Guantánamo, Six Years Later

Today marks six years since the detention camp at the Guantánamo Bay Naval Station was opened. The first 20 men arrived on January 11, 2002. Almost 800 men have been held there since then; around 500 have been sent home; only five have seen formal charges under the Military Commissions Act; and only one, Australian David Hicks, has been convicted -- after a guilty plea that resulted in a nine month sentence and, astonishingly, a 12-month gag order.

Of the 500-odd men released, none has received an apology. Instead, most receive an agreement they are asked to sign, stating that while they were an "enemy combatant," they agree not to go back to that way of life.

Presumably the people who drafted this form thought it was a good way to cover the administration's behind. Unfortunately for them, the military's own records betray the lie. Thanks to those records (and to the fact that lawyers have had access to the detainees) we now know that most of the detainees at Guantánamo have no link to terrorism. Only 1 in 20 were captured by U.S. forces; the rest were captured by third parties and frequently sold to us in exchange for bounties paid to warlords or hungry villagers during the chaos of the Afghan war. As with every indiscriminate system of detention, the result was a very poor yield of the guilty and a very large number of innocents being detained. Also predictable was the pressure on the interrogation process created by feeding so much chaff into the system. That pressure -- along with decisions made at the highest levels of government to discard centuries of practical experience and resort to coercive methods of interrogation -- led to widespread, systematic torture: sexual abuse, force feeding, withholding of medical treatment for serious injuries, and endless varieties of physical and psychological brutalization.

Sweeps like the ones that sent most of the detainees into Guantánamo tend to rely on profiling by race, ethnicity, and religion. Accompanied by abusive treatment and torture in detention, it's no surprise that those whole communities (at home and abroad) begin to hate us as a nation. By costing us the trust of those communities, law enforcement loses its most valuable resource for uncovering hidden terrorist conspiracies: their "eyes and ears on the street." The loss of legitimacy and public relations backlash in foreign countries also causes those nations to hesitate in cooperating with us in global multilateral efforts against terrorism. And all that puts to one side the fact that most of the people swept in will be innocent -- that law enforcement and interrogators will have wasted their efforts on nobodies. None of that makes us safer.

The administration has defended itself by presenting its mass detentions as a well-planned policy of "preemptive arrest" -- of "not wait[ing] for threats to fully materialize" as the president put it -- but that practice violates every traditional notion of how best to disrupt terrorist conspiracies. The standard law enforcement playbook on investigating big criminal conspiracies says that you treat the first suspect you find as the tip of the iceberg, and, instead of arresting him (and holding an immediate news conference, as John Ashcroft was wont to), you direct more investigative resources at him -- tail him, wiretap his phone, infiltrate the criminal enterprise, all in the hope that he'll lead you to the rest of the conspirators. That also ensures you can bring solid criminal charges against the first conspirators caught, charges that give them an incentive to cooperate against their co-conspirators higher up the pyramid.

On the battlefield you arrest the enemy at first sight. But that "war" mentality doesn't work well at the painstaking process of investigating terrorist conspiracies -- it causes you to lose the sunken part of the iceberg. Arresting the first suspects too early means that you lose the ability to gather intelligence about the involvement of others in the plot. Keep them out there and do solid investigative work on them, and they become a resource for law enforcement.

The facts about who the detainees at Guantánamo are reinforce this notion that preventative detention doesn't work to make us safer. How, then, are we still left with hundreds of detainees at Guantánamo six years into this mess? Major General Jay Hood, then the commander of the detention camp, admitted to the Wall Street Journal that "[s]ometimes we just didn't get the right folks," but innocents remain at the base because "[n]obody wants to be the one to sign the release papers. ... there's no muscle in the system." While the courts are supposed to provide that muscle, the last major act of the Republican-controlled Congress in 2006 was to strip away the right of the courts to hear challenges to the legality of their detentions. The Supreme Court has yet to act to reverse Congress' ill-considered actions. And, as Major General Hood acknowledges, no one in the military or the White House has any incentive to admit error in Guantánamo.

