July 11, 2005 – The image of the United States military detention center at Guantánamo Bay shifts when observed from different angles.
Activist groups, now calling for an independent investigation and closure of the facility, see forlorn men trapped indefinitely behind wire fences and stripped of fundamental rights.
But according to at least one member of the congressional delegation that visited the facility last month, there is no better place for a suspected terrorist to be.
After touring the facility, sampling the lunch menu of the more than 500 detainees, and studying prisoner weight-gain charts, Chairman of the House of Representatives Armed Services Committee Duncan Hunter (R-California) returned to Capitol Hill with some promising news: "the detainees have gained an average of five pounds a piece over the last year." At a committee hearing on detention policy last month, Hunter dismissed growing evidence of severe mistreatment of prisoners and declared, "We saw a world-class detention facility."
But Guantánamo looked different from the vantage point of Shafiq Rasul, a former detainee who reported that for two years, he routinely experienced life at the camp in barren isolation, in temperatures that fluctuated from freezing cold to unbearably hot, his hands painfully shackled to his ankles for hours.
In interviews with legal advocates at the Center for Constitutional Rights, he recalled that when soldiers first locked him in a filthy isolation cell, "I felt like I was going out of my mind. I didn’t know where the others were, I didn’t know why I was being held there." Rasul became a key plaintiff in a landmark Supreme Court case that established due process rights for detainees under US law in 2004.
Outside of the federal government, the international community could serve as another channel for oversight, but thus far, say critics, the US has chafed against international pressure rather than heeding it.
To activists, Duncan’s lighthearted message about his "firsthand" experience of the camp is nearly as disturbing as the oppression and mistreatment that they believe detainees face on a daily basis.
The demand for independent investigations and the closure of Guantánamo Bay has become a rallying cry for a coalition of community and civil liberties organizations. This month, led by the Center for Constitutional Rights (CCR), that coalition launched a campaign in various cities to protest detentions at Guantánamo and similar overseas military facilities.
"We live in a country under the Constitution, under the rule of law," said Christopher Anders, legislative counsel with the American Civil Liberties Union (ACLU), "and we have the government breaking the rule of law.… That’s something that really motivates people to act." Anders and other civil liberties advocates say that public pressure, along with action from legislators and the international community, could take down the Guantánamo prison and the impunity it has come to represent.
Yet the push to investigate and shut down Guantánamo is also a touchstone in a broader effort to ensure accountability at the highest levels of power. Civil liberties advocates say that Guantánamo is just a physical embodiment of deeper problems of abuse, the scope of which is still unknown.
The question looming behind the notoriously inscrutable camp is how to hold the government accountable for the treatment of detainees.
Anders noted that in the campaign to close the facility, "Fixing it is at least as important as shutting it down. And we don’t want to simply shut [it] down without giving the people that are there now, and also the people that are held in secret prisons around the world … these protections that they’re due."
Opening It Up, Closing It Down
As the government has tightly guarded access to the facility itself, the questions surrounding Guantánamo emerge from sharply contrasting images presented by the administration’s defenders and detractors: a "world-class" prison versus a "legal black hole."
According to civil liberties groups, the detainees --> whom the Bush administration has declared exempt them from both national and international judicial protections -- are languishing in a legal vacuum of arbitrary imprisonment, secrecy and brutality.
"The government can put on a very good show for people visiting Guantánamo Bay," remarked Anders. "But the bottom line is that those basic due process protections still have not been provided, and until they have, the United States will continue to have this festering problem."
Despite recent congressional hearings on military detentions, critics of US detention policies have been frustrated by reluctance among legislators to tackle the issue of detainee abuse.
While the Republican-dominated House did insert into the 2006 military appropriations bill a provision to "reaffirm" US policies against torture, the legislation contained no language on oversight of the treatment of detainees.
Whatever the final remedy, human rights and civil liberties groups contend that adherence to a formally recognized legal code is far preferable to the current system.
Majorie Cohn, executive vice president of the legal advocacy association National Lawyers Guild, pointed out that leading House democrats recently aligned with the Republican majority to block an amendment to a defense supplemental bill that would have prevented the construction of a new, permanent prison facility at the Guantánamo site. She predicted that in pushing for congressional action on detention issues, activists would meet heavy resistance "when you have democrats … who are just knuckling on to the Bush administration every time they wave the 9/11 flag."
As lawmakers hesitate to confront human rights violations by the military, Cohn said, "it’s up to non-governmental organizations, civil liberties organizations, to continue to apply the pressure."
Those pushing for a shutdown of the detention camp say that the first step in any discussion about closing Guantánamo down is opening it up.
CCR staff attorney Rachel Meeropol commented, "The more people that get involved, the more organizations or delegations that manage to send people on fact-finding missions, the more information that’s going to come out about what’s happening there -- the more real information, not controlled by the government."
The civil liberties community has supported a legislative proposal for an independent congressional commission to investigate alleged abuse of detainees at Guantánamo and other detention sites. The ACLU has also called on the Department of Justice to commission an independent special counsel investigation.
After the true conditions at Guantánamo are brought to public light, said Meeropol, "then Guantánamo will cease to function in the way that the government intended it to -- as a secret detention facility."
