|By Jess Bravin
Shortly before the first American military commissions held since the 1940s were to begin at Guantanamo Bay, Cuba, in August 2004, a handful of journalists was shown round the windowless hearing room where terrorist suspects would stand trial. The escort noted that, per orders from Washington, no film or video camera would record the proceedings. “You won’t be seeing this on the History Channel,” the officer said with apparent satisfaction.
The contrast, of course, was Nuremberg, where the International Military Tribunal convened within months of Germany’s surrender in 1945 to try the surviving leaders of the Nazi regime. Newsreels of those proceedings—now a perennial snippet on cable television—helped cement the moral standing of the Allied victory, and laid the legal groundwork for hundreds of military trials for lower-ranking Axis officials throughout the European and Pacific theaters.
Guantanamo Bay, the century-old naval base acquired in America’s first overseas war, stands at the crosshairs of contemporary thinking on war crimes. For Washington, the interrogation center it opened there in 2002 for men captured in counterterrorism operations was also to be the place where they faced judgment for war crimes, under a new code the U.S. Defense Department drafted to encompass 21st-century terrorism as well as resistance to American forces on the battlefield. To President George W. Bush and his advisors, the enemy that revealed itself on 9/11 was a monstrous aberration lurking outside the existing structure of domestic or international law.
The risk of additional terrorist attacks was too great, officials concluded, to follow rules that evolved in the prior century—and that were inconsistently followed, in any case, by other countries facing terrorist or internal security crises. The risk of mistaken arrest or conviction paled in comparison to the threat, officials concluded, as did the potential damage to America’s reputation by disclosure of cruel or inhuman interrogation methods that many scholars considered impermissible under such international instruments as the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
But the aggressive detention, interrogation and prosecution policies the U.S. has pursued there have made Guantanamo a far different metaphor than Washington envisioned. Unlike Nuremberg, now shorthand for international justice, to many around the world Guantanamo symbolizes America’s selective adherence to norms of human rights. Whatever history’s ultimate judgment, the Guantanamo detention facility marks a watershed in thinking about war crimes: it is perhaps the first major military installation conceived for reasons of legal strategy as well as military necessity. The U.S. government sited its detention operation at Guantanamo because it believed the territory’s legal status would limit, if not eliminate, the rights of prisoners held there.
Guantanamo Bay originally came into American hands after another catastrophic event that seared the American psyche—the February 15, 1898, explosion of the U.S. battleship Maine in Havana harbor, killing 260 sailors. Americans blamed Cuba’s colonial ruler, Spain, for the attack, and war ensued. On June 10, 1898, U.S. Marines landed at Guantanamo Bay. Six months later, a defeated Madrid signed a treaty relinquishing remnants of its empire in the New World and the Pacific, setting Cuba on the path to an independence defined and protected by Washington, which won the right to build “coaling and naval stations” at Guantanamo. In 1903, the U.S. formalized the terms with Cuba, placing the 45-square-mile reservation under Washington’s “complete jurisdiction and control,” while Havana retained “ultimate sovereignty”—an arrangement that could not be terminated without American consent.
Aside from a few incidents after the 1959 Cuban revolution, the swampy inlet receded from American consciousness. During the 1990s, Presidents George H.W. Bush and Bill Clinton used the base to house thousands of Cuban and Haitian migrants interdicted at sea, hoping to prevent them from reaching American shores where they could claim refugee status. The policy sparked lawsuits from immigrant-rights advocates which, while failing to fully clarify the application of treaties and American law at Guantanamo, revealed courts hesitant to second-guess presidential determinations.