As much as the camp has proved to be a public relations disaster for America and a failure as a counterterrorism measure, it will probably be around when the next president is inaugurated. In both respects, it resembles our disastrous national misadventure in Iraq. Both situations are beyond repair, yet, as in Iraq, there is every indication that President Bush intends to prolong the mistake so he can pass the responsibility for cleaning up his mess to his successor.

Will things inevitably be different next year? A few months ago I reviewed David Cole and Jules Lobel's book on this site, in which the authors say "if a Democratic president had been in office on September 11, 2001, many of the abuses we recount here would likely have happened anyway." Plenty of recent revelations reinforce this impression--from the group of Democrats and Republicans in Congress briefed on torture techniques and asking only if the methods were tough enough, to the Democrats' Congressional leadership knuckling under and passing legislation to whitewash the NSA Surveillance Program last August.

As Cole and Lobel point out, "[h]istory demonstrates that executive officials of all partisan stripes tend to favor a preventative paradigm in times of national crisis" even though the historical record shows it has rarely been effective. It's normal human psychology - and every politician's psyche, right or left - to want to take the most dramatic, coercive steps in response to a crisis. Mass detention and medieval interrogation techniques fit the bill. The end result of all of this is that "the slow and painstaking work of assessing vulnerabilities, collecting and analyzing information, shoring up our defenses, [and] building coalitions" is neglected. As this "report card on the war on terror" (published in the L.A. Times by Cole and Lobel) indicates, it hasn't left us safer. Quite the opposite.

With that in mind, here's my own "report card" on how the candidates have come out so far:

Clinton: Consistent advocate of Gtmo closure; co-sponsored Feinstein bill to close it down. A bit ambiguous at times on coercive interrogation; had wanted more detail on existing practices, later stated torture "cannot be American policy. Period."

Edwards: says "We are not the country of Abu Ghraib or Guantánamo.... We are Americans and we're better than that." Would prohibit torture and rendition, and close Gtmo.

Giuliani: "[N]ot inclined to agree right now [with Colin Powell] that we should necessarily close Guantánamo." Better on torture; like most former prosecutors, understands how the professionals work conspiracy cases: "You know how I put hundreds of Mafia people in jail? ... we arrested them, we got very significant charges on them, and we questioned them for long periods of time. With very aggressive techniques. Never ever tortured anybody."

Huckabee: "I visited Guantánamo just about a year ago. ...I [have] visited every single prison in the Arkansas prison system, and I can tell you most of our prisoners would love to be in a facility more like Guantánamo...." Denounces torture and states that waterboarding is torture.

McCain: Wants Guantánamo closed because it damages U.S. credibility abroad; would move the prisoners to Ft. Leavenworth in Kansas (which would make judicial review of detentions inevitable), and is against indefinite detention without charge. Knows torture firsthand; is against it.

Obama: spokesman says: "supports Guantánamo closing and is still working to find the best possible solution for the prisoners who are there right now." On torture: "The secret authorization of brutal interrogations is an outrageous betrayal of our core values, and a grave danger to our security. ... Torture is how you create enemies, not how you defeat them. Torture is how you get bad information, not good intelligence. Torture is how you set back America's standing in the world, not how you strengthen it."

Romney: "I believe that Guantánamo plays an important role in protecting our nation from violent, heinous terrorists." "Guantánamo is a symbol of our resolve." "The food down there is unbelievable. This is not this gulag; this is a modern prison which treats people with dignity and respect." Said during June debate: "We ought to double Guantánamo." (Spokesman later clarified that Romney meant he wanted "to go out and catch more terrorists and doesn't want to import them [to the U.S.]") Also supports "enhanced" interrogation techniques; won't rule out waterboarding.

