In February 2006, a report on the status of 517 prisoners being held in the military prison at Guantanamo Bay, Cuba compiled by Seaton Hall law professor Mark Denbeaux, seven of his law students and attorney Joshua Denbeaux, was made public. The report, entitled The Guantanamo Detainees: The Governments Story, is solely based upon documents regarding the Guantanamo prisoners released by the U.S. government. Meanwhile, the Bush administrations use of military trials for Guantanamo detainees has come under attack, the government has been criticized from both within and without, and in December 2005, Witnesses Against Torture (WAT), a Christian group opposing the torture of Guantanamo prisoners, marched 70 miles from Santiago, Cuba to Guantanamo in an attempt to visit the detainees and draw attention to their plight.
The Guantanamo Detainees report calls into question the governments criteria for designating captured persons enemy combatants and sending them to Guantanamo. According to the report, the government has determined that 55% of the Guantanamo prisoners committed no overt hostile act toward the U.S. or its coalition allies. Only 87 were designated al Qaeda fighters, while 40% had no definitive connection with al Qaeda and 18% had neither a definitive connection with al Qaeda nor the Taliban. Many of the prisoners are detained merely on allegations of being affiliated with certain organizations, only 22% of which appear on the Department of Homeland Securitys terrorist watch list. Sixty percent of the prisoners are designated as being associated with groups the U.S. considers terrorist organizations; 30% are allegedly members of such groups, and 2% have no connection to any such group.
Most striking is the low percentage of prisoners captured by the U.S. military a mere 5%. Eighty-six percent were captured by Pakistani or Northern Alliance Afghan forces and turned over to the U.S., which paid large bounties for the capture of suspected Taliban or al Qaeda members and associates. Most of the persons determined not to be enemy combatants are Uighers, a Muslim Turkish-speaking Chinese ethnic minority, many of whom fled to Pakistan or Afghanistan to avoid arrest by the Chinese government. The report calls into question the governments designation of the Guantanamo prisoners as the worst of the worst enemies of the U.S.
Much of the report is based on Combat Status Review Board Letters, government documents summarizing the evidence that a prisoner is an enemy combatant that are presented to a Combat Status Review Tribunal (CSRT).
This is essentially a summary of the proof the government used to support a finding of enemy combatant status. Enemy combatant is defined by the government as an individual who was part of or supporting the Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United Stated or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy forces. This allows an enemy combatant designation to apply, for example, to people who gave to a charity that in turn gave food or medical supplies to a group the government claims is a terrorist organization.
Furthermore, Evan Kohlman, the governments expert on al Qaeda membership, has indicated that merely having been selected for membership would qualify a person as a member of al Qaeda under the governments definition, even if that person never swore an oath to al Qaeda, never met Osama bin Laden and never attended a training camp. This means that the 60% of prisoners designated as associated with rather than members of a group did not have even this minimal level of contact with al Qaeda.
In analyzing whether a prisoner has committed a hostile act against the U.S. or coalition members, the government readily admits that only 45% of the prisoners meet that criteria; however, closer examination of the government's definition of hostile act reveals that the level is probably much lower. For instance, it is considered a hostile act if a prisoner fled when the U.S. bombed his camp, or if he is Uigher and was captured in Pakistan along with other Uigher fighters. In the governments bizarro world, fleeing an attack by the U.S. is a hostile act against the U.S.
Of the prisoners designated enemy combatants, the government alleges 32% to be al Qaeda, 28% to be al Qaeda and Taliban, 22% to be Taliban, and 7% to be al Qaeda or Taliban. Ten percent have no identified affiliation and 1% are listed as other. The report assumes that four years was an adequate amount of time to determine whether an enemy combatant was either Taliban or al Qaeda, and concludes that 40% of them are not affiliated with al Qaeda and 18% are affiliated with neither al Qaeda nor the Taliban.
The report acknowledges that the evidence against some of the prisoners was formidable. Eleven percent had met with Bin Laden, and some were high-ranking Taliban or al Qaeda officials. However, the evidence against the vast majority of the prisoners held at Guantanamo was much less solid. Notable is the absence of Taliban regional governors, mayors, police chiefs, senior administrators and secretaries of national governmental departments among the prisoners at Guantanamo. Instead, the prison camps rolls are replete with many young, conscripted Taliban soldiers with no decision-making authority. The report concludes that these prisoners have been afforded no meaningful opportunity to put the U.S. governments proof that they are enemy combatants to the test.
