Not at Gitmo (yet)

I was supposed to be in Guantanamo today. Actually, the beginning of the story was that I was supposed to be there last Wednesday, October 11. As I’d noted here back on September 29, Mr. Cully Stimson, the Deputy Assistant Secretary of Defense for Detainee Affairs, had invited me on a Pentagon-organized tour of the detention camp there, and I had agreed to go…
The October 11 trip got postponed a week agobecause of his office’s difficulties getting hold of a Pentagon Gulfstream in which to take the group. I reorganized my schedule. This Monday, his people called to say they couldn’t get hold of the Gulfstream this Wednesday, either. I called him yesterday to see what was going on. He explained that, since it is congressional recess time, members of the US Congress have been going on a lot of trips using the Pentagon’s executive jets, so our group had once again been bumped. I will be busy for the next couple of Wednesdays– I’m going to Amman for the UNU seminar on “Nonviolence”. So we left it that if there’s a trip on Novermber 8, then he will try to get me on it.
So I’d been doing all this research about Guantanamo, as my preparation for going there! I’ve read not only Joseph Margulies’s book, but also the very informative books by (freed British detainee) Moazzam Begg, Erik Saar, and David Rose. Still to read: Steven Miles’s “Oath Betrayed” and James Yee’s “For God and Country.”
I’ve done a bunch of research on the web. In case you want to do some, too, I’m happy to share with you the portal to around 40 web documents, nearly all of them very interesting, that I created with “del.icio.us” last week.
But the most interesting and inspiring thing I did was to interview a number of the US-based lawyers who have been giving up significant amounts of their time and resources to work pro-bono on Guantanamo-related cases. For example, when I was in DC a couple of weeks ago I interviewed Muneer Ahmad, who’s an Assistant Professor at American University’s Washington College of Law. He’s one of two attorneys representing Omar Khadr, a young Canadian man whose militantly fundamentalist Muslim parents raised him to follow exactly in their footsteps…
In July 2002, Khadr was 15 years old and fighting with an Al-Qaeda unit in southeastern Afghanistan when he was injured severely in a fierce battle against US Special Forces, and was taken prisoner by them. An American medic reportedly saved Khadr’s life on the battelfield. The Special Forces then took him to Bagram “with a bullet-split chest and serious shrapnel wounds to the head and eye.”
Jeff Tietz of Rolling Stone wrote recently, that after Khadr arrived in Bagram,

U.S. intelligence officers began interrogating him as soon as he regained consciousness… At Bagram, he was repeatedly brought into interrogation rooms on stretchers, in great pain. Pain medication was withheld, apparently to induce cooperation. He was ordered to clean floors on his hands and knees while his wounds were still wet. When he could walk again, he was forced to stand for hours at a time with his hands tied above a door frame. Interrogators put a bag over his head and held him still while attack dogs leapt at his chest. Sometimes he was kept chained in an interrogation room for so long he urinated on himself.

His ill-treatment continued during and after his transportation to Guantanamo. (Read more of Tietz’s account of it there.) One wrinkle in Khadr’s story is that his brother, Abdurahman Khadr, had at some point been “turned” by the CIA, and had been working as a CIA informant in various places around the world before he showed up in Guantanamo one day and asked his brother how he was doing. Another is that the rest of his family– especially his mother, sister, and older brother Abdullah– have become generally notorious within Canada for their defiantly pro-Qaeda and anti-US views…
Meanwhile, more than four years after his capture, Omar Khadr remains in Guantanamo. He is one of the ten detainees there (among the present population there of some 435!) who have actually been charged with somethng– in his case, murder. These are expected to be the first people to be brought before one of the new Military Commissions, as soon as they are established. Ahmad and other experts have estimated this will take “at least a further 30 days” after the bill is signed into law.
When I met Ahmad October 4, he walked me carefully through the whole maze of provisions and regulations affecting his client. He concluded by saying, “Congress is now trying– by law– to place Guantanamo beyond the reach of the law… If the Supreme Court upholds what the administration and Congress are now doing, it will be extremely shameful.”
Ahmad explained to me that the rules for the newly re-legalized Military Commissions will be written by the Office of General Counsel in the Department of Defense. That would be William J. Haynes II, who has played a large role in fashioning the administration’s policy on detainees all along.
Ahmad said he expects the new Military Commissions will probably start off by trying Omar Khadr and the other nine people already on their docket, “because it will be very hard for them to try the 14 so-called ‘high-value detainees’.” For starters, he believes they cannot easily muster the necessary prosecution team and support staff from within the Office of the Secretary of Defense.
Ahmad notedthat Omar Khadr was a minor at the time of the commission of the acts in question. “This is hugely relevant. The government claims that anyone over the age of 15 can be tried as an adult under international law. But we contest this.”
He said that in the four years Khadr has been in Guantanamo he has undergone many of the physical changes of adolesecence. “He has grown much taller since then, and now he has a beard. Now he looks much more like an adult than he would have at the time.”
He said that on his visits to Guantanamo to confer with Khadr he has learned that,

There is a tremendous amount of despair involved– for him and for others. We tried to get a mental-health expert there to assess his fitness to stand trial. But they wouldn’t let us do that. However, we’ve consulted with psychiatrists who gave us some evaluation instruments that we used with him. When the psychiatrists saw the responses they said he seems to be in great jeopardy.

