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Original author: Augusta Conchiglia
Source: Le Monde Diplomatique online
Date: January 2004

NO END TO DENIAL OF JUSTICE FOR DETAINEES
United States: the black hole of Guantanamo

FOR almost two years now 660 "enemy combatants" captured in Afghanistan and Pakistan, or handed over by other countries, have been held in secrecy at the United States base of Guantanamo Bay, Cuba, in breach of every international law. Their detention has been justified solely by US presidential decrees in the name of the war on terror. To date no prisoner has been charged officially and the ad hoc military commissions announced in 2001 have yet to be convened.

We spent several days at the base but could not make contact with any prisoner. This isolation was enforced by the personnel under General Geoffrey Miller, camp commander and chief of the Joint Task Force (JTF), who receives his orders directly from the Pentagon. Visiting journalists are kept away from the high security blocks and can only glimpse prisoners in Camp 4, the residence of those who cooperate. Journalists are not allowed to talk to them or reply to their shouts.

Before 11 September 2001 and the war in Afghanistan, the base was in serious decline; since then it has constantly expanded. Its military and civilian population has tripled and is now more than 6,000. The JTF units and prison are set up in wasteland. On maps of the base, there is no indication of either the detention centre or the many service buildings around it. At the approach to the high-security area, orange barriers force cars to zigzag, easing the task of the sentries who check each vehicle. Security has been stepped up since the arrest of the camp's Muslim chaplain and two translators (wrongly) accused of spying (1).

Camp Delta, which is split into four quarters, can house 1,000 people; when we visited, there were 660 prisoners of 42 nationalities. It is surrounded by several metal fences covered by green nylon and topped with electrified barbed wire. The prisoners, whose cells remain lit all night long, are under constant surveillance by guards who patrol or are posted in watchtowers.

Camp conditions are such that 32 suicide attempts by 21 prisoners have been logged. According to Captain John Edmondson, the surgeon who runs the camp hospital, 110 detainees (one in six) are under observation for psychological disorders; 25 are receiving psychiatric treatment. When we visited, another prisoner, who has been on hunger-strike on and off for a year, had been committed and was being fed intravenously.

In at least three of the four camps, the conditions of detention are distressing. There are two blocks of 48 cells in two rows of 24, each cell barely 2 by 2.5 metres. The metal mesh walls and doors prevent privacy. The routine is only broken by a solitary 20-minute walk in a large cage on a cement floor; and, three times a week, by a five-minute shower. Before each transfer, prisoners are handcuffed and also fitted with foot restraints linked by chains.

In Camp 4, the group we glanced at had bushy beards and all seemed to be under 30. The 129 prisoners here live in small groups, in less cramped cells with up to 10 beds. The prisoners eat together and can go out several times a day into the areas next to their jail, where a few posters about the reconstruction of Afghanistan are displayed. Unlike the prisoners in the other three camps, who wear US standard jail high-visibility orange outfits, those in Camp 4 are dressed in white - "the colour of purity in Islam", explains one guard proudly. He points out that these prisoners have been given proper prayer mats as well as the copies of the Koran handed out to all detainees following the hunger strike in the weeks after their arrival (2).

In agreeing to press visits, the Pentagon clearly wanted to rectify the negative image that Guantanamo Bay had acquired in its first few months. So we were shown Camp Iguana, a bungalow on a cliff overlooking the sea and surrounded by a metal security fence. For more than a year, this is where three 13- to 15-year old "enemy juvenile combatants" have been locked up. We were told they take English classes, play soccer and are allowed a few videos. But it's impossible to see them or even to find out their nationalities.

The tour includes a trip to Camp X-Ray. The prisoners passed through it on arrival and the world saw unbearable images of deportees in their orange suits on their knees, threatened by their jailors' weapons, restrained, forced to wear face masks and ear muffs, and kept in total isolation.