Stephen Schulhofer, a New York University law professor and author of a recent report on post-9/11 detention practices, suggested that "an investigation that has credibility" could straighten the record on both sides of the Guantánamo debate, either by disproving allegations of abuse, or by verifying reports of mistreatment "and then [showing] that we were committed to punishing the people who were responsible for it."
Nevertheless, the prospect of true oversight from within the government seems dim to many advocates, who believe both Congress and the Department of Justice are firmly aligned with the Bush administration. An official probe by the Department of Justice would have to be initiated by Attorney General Alberto Gonzales, who in his previous post as White House Counsel advised the President on what forms of physical and psychological abuse could be used on prisoners without technically violating torture laws. Gonzales is now reportedly on the White House short-list for Supreme Court nomination.
Even the Senate, which civil liberties activists see as more open to investigating detention issues than the Republican-dominated House, omitted the abuse question from the agenda of its most recent hearing on detainees. Before the Judiciary Committee, Chairman Arlen Specter (R-Pennsylvania) stated, "We do not have within the scope of this hearing the issues of torture or mistreatment."
Outside of the federal government, the international community could serve as another channel for oversight, but thus far, say critics, the US has chafed against international pressure rather than heeding it.
Officials in Italy and Sweden have recently criticized the US government for reportedly apprehending their citizens and, through the policy of "extraordinary rendition," routing them to other countries where they could be tortured or deprived of legal rights.
United Nations investigators have expressed frustration with the US government’s refusal to allow special envoys on torture, arbitrary detention and international law to inspect Guantánamo and other detention sites.
Critics also assert that reported abuse at Guantánamo is in fact undermining the goal of protecting national security. "Being tough [at Guantánamo] is not making us safer," said Schulhofer. "It’s really just the opposite, because it’s creating so much anger and resentment against us around the world."
UN Special Rapporteur on Torture Manfred Nowak told The NewStandard that since the US has publicly condemned the human rights violations of other countries, "it’s own credibility is undermined by major human rights violations that might be found on its own territory."
Although he anticipates the US will eventually yield to UN pressure, Nowak said that even without direct on-site access, the team of investigators would still proceed through other channels, such as interviews with released detainees and research of government documents.
If the US continues to thwart UN investigators, he remarked, "then of course… one possible conclusion is that obviously, there is more to hide than we originally thought."
After Gitmo
As activists work to expose abuse at Guantánamo, the question looming behind the notoriously inscrutable camp is how to hold the government accountable for the treatment of detainees throughout the expansive theater of the so-called "war on terror."
Guantánamo represents just a portion of prisoners taken in the government’s anti-terrorist military campaigns. According to the human rights group Amnesty International, the US has detained as many as 70,000 people at offshore facilities. Meanwhile, the organization estimates, thousands have been transferred to the custody of other countries, and an untold number of "ghost detainees" are being held in secret.
Even Guantánamo’s strongest critics are wary that doing away with the facility might be counterproductive in the struggle to curb unjust detention practices. Some speculate that if Guantánamo is closed, prisoners could simply be "rendered" to other countries for detainment and potentially torture.
"We don’t want to simply just close Guantánamo Bay and then have people transferred to secret prisons elsewhere," said Anders. The focal point of the advocacy around the Guantánamo facility, he stressed, is "to get accountability … with the purpose of making sure it never happens again."
Schulhofer warned that since it has taken three years just to secure federal court jurisdiction over the Guantánamo prisoners, closing the facility and shipping the prisoners elsewhere would threaten to undo recent progress in defining the rights of the detained. In his view, "what we need to be concerned about is the practices, and not where the practices take place."
Critics are still trying to map out a theoretical post-Guantánamo world. Ken Gude, associate director of the International Rights and Responsibilities Program at the Center for American Progress, outlined a plan for restructuring the detention system in a recent statement of policy recommendations. First, he argued, the center of operations for counter-terrorism detentions should be moved to a military facility on US soil, and the treatment and interrogation of detainees should comply with established military codes. Furthermore, he wrote, the International Committee of the Red Cross should have complete access to monitor the facility.
In place of the Guantánamo’s Combatant Status Review Tribunals -- a quasi-judicial procedure invented by the administration as its answer to the Supreme Court mandate of due process for detainees -- the Center recommends a formal military tribunal hearing system to review detainee cases according to Geneva Convention rules on prisoners of war.
Civil liberties advocates point out that as the circumstances of each detainee’s imprisonment vary -- some may have no ties to any military or terrorist activity while others may have been seized in combat -- the most appropriate legal channel, whether the US courts or conventional military judicial institutions, should be determined on an individual basis.
Whatever the final remedy, human rights and civil liberties groups contend that adherence to a formally recognized legal code is far preferable to the current system, which they view as a legal no man’s land, lacking both civilian and military due process protections.
"It’s probably not going to be a one-size fits all kind of package," said Anders, "but the basic need for both transparency and opportunity for people to know the charges against them and to challenge those… -- that’s kind of a cross-the-board baseline."
Advocates believe that just as the harrowing images of abused detainees are mere clues to systematized brutality that rages behind walls of secrecy, demanding the closure of Guantánamo is just one facet of a movement for accountability in a war that seems impervious to the rule of law.
"What’s more important than shutting down Guantánamo, as one facility," said Meeropol, "is ensuring that all the individuals detained there -- and that all facilities across the globe -- receive due process of law … Guantánamo is just a location. It could be anywhere."