He expressed great concern about the psychiatric and other forms of medical care available to Khadr in Guantanamo.
In this connectiopn, see this report from the British Medical Journal about the complaint that lawyers working for some Yemeni detainees at Guantanamo brought last year against the director of the detention camp’s hospital, Dr. John Edmondson, before the California Medical Board. They complained that,

personal medical information had been shared with interrogators, they had been refused necessary medical attention until they cooperated with interrogators, medical personnel had participated actively and passively in physical abuse, and medical personnel had failed to provide basic consideration to patients in providing medical care. They also said that information about their medical conditions was given to behavioural scientists working with the interrogation teams.

The Cal. Medical Board dismissed that complaint on the grounds that,

“The board has reviewed and closed this complaint because no evidence was found by the [army] surgeon general of medical mistreatment of the patients. Therefore the medical board cannot take any action because we have no jurisdiction to take action against a military physician practising on a military base, absent an action first by the military itself.”
The army’s surgeon general, Kevin Kiley, reviewed and approved the findings and recommendations of a team investigating medical operations on detainees at Guantánamo and at US facilities in Afghanistan and Iraq. The team found “a dedicated and committed cadre of medical personnel whose goal and desire were to provide high quality health care for each patient they treated, regardless of status. While medical personnel faced numerous challenges in a stress-filled environment, the interviewees continually described the compassionate and dedicated care they provided to detainees.” However, lawyers for the Yemeni detainees claim that the investigation did not investigate or interview the detainees but relied on a questionnaire of medical personnel in Cuba, Iraq, and Afghanistan.
… In a press conference Dr Kiley stressed that medical personnel were entirely separate from “behavioural science consultation teams” who advised interrogators on questioning detainees and that medical teams did not share information with them.
Dr Kiley said in the press conference, “My sense is that interrogations that are safe, legal, and ethical within the confines of our operations—that medical advice and recommendations that are also safe, legal, and ethical—are probably appropriate… ”

