arch/ive/ief (2000 - 2005)

Worst of the Worst

These days, not many people talks about the Guantanamo Bay prisoners. Their names or faces are not shown. Only the glimpses of their stingy orange jumpsuits are flashed from time to time in the news media. And there are reasons for it. When any defamed inmates from Guantanamo Bay pronounce incoherent threats, they become the news. The color-coded signs jump several levels in frantic frenzy. Otherwise, Guantanamo Bay has become the synonymous to the not-to-be-mentioned place. Inmates are not to be talked about. They are not to be given any legal representations or human rights.

And still the world brags about its civility and progress.

These inmates are demonized. These inmates are called terrorists. These inmates are called as the terrorist sympathizers. "They are bad guys. They are the worst of the worst, and if let out on the street, they will go back to the proclivity of trying to kill Americans and others." [1]

The Partial Truth

There is indeed partial truth in this statement. There are indeed bad guys hiding among the detained inmates. But the crust of the matter is that none of the inmates are given the fundamental human rights to prove that they are innocent. And indeed there are innocent men forced to be shackled and blindfolded in the incommunicado cells. “The military just released four men, including one elderly man whom the New York Times described as "babbling at times like a child," adding that "the partially deaf, shriveled old man was unable to answer simple questions." A second man said he was 90.”[1]

These four men were held in the Guantanamo Bay limbo for many months before their release. They were not provided any legal representation. And still, the military released them when they at last understood that these men were innocent. Doesn’t the simple logic dictates that if there were four innocent men held forcefully in the mere suspicion of being terrorists, and later were found to be innocents, how many other innocent people are still held in the mysterious dark prison cells of Guantanamo Bay?

Cardinal Sin

As was said before, not many people write about Guantanamo Bay prisoners any more in the fear of raising questions on his or her patriotism. Especially, if the writer has a Muslim name, it is a big “No! No!” And if the writer is an immigrant of a Western nation as well, it is silently considered as a cardinal sin to demand the fair due process of law for the Guantanamo Bay prisoners.

Let’s commit the cardinal sin. Let’s break the hush-hush lip service for the sake of our civility and conscience.

Baffling Initial Capture

The initial capture of these prisoners are filled with murky stories. Most of these prisoners were turned in by the Afghanistani and Pakistani tribesmen to the U.S. military in exchange for “substantial financial bounties”. [2] There were not much intelligence gathering or careful investigations for the terrorist cells in Afghanistan before their capture. “U.S. officials have acknowledged both publicly and privately that some of the prisoners were simply "in the wrong place at the wrong time."”[2]

Dozens of these prisoners were taxi drivers, farmers, cobblers and laborers. At least 59 of them were deemed to be of no intelligence value after repeated interrogations in Afghanistan. [5] Even though these 59 detainees were listed as “recommended for repatriation”, all were transferred to Guantanamo anyway, “for reasons that still baffle and frustrate intelligence officers nearly a year after the first group of detainees arrived. "There are a lot of guilty (people) in there," said one officer, "but there's a lot of farmers in there, too.””[5]

Sources close to this issue blamed the flawed screening guidelines. These flaws made it near impossible to take prisoners off Guantanamo flight manifests and a pervasive fear of letting a valuable prisoner go free by mistake. As one officer put it, "No one wanted to be the guy who released the 21st (Sept. 11) hijacker.'' [5]

These are legitimate concerns. Still some officers say that detaining dozens of innocents, and providing no legal mechanism for appeal, can only breed distrust and animosity toward the United States — in the countries and governments of the prisoners and among the inmates. "We're basically condemning these guys to long-term imprisonment," said a senior military interrogator at Guantanamo. [5]

Life in a Guantanamo Cell

Human Rights Watch said that the prisoners in Guantanamo Bay are kept in 1.8m by 2.4m open sided wire cells. [4]

The following description is obtained from a BBC article. [4]

Each prisoner has been given:

US army standard-issue 2cm-thick foam sleeping mat, one blanket, two buckets, a one quart canteen

Two orange boiler suits, one pair flip-flops

Two bath towels, one for washing, one for use as a prayer mat

A washcloth, toothpaste, soap, shampoo

A copy of the Koran

Prisoners are served three meals a day - all "culturally appropriate":

Breakfast - typically bread, cream cheese, an orange, a pastry, a roll, a bottle of water

Lunch - typically a box of cereal, two cereal bars, a packet of peanuts, one packet crisps, one packet raisins, a bottle of water

Evening meal - typically white rice, red beans, a banana, bread, a bottle of water.