The Bush administrations indefinite detention of prisoners at Guantanamo, and practice of parading them through what are largely considered sham military trials, has not been without controversy. On June 29, 2006, the U.S. Supreme Court ruled in Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006) that the government could not use military commissions to try suspected members of al-Qaeda. In a 5-3 ruling, the justices found that the commissions, which were approved by Bush on Nov. 13, 2001, were not authorized by federal law and did not meet the requirements of the Geneva Convention.
The case was brought by Salim Ahmed Hamdan, a former driver for Osama bin Laden, who is being held at Guantanamo. Michael Ratner, president of the Center for Constitutional Rights, which represents nearly half of the Guantanamo prisoners, stated, "What this says to the administration is that you can no longer decide arbitrarily what you want to do with people. It upheld the rule of law in this country and determined that the executive has gone beyond the constitution and international law."
Ratners assessment is shared by high-ranking officials. During a Sept. 13, 2006 speech, the head of Britain's judiciary, Lord Chancellor Charles Falconer, who also holds the position of Secretary of State for Constitutional Affairs, said Guantanamo was a shocking affront to democracy and warned that moral values must not be sacrificed in the war against terrorism. The Bush administration is further facing dissent from within its own ranks. On Sept. 14, four Republican members of the Senate Armed Services Committee, including Sen. John McCain, who was a prisoner of war himself, objected to the government's plans regarding trials for enemy combatants and joined Democrats in voting for a less draconian piece of legislation. Former Secretary of State Colin Powell, who opposes the administration's plans for the interrogation and trial of Guantanamo prisoners, stated,"The world is beginning to doubt the moral basis of our fight against terrorism."
The prisoners at Guantanamo have expressed their concerns about indefinite confinement and kangaroo military courts, too through hunger strikes, suicides and resistance against their captors. From August 2005 through June 2006, up to 131 Guantanamo prisoners took part in a hunger strike. U.S. military guards responded by placing them in solitary confinement, strapping them into restraint chairs and forcibly inserting nasal feeding tubes.
A number of Guantanamo prisoners ambushed guards at the base on May 18, 2006 by staging a suicide attempt; when the guards tried to intervene, they were attacked by prisoners wielding improvised weapons. Six prisoners were injured. The next day a United Nations panel responsible for monitoring the Convention Against Torture rebuked the U.S. government and called for the closure of Guantanamo, as has Amnesty International and a number of other non-governmental organizations (NGOs), including Prison Legal News.
On June 9, 2006, three Guantanamo prisoners who had participated in the hunger strike managed to hang themselves with bedsheets despite surveillance by guards. The military quickly termed the synchronized suicides a form of asymmetric warfare, and banned all media from the base. A state department official called the deaths a good PR move. There have been 39 attempted suicides at Guantanamo since prisoners were first housed at the base in January 2002, indicating the level of desperation.
In December 2005, seven members of Witnesses Against Torture participated in a peace march from Santiago, Cuba to Guantanamo to draw attention to allegations of torture of Guantanamo prisoners. The march took five days to cover the approximately 70 miles with the marchers walking along the road by day and camping at the roadside by night. Cuban military authorities would not let the marchers approach the U.S. base, which is ringed with a mine field, but allowed them to cross into the Cuban military zone that borders the base in a gesture of solidarity with their cause. The protestors camped about five miles from the prison, praying and fasting for four days. Upon their return to the U.S. the WAT marchers were served papers by the U.S. Treasury Departments Office of Foreign Assets Control stating they had violated the U.S. prohibition against travel to Cuba and could face 10 years in prison or a $250,000 fine for their actions. The people who torture prisoners at Guantanamo face no such investigation or punishment.
Ironically, U.S. officials have refused to discharge about 150 Guantanamo prisoners who were never charged with any crime and who have been cleared for release, claiming concern for human rights violations if they are returned to their home countries. Only ten of the prisoners housed at Guantanamo have actually been charged with offenses against the U.S. and face military trials.
Sources: The Guantanamo Detainees: The Governments Story (the text of which is available on the PLN website), Washington Post, Associated Press, WAT Press Release (available at www.witnesstorture.org/node/158)
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login