The terrorist attacks of September 11, 2001, prompted not only a rapid military response, but an equally vigorous legal offensive by lawyers in the administration of President George W. Bush. The U.S. invoked its right of self-defense against the al-Qaeda network and its sponsors, backed within the week by a resolution of the U.S. Congress authorizing Bush to use “all necessary and appropriate force.” In the weeks that followed, as U.S. and allied forces joined Afghan militias to overthrow the Taliban regime and pursue al-Qaeda terrorists, administration lawyers drafted opinions advising that few limits, if any, applied to the powers the president had now asserted. Many of these documents were secret, but on November 13, 2001, Bush made one policy public: a “military order” declaring it “not practicable” to follow U.S. court procedures for foreign prisoners he determined were linked to international terrorism, and authorizing military commissions to try them.
In Afghanistan, indigenous forces such as the Northern Alliance tribal group initially held suspected Taliban and al-Qaeda prisoners, but the U.S. decided it needed to take custody of those it captured or obtained from militias and bounty hunters. On December 27, 2001, Defense Secretary Donald Rumsfeld told a press conference that Guantanamo was the choice.
“Mr. Secretary, we’ve gotten into trouble every time we’ve tried to use Guantanamo Bay in the past to hold people, for other reasons,” a reporter asked. “Why use it? Why is it the best place?”
“I would characterize Guantanamo Bay, Cuba, as the least worst place we could have selected,” Rumsfeld answered. “It has disadvantages, as you suggest. Its disadvantages, however, seem to be modest relative to the alternatives.”
Rumsfeld didn’t elaborate, but contemporaneous legal opinions, later disclosed, provide some of the explanation. Officials rejected the Pacific Ocean bases at Midway, Tinian and Wake islands after recognizing that they fell within the jurisdiction of the Ninth U.S. Circuit Court of Appeals in San Francisco. Judicial review could “interfere with the operation of the system that has been developed to address the detainment and trial of enemy aliens” if courts examined such issues as prisoner rights under the Geneva Conventions or “whether and what international law norms may or may not apply to the conduct of the war in Afghanistan,” wrote Justice Department officials Patrick Philbin and John Yoo. Guantanamo, however, was not formally within any federal court’s jurisdiction. While housing prisoners at the base bore “some litigation risk,” they wrote, “the great weight of legal authority indicates that a federal district court could not properly exercise… jurisdiction over an alien detained” at Guantanamo.
The first 20 prisoners arrived on January 11, 2002. Even as the manacled prisoners, in blacked-out goggles and orange jumpsuits, were led to their outdoor cells, senior officials in Washington debated whether any laws or treaties covered the men. President Bush settled the question for the Executive Branch in a February 7 order declaring that Geneva applied only between States parties, and therefore al-Qaeda prisoners, agents of a stateless terror network, were excluded. Moreover, while Afghanistan was a State party, the order concluded that forces of the country’s de facto government, the Taliban, had failed to meet the treaty’s criteria for lawful fighting and therefore were categorically excluded from its protection.
The 3rd Geneva Convention provides for case-by-case determinations “should any doubt arise”over a prisoner’s status. Under U.S. Army regulations implementing the treaty, a three-officer board is empowered to quickly classify prisoners on the battlefield. Officials told me that providing prisoners even this near-perfunctory process would needlessly dignify the enemy.
Nevertheless, Bush declared, “as a matter of policy, the United States Armed Forces”—which do not include civilian entities such as the Central Intelligence Agency—”shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” By the end of February, 300 men were held at Guantanamo. As many as 600 prisoners would be held there at any particular time.
Because of the secrecy surrounding Guantanamo’s operations, it has been impossible to assess independently the intelligence produced there. Journalists and dignitaries brought on escorted tours of the prison are not permitted to speak with prisoners, but as evidence of their humane treatment are shown a well-stocked infirmary, copies of the Koran and “comfort items” such as rubber sandals that are provided for detainees, along with fenced yards where they can kick around a ball. The U.S. permits prisoner visits by delegates from the International Committee of the Red Cross, which in general does not speak publicly about its observations. Prisoners have found ways to demonstrate their own views, however, occasionally attacking guards, attempting suicide and launching periodic hunger strikes, which U.S. jailers have frustrated by force-feeding.