The detainees' daily routine:

Breakfast followed by shower opportunity and personal time

Doctor visits to address any medical issues

Lunch followed by shower opportunity and personal time

Exercise period

Mail call - pens and paper are provided for limited time, letters may be written under supervision, all pens are collected afterwards

Dinner followed by shower opportunity

To Err is Human

Most Americans are people with kind heart. Joseph Margulies and Thomas Wilner are no exceptions. They are the two lawyers who have been hired by the families of sixteen Guantanamo Bay prisoners. These two lawyers have written two articles in today’s Washington Post, in the Outlook section. [1, 2]

Joseph Margulies writes, “Does a person jailed by our military during the war on terrorism have a right to tell someone -- someone who can do something about it -- that he has done no wrong and that his jailers have made a mistake?” [1] Is this an unfair question?

To err is human. U.S. military are comprised of human beings. And in many cases, the jailers have made mistakes in the past. There is no surprise in that. There is no mythology involved in that. This is a simple question and needs a simple answer.

Geneva Conventions

Certainly, military has the rights to apprehend enemy combatants from the battlefield. America claims that they are entitled to interrogate these combatants for gaining knowledge about the possible threats to the innocent civilians. These are the valid issues. But the prisoners must be provided all the legal rights. They must be treated with the established Geneva Conventions. And there are civil rights folks who have become tired in shouting of the Geneva Convention breeches in the case of these prisoners since they have been kept in the Guantanamo Bay.

America maintains that the detainees held in Guantanamo are "unlawful combatants, who have no rights under the Geneva Convention". [12] Human Rights activists say the opposite. They claim that the Geneva Convention, "ratified by the US, applies "to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." The term "war" has been explicitly replaced by the phrase "armed conflict" and this more general expression clearly applies to the US action in Afghanistan. According to the preparatory work for the Geneva Convention, any dispute between states involving the use of armed forces is an armed conflict within the meaning of the convention. The US has undoubtedly engaged in armed action against the de facto authorities in charge in Afghanistan." [12]

American Ideals

American Founding Fathers “recognized that government officials, no matter how well-intentioned, can at times be overzealous, and that the deprivation of an individual's liberty must therefore always be subject to dispassionate and impartial review.” [2] American Founding Fathers’ ideal is followed around the world in making constitutions and voluminous law books. This ideal is not only fair, but also “it provides the best assurance that the process will achieve the correct results -- punishing the guilty and not the innocent.” [2]

Legal Black Hole

The Brits call these detainees imprisonment as the “legal black hole”, “a status devoid of enforceable rights. And with no rights, they may be held indefinitely -- until the "war on terrorism" is over -- with no legal process contemplated.” [1]

What’s the current American administration’s point of view in keeping these prisoners in apparent breech of international law? The U.S. government’s position “is that these particular detainees are not members of a standing army, and the government may hold them indefinitely as unlawful belligerents, with no proof they have done anything wrong, while providing them no opportunity to show their innocence.” [1]

The U.S. government insists that the American courts do not have any jurisdiction over these inmates since these men are foreigners held at a location outside the United States. [2] The Bush administration emphasizes on the sovereignty issue. They claim that since America is not sovereign in Guantanamo, therefore, American Courts do not have any jurisdiction there.

Joseph Marguilies counters American government’s claim with acute observation. He writes that Guantanamo is a fully American enclave, a city where thousands of American soldiers and civilians live under U.S. authority. “Nearly half the size of the District of Columbia, it has its own schools, generates its own power, provides its own internal transportation and supplies its own water. No one may enter or leave without approval from the U.S. government.” [1]

America has occupied Guantanamo since 1903 from Spanish-American war under a lease with Cuba. This lease grants the United States complete jurisdiction and control over and within Guantanamo while recognizing the continuance of the ultimate sovereignty of Cuba. [1]. American can stay as long as they want in Guantanamo and America has no intention to abandon Guantanamo in the foreseeing future.

Marguilies writes, “For nearly a century our government has described Guantanamo as "practically a part of the Government of the United States." Solicitor General Theodore B. Olson, who heads the government team in the current litigation, once described Guantanamo as part of the "territorial jurisdiction" of the United States and "under exclusive United States jurisdiction." The government confirms this in practice: Crimes committed at Guantanamo are prosecuted in a federal court in Virginia, where defendants enjoy the complete panoply of constitutional rights. Despite Cuba's attempts to exercise its "ultimate sovereignty" by insisting we leave Guantanamo, we remain.” [1]