Camp X-Ray was originally built to enclose the most turbulent Haitian boat people, and even people with Aids; now overgrown by thick vegetation, it has been abandoned. Camp Delta will soon follow it into ruin: a Camp 5 is being constructed, with the first phase due by July 2004. It will be a solid-walled prison to take about 100, is meant for detainees finally convicted by the military commissions and will include an execution chamber.

On 13 November 2001, the day the Northern Alliance took control of Kabul, a US presidential decree was issued that led to the creation of the detention centre. A way had to be found to host what President George Bush later described as "enemy combatants", thus introducing a new concept foreign to US and international law (3).

"The Bush administration refuses to consider enemy combatants as prisoners of war, and is denying them the right of referral to a competent tribunal to determine their status, which is required by the third Geneva Convention as ratified by the United States," says Wendy Patten, US advocacy director for Human Rights Watch (4). "The military commissions, which do not allow for an appeal to an independent tribunal, will not guarantee them a fair trial." The US administration maintains that the commissions are designed to prevent the disclosure of sensitive information.

There are, however, precedents for at least two options: criminal courts, which in the past have tried terrorism cases such as the 1993 World Trade Centre bombing, and court martials, such as the one that tried the president of Panama, Manuel Noriega (5).

The architect-in-chief of the commissions is the US deputy secretary of defence, Paul Wolfowitz. He will choose the judges and the prosecutor, and draw up the charge sheet. He will also appoint the three-person panel to which convicted parties may appeal. Finally, he will examine their recommendations and take the final decision. "The military will act as interrogators, prosecutors, defence counsel, judges and, when death sentences are imposed, as executioners. They are answerable to President Bush alone," said a British judge, Lord Steyn, in a vigorous indictment of what he called the legal black hole of Guantanamo Bay (6).

Twenty months after the penal colony was created, with the US administration turning a deaf ear to the appeals of lawyers and Western governments who have nationals detained there, there have been new developments. First came the Supreme Court's surprise decision to examine the brief filed with it by the families of 16 prisoners - 12 Kuwaitis, two Britons and two Australians. On 10 November 2003, the highest jurisdiction of the US agreed to determine whether the US justice system was competent "to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay naval base".

Several days before, David Cole, professor of law at Georgetown University in Washington, who has written books on the US drift towards authoritarianism since 11 September (7), voiced his scepticism: "Only 2% of appeals presented to the Supreme Court are upheld and the court generally only examines cases where the rulings of lower courts that have ruled on the issue diverge." The two lower courts had consolidated the government's position: "The Guantanamo Bay base is on Cuban sovereign territory and the American justice system cannot intervene there."

On 9 November Al Gore broke the silence of senior Democratic figures in a lecture at the Centre for Constitutional Rights in Washington: "The handling of prisoners at Guantanamo Bay has been particularly harmful to America's image. Even England and America have criticised our departure from international law and the Geneva Convention. Foreign nationals held in Guantanamo should be given hearings to determine their status as provided for by the Geneva Convention. Secretary Rumsfeld's handling of the captives has been about as thoughtful as his postwar plan for Iraq."

Before Gore's remarks, Democratic senators such as Patrick Leahy (8) had quizzed the executive repeatedly about allegations of prisoner torture, including the extradition without due process of prisoners to Middle Eastern countries where torture is common; on the suspect death of two Afghans held at Baghram air base in Afghanistan; and on the use of interrogation techniques known in military parlance as stress and duress (9). Leahy said plainly that the detainees should be treated "as prisoners of war and humanely, in accordance with the convention's human rights guidelines". With that determination, he became a lonely figure in US politics.

The lawyers of the detainees' families were busy. Tom Wilner, of the prestigious Washington law firm Shearman & Sterling, who is representing the Kuwaitis' families, kept the media informed and sought backing from as many polit ical personalities as possible. William Rogers, one of two former deputy secretaries of state to lodge a "friendly" brief with the Supreme Court (10), expressed regret in November about "the lack of awareness in American society of the seriousness of this situation. Constitutional law must not be violated under the pretext that we are waging war on terror. On the contrary, we must defend our principles and embody international law in the face of this negative tendency."

