'Just World News' with Helena Cobban

Jurisdiction-free detention zones: end them!

Posted by Helena Cobban at October 25, 2004 11:24 AM
Today (Monday) the NYT ran the second of the two excellent pieces in which Tim Golden has been tracking the evolution of the Bush administration's policies regarding "enemy combatants". Today's looks in particular at the history of the whole Guantanamo detention operation, and the series of maneuvers and infighting that have gone on inside the Bush administration regarding that hell-hole.

I think that all of us in the human rights community should make a huge push--regardless of who wins the election November 2-- to have that whole sorry place of infamy completely dismantled.

In addition, we should seek an immediate end to all the other law-breaking moves the administration has made to create "jurisdiction-free detention zones" in which US government officials and contractors can interrogate, abuse, and torture detainees at will.

Where there is no clear jurisdiction, how can there be justice? How much longer can we let this situation continue?

It's not just Gitmo, that's for sure. We've learned recently about the continuation of the practice of shuffling "ghost detainees" around the world--including out of Iraq, where the administration doesn't even contest the applicability of the Geneva Conventions.

The administration has used two mechanisms to keep people whom US forces have detained, and whom it wants to forcefully interrogate, away from any protections under either the US civil code or the US military code. One is to create its own "jurisdiction-free detention zones"-- whether at Gitmo, or aboard various US Navy vessels or in various other US Navy facilities around the world, or on the territory of pliant other governments. The other is the policy of "rendering" these detainees to pliant other governments who essentially do the torturing for them, often under the supervision of or with the active help of US interrogators.

(Outsourcing torture is another way of describing this. Also, I hate the use of the term "rendering" in that context: one much more long-established meaning of it that pertains to flesh is when you boil down the bones and offal of an animal to make glue and other by-products of butchery....)

And just let me note--again--the irony of the fact that Saddam Hussein is sitting near Baghdad being accorded the full protections of the Geneva Conventions in the course of his detention, while some of his far less culpable countrymen have been spirited out of the country in clear contravention of the Geneva Conventionsd, and shipped to JFDZs elsewhere for the "full (ill-)treatment".

So anyway, now I've provided a little broad context for the whole Guantanamo operation, let's look at some of the main things Tim Golden was writing today.

The most salient aspect of his story is that there has apparently been a lot of high-level controversy inside the administration over what to do with the 600-plus people who have spent time as detainees in Gitmo. Is this reassuring? Yes it is, a little. It does mean that not everyone in the Bush cabinet thinks it's just fine and dandy to hold people in detention in what they all recognize have been frequently abusive conditions... for nearly three long years now. The US is, after all, supposed to be a nation of laws and a nation that spearheads the worldwide fight for human rights, and all that...

On the other hand, none of these high-level "questioners" of the policy has been able to prevent a stuation in which more than 560 people are still being held at Gitmo without ever having charges brought against them and without having seen the inside of anything even resembling a decent court of law. And that we have no reassurance at all that highly abusive treatment or even outright tortures are not being applied to those detainees on a daily and continuing basis. Certainly, we know that torture is used almost routinely in the other "jurisdiction-free detention zones" used by the CIA and other government bodies around the world. We know, too, that Gitmo had its own history as the incubator for many of the torturous practices that were later exported to Iraq...

So much for the impact that those cabinet-level "questioners" of the Gitmo policy have been able to have.

Anyway, one of the most intriguing aspects of what Golden reports, for me, is the degree to which it confirms some of my own suppositions about the kind of legal-ethical bind that organizations practicing torture can find themselves in after a while... Okay, make that "organizations practicing torture that belong to supposedly democratic governments"... The probalem these organizations face is that after they've tortured one person--and even more, after they've tortured a whole bunch of people-- how do you let those people have any free communication with the world outside the torture center without news of your tortures, sich as will most likely disgust a large proportion of your own voters, suddenly surfacing into the public domain?

In apartheid-era South Africa, or Saddam-era Iraq, or other despotic places, the governments didn't face this problem. In South Africa, after the Special Units had captured nationalist guerrillas whom they wanted to either "exploit" for information, or to "turn" into being agents for them within the nationalist organizations, they would torture them as much as they wanted.... and if the victim chose not to become a double agent, then he or she could simply be tortured to death.

We know that that has almost certainly happened on a number of occasions to people being held in US detention facilities in Afghanistan and Iraq. But most US operatives don't like to go that far. (Disposing of the bodies can be a pain... And generally, there are reporting requirements in place that would show senior commanders where there are particular problems occurring of too many detainees "dying in custody".) So torturing people to death is not widespread enough to be classified as anything like a "standard operating procedure" even for CIA and and other Special Forces operatives.

