Immediately after the events of 9/11, many of us all around the world shared the same experience: a mixture of anger, of dejection, of uncertainty. As the embers continued to smolder in New York and Washington, almost all of us, along with human rights activists (myself included), expected that our government would take some liberties in hunting down and exposing the perpetrators of this mass murder. We were prepared to live with that in the immediate aftermath of the most devastating attack from abroad the U.S. mainland had ever known, as long as the mission focused on justice rather than revenge. But, as seems fated to occur whenever an authority receives a new power, the power was abused. Suspects were being apprehended on intelligence of dubious quality, as age-old feuds and political scores were settled via accusations of terrorism. At the same time those detained saw rights guaranteed under both international and federal law rapidly slip away. The country was afraid, and it showed. Rather than rally the nation to a course that would bring perpetrators to justice while re-affirming our country’s deep historic commitments to human rights and the rule of law, the Bush Administration built a shrine to our fears. The world knows it by a single name: Guantanamo.
Since January 11, 2002, over 700 people from over 40 countries have passed through the gates of the U.S. Naval Base at Guantanamo Bay as prisoners in the Global War on Terror. Of these, only 10 have faced charges of any kind and just a single individual prisoner, the Australian national David Hicks, has faced a verdict. After five years of waiting for any action on those held in legal limbo at Gitmo, the lawyers for some of the detainees grew impatient and began a systematic study of the military tribunals’ own findings. According to research conducted by Professor Mark Denbeaux and colleagues at the Seton Hall University School of Law and provided to me by my organization, Amnesty International, a mere eight percent of Guantanamo detainees are characterized as Al Qaeda fighters, while 37 percent have no definitive connection with Al Qaeda. Perhaps most shockingly, and again according to the military’s own tribunals, 55 percent of all detainees held at Guantanamo were not determined to have committed any hostile acts against the United States at all.
A famous example of this last particular travesty of justice can be found in the instance of several Chinese Uighurs picked up by Pakistani security forces. Represented by Boston attorney Sabin Willett (who will speak at MIT next Wednesday), these individuals were determined to be NLECs (“no longer enemy combatants”) by the Combatant Status Review Tribunal in March 2005. Yet fourteen months passed by before the detainees were released from custody.
Why, after five years, has the operation at Guantanamo Bay produced so little in the way of tangible results in combating terrorism? Why did it take 14 months to release inmates the military knew to be innocent? The answer lies in the very attitude of fear and manipulation with which Gitmo was established. Guantanamo was first chosen to be off the U.S. mainland — away from the prying eyes of the civilian justice system. At every turn, the Bush administration curtailed the legal rights of those detained, starting with its refusal to apply protections accorded by the Geneva Conventions and continuing with its inability to subject the detainees to legal proceedings that could pass constitutional muster. The latest incarnation of the parallel justice system the administration and its collaborators in the 109th Congress (including torture-victim Senator John McCain and reserve JAG Senator Lindsay Graham) crafted, in the Military Commissions Act of 2006, goes so far as to allow the President alone to suspend habeas corpus (outside conditions already specified in the Constitution) and to determine what constitutes torture.
Given the vivid evidence of torture at Abu Ghraib, and the widespread accusations of torture at Guantanamo, the America I believe in would not invest such power to subvert the rule of law in one person. Our country must protect itself against those who wish to outdo the perpetrators of the crimes against humanity we witnessed on September 11. But as all empirical evidence shows, the majority of inmates at Guantanamo are not the persons we should be capturing. Instead Guantanamo has become a symbol for our country’s sometimes irrational response to the threat of terrorism and, perhaps more dangerously, our turn away from the rigid path of lawful conduct. It has become, as Amnesty International Secretary General Irene Khan called it, “the Gulag of our times.” My country should not be a home to a Gulag at any time. The America I believe in would shut down Guantanamo.