Just about everyone who has weighed in on the issue has expressed a desire to see Guantanamo close, including the three leading US presidential candidates. But 275 detainees remain in Guantanamo, most for five to six years without charge and without any meaningful opportunity to challenge the basis of their detention; and at least some have been subjected to torture. The European Parliament and EU member states should continue to urge the US to close Guantanamo responsibly.
Just about everyone who has weighed in on the issue has expressed a desire to see Guantanamo close. But there are still 275 detainees there, most of whom have now been held there for five to six years without charge and without any meaningful opportunity to challenge the basis of their detention.
With a new US president moving into the White House in less than a year, there is now a chance to make this goal of closure a reality. All three leading presidential candidates agree that Guantanamo should be closed. The European Parliament and European Union member states can play an important role in making sure that this is done responsibly.
I will begin with a brief history of Guantanamo, discuss key developments regarding the legal status of these detainees, and end with recommendations as to what can and should be done to make the goal of closure a reality.
On January 11, 2002, the first planeload of 20 detainees landed on the military base in Guantanamo – a place chosen because the United States thought it would be beyond the reach of any US courts. They turned out to be wrong.
Over the next several months the United States brought hundreds of detainees to Guantanamo, some allegedly associated with the Taliban or al Qaeda in Afghanistan, and others picked up far from the Afghanistan battlefield, in places as far-flung as Gambia, Thailand, and Bosnia. The United States held them under the label “enemy combatant,” physically abused some of them, and ignored basic precepts of international law that it itself had once taken the lead in promoting.
Over the past six years, we have learned a lot about the detainees who have been held in Guantanamo. Only a small minority of detainees were combatants involved in any fighting. Rather, most were picked up far from any battlefield, often sold for bounties or turned over by Pakistani forces or others. Yet, despite the inevitable confusion about who these men were, none of the detainees were provided an individualized determination of their status before a competent tribunal as required by Article 5 of the Third Geneva Convention. Rather, the United States made a blanket determination that Taliban soldiers were not eligible for prisoner-of-war status even though they were entitled to such status under Article 4 of the Third Geneva Convention. The United States also announced that alleged al Qaeda members and associates were not entitled to any Geneva Convention protections, placing them outside both the laws of war and human rights law. And even detainees picked up as far away from the Afghanistan battlefield as Gambia, Thailand, and Bosnia were held under the same “enemy combatant” label, based on the administration’s ever-expanding notion of a global “war” on terror.
For the next two-and-a-half years, the United States kept the detainees in what has long been described as a legal black hole, denying them access to lawyers or family members, and fighting all attempts to challenge the basis of their detention in US federal courts.
In 2004, in response to a legal challenge brought by 14 Guantanamo detainees (two Australians and 12 Kuwaitis), the US Supreme Court ruled that detainees could in fact bring habeas corpus challenges to their detention in US federal courts under the statute then in place, and US policy was forced to change.
Within a week of the Supreme Court ruling, the administration initiated its own internal review procedures, through which a panel of military officers under the military chain of command would determine whether the detainees were in fact “enemy combatants” as the president had asserted for the past three years – a system which the Bush administration now claims is an adequate substitute for independent court review.
But as Lt. Col. Stephen Abraham will describe in more detail, these administrative procedures are hardly independent or fair. Detainees are not provided lawyers, are faced with secret evidence that they are unable to confront, are given only the most cursory summary of the allegations against them, and have in all cases been denied requests to bring in outside witnesses to help establish their innocence.
As more and more of the detainees sought the independent court review that the Supreme Court said they were entitled to, the Bush administration fought back, enlisting the US Congress to help. In December 2005 Congress passed a law prohibiting Guantanamo detainees from bringing any future habeas claims. And in October 2006, Congress expanded these restrictions, and applied them retroactively to already pending cases.
The legality under the US Constitution of these habeas-stripping provisions is now being considered by the US Supreme Court with a decision expected in June. Of note, former US military lawyers, former US diplomats, federal judges, the United Nations High Commissioner for Human Rights, and over 350 United Kingdom and European parliamentarians, among many others, have all filed briefs with the Supreme Court urging the restoration of habeas.
