Monday, December 14, 2009

Who's at Guantanamo Anyway? by P. Sabin Willet

That's what I was wondering one hot day last July (2005) when I walked across the silent and sterile prison yard. Nothing grew there: no grass or flower or tree or even a weed. We approached a hut. In side was a man chained to the floor. His name was Adel. My law firm had filed a habeas case for him the previous March, but I'd never seen or spoken to him before. Was he a terrorist? One of the worst of the worst?

Three weeks before I got to Guantanamo, Vice President Cheney said, "The people that are there are people we picked up on the battlefield, primarily in Afghanistan. They're terrorists. They're bomb makers. They're facilitators of terror. They're members of al Qaeda and the Taliban."

Something was off, right from the first minute. Something about the young man's gentle smile; his calm didn't fit. On the last day of July, I discovered what President Bush, and his lawyers at the Justice Department, had kept secret from the public, and even from the court: the military had concluded that Adel was innocent. Not a terrorist. Not an enemy soldier. Not a criminal. Never been on a battlefield. He'd been sold to U.S. forces from the soil of Pakistan, a nation with whom we have never been at war.

Vice President Cheney says that Adel and men like him were picked up on the battlefield, but according to a 2005 study conducted by Seton Hall School of Law, five percent were picked up on the battlefield. Ninety-five percent were not.

How did we get the rest? We distributed leaflets, with smiling Afghans declaring, "Get wealth and power beyond your dreams...You can receive millions of dollars helping anti-Taliban forces catch al-Qaeda and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people."

Eighty-six percent of the Guantanamo detainees were sold to the United States by people who got the flyers. Vice President Cheney says these men are al Qaeda fighters. What do the data show? Eight percent are al Qaeda fighters. Ninety-two percent were not.

Vice President Cheney says they committed hostile acts against Americans or their allies. What do the data say? Fifty-five percent of the detainees committed no hostile act against the United States or its allies or anyone else. By the way, Cheney and other Bush administration officials construed "hostile act" extremely broadly. Fleeing from bombing by U.S. forces is a hostile act. Being sold to U.S. forces is hostile act. Possessing a Kalashnikov rifle is a hostile act. It has been estimated that there were upwards of ten million Kalashnikovs in Afghanistan in 2001 and only eight million adult males. An adult Afghan male who hadn't possessed a Kalashnikov was harder to find than an adult Texan male who hadn't possessed a hunting rifle. If you walked into a restaurant in Kabul, you found Kalashnikov's hanging on the coat rack.

For sixty percent of the detainees, the only hook by which they are deemed enemy combatants is that they were "associated with" the Taliban. But you have to understand that in 2001 in Afghanistan, the Taliban was pervasive. Except in a few strongholds of the Northern Alliance, they controlled every village, every town, every guesthouse. If you traveled to Kabul and stayed in a guesthouse, you associated with the Taliban. If you were conscripted against your will into a Taliban militia, you "associated with" the Taliban. For two Saudis held in Guantanamo, their association with the Taliban is that the Taliban held them in prison as enemies of its regime.

I'm not making this up.

Who's at Guantanamo? Privates, orphans, the poor, conscripts, cooks, drivers. The mayors, the ministers, the Taliban generals- they're not there. Take Sayed Rahmutullah Hashemi. He joined the Taliban as a young man. He became a party spokesman. Osama bin Laden came to his office. Is Rahmutullah at Guantanamo? No. He is a freshman at Yale. Some of his former Taliban colleagues are now in the Afghan parliament that the United States helped to create. The desperately poor kids they employed as drivers and cooks sit in Guantanamo.

The last lie, the whopper, the huge one, is that Guantanamo holds terrorists. President Bush, Vice President Cheney, their amen chorus in the Senate, they all tell you relentlessly that these people are terrorists. I don't say that there is no terrorist there. But when you review the data, when you search it for anything remotely like a terrorist act- an act of violence against persons or property, for bombing or bomb making or the teaching of bomb making or the fund-raising for it- you find that that is, most of all, who isn't at Guantanamo.

