants from civilians, and are intended specifically for circumstances in which those detained are not part of a recognizable military organisation. This was the case with al-Qaeda, although it was not, arguably, the same when it came to the Taliban, who were the government of Afghanistan, and often had recognizable headgear — their black turbans.

The importance of competent tribunals lies in their ability to allow prisoners of disputed provence to call witnesses to defend them, and they had been a key component in America’s wars from Vietnam onwards. During the first Gulf War, for example, around 1,200 had been convened and in nearly three-quarters of those cases, it had been discovered that civilians had been seized in the fog of war, and the men were duly released [PDF, p.663 -- In Iraq, the US military held 1196 tribunals, and, in 886 cases (74 percent), found it had detained civilians instead of combatants, and released them].

The decision not to hold competent tribunals in Afghanistan, which was made at the highest levels of the Bush administration, shocked many in the military, who had been preparing to hold them until the order came that they were not to be used. For those watching closely, the decision was disastrous, leading to the filling of Guantánamo with largely insignificant Taliban foot soldiers or completely innocent men. This was revealed in December 2002, when, in the Los Angeles Times, Greg Miller reported that Maj. Gen. Michael Dunlavey, the commander of Guantánamo until October 2002, had complained about the number of “Mickey Mouse detainees” being sent to Guantánamo from Afghanistan.

Later revelations confirmed how chaotic the Bush administration’s detention policies were, adding to the volume of “Mickey Mouse detainees.” In July 2004, for example, Chris Mackey, the pseudonym of a senior interrogator in the prisons at Kandahar and Bagram that were used to process prisoners for Guantánamo, revealed, in his book The Interrogators (written with Greg Miller), that the orders that had come from Camp Doha in Kuwait, where the military’s top brass were stationed, had stipulated that every Arab who came into US custody — with no exceptions allowed — had to be sent to Guantánamo.

Mackey’s book also made it clear that Special Forces had further confused matters by dropping off prisoners without any explanatory information whatsoever. However, although these operations accounted for some of the prisoners,  an even bigger shock came in February 2006, when researchers at the Seton Hall Law School in New Jersey completed a statistical analysis of the Pentagon’s own allegations relating to 517 of the 779 prisoners held at Guantánamo, revealing that the majority of the prisoners were not even seized by the US military, but were seized by their Afghan or Pakistani allies [PDF].

The Seton Hall analysis ascertained that 86 percent of the 517 prisoners were captured by the Northern Alliance or Pakistani forces, that 55 percent were not determined to have committed any hostile acts against the US or its allies, and that only 8 percent were alleged to have had any kind of affiliation with al-Qaeda. These figures thoroughly undermined the Bush administration’s claims that the prisoners were “captured on the battlefield,” and were, as defense secretary Donald Rumsfeld claimed, “among the most dangerous, best-trained, vicious killers on the face of the earth.” The Bush administration’s case was undermined further when it also became apparent that bounty payments to America’s allies in Afghanistan and Pakistan, averaging $5,000 a head, had been widespread, and had contributed to the chaos.

While it took time for these truths about the shambolic basis of the “war on terror” to emerge, other damning information emerged in real time; specifically, the executive order issued by George W. Bush on February 7, 2002 [PDF], in which the President declared that Guantánamo was largely beyond the reach of the Geneva Conventions. Bush declared that the Geneva Conventions would apply to the Taliban prisoners, but not to those from al-Qaeda, adding that, “to the extent appropriate and consistent with military necessity,” all the prisoners would be treated “in a manner consistent with the principles” of the Geneva Conventions.

Bush’s position had been signaled a month earlier, on the day Guantánamo opened, when Donald Rumsfeld had stated unequivocally that he prisoners “will be handled not as prisoners of war, because they’re not, but as unlawful combatants. Technically, unlawful combatants do not have any rights under the Geneva Convention. We have indicated that we do plan to, for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate.”

Both Rumsfeld and Bush were wrong, in the important sense that everyone seized in wartime has rights. Common Article 3 of the Geneva Conventions, which applies to every prisoner, prohibits “outrages upon personal dignity” and “inhuman treatment,” but it was not until 2004, when an internal memo surfaced that preceded Bush’s executive order about the Geneva Conventions, that it was known how far the administration had gone in its cynical attempts to justify depriving Guantánamo prisoners of basic rights.

How discarding the Geneva Conventions led to America’s use of torture

In a memo to the President dated January 25, 2002, which was signed by Alberto Gonzales, the President’s Chief Counsel, but written by David Addington, the legal counsel to Vice President Dick Cheney, the legal contortions that resulted in this unprecedented move were spelled out. Following up on administration claims that the “war on terror” was a new kind of war, the memo claimed, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions” [PDF].

What this meant, as later became apparent, was that one particularly “quaint” provision to be discarded was Common Article 3, the bulwark against torture. Again, it took time until the information was leaked, but after the Abu Ghraib scandal in Iraq broke in April 2004 (which ought to have demonstrated how torture and abuse had thoroughly infected the US military and America’s intelligence services) a secret memo was leaked, which is generally known as the “torture memo.” This demonstrated that lawyers in the Bush administration’s Justice Department (in the Office of Legal Counsel, which is supposed to provide the executive branch with impartial legal advice), working closely with Dick Cheney, had cynically attempted to redefine torture so that it could be used by the CIA.

The torture program approved by John Yoo and Jay S. Bybee in the OLC involved the administration reverse-engineering torture techniques taught in US military schools to help US personnel to resist torture if they fell into enemy hands (the SERE program — Survival, Evasion, Resistance, Escape), and a version of the program was then introduced at Guantánamo by Donald Rumsfeld.

