In Defense of America (14 page)

The credibility of the tribunals is also undermined by the assertions, from President Bush downward, that all captives were guilty. From the beginning, President Bush called the Guantánamo occupants “killers,” and Donald Rumsfeld, defense secretary, in January 2002, called them “among the most dangerous, best-trained, vicious killers on the face of the Earth.”
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Yet until September 2006, when the CIA transferred fourteen “high-value prisoners” to the base, it held no one of more significance than Salim Hamdan, a Yemeni who had been Osama bin Laden’s driver.

A deeper objection to the detentions is that they offend the principle of habeas corpus, a historic principle usually described as deriving from the Magna Carta and a founding principle of U.S. law. Under that principle, the state is not entitled to hold someone without charging him. Guantánamo illustrates precisely the risk from which the founders wanted to protect people —that a government might detain people indefinitely, or preventively, for fear of crimes they had yet to commit. It sounds like a technical and antique protection, but the suspension of habeas corpus is considered one of the gravest actions an American president can attempt, on a par with suspending other fundamental freedoms such as freedom of the press and religion. It means that the president can say who might be a threat, and on his word alone, without evidence, have that person locked up.

The Military Commissions

The second flank on which the United States has opened itself to attack —again, unnecessarily —is in the use of specially devised “military commissions” to try the few whom it does charge. Administration officials argue that these new courts, with their new rules about evidence and procedure, are needed in the “War on Terror.” They claim, for example, that the circumstances of seizing their captives do not allow them to gather evidence of enough rigor to stand up in a conventional court, and that in any case, because of heightened security, they might want to keep evidence secret and not show it to defendants —even though that means the defendants cannot challenge the claims. To that, the obvious retort is that if convictions cannot be secured without these special measures, they should not be secured at all. As a final sting in the process, the administration claims the right to continue holding the captives even if they are acquitted, because it defines them as “belligerents” in the “War on Terror” and will feel obliged to release them only when that war is over.

I spent a week at Guantánamo in April 2006 to see the pretrial hearings for the first ten captives to be charged, the first chance to hear the men speak since they had been captured, although no sensitive intelligence was introduced at that stage. The problem that the United States had created for itself was evident from the moment the proceedings began. It was a military environment down to the last detail: the judge, or “presiding officer,” was a navy captain; the prosecutor was from the air force; the defense lawyer was from the army; all were in dress uniform. As a security precaution, even the metal spiral bindings had been removed from notebooks, just in case of an assault clearly impossible in such guarded circumstances.

Despite the appearance of extreme order, the proceedings were legal chaos. Two of the first three captives began by refusing to deal with their Pentagon-appointed lawyers, saying that they did not recognize the court’s legitimacy. The lawyers then said that as they had, in effect, been fired, they had to respect their “clients’ ” wishes and desist from “defending an empty chair.” The judge, as their senior military officer, ordered them to continue. The defense lawyers replied that they needed to ask the state bar associations to which they were affiliated whether they had to put their obligations as serving members of the armed forces above those as lawyers. As the state bar associations slowly started phoning back their varying answers, other lawyers leapt up from the two rows of audience to offer to defend the defense lawyers. The prisoners, in their first outing from the cells in four years, looked stunned.

Those stop-start uncertainties were just one symptom of the illness that plagued the new system —the need to make up its rules as it went along (almost always to the defendants’ disadvantage, the defense lawyers said). The commissions also failed to meet basic standards of a fair trial, argued Colonel Dwight Sullivan, for years head of the team of Pentagon defense lawyers assigned to the defendants. Until late 2006, prisoners did not have the right to hear classified evidence against them (which might be simply the allegations of another prisoner at the base). Defendants’ rights and ability in practice to challenge that evidence was inadequate, said Sullivan; their right to call witnesses was in doubt, and so was their right to pick lawyers to represent them. Most controversially, the evidence against them might have been obtained through torture, of them or others.

It is worth adding that the Pentagon-appointed defense lawyers don’t claim their clients are necessarily innocent, or that any charges should be dropped — they simply want their clients to face a fair trial, as they would under existing court procedures. “We want the old rules,” said Lieutenant Colonel Bryan Broyles, representing one of the prisoners. Colonel Morris Davis, the colorful chief prosecutor until 2007, once compared prosecuting the Guantánamo captives to “dragging Dracula into the sunlight.”
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But in early 2008, even he had become a critic of the process. Davis went so far as to offer to testify on behalf of at least one defendant, on the grounds that the commission had “a potential for rigged outcomes” and that he had “significant doubts about whether it would deliver full, fair, and open hearings.”
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By spring 2008, only one trial had been completed —that of David Hicks, an Australian who pleaded guilty in March 2007 to charges of providing material support for terrorism, as part of a plea bargain after five years at Guantánamo. Under the deal, he returned home to serve a nine-month sentence and was set free in December 2007. This was not a help to the United States’ claim to have collected the world’s most dangerous terrorists.

Legal Challenges

The best that can be said in the United States’ defense is that Congress and the Supreme Court have steadily challenged the administration’s views on Guantánamo. Admittedly, that is a slender argument, and to someone waiting more than six years at Guantánamo, one that is grotesquely inadequate. But one of the things worth defending about America is the power of Congress and the courts to challenge the president’s decisions as well as the explicit protections for the individual in the Bill of Rights. In a landmark ruling, the Supreme Court said in 2004 that the United States could not claim that Guantánamo was outside its control, and that prisoners there had the right to challenge their detention in U.S. courts. Two years later, in a complex and far-reaching case brought by a captive named Salim Hamdan, the Supreme Court ruled that enemy combatants were protected by the Geneva Conventions, that President Bush did not have the authority to create new tribunals without Congress’s backing, and that conspiracy was not a war crime under the Uniform Code of Military Justice, the foundation of military law in the United States.
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To address the Court’s point about the illegality of the tribunals, President Bush asked Congress to back new legislation to authorize the military commissions. It did so, and the 2006 Military Commissions Act amends some of the points that were most criticized, qualifying the Court’s right to accept evidence obtained “under duress” and improving the defendant’s right to hear all the evidence against him. But it leaves intact the president’s right simply to define what constitutes torture and to say who is an “enemy combatant,” and asserts the United States’ right to hold such people without charging them and without limit —precisely the power the founders sought to restrict.