If there is anyone in Guantanamo who conspired in the 9/11 murders, then I would like to see him tried. If he is guilty, I hope he is convicted. If he is tried and convicted by a federal court or a military court martial duly constituted under the Uniform Code of Military Justice, I would shed no tear for the ultimate sentence. All that we lawyers have been asking for, since the beginning, is a hearing, a chance to show whether someone really is an "enemy combatant" or not. And when Guantanamo cases have come up for an actual hearing, like Shafiq Rasul's, what happened after his case came under Supreme Court scrutiny?

They released him.

What happened to Moazzem Begg, another "worst of the worst"?

They released him.

Mandouh Habib?

When the story of his torture in Egypt surfaced, they released him

They told us these people were the worst of the worst, and yet rather than prove it, rather than protect you and me from them, they released them before a judge could see any facts. The Nazi war criminals were tried in the sunlight, and the world has never doubted the judgment at Nuremberg. But in no Guantanamo habeas case has President Bush been willing to let a federal judge hear a single fact about the worst of the worst. Instead, in the name of the global "war on terror", the president can seize anyone, anywhere in the world, and transport to Guantanamo Bay, where he may be held without criminal charge or process. The President may do so even after he has determined that a person was taken by mistake, as in Adel's case, and hold him as long as the war on terror lasts.

So I want to ask a question. How long will the war on terror last?

We need to acknowledge, if we are a thoughtful people, that terror is everywhere and has been with us always and involves all sorts of people who later get called "men of peace". My point is not that we should cease to fight terrorism. It is to ask, does anyone think he or she will live to see the end of terrorism? And thus the end of the global war against it? Do you think you'll watch on TV as the Emperor of Terror comes aboard a navy warship to sign an instrument of surrender?

When we say the president has special powers during the global war on terror, we are saying he has them forever. Always and forever can the president lock people up at Guantanamo without meaningful judicial review. Always and forever he can ignore the Congress's ban against torture, as he vowed to do. Always and forever can he tap your phone, download from your iMac,and go snuffling in your trash. Always and forever he can ignore the writ of habeas corpus...

I want my flag back.. My country has been hijacked, and I want it back. If we care about being a civilized people, then it is precisely in times of fear that we have to holds fastest to our rule of law. We already have the tools to deal with fanatics who blow up buildings and murder the innocent. We knew how to deal with Timothy McVeigh and not surrender our souls.

During the Vietnam War, a protester stood outside the White House with a candle. Every night for weeks. He stood out in the cold, in the rain. One day a reporter came up to him and asked, "Do you really think, with your candle, you're going to change White House policy?"

"No," he said, "I'm sure I won't change White House policy. But that's not why I'm doing this."

"Then why are you doing this?" the reporter asked.

"So that White House policy doesn't change me."

The rule of law is not coming back on its own. It will come back only when you go out and grab hold of it by the ears and drag it back. In the ballot box and the courtroom and the newspaper and the classroom and the public street. Can you remember where you were in January 2002? Think back. Now reflect for a moment on what has happened in your life since then. Where you've been. What you've done. Whom you've loved. Who has loved you. Now imagine that none of these things in your life happened because, like Adel, every single day since January 2002 you had been cut off in prison, isolated in a cage, just outside the map of the world. Even though the military determined there was no basis to hold you. And imagine the Congress of the United States voted to deny you the chance to ask a judge to make it right. So who's at Guantanamo? The truth is, the answer to the question is... You. And me.

{Speech at Princeton University in February 2006}


  1. In hindsight, one of the most salient features of the Bush administrations detention and interrogation operations after September 11 was their surprising shoddiness. Almost every aspect of the operation was marked with amateurishness, naivete, sloppy execution, or a combination of the same.