On the other hand, torturing people to the point that they're in bad physical and psychological condition seems to be pretty widespread, and is allowed by all the versions of the "rules" that have been redrafted and redrafted by administration lawyers so that "torture" itself has now been redefined to exclude from it--in the US government view, but nobody else's--the application of phsyical or psychological pressures or the administration of drugs that can cause just about any amount of damage so long as it's not "imminently" fatal....

So when you have a person who's been reduced to, for example, blithering mumbo-jumbo idiocy because of the personality-breaking techniques that have been used against him-- how do you produce such a person in open court?

Or if he's just a few steps short of blithering idiocy, and can mumble some accounting of what has happened to him to a judge-- how do you bring this person into an open court?

Even worse if, on the day of the court hearing, he is quite lucid and can tell the judge and any media representatives who are there what has happened to him...

This is the slightly elliptical way that Tim Golden referred to this problem:

Although White House lawyers said they rushed to devise a new judicial structure that could handle serious Qaeda terrorists, many of the detainees sent to Guantánamo turned out to be low-level militants, Taliban fighters and men simply caught in the wrong place at the wrong time. The Pentagon's efforts to gather intelligence from more valuable prisoners were also deeply flawed, military intelligence officers said, complicating the prosecution of some detainees and nearly paralyzing efforts to release others.

So the problematic interrogation techniques were one factor that delayed the holding of any form of hearing for the Gitmo detainees. Here was another:

in several instances, military officials said, Mr. Rumsfeld and his deputy, Paul D. Wolfowitz, resisted moving forward with prosecutions, in part because they felt the cases were weak.

Again, quite mind-boggling. You have prosecution cases that appear to be "weak"... So do you therefore apologize to the people you have been detaining for this many months already, say, "Gosh, we're sorry, we now realize you were just riff-raff on the battlefield," give them a nice compensatory payment, and help them to get back to their homes? You might think that would be the decent thing to do? Also, perhaps, smart, in that it might help to mitigate some of the considerable anger that the continuation of the detentions at Gitmo has caused throughout the world....?

Well you, JWN reader, might think that way. But evidently Rumsfeld and Wolfie didn't. (Golden also make quite clear that Likudnik Pentagon official Douglas Feith played a huge role in determining the whole detentions policy... I wonder where he got his cues from, eh?) So the Pentagon suits concluded that, "If the cases are weak, that's even more reason just to keep these suckers locked up forever so a judge never gets to review them... "

Weak cases? What's that? Weren't we all assured when the Pentagon showed us the pictures of the men being shipped from Afghanistan to Gitmo-- shackled in their orange jumpsuits to the floor of a huge military airlift plane-- that these were "the worst of the worst"?? (And even if they were, would they deserve this degree of mistreatment? No.)

But most of them weren't such "hardened cases" after all, it seems. Here's Golden again:

It quickly became apparent that few of the prisoners captured in Afghanistan were the sort of hardened terrorists the administration had hoped for.

"It became obvious to us as we reviewed the evidence that, in many cases, we had simply gotten the slowest guys on the battlefield,'' said Lt. Col. Thomas S. Berg, a member of the original military legal team set up to work on the prosecutions. "We literally found guys who had been shot in the butt.''

The reserve officer chosen by Mr. Rumsfeld to lead the intelligence operation at Guantánamo, Maj. Gen. Michael E. Dunlavey, was told after his arrival there in February 2002 that as many as half of the initial detainees were thought to be of little or no intelligence value, two officers familiar with the briefings said. He also found that the prisoners included elderly and emotionally disturbed Afghan men, including one tribal elder so wizened that interrogators nicknamed him "Al Qaeda Claus."

Gosh, if it weren't so bloody tragic it would all seem like a farce. "The Keystone Cops do Gitmo". Something ike that. And these are the people who brag that they know how to increase our nation's security?

And so it goes on:

The order that established the military commissions on Nov. 13, 2001 [that was the order under whose authority the whole Gitmo complex was set up], authorized the Pentagon to hold and prosecute any foreigners designated by the president as suspected terrorists.

On Jan. 22, 2002, at the request of the White House counsel, Alberto R. Gonzales, Pentagon lawyers directed intelligence officers at Guantánamo to fill out a one-page form for each prisoner, certifying the president's "reason to believe" their involvement with terrorism, officials said.

But within weeks, intelligence officers began reporting back to the Pentagon that they did not have enough evidence on most prisoners to even complete the forms, officials said.

Unbelievable! The Pentagon and White House had been assuring us all that the people they'd shipped to Gitmo were "the worst of the worst"... and then at some point after they have gotten them there, for "most"-- that is, more than 50 percent-- of them, they can't even fill out a one-page form telling the White House why it is that the president should designate this particular person even to be a "suspected" terrorist.

Well, even the failure to find out that simple bit of bad info about "most"-- that is, more than 50 percent-- of the Gitmo detainees failed to persuade the powers-that-be in the Pentagon to let those essentially undesignatable individuals return to their loved ones. Oh no. The folks in the Pentagon simply changed the rules, as Golden makes clear:

By March 21, Defense Department officials indicated they would hold the Guantánamo prisoners indefinitely and on different legal grounds - as "enemy combatants" in a war against the United States.