As the Senate Armed Services Committee noted in its detailed and remarkably thorough “Inquiry into the Treatment of Detainees in US Custody” in 2008 [PDF], these programs involved techniques including “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.” In the CIA’s program, the techniques used also included waterboarding, a notorious torture technique which involves controlled drowning.

However, while these programs were a key element in the administration’s policy of running intelligence gathering centers (of which Guantánamo was just one) in which coercion was a key component, these dark days were largely brought to an end in September 2006, when, after the Supreme Court ruled in Hamdan v. Rumsfeld that Common Article 3 applied to all prisoners in US custody, the Bush administration reportedly closed its secret torture prisons, moved 14 “high-value detainees” to Guantánamo, and recognized that its experiments in torture, abuse and coercive interrogations would have to be brought to an end.

The legacy of those dark days lives on in the US prison at Bagram airbase, in Afghanistan (and, more pointedly, at forward operating bases throughout Afghanistan), where the military and the intelligence services seem to be happy that the Geneva Conventions have not been thoroughly reinstated, and interrogation remains, arguably, more important than keeping people off the battlefield or determining whether they were even on a battlefield in the first place — with all the temptation to abuse prisoners that this approach entails.

In Guantánamo, however, it is fair to say that the days of coercive interrogations, and of torture and abuse directed from the highest levels of government are over, although abuse still remains, for those punished by armored teams of thugs when they infringe the rules, and for those who have resorted to hunger strikes to protest their confinement, who are brutally force-fed for doing so.

Why the detention of prisoners at Guantánamo confounds justice, and is a form of torture

Crucially, however, Guantánamo remains a form of torture in and of itself, for reasons that are to do with the prisoners’ status as “enemy combatants,” and the legislation used to justify their detention — the Authorization for Use of Military Force (AUMF).

Passed by Congress the week after the 9/11 attacks, the AUMF authorises the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

In 2004, in Hamdi v. Rumsfeld, the Supreme Court confirmed that the AUMF also authorizes the detention of those held as a result of the President’s activities, although, as law professor Curtis Bradley has noted, “Justice O’Connor’s plurality opinion in Hamdi made clear that the Court was deciding only the authority to detain in connection with traditional combat operations in the Afghanistan theater.” Bradley also noted, “As for the proper length of detention, O’Connor largely avoided the question, although she did refer to the traditional ability under the international laws of war to detain individuals until the ‘cessation of active hostilities.’”

Despite these reservations, Hamdi confirmed that the AUMF had established a parallel world to the one ruled by the Geneva Conventions, and the lingering and permanent injustice of Guantánamo stems for that decision. The problem is that, when the Bush administration decided to hold both al-Qaeda and Taliban prisoners as “enemy combatants,” that failure to distinguish between the two (one a terrorist group, the other a government with a military) would have dreadful knock-on effects that have never been adequately addressed.

For the terror suspects in Guantánamo, the criminal trials that should have taken place have, with one exception, been brushed aside as a legitimate option because they have been portrayed as “warriors.” For the soldiers, however, the problem is that they are not prisoners of war as defined by the Geneva Conventions, and so face an uphill struggle to argue that the “war” in which they were seized was, or is finite, and is not the nebulous “war on terror” of the Bush administration.

Obama dropped the use of the terms “enemy combatant” and “war on terror,” but left the structure and rationale for Guantánamo fundamentally unchanged. As a result, the men held there are still essentially held without rights. Neither criminal suspects nor soldiers, they have discovered that, although the Supreme Court gave them constitutionally guaranteed habeas corpus rights in June 2008 [in Boumediene v. Bush], which led to the release of a handful of prisoners between December 2008 and January 2011, they have hit a brick wall in the deeply Conservative court of appeals in Washington D.C.

The court, which deals with challenges to the rulings made in the lower court, has realized that the basis for holding the prisoners — their involvement with al-Qaeda and/or the Taliban — is so vague that they have been able to completely shut down habeas as a way of being freed from Guantánamo for any of the men still held. Moreover, when Obama was advised by his own Guantánamo Review Task Force (consisting of over 60 career officials and lawyers in the various government departments and the intelligence agencies) not to release 48 of the men still held, even though there was no evidence in their cases that could be used in a court, he agreed, relying on the AUMF to issue an executive order in March 2011 declaring that they would be held indefinitely, although with periodic reviews to establish their status.

Ten years after Guantánamo opened, it is time for this dangerous and damaging nonsense to be brought to an end. The AUMF should be repealed, criminal suspects (those allegedly involved in terrorist activities) should be tried in federal court, and soldiers should be allowed to begin the litigation involved in demolishing the notion that a “war on terror” or a “long war” is legitimate, and to seek their release, with the guarantee that, in future conflicts, the US will once more adhere to the Geneva Conventions.

As it stands, Guantánamo is not just an aberration and a difficult legacy problem, but, as I mentioned above, a form of torture in and of itself. Because the AUMF does not concern itself with any end point to the detention of prisoners, and because no one has been able to open up a legal avenue to argue that this is unjust, they can be held forever without any functioning challenge, given that the D.C. Circuit Court has gutted habeas of all meaning.

In criminal courts, this kind of delay is anathema, and for soldiers, the problem remains a war without end. Both are an abomination, but the most brutal aspect of this story is not just what it says about the chronic failures of US justice at every level — the executive branch, lawmakers and the judiciary — but what it means, uniquely for the prisoners. As Christophe Girod of the International Committee of the Red Cross told the New York Times in October 2003, breaking with protocol by speaking out publicly, “The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

That open-endedness remains a problem that the Guantánamo prisoners do not share with those in the domestic prison system who were sentenced in a courtroom, or those imprisoned in connection with a specific military conflict, and its impact on the prisoners’ mental health — never knowing when, if ever they will be released — can only have become a far, far graver problem than it was eight years ago.

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

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