    In early 2002, hundreds of low-level detainees with little intelligence value began to be transferred to Guantanamo, even as many hundreds of more important Taliban fighters, who probably possessed important and useful intelligence were released. U.S. personnel on the ground evidenced an oddly unsophisticated understanding of the Taliban or al Qaeda, for instance, appearing to think that illiterate and ill-trained foot soldiers left behind by the Taliban leadership would somehow know the whereabouts of Osama bin Laden and Ayman al Zawahiri.

    Consider also the weak excuses used for detention: unsupported assertions by Afghan or Pakistani interpreters, informants, or intelligence personeel or poorly reasoned arguments by U.S. personnel in Afghanistan ("detainee was captured in the vicinity of an ongoing military operation") From 2003 through 2008, hundreds of detainees in Afghanistan and at Guantanamo were put through Combatant Status Review Tribunals (CRST) in which vague, un-sourced, and often incorrect information was presented as evidence. Frequent mistranslations by interpreters- either during initial interrogations or at Guantanamo- had significant effects.

    Then there is the issue of the" high-level" detainees. In 2004 through 2006, dozens of these detainees were dumped into the military detention system from CIA custody, where they had been severely- shockingly- mistreated. These interrogations were not coordinated with other U.S. intelligence or law enforcement efforts; whatever "confessions" or "evidence" resulted, even if they were confirmed, could now never be used in a proper court, whether here or abroad. These mistakes and others have now severely complicated efforts to prosecute detainees for any crimes they may have actually committed.

    But in some respects, the most surprising slackness in the U.S. detention operations after September 11 was the failure of military and intelligence personnel to keep their operations secret. Throughout the years after 2001, not-with-standing widespread public indifference, journalists, human rights investigators and lawyers managed to obtain a surprising amount of information about U.S. detention and interrogation operations.

    Ultimately, however, the true Achilles' heel for the CIA programs was that the operations were foolish and involved serious crimes: disappearances, abuse, torture, abuse, and brazen violations of legal precedents as well as the domestic laws in countries that were considered allies. As a result, many CIA and military personnel had little reason for respecting or honoring the secrecy surrounding these operations, since the operations themselves were so questionable. Many personnel thought the programs would ultimately do damage to the United States. In the end, they provided information about the programs to the media and human rights groups precisely because the operations were so ill-advised {John Sifton}

  2. Despite a series of compelling stories about the treatment and fate of detainees that have appeared in the media, public debate around Guantanamo has not coalesced around the idea that the Cuban prison facility must be closed because of the moral tragedy of detaining innocents en masse or the continuing fact of prolonged illegal detentions. Rather, advocacy about detention policy has focused on the harm to "us" and has not lingered over the harm to "them"- questions focusing on strategic interest, "soft-power", international law and diplomacy rather than investing any interest or energy in the transformation of perceptions of ourselves ( as a fundamentally self-absorbed, easily frightened and cruel people).- Aziz Huq

    "The Guantanamo Lawyers; Inside a Prison, Outside the Law" edited by Mark P. Deneaux and Jonathan Hafetz; New York University Press, 2009.

    The full and unedited stories of the more than one hundred lawyers who contributed to this book are collected and preserved in an electronic archive through the Seton Hall Law School and The New York University Libraries.

    P. Sabin Willet is a partner at Bigham McCutchen in Boston.

    John Siftom is a attorney and private investgator who has worked for Human Rights Watch and One World Research

    Azis Huq is an assistant professor of law at the University of Chicago.

  3. Abdullah ( a prisoner at Guantanamo) was the first to break the silence. "Do you want to hear a joke?"

    I looked up. "Sure"

    "This one is very popular among the brothers right now. There's a contest, okay, between Israel, England and the United States, to see who can go into the jungle and bring back a lion the fastest.

    "England goes first. Two hour later, they come out with a lion. Israel goes next, and one hour later, they come out with a lion.

    "Then it's the United States' turn. The go into the jungle. One hour passes. Two hour pass. Three hours pass. Night is beginning to fall, and the judges are getting worried. So they go in after them to find out what happened.

    "Fifty meters in, they find the Americans. Two of them are holding a donkey, and the third one is beating it until it confesses that it's a lion."