Meanwhile, a host of other problems were busy incubating in the nasty animal-type cages in which the Gitmo detainees were being held:

In public, the administration continued to maintain that the prisoners were both frighteningly dangerous and a likely font of vital intelligence. "They may well have information about future terrorist attacks against the United States," said Vice President Dick Cheney. "We need that information."

But at the State Department, diplomats were awash in complaints from foreign governments, many of them allies in the Afghan war, about the open-ended imprisonment of their citizens. F.B.I. agents and Justice Department officials were struck by how few strong prosecution cases there seemed to be, current and former officials said.

Officials said that C.I.A. officers who were trying to recruit some Guantánamo detainees as agents [what did I tell you? See 'South Africa' above ~HC] raised another fear: that the camp could become America's madrasa, or Islamic school, radicalizing prisoners by its harsh conditions, the indoctrination of militant leaders and the detainees' focused study of the Koran - the only book they were initially given to read.

Officials on the National Security Council staff were particularly uneasy. The discussions that produced the president's Nov. 13 military order had been dominated by a small circle of White House lawyers overseen by Mr. Cheney. Ms. Rice, like Secretary of State Colin L. Powell, had been excluded, officials said, an embarrassing slight given her role as a mediator on national security issues.

... So we then had the bizarre picture of Elliott Abrams, infamous and indeed criminally responsible participant in some of the Reagan administration's worst human-rights abuses in Central America, being one of the two NSC officials who were designated by Condi to try to draw up a whole new strategy to deal with the Gitmo detainees and the thousands of Afghan detainees whom the administration was holding by then (spring 2002) within Afghanistan...

Here's what retired Gen. John A. Gordon, a former deputy director of the C.I.A. who became President Bush's deputy national security adviser for counterterrorism told Golden about the situation:

"There was real concern that if detainees were harshly treated and deprived of due process, they were going to end up turning against the United States, if they had not already... We were not making any converts."

Duh.

Anyway, it goes on and on and on... Just "cascading problems" in all directions... They'd kidnaped all these hundreds of people away from their homeland without any semblance of due process,kept them in deliberately humiliating and coercive (and in many cases, deeply abusive) conditions there in Gitmo... and because of the Pentagon's stubborn-ness, very very few of the detainees could be either released or brought to trial...

And they're surprised that some of them seem to become more hostile to the US?? What the heck do they expect?

Recently, administration spokesmen have made a big deal out of the fact that some of the 56 people whom they have-- in response to the strong lobbying they've been subjected to from friendly freign governments-- have apparently rejoined (or joined) Al-Qaeda's ranks after their release... Again, what the heck do they expect??

Like this case, described by Golden:

a 31-year-old Dane was sent home last February after signing an agreement to refrain from further militant activity. But last month, he said in an interview that he was on his way to Chechnya to fight with other Muslims, and invited Americans to use his earlier pledge "as toilet paper." (The man later retracted those statements, and Danish officials promised to keep him under close watch.)

Look, the situation at Gitmo got so bad that even John Ashcroft got worried about it. That's how bad it was:

Officials of the Justice Department's criminal division, who worked closely with the F.B.I., were grappling with other questions. They saw the Guantánamo detentions as a source of cascading problems: angry foreign allies, a tarnishing of America's image overseas and declining cooperation in international counterterrorism efforts.

"This was an issue of basic fairness," one former senior official involved in the discussions said. "The never-ending detentions were creating a lot of animosity among our allies. We pushed hard for them to move quicker. The attorney general pushed hard for it. They didn't, and there was an immense amount of frustration."

Golden also has some good material about the role played by the military lawyers who were appointed as defense counsel in the (very small number of) cases brought before the special military review "commission" (= quasi court; but not a real court) that was estabished at Gitmo. As I've written about here before, these lawyers have done a good job, not least because they're very concerned to uphold the whole system of military justice in which they've been trained... Also, because people in the uniformed military in general (as opposed to the cowboys at the CIA and elsewhere) deeply understand the vaue of international commitments like the Geneva Conventions, on the protections of which US military personnel themselves rely, in the event they should be captured by foreign military forces.

One of the few bright spots in Golden's report is this:

Nearly three years after Mr. Bush signed his military order, senior officials have begun to acknowledge privately that the fate of both Guantánamo and the military commissions is uncertain.

Hallelujah! That's what gives me hope that, certainly if John Kerry wins on Nov 2, we might be successful in urging a dismantling of the Guantanamo gulag and the ending of the entire policy of maintaining jurisdiction-free detention zones.

And even if Bush gets re-elected, we might have a chance. Hey, we might even have John Ashcroft on our side?