If the record is a bit unclear for some of the candidates on some of these issues, the time for voters to demand absolute clarity is now. Remember, later in the cycle candidates will typically migrate to the center (meaning the better ones now may lose conviction later, given the electorate's split on these issues). Early promises can prove to be hollow: President Clinton said he would close the first camp at Gtmo (for Haitian refugees) during the 1992 campaign. Four days before his inauguration, he reneged. And the efforts of my current colleagues at the Center for Constitutional Rights and then-fellow law students in the courts for the Haitians didn't prevent this legal black hole from reemerging a decade later.

--January 11, 2008

Comments

[lungfish]

Gitmo is a stain on our nation, like this war and our President.
It was put in place to circumvent US law. We have managed to capture and convict terrorists for decades without a Gitmo. Currently the French and the UK and other countries are doing what they always have done with terrorists... capture them and treat them as criminals using good police work.
The majority of the guys at Gitmo aren't even guilty and they aren't being tried because a flood of these cases would be very, very embarassing to a gov that is already maximally embarassed.
Gitmo is a pathetic and lame exercise and damages America's image far more than it benefits our security. It makes us look even more hypocritical when we promote human rights while we have secret CIA goon squads snatching folks, many of them innocent, and subjecting them to torture and rendition for more torture..
We should be doing our level best to find and recover anyone "rendered" and determining if they really are a security issue in the original sense...
Can anyone say with confidence that there are no innocent people under CIA rendition and torture?
Mr. Jose Rodriques was responsible for authorizing all snatches by the CIA and isn't he responsible or accountable if the CIA snatches the wrong guy... as it has on several occasions? Italy is trying 26 CIA agents in absentia for snatching innocent people as well as operating in their country illegally and nobody on the US side is even answering their phone calls....
If America is so proud of what it is doing then why isn't it standing up for itself when challenged on matters of rendition and torture? The simple answer is that wrong is wrong and nobody in this country wants the long term responsibility of defending and promoting a policy of torture and kidnapping for a country that has bitched to high heaven about human rights for years.

[MagisterLudi]

I support the contention that Bush administration should be prevented from torturing prisoners.

The rules for interrogation should be clearly defined and enforced.

However, this defense attorney's attempt to present his clients as innocent should be viewed as just that:defense shyster's hot air.

[MagisterLudi]

The fact that many were released does NOT mean that they are innocent. It just means that inept Bush administration was not able to prove their guilt.
Now for some examples:

Former Gitmo prisoner Abderrahmane is in Denmark. He stated in Danish press:"
'"Western democracy has no room for people who think differently. There's no room for me here in Denmark, so I'm going to war in Chechnya, where I can support Muslims and be of some use."
Danish Security Intelligence is considering further action following Abderrahmane's threat to move to Chechnya.

According to APA
French court convicted five former inmates of Guantanamo on terrorism-related charges on Wednesday.
Former Guantanamo prisoners: Brahim Yadel, Khaled ben Mustafa, Nizar Sassi, Mourad Benchellali and Ridouane Khalid -- said during the trial that they had spent time in military training camps in Afghanistan but claimed they had never put their combat skills to use." Right...

Ruslan Odizhev, a former Chechen Gitmo prisoner was killer in a shoot out with Russian police on June 27, 2007. His residence contained stocks of explosives.

Mohammed Ismail released from Guantanamo in 2004, was recaptured four months later while participating in an attack on U.S. forces near Kandahar.

Maulvi Abdul Ghaffar. After release, he re-joined Taliban and was killed in a gunfight in Afghanistan on September 26, 2004.

Former Guantanamo prisoner David Hicks has admitted he attended al-Qaida training camps in Pakistan, and undertook "substantial training" guerrilla warfare from al-Qaida and the Pakistani terror group Lashkar-e-Tayyiba.

Were there innocent men imprisoned at Gitmo? Probably. But to imply that most were innocent is a biased massage of facts.