Lawyers acting on behalf of those detained at Guantánamo continue to challenge the administration’s contention that habeas corpus does not apply to “enemy combatants.” Two separate congressional bills in 2007 proposed the “restoration of habeas corpus.” For now, though, the uncharged remain in their cells.

Torture

Guantánamo is interlinked with the issue which continues to do extravagant damage to the United States’ reputation: its defense of the use of torture on suspected terrorists, or at least the use of techniques that to most people would be indistinguishable from torture. The United States has not actually come out and said that it embraces torture as a policy, in contravention of its own laws and international laws and treaties. But it has argued either that proposed techniques don’t meet the definition or that the “War on Terror” allows exemptions.

This is an evasion of its own long tradition, stretching back to George Washington. In 1777, in an order covering prisoners taken in the Battle of Princeton, he wrote: “Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army in their treatment of our unfortunate brethren. . . . Provide everything necessary for them on the road.”

Among the United States’ main international commitments to the principle of not using torture (but by no means the only ones) are its ratification in 1955 of the four Geneva Conventions and its ratification in 1994 of the United Nations Convention against Torture (although it appended reservations about the scope of the definition of torture). It passed a federal statute in 1994 against torture and added the War Crimes Act of 1996, while its Uniform Code of Military Justice constrains what its armed forces can do in their treatment of captives.

But the Bush administration has employed an assortment of arguments that these layers of laws should not now constrain what it does in the “War on Terror.” In 2002, in the now notorious “torture memos,” the Department of Justice and the Pentagon drew up arguments limiting the definition of torture to the most extreme mistreatment that might lead to permanent injury or even death. Administration lawyers have also argued that because the “War on Terror” was a war, the president was a wartime commander in chief and so had the authority to set aside U.S. and international law. They also tried to maintain —until the Supreme Court disagreed in 2006 —that “enemy combatants” were not covered by the ban on torture in the Geneva Conventions.

This came to a head in September 2006, when the administration transferred fourteen “high-value prisoners” to Guantánamo from secret CIA “black prisons” in other countries, the first time it had acknowledged the existence of those sites. Among the transferred captives was Khalid Sheikh Mohammed, whom the United States accused of being the architect of the September 11 attacks and formally charged with killing the 2,996 victims.
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But the trials posed a problem because the CIA had used extremely harsh interrogation techniques with Mohammed. It acknowledged that he and two others had been “waterboarded” —a notorious practice which simulates the feeling of drowning.
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Many, including some of President Bush’s close allies, considered waterboarding to be torture.

The controversy erupted again in February 2008 when the Pentagon said it would seek the death penalty against six suspects it claimed were directly involved in the September 11 attacks. To try to preempt a legal challenge, the administration ordered a repeat of the CIA interviews by a “clean team” from the FBI. The new teams used time-tested bonding techniques, U.S. officials said, including giving the suspects Starbucks coffee.
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But the revelation that the CIA had destroyed hours of tapes recording its interrogations opened the way to a further flood of legal challenges from Guantánamo defendants —exactly what the CIA had presumably wanted to forestall.

More generally, the White House stuck to its position that the United States should be allowed to use harsh treatment. On March 8, 2008, President Bush vetoed an intelligence bill which would have prevented the CIA from using waterboarding and other harsh interrogation techniques, and which would have limited the agency to the nineteen techniques in the army field manual. “I cannot sign into law a bill that would prevent me, and future presidents, from authorizing the CIA to . . . [take] all lawful actions necessary to protect Americans from attack,” Bush said.
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However, even some of his former officials disagreed with him. Richard Armitage, the deputy secretary of state from 2001 to 2005, has argued openly, “Whether it’s sleep deprivation or waterboarding, it is torture. It is a horrible blot on our national values and conscience.”
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Where Should They Go?

American officials, particularly diplomats abroad, have developed a fluent line presenting Guantánamo as a practical problem, not an ethical dilemma. If there were only a home for these people, they declare, then America would shut the camp immediately. In London, the American ambassador and his deputy have devoted a good portion of their working hours to arguing this point. “Why don’t you take them?” they have said to other governments.

In fact, Britain did just that, taking back nine British citizens in 2004 and 2005; it released them immediately, and some have gone on to become minor celebrities on what you might call the human-rights circuit. Britain also agreed to take back five more who had the status of legal residents but were not citizens.

But the United States has found it harder to get rid of others. In 2006, it persuaded Albania to take five Uighurs, a group of Muslims who feel persecuted within China. It still had seventeen left at Guantánamo, part of a group living in Afghanistan at the time of the invasion. Yet although the United States acknowledged that it was not going to try the men and did not regard them as a threat, it could not send them back to China for fear they would be persecuted there, and could not find other governments to take them for fear of offending Beijing.

This plaintive plea —presenting Guantánamo as a mere matter of resettling unwanted and now embarrassing dependents —sidesteps the issue of why the United States picked up the men in the first place, and its inadequate procedures for separating those it could plausibly suspect of terrorism from bystanders.