If the administration had followed the rules from the beginning, held individualized hearings at or near the time of capture to ascertain status, separated out the prisoners of war from the civilians accused of terrorism crimes, and treated them accordingly, the need for independent review would not be nearly as acute as it is now. But instead the administration has conflated civilians with combatants, failed to provide the basic due process protections to which they are entitled, and denied them any meaningful opportunity to contest their detention. Independent court review is now essential to protect the age-old principle that civilians cannot be arrested and detained simply on the executive’s say so. If the Supreme Court does not step in to restore habeas, I hope that the European Parliament and EU member states will join in urging a new US president and Congress to do so.
I now want to turn to the second innovation of Guantanamo Bay: military commissions. Once described as a means of achieving swift justice, they are neither swift nor just. To date, they have had just one success: the conviction of David Hicks by guilty plea. Hicks is now home in Australia having already completed his nine-month sentence.
President Bush first authorized the use of military commissions to try Guantanamo detainees in 2001. But again, the Supreme Court ruled in the detainees’ favor, declaring the commissions illegal under US and international law. The Court rejected the administration’s claim that the Geneva Conventions did not apply to members of al Qaeda, and ruled that the commissions failed to meet the fair trial requirements of the Conventions’ Common Article 3. Four months later, in response to the court ruling, Congress passed the “Military Commissions Act,” authorizing the second set of commissions now being used.
Although the commissions formally bar the use of evidence obtained under torture, they allow evidence obtained through cruel and inhumane interrogations so long as it was obtained prior to 2006 and deemed by a military judge to be “reliable” and “probative.”1 This is particularly troubling given that the Bush administration does not even define waterboarding – a form of mock drowning – as torture, and may try to admit evidence obtained through this and other highly abusive interrogation techniques that any reasonable observer would call torture.
To make matters worse, the defense counsel in these cases may be denied access to the relevant information to establish that the evidence in question was obtained through abuse or torture, and should be excluded. Specifically, the military commission rules allow the prosecution to withhold classified sources and methods from both the defendant and his counsel. If defendants are denied access to interrogation logs or other information about interrogation methods, it will be extremely difficult for them to establish that evidence was obtained through torture or other coercive interrogation methods.
When coupled with the commissions’ lax hearsay rules, this means that defendants could be convicted based on second- or third-hand summaries of evidence obtained through abuse, without any opportunity to confront the accuser or to establish the evidence’s unreliability and taint. Unless military commission judges are extremely vigilant, even the prohibition on evidence obtained through torture could become virtually meaningless.
Of note, Col. Morris Davis, the former chief military commission prosecutor, has recently added his voice to the chorus of military commission critics. In explaining his recent resignation, Col. Davis explained: “I concluded that full, fair and open trials were not possible under the current system… I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”2 Davis also stated that he was pressured to bring cases before he was ready and told that acquittals were not an option.3
Just three weeks ago, on February 11, the Bush administration announced that it will use these flawed military commissions to try six high-profile detainees – including Khalid Sheikh Mohammad, the alleged 9/11 mastermind, and Mohammad al-Qahtani, the alleged twentieth 9/11 hijacker – for multiple terrorism-related crimes related to 9/11. The United States is seeking the death penalty against each of the six detainees.
The use of evidence obtained through torture and other coercive interrogation methods is expected to be a central issue in these cases. Last month, the director of the Central Intelligence Agency, General Michael Hayden, conceded that Khalid Sheikh Mohammad had been subjected to waterboarding while in US custody. An interrogation log for al-Qahtani reveals that for six weeks from mid-November 2002 to early January 2003, he was intentionally deprived of sleep, forced into painful physical positions (known as stress positions), subjected to forced exercises, forced standing, and a forced enema as well as sexual and other physical humiliation. And the other four detainees on the list to be charged were all held in secret CIA prisons before being moved to Guantanamo, where they were reportedly subjected to abusive interrogations as well.
US officials now claim that they have re-interrogated these detainees using “clean” interrogation techniques and that they will not try to use any of the statements obtained through torture and other abuse. Re-interrogating a detainee who has been previously tortured seems unlikely to remove the taint of coercion, particularly when there is no defense lawyer present. But even if a subsequent interrogation can do so, as the administration claims, these “clean” interrogations of Guantanamo defendants do not protect against the use of evidence obtained through torture from others not yet re-interrogated. As a result, there is still reason to worry that these defendants could be convicted – and even sentenced to death – based on affidavit summaries of evidence obtained through abuse, without any opportunity to confront their accusers or to establish the evidence’s unreliability.