Litigation, aggressive journalism, statements of released prisoners and selected disclosures by government officials have revealed other elements of the Guantanamo operation. At various times prisoners have been awkwardly shackled to the floor, deprived of light, subjected to blaring music and sexually humiliated. Officials have continuously wrestled over the degree of force and intimidation that lawfully could be used against defiant prisoners, sometimes out of concern that specific methods potentially could expose interrogators and their superiors to criminal liability.
Within weeks of Guantanamo’s designation as a prison site, activist lawyers filed suits alleging that the detentions there were illegal. Those suits initially faltered before judges hesitant to second-guess the president after 9/11, but in June 2004 the U.S. Supreme Court ruled that federal habeas jurisdiction did extend to Guantanamo. The court did not say explicitly what would constitute a lawful detention, however, leaving lower courts to sort the details out.
While continuing to deny the application of the Geneva Conventions, the U.S. government responded to the Supreme Court ruling by convening panels called Combatant Status Review Tribunals, three-officer boards similar to those described in the Army’s regulations, to confirm that prisoners belonged there. Prisoners could not see classified evidence on which their detentions were based and essentially could only insist that they were held by mistake; 38 of the 558 prisoners who appeared before the tribunals were released, the Pentagon said. Similar panels, called Administrative Review Boards, were established to hold annual hearings on whether a prisoner had so declined in dangerousness to merit release. Prisoner advocates, however, contended these procedures were inadequate and pursued their lawsuits in federal court.
Those the U.S. approved for release met different fates, often depending on their origin. British citizens returned home to freedom, and even celebrity, as they denounced their captivity. At least 10 released Guantanamo prisoners, the Pentagon has claimed, joined al-Qaeda cells or forces fighting Americans. And others, for complex diplomatic and political reasons, entered an unexpected limbo: the U.S. could find no place to send them.
For instance, several Uighurs, members of a Muslim ethnic group from northeastern China, were held at Guantanamo for months after officials determined they were not enemies of the U.S. and should be released. Treaty obligations, however, prevented returning the Uighurs to China, where they were viewed as disloyal and likely to face retribution. But the U.S. was unwilling to resettle them within its own borders and could find no country prepared to accept them until May 2006, when Albania agreed to receive five Uighurs. They face an uncertain future in a country that, while predominantly Muslim, differs significantly in language and culture.
Meanwhile, the U.S. government struggled to implement Bush’s order for military commission trials at the base. Some military lawyers and State Department officials urged procedures that closely followed the existing U.S. Uniform Code of Military Justice, which adheres to the U.S. Constitution and satisfies international legal standards. Senior officials, however, remained convinced that recognizing a defendant’s absolute right to examine prosecution witnesses and evidence could force the government to choose between revealing intelligence methods, including the circumstances of interrogations, or forgoing convictions.
Moreover, because the most important al-Qaeda suspects were not initially held at Guantanamo—they, instead, were kept at secret CIA sites even less accessible than the Cuba base—officials could select defendants only from the mid- to low-level belligerents presumed to comprise the inmate population. Further impeding the commissions’ effort was the determination that intelligence took precedence over prosecution, with the practical effect that prosecutors were denied access to intelligence files on potential defendants and witnesses. Eventually, officials identified a half-dozen prisoners for trial, a decision President Bush approved in 2003.
Prosecutors selected cases they thought would be relatively simple to resolve, hoping to initiate the commissions with a slew of plea bargains and guilty verdicts. Military defense lawyers assigned to represent the defendants were expected to facilitate the trials by operating within the process conceived by the Pentagon. Instead, the lawyers advised their clients to reject plea bargains and launched a wholesale assault on the legitimacy of the military commission program itself. The prosecution’s initial selection of defendants would prove a strategic mistake; rather than an alleged killer or terrorist mastermind whose villainy might justify extraordinary measures, the case that would reach the Supreme Court involved an obscure functionary: Osama bin Laden’s admitted driver, Salim Hamdan, who prosecutors alleged also was a bodyguard and confidant of the al-Qaeda leader.