In January, the same detainees’ lawyers petitioned a California court to force the state Medical Board to investigate Edmondson. (I’m not sure what became of that complaint?)
Back to Muneer Ahmad. He noted the importance of rigorously inevstigating all claims of abusive treatment of the detainees going back to their earliest days in captivity and their earliest days at Guantanamo. He warned that now, the Pentagon may be organizing carefully stage-managed “dog-and-pony shows that are designed to paint a picture that Guantanamo is better than the situation in most regular US prisons. But this tells us nothing about the past treatment of the detainees. It also tells us nothing about the legal limbo in which they are trapped– and this itself is its own form of torture.”
… Then last week, while I was in New York, I was able to interview Barbara Olshansky and Wells Dixon, two lawyers working with the venerable Center for Constitutional Rights. CCR has played a huge role helping to find and support the hundreds of attorneys from throughout the US who are nowadays working pro-bono to represent the Guantanamo detainees. Olshansky is the Deputy Legal Director at the center: she’s done a lot to help establish the network of some 600 pro-bono lawyers who are working for some 145-150 detainees. For his part, Dixon has taken a 6-month leave of absence from his job doing white-collar litigation with Kramer, Levin, Naftalis, and Frankel LLP to work at CCR helping Olshansky support the new network.
CCR is located at the top of a rickety elevator in a down-at-heel building in a rather grungy portion of Manhattan’s East Village. I imagine the phsyical conditions at Dixon’s usual law firm are somewhat different. (CCR was recently awarded the third annual LennonOno Grant for Peace. That’s great news. But alas, it represents only an additional $50,000 in the bank. C’mon, Ms. Yoko Ono, surely you could be a bit more generous than that?)
Wells Dixon has been working for a while now on behalf of a group 21 or 22 ethnic Uighurs detained at Gitmo since late 2001 or early 2002… Eighteen of these men are Chinese nationals who had left their homeland some time before 2001 because of a strong fear of persecution. They had applied for asylum to the US (and Sweden, and Turkey), doing so through the relevant embassies in Islamabad, Pakistan. But they feared continued persecution in Pakistan, which has had a long-time close relationship with China, so as they waited for their asylum applications to be processed they had crossed over to Afghanistan, where they supported themselves doing odd jobs, until– in October 2001 the US launched its “shock and awe” invasion of the country… The group of 18 Uighurs then fled over the mountains back towards Pakistan and were captured, as a group, by bounty-hunters who handed them over to people who handed them over to the US military…
“When they saw Americans coming into the place where they were held, they were delighted,” Dixon told me. “They thought that all their problems would be over.” Their problems, however, were only just beginning…
A big part of what was happening, it seems to me, is that the bounty-hunters had strong incentives to hype up the “dangerous character” of the men they had turned over, in order to keep their payments as high as possible… Those accusations would simply have been passed along the line, and amidst the chaotic conditions of the day there would have been little chance to investigate those allegations, and of course, every incentive not to give people accused of such heinous things the benefit of any doubt… Plus, it is quite likely that already-marginalized, language-limited people like these transient Uighurs would have had zero opportunity at that point to marshal any arguments or summon any witnesses in their own defense…
Anyway, Dixon told me a long story about the hapless Uighurs. He said that back in 2003 or so, they had all been determined by the interrogators at Gitmo to be “no longer” enemy combatants. (This is a designation the DOD uses, which strongly suggests that at one point such persons had been “enemy combatants”… But in the cubstantiated.) But the administration refused to let the Uighurs simply enter the US as political refugees at that point, which would have been a generous and compassionate thing to do. Instead the administration– and in parallel with them, Dixon and the other lawyers– started hunting around the world for other countries that would take the men in as refugees.
But no other country would take them. Except that– just as Dixon was about to have a hearing on a habeas petition he had filed in US courts for five of his Uighur clients– he suddenly learned that Albania, that well-known haven for political refugees, had agreed to take them in.
And indeed, they were already on their way there.
In Albania, he told me, the men were being held in confinement in what has been described variously as a “refugee camp” or a “detention camp”. This was “for their own safety.” He said he was still able to talk to them from time to time by phone. He said they were glad to be out of Guantanamo, but “distressed” to be in Albania.
Here, btw, is an article from yesterday’s WaPo about the problems the administration claims it has in finding places of refuge for Guantanamo detainees whom it wants to release but regarding whom it finds difficulties in finding countries willing to take them in… I think this whole phenomenon deserves much greater investigation than that reporter there, Craig Whitlock, gave it. For example, how hard has the adminiostration actually tried to find such places of refuge? What is the majopr factor constraining out countries from taking in the releasees? Is it the burden on those governments of the restrictions that the Bushites’ require they continue to maintain on the released men? Is it fear of, for example, political pressure from China or other repressive governments (applicable only, surely, to the Uighurs, not to the many others for whom the government claims it canm’t find a home)? IS it a sense of continuing fear that these men might indeed still be– as Rumfeld once claimed they all were– “the worst of the worst”?
Anyway, I don’t have time now to write up any more of the many very interesting things I’ve been learning and thinking about regarding Guantanamo. Just two last quick notes:
(1) How inspiring I have found it to learn about the new networks of lawyers that have formed to work on these cases, and to meet some of the attorneys involved. Some of the people working on these cases said that when they were first retained by their clients’ families to work on these cases, many other US lawyers had earlier turned the families down. But now, many members of the US legal profession seem to have regained their bearings, and to have understood the huge impact of these cases for the broad situation regarding the rule of law in the US. Wells Dixon told me,

We view lawyering as aclling, not just a trade. We see oiur role as being to uphold the rule of law. What’s been happening at Guantanamo doesn’t reflect the best values of the law, or of our country.

He recalled that after growing up as the son of an army officer and going to law school in Denver, he had arrived in New York to take up his job at Kramer Levin on September 11, 2001. He told me,

One way to combat terrorism is by upholding our values…When I went to Guantanamo and met these people, it was clear it wasn’t only a question of a fair trial and the rule of law– but also, these people were actually innocent.

He said, too, that his father was “infuriated that the military would stand for this, as it dishonors all the people in the military.”
(2) I guess my second closing observation here is to note the many similarities between the phenomenon of Guantanamo and that of the whole “Pipeline” detention system in British Kenya in the 1950s, that I have written about– here and elsewhere– before. (Actually, between Guantanamo and many other late-colonial mass detention systems.)
I wish I had the energy to do something I’ve been meaning to do for a while: write an essay in which I systematically compare (and contrast) these two cases of late-colonial mass detentions, and also investigate more closely what it is that the colonial/counter-insurgency authorities in question actually think they are achieving by maintaining these places/systems of detention and running them in the way that they do. The title of this essay would be something like “Guantanamo: What is it for‘?
A very good question. And I don’t think I need to actually get to Guantanamo before I can start working on answer.