Rogers, who last served in government under President Ford, was scathing about the methods of the current administration: "This is one of the blackest periods in our history after McCarthyism. The same arbitrary and repressive methods are being used."

A co-signatory of his brief was Rear-Admiral Donald Guter, who retired in 2002 as the navy's chief of military justice. In this role he helped make the decisions to use the base to interrogate detainees. "Taking captives to Guantanamo made sense for security but now we're looking at a life sentence for some of these people with no due process or judicial review," said Guter on 9 October 2003 (11).

Former judges and prosecutors have also reminded the Supreme Court that US army regulations incorporate the terms of the Geneva Convention and that to ignore them is illegal. We should also mention the initiative of an American of Japanese origin, Fred Korematsu, who contested the constitutionality of the decree in 1942 author-ising the internment of 120,000 US citizens of Japanese origin. Korematsu explained that he has lodged a brief because he does not want the US to forget a murky period of its history.

Theodore Olson, the US solicitor-general, presented the government's arguments to the Supreme Court, requesting clumsily that the court refuse to examine the brief because "in wartime, the judiciary does not habitually interfere in the executive's decisions". Without prejudging its final ruling, to be handed down in June 2004, the court pronounced that it alone, and not the administration, could lay down the law.

Much more has been heard about the camp at Guantanamo. The International Red Cross (ICRC) surprised US public opinion, emerging from its usual duty of impartiality, to condemn the despair fostered in the detainees by their total lack of prospects.

The US administration had to respond to this criticism. In November the Pentagon announced the forthcoming release of 100-140 detainees - it has yet to happen - and appointed a military lawyer to defend the Australian prisoner David Hicks, who had been maltreated and begun a widely reported hunger strike. Contrary to the provisions initially drawn up for the military commissions, the Pentagon allowed Hicks to be assisted by a civilian lawyer of his choice and guaranteed the confidentiality of their conversations. This followed an agreement struck between the US and Australia, similar to one signed with the UK some months previously; these prohibited the execution of any of the two countries' nationals.

Lawyers (including the Paris Bar president Paul-Albert Iweins) for four of the six French detainees, hoped that France would at least get similar guarantees. Despite representations by the French foreign ministry, these have not yet materialised. After Hicks, a US citizen, Yasser Hamdi, was allowed to contact a lawyer. He was arrested in Afghanistan and initially transferred to Guantanamo Bay, until the military found out he was American. In April 2002 he was transferred to the prison at Norfolk naval base in Virginia, where he has since been held in secrecy. The US government, which had decreed that the military commissions were exclusively for trying foreign nationals, immediately "extended the concept of military justice to American citizens which it has unilaterally designated as enemy combatants" (13); the government granted itself the right to hold them indefinitely in military prisons, cut off from the outside world.

Yet John Walker Lindh, the "American Taliban" captured in Afghanistan at the same time as Hamdi, was judged by a criminal court in Alexandria, Virginia, and enjoyed all the prerogatives to which defendants are entitled under the US constitution (13). Hamdi finally won the right to legal counsel, one day before the deadline for the final appeal to the Supreme Court regarding his rights.

The secret detention of Hamdi and another US national, Jose Padilla (14), is an embarrassment for the US attorney-general, John Ashcroft. A former aide, Professor Viet Dinh, who was instrumental in drafting the anti-terrorist legislation and then voiced disapproval at the treatment of US citizens, welcomed the turnaround. But Dennis Archer, the president of the American Bar Association, regretted that the Pentagon did not wish to make it a general principle.

"In this case the administration has exercised discretionary power," explains Wendy Patten. "The administration is saying that enemy combatants held inside the US have no legal right under any applicable law to an attorney. This concession was only possible because interrogation of the prisoner was over. In fact, there is still a refusal to acknowledge that the right to an attorney is a matter of right, not grace."