The Pentagon eventually commenced its first military commission hearings in August 2004, but the proceedings soon fell apart. Defense lawyers challenged the impartiality of the panel members, forcing the disqualification of several officers from serving on the commission. Translation errors—immediately raised by defense interpreters and Arabic-speaking observers from human-rights organizations who were invited to attend—marred the hearings. A commission presiding officer, apparently unsure of what rules against self-incrimination applied, silenced a defendant just as he appeared ready to declare his role in al-Qaeda. In November 2004, the proceedings were abruptly halted when a federal judge in Washington ruled the commissions illegal and a violation of the Geneva Conventions.
While legal skirmishing continued, the broader prisoner population at Guantanamo became increasingly restive, and in June 2006 three prisoners succeeded in hanging themselves. A Pentagon official, acknowledging that the prisoner deaths would further damage the U.S. reputation, described the suicides as acts of “asymmetric warfare.”
On June 29, 2006, in a 73-page opinion by Justice John Paul Stevens, a slim majority of the Supreme Court painstakingly refuted the legal theories upon which the Bush administration had built its prisoner policies. Viewed narrowly, the court found that the president held no inherent power to establish his own military commissions outside existing law, specifically the Geneva Conventions and the Uniform Code of Military Justice. The president was given the choice of either following the UCMJ or asking Congress to establish an alternative system.
More broadly, the opinion rejected the legal conclusion of Alberto Gonzales, the president’s counsel and later attorney general, that Guantanamo prisoners fell outside Geneva. The court found that existing U.S. law required adherence to a Geneva provision known as Common Article 3, which prohibits, among other abuses, “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment,” while requiring that any trials be conducted by “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” A plurality of justices found that the single charge lodged against Hamdan—conspiracy—was not a valid crime under the laws of war.
Essentially, in its 2004 and 2006 rulings, the Supreme Court ruled that the Guantanamo project had been based on a legal fallacy: that the U.S. president controlled a property outside the jurisdiction of any court, allowing him to operate a detention, interrogation and trial facility where nothing that transpired would ever face review by an independent judge.
Bush administration officials told me they had been so confident in their legal position, they had made no provision should the Supreme Court rule otherwise. Bush himself, however, in the weeks before the court’s decision, had begun voicing a hope that someday Guantanamo might be closed. A series of halting steps followed the June decision. The deputy defense secretary issued a directive that Common Article 3 be obeyed, and in September Bush sent 14 “high value” prisoners from secret CIA prisons to Guantanamo, where they would for the first time be visited by International Red Cross delegates and receive other Geneva conditions. Bush said that these prisoners, some of whom allegedly helped plan the 9/11 attacks, should be tried by military commission.
At the same time, the administration proposed legislation that would in large part authorize commissions to operate much as it had originally conceived them, including the power to exclude defendants from their trials and use hearsay evidence obtained through coercion. A month before midterm elections, Congress adopted much of the president’s proposal, including a provision purporting to bar all detainee lawsuits asserting claims based on the Geneva Conventions.
In March 2007, the Bush administration concluded its first case before a military commission. David Hicks, an Australian captured in 2001 alongside Taliban fighters in Afghanistan, agreed to plead guilty to providing material support for terrorism, in exchange for nine months in jail, to be served in Australia. Even this conviction was problematic, however; critics noted that Washington was under pressure from Canberra, one of its few remaining allies in the Iraq war, to resolve the Hicks case, which had become an embarrassment to Prime Minister John Howard as he stood for re-election. While the Hicks deal was unfolding at Guantanamo, the new defense secretary, Robert Gates, told a congressional hearing that he believed the offshore prison should be closed. “Because of things that happened earlier at Guantanamo, there is a taint about it,” he said.