Are we to believe all those Non Afghanis from Western and Eastern Europe, Africa, America and Asia(all YOUNG military age men,ALL Muslims) just happen to be in A-stan precisely at the time when Northern Alliance and Americans were fighting the Taliban and AL Qaeda?

Or maybe they were sent there to conduct archeology studies, perhaps?
Are there any significant Muslim holy places in A-stan?

[xrepublican]

You can't release INNOCENT people.

If you do, they go out and complain of how badly they've been treated. They WOULD sue the hell out of the US if allowed access to US law, but haha that's why we held them in Cuba - a Commie dictatorship.... not the US

This is a disgusting travesty.... half those held were turned over to US forces for $$$ or in some effort to settle some personal feud.... hey Omar - this will teach you to steal MY goat.... "US SOLDIER!!!! This guy is alQuaeda!!!!"

Same thing happened in Lebanon. The USS New Jersey was shelling targets pointed out by locals looking to even personal scores...

This is what happens when you're UTTERLY CLUELESS, have NOBODY that speaks local languages and depend on 'trusted' locals - who could care less about the US and are in it for the $$$ and will trun on you at the earliest chance.... and why SHOULD they trust us given how the US treats everyone? Look at how we rewarded the Afghans after they ousted the Soviets.... look at all the hospitals and schools we built, the villages we restored, all the aid we gave them ....oops none of that happened. We said 'thanks' and left the place bombed into the Stone Age - laid waste by the Russians.....

[realpolitic]

Bush tears up at a Holocaust memorial and meanwhile we have black site prisons all over the world, we render prisoners to countries who freely practice torture (as the Canadian citizen attests who was mistakenly rendered to Syria), and we practice torture ourselves. Bush denies we torture, only for much of his administration it was defined as anything short of major organ collapse or death. In other words, it did not amount to torture unless it killed the subject. Bush is an example of moral confusion and really moral relativism. In his world, as long as we do it and it is done for nationalistic reasons it is permissable. Most despots reach that conclusion.

[ljsfolly]

To have bush actually cry at the Nazi camp made me want to slap him for his dierespect of those who survived by saying he wishes the US would have bombed the camp. What the hell? This is the same man who has told soldiers/CIA/FBI to torture prisoners. Sure there is a huge difference in what was done but the very idea of torture is that it starts at a little and goes way beyond what we would agree to as humanity. To have Gtmo sitting in a country we don't have relationships with is even far more obvious. If the camp across from our own country isn't ok what are they doing in the ones we know little or nothing about? Torture we all know has been ok'd and yet all this time and all the soldiers dead have yet to prove anyone in GTMO now is a person to terrorize. They let several out earlier that did go back and do significant terror events. It is a black eye and multiple bruises on americans that it is still in operation.

[TRYKER]

It is just incredible that the WAR was so unjust, there weren't any real "prisoners of war" so they bought some!!!
They had people kidnapped and paid $5000 a head and imported them. WTF?

And now the big question is what to do with them?
Take them home and pay them for their wrongful detention for chrissake.
Yesterday!

It is glaringly clear by now that the No. 1 cause of Herr Bush was to SPEND the US out of money as fast and as much as was inhumanly possible. Buying prisoners to fill up a prison?
How much absurdity do we have to choke on before we retch loud enough to make a difference?

[Mutex]

"the result was a very poor yield of the guilty"

Guilty? Guilty of what?

Guilty of being poor? Of being tired of subjugation and injustice? Of fighting back against the American Empire?

The entire 'war on terror' is a lie. This is a war to maintain the status quo at the expense of the people of third world countries.

Military bases in 59 countries, paying off corrupt dictators and torture are suppose to spread 'freedom and democracy'???

If we are the champions of poor people around the world God help them if they ever get enemies!

[thedudeabides]

shame on alberto gonzales, dick cheney, douglas feith, paul wolfowitz, richard perle, louis libby, karl rove, w, and all the moral cowards who stomped on our traditions of due process with the creation of guantanamo...and let's not forget the delusional donny rumsfeld...