The White House can count on only a few unconditional supporters in the media, such as The Wall Street Journal. Responding to the ICRC criticisms, the paper blamed the ICRC for abandoning its duty of reserve: it had "deliberately waded into the political fray" (15).

The paper believed that enemy combatants must be detained until the war against terrorism is over: "The war on terror is not some perpetual struggle against international evil, comparable to the endless wars against crime and poverty. It is a conflict between the US and al-Qaida, its associated groups and those states which choose to give it assistance. The war will end when al-Qaida is smashed and no longer capable of launching attacks against American targets."

The ICRC delegate-general, Beatrice Megevand-Roggo, has a different view. She believes that in the war between the US and al-Qaida, only the conflict in Afghanistan is truly an international armed conflict: "This conflict, which is governed by the third Geneva Convention, ended on 19 June 2002 with the loya jirga assembly which endorsed President Karzai's government. International humanitarian law (16) does allow for the continued detention of prisoners, providing that precise accusations are made against them and that they are subject to legal proceedings, which offers minimum guarantees as stipulated in the third convention.

"For all those arrested after 19 June 2002 in the domestic conflict that continues to rage in Afghanistan, there are also provisions in international humanitarian law and fundamental guarantees that fully apply to the case of the Guantanamo Bay detainees. There is no obligation to release the Guantanamo detainees, but there is a very clear obligation to submit them to legal proceedings governed by national or international law. These persons have now been held for months, even years, in a complete legal vacuum: that is what we in the ICRC consider unacceptable. To say so is not in the least political, it is fully part of our humanitarian role."

As US opposition to selective laws begins to build, albeit timidly, the Bush administration is under attack by a growing number of the legal establishment, humanitarian organisations and the media, all condemning the denial of justice to the detainees.

With the elections a year away, should it not pull them out of the black hole it dug for them and restore the rule of international law? ________________________________________________________

(1) The allegations were redefined and the spying charge was dropped. Meanwhile the chaplain has been released pending trial.

(2) Some have declared themselves atheists; one says he is a Catholic.

(3) See the study by the American Bar Association on the treatment of "enemy combatants".

(4) This US humanitarian organisation analyses the laws passed since 11 September and the Guantanamo Bay detainees' rights. www.hrw.org

(5) "People the law forgot", The Guardian, London, 3 December 2003.

(6) Lord Steyn played a leading role in lifting the immunity of General Pinochet. See his "Guantanamo: a monstrous failure of justice", International Herald Tribune, 26 November 2003.

(7) See David Cole, Enemy Aliens, The New Press, New York, 2003, and, with James Dempsey, Terrorism and Constitution, The New Press, 2002.

(8) Senator Leahy (Vermont), chairman of the Senate budget committee, was one of 12 senators to vote against the October 2003 act that allocated $87bn to the reconstruction of Iraq.

(9) See HRW reports and "US decries abuse but defends interrogations", Washington Post, 26 December 2002.

(10) Alexander Watson was the other. Six briefs were filed besides those of the prisoners' families.

(11) Knight Ridder Newspapers, 9 October 2003.

(12) David Cole, Enemy Aliens, op cit.

(13) Lindh was at first accused of conspiring with and aiding al-Qaida, but was tried for violating the embargo against the Taliban and for carrying a weapon. He was sentenced to 20 years in prison.

(14) Jose Padilla was arrested at Chicago airport in May 2002 and accused of collecting information on making a radioactive bomb on behalf of al-Qaida. A court signalled to the justice ministry to lift the ban on him contacting a lawyer, but the order has still not been given, despite the appeals lodged by the Lawyers Committee for Human Rights.

(15) "Guantanamo on trial", The Wall Street Journal, New York, 19 November 2003.

(16) An emanation of the Geneva Convention of 2 August 1949, ratified by 191 states.

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