American position on this sovereignty issue to exclude the Guantanamo inmates from the due process of law is perplexing. America does not allow any other international courts to meddle Guantanamo prisoners’ “legal black hole” limbo because it “exercise sole power at Guantanamo”. And since Cuba is the one that retains “ultimate sovereignty,” American government insists that none of the American courts have jurisdiction either. [1] Marguilies writes in sarcastic tone, “We are "sovereign" enough to exclude the prying eyes of any other court, but not sufficiently sovereign to permit scrutiny by an American court.” [1]

American government sites the example from a Supreme Court decision aftermath the World War II. “After Germany surrendered but while Japan fought on, the United States captured 27 Germans in China and charged them with assisting the Japanese army. Because Germany had surrendered, this violated the laws of war. With permission from the Chinese government, the United States then tried the Germans before a military tribunal in Shanghai.” [1]

The fascinating part is that unlike the Guantanamo Bay’s “legal black hole” prisoners, those German soldiers were provided legal counsel and time and resources to prepare for their legal representation. “They had the right to discover and introduce evidence, to call and confront witnesses, and to make opening and closing statements. After a trial that lasted months, six were acquitted and released, while 21 were sentenced to fixed terms in prison. Later they filed a lawsuit in Washington, claiming that their trial was unlawful. In Johnson v. Eisentrager, the Supreme Court disagreed. It held that their trial was fair, and that they received all the process due under the circumstances.” [1]

Disturbing Contrast

In disturbing contrast, the prisoners of Guantanamo Bay have not provided any legal counsel. Even the present Bush Administration admitted that some of the prisoners are probably innocent. [1] The release of four prisoners from their imprisonment proves the fact that they were unfairly kept for many months without having access to the due process of law.

Recent media reports suggest that United States is moving closer to trying some of the prisoners under military commissions that Bush authorized last year. [7] Amnesty International has strongly protested against this apparent U.S. move since it “flout international fair trial standards”, because the commissions would have the power to hand down death sentences with no right of appeal. [7]

Last October, the Republican Party’s senator from Texas criticized the Justice Department for its "lack of regard for personal civil liberties in America" and said it makes no sense to save ourselves from international terrorism only to sacrifice these fundamental principles. [2]

Mr. Dick Army is absolutely right. In Guantanamo Bay, American fundamental principle that is based on the availability of an impartial tribune to review any detentions is not observed and must be condemned.

Terrorists do not give a hoot for American or any civilized fundamental principles. Their motto is to spread terror through devastation and destruction of civilian lives and infrastructures. But America supposed to be the good guys. America supposed to be taking the higher moral ground than the terrorists’ shriveled morality.

Yes, America faces a puzzling war and dangerous shadowy enemies. But it did face similar danger in the past. In the war against the monstrous Hitler in the World War II, America suffered heavy civilian and military casualties. In the subsequent costly Korean war, Vietnam War and the Persian Gulf War – American struggles were arduous and painful. But in each case, America always held the captured people in accordance with the rule of law and the Geneva Conventions. [2] Why does this war against terrorism need to be any different than the past wars? Why American founding principles and ideals need to be sunk down to the abyss of immorality that the vicious terrorists espouse to?

1. Joseph Margulies, “Limbo is no place to detain them”, Washington Post, December 22, 2002.

2. Thomas Wilner, “The Longer We Wait, the Worse We Look”, Washington Post, December 22, 2002.

3. Badar Al-Motawae, “Guanatanamo Detainee Phones Home”, Arab News, December 20, 2002.

4. “Life in a Guantanamo Cell”, BBC, February 7, 2002.

5. Greg Miller, “Dozens Detained in Guantanamo may be Innocent”, Toronto Star, December 22, 2002.

6. Michael Bowman, “Lifting the Veil of Secrecy at the Guantanamo Detention Camps”, December 9, 2002.

7. “Free Guantanamo Prisoners, Amnesty Urges Bush”, December 13, 2002.

8. Picture Reference: http://www.webislam.com/Descarga/Imagenes/Imagen_Texto/guantanamo_gr.JPG

9. Picture Reference: http://news.bbc.co.uk/olmedia/1765000/images/_1766037_prison_cell4_300.gif

10. Picture Reference: http://www.imagesofspace.com/images/Black%20Hole%20400.JPG

11. Picture Reference: http://www.stanford.edu/~mjpeters/images/logos/sin.gif

12. Oliver Audeoud, "US Breaks the Laws of War", Le Monde Diplomatique, April 2002.

Mahbubul Karim (Sohel) is a freelance writer. His email address is: sohelkarim@yahoo.com.

Originally published on http://groups.yahoo.com/group/MuktoChinta/message/4415

Published with the authorisation of the author. Copyright: Mahbubul Karim (Sohel)

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