Khalid Sheikh Mohammad, al-Qahtani and the other detainees accused of committing, planning, aiding and abetting, or conspiring to commit acts of terrorism should, without doubt, be charged, tried, and held publicly accountable if convicted. By trying these detainees the United States diminishes their status to the level of common criminal, legitimizes their detention, and brings some sense of closure to their victims.
But any such trial must meet basic criteria of fundamental fairness and due process. Otherwise, the verdict lacks legitimacy and the court system itself is put on trial, rather than the detainees it is designed to try.
The military commissions in Guantanamo Bay fail this test. By contrast, US federal courts have successfully prosecuted dozens of international terrorism cases in the same six years that the military commissions have convicted just one person, and that is where these trials belong. We urge the European Parliament to join us in calling for these trials to be moved to federal court.
I now turn to the final part of the presentation: what’s next?
Over the past six years, the United States has released hundreds of detainees from Guantanamo; yet 275 remain. These detainees roughly fall into three categories: one, those who have already been cleared for release or transfer but cannot be returned home because they would likely face torture or other abuse; two, those the United States wants to try; and three, those who the United States says are too dangerous to release yet cannot be tried.
European countries can play an important role in helping with the first category – those cleared for release but in need of third-party resettlement. But that is the subject of the next panel, so I will bypass this discussion for now.
The United States says that approximately 80 detainees fall into the second category – those to be tried. These are trials that are long overdue. As discussed above, however, these trials should be held in federal court, rather than the flawed military commissions.
This leaves the third, and hardest, category to deal with – the 50 to 150 detainees who the Bush administration claims are too dangerous to release but yet cannot be tried.
Aggressive use of fairly expansive federal criminal laws to prosecute more of these detainees could whittle down these numbers. Yet no matter how aggressively the United States prosecutes these men, there may still be some group of detainees who are considered to be a future threat yet cannot be tried. Many argue that these men should be detained based on predictions of future dangerousness, even if they cannot be tried. Some detainees who have been released from Guantanamo have reportedly appeared on battlefields in Afghanistan – and others no doubt will as well. The United States, some argue, is better off keeping them behind bars.
But history suggests otherwise. Consider the lessons from the United Kingdom’s experience dealing with the Irish Republican Army (IRA). In the 1970s, the British army rounded up close to 2000 individuals it believed to be associated with the IRA and interned them in prison camps, where they were held without charge. Violence increased, not decreased, as anti-detention anger led to a flood of recruits and helped fuel the conflict.
The high-profile detentions of a few dozen potentially dangerous men in Guantanamo do little to make the United States and its European allies safer. To the contrary, it delegitimizes US moral authority, helps to fuel the recuperative power of the enemy, and undercuts critical efforts to win hearts and minds.
The European Parliament and EU member states should work with the United States and detainees’ home countries to help mitigate the risks posed by their release. It should press their home countries to lawfully monitor returned detainees' activities and to prosecute any of them who commit a criminal act.
But even with added pressure from Europe, some countries will remain unable or unwilling to take on that role. Nearly 100 of the remaining Guantanamo detainees are Yemeni. It is unlikely that the United States will ever be adequately satisfied that Yemen is taking sufficient steps to monitor terrorism suspects and respond to acts of terrorism within its borders. Does that mean that these Yemenis should be locked up without charge – possibly until the end of their lives – based on an assessment that they might pose a future risk? No. They should be released, and the European Parliament should encourage the United States to do so.
Doing so may require an assumption of risk. But the alternative – a high-profile system of long-term detention without charge – is both riskier and wrong.
Thank you. I look forward to your questions.
 The Military Commissions Act (MCA) of 2006, P.L. 109-366; 10 U.S.C. §. 948r (c).
 Col. Morris Davis, “AWOL Military Justice,” Los Angeles Times, December 1, 2007.
 Ibid.; Ross Tuttle, “Rigged Trials at Guantanamo,” The Nation, February 20, 2008, available at: http://www.thenation.com/doc/20080303/tuttle.