The 9/11 trial will, if it happens at all, take place on a patch of dust in the Caribbean, within a high-security facility you can enter only with a notebook and pen (and just one pen), and observe from behind a wall of triple-thick glass. Anyone who wishes to attend will have to first be approved by the Pentagon’s Office of Military Commissions, the entity in charge of the offshore war court at Guantanamo Bay. It takes three hours and 20 minutes to fly to Guantanamo via military charter from Andrews Air Force Base. A 20-minute ferry ride then takes visitors from Gitmo’s airport across the bay to Camp Justice, an almost $12 million tent city built on an abandoned airstrip and housing the heavily fortified maze of trailers, fences and concertina wire known as the “Expeditionary Legal Complex”, or ELC, where proceedings are held in a prefab building known as Courtroom II. During proceedings, every word that is spoken is heard in the visitor’s gallery after being filtered through speakers on a 40-second delay, which enables a judge to ensure nothing classified slips out. There are no laptops, phones or recording devices allowed in the ELC, and no cameras. Also: no sleeveless shirts or open-toed shoes.
This fortress, which will be disassembled and shipped back stateside if and when Guantanamo ever closes, was constructed in 2008 to try the military’s “high-value prisoners”, of which there are currently 14, only five of whom – accused 9/11 mastermind Khalid Sheikh Mohammed and his four co-plotters – arguably matter to most Americans. Hearings for the “9/11 Five” can be dramatic events, during which the accused have spontaneously knelt on the floor and prayed, and engaged in other acts of open defiance, requesting during their 2012 arraignment, for example, that the entire 87-page charge sheet be read aloud, a process that took almost three hours. At the start of this same hearing, defendant Walid bin Attash was wheeled into the court in restraints, minus his prosthetic leg. Only after bin Attash “promised to stay on his best behaviour” was the fake leg reattached.
On September 21st, 2015, about 40 members of the mobile war court convened at Camp Justice for pretrial hearings in the case of Abd al Hadi al Iraqi, an alleged Taliban commander and Al Qaeda leader who virtually no one has ever heard of, and who had nothing to do with 9/11 or any other spectacular act of terrorism. This makes him far more representative of the majority of Guantanamo’s inmates, all largely anonymous figures who may or may not have terrorist ties, but wound up at Gitmo after fighting with the Taliban, or simply being in the wrong place at the wrong time. A former Iraqi Army soldier who fled to Afghanistan in 1991, Hadi is accused of traditional war crimes, leading attacks on U.S. troops in Afghanistan between 2002 and 2004, among them.
This January will begin the 15th year since the first prisoners of the War on Terror – who the U.S. government referred to then, as now, as “detainees” – began arriving at this scrubby and perpetually broiling U.S.-controlled naval base on the southeast coast of Cuba. Of the 780 original captives, 538 were released by President Bush before he left office. Though President Obama, who has released 135 men, has said he intends to close Guantanamo before he leaves office, as of this writing, 107 prisoners remain interned on the island, at an annual per-inmate cost of roughly $3.4 million. The annual cost of housing an inmate at a federal or military prison, by contrast, is about $78,000. Forty-eight men have been cleared for release, many of them during the Bush administration. Forty-nine are in the purgatorial state known as “indefinite detention”, including roughly 30 men the government says cannot be tried but are too dangerous to release. Just 10 prisoners, all “high value”, a euphemism for those formerly imprisoned by the CIA, are facing legal proceedings. Three have already been convicted, two with guilty pleas. Seven are currently on trial, though the prosecution of the alleged mastermind of the USS Cole bombing has been frozen indefinitely, and the 9/11 trial has been mired in delays since the men were arraigned in 2012.
“Imagine if you’d been picked up by Al Qaeda and flown to their Gitmo — think you’d have faith in the system?”
It’s 10 a.m., and Hadi al Iraqi’s hearing was supposed to start more than a half-hour ago. The proceedings are being held up, we’re told, due to a “closed session”, which could take a half-hour, or an hour, or the whole day. A few dozen people, many of them members of Joint Task Force Guantanamo, the military unit in charge of both the war court and the detention operation, sit quietly in the gallery of the courtroom, where on the other side of the glass a slight Arab man sits at the defence table wearing a white turban and matching dishdasha.
Hadi, who is in his mid-fifties, seems almost relaxed, stroking his dark-grey beard and chatting with his translator. He has been at Gitmo for more than eight years. His lawyers consider him to be a “prisoner of war” – and by most conventional standards he is, though the Bush administration believed that officially referring to their captives as such would entitle them to the corresponding Geneva Convention protections. Instead, Hadi, like all Gitmo prisoners, is called an “unprivileged enemy belligerent” – indicating a fighter who, while a member of an organised armed force, is not covered by the standard international protocols as he does not wear a uniform or carry his weapon openly and is thus classified as “unprivileged”. As a detainee, the Department of Defense can in theory hold him forever. According to a recent JTF-GTMO Fact Sheet, “detention of unprivileged enemy belligerents… [is] not an act of punishment”.
U.S. military guards transfer a captive in 2010. As of December 2015, the island held 107 prisoners, at an annual cost of $3.4 million per person.
Today, the war court is meeting so that Hadi can fire his lawyers. He’s had four teams of attorneys since 2012, two of which were reassigned by the government against his wishes. Hadi doesn’t explain why he wants to replace his current team, but a general distrust of the system is likely part of it. “And who can blame him?” says one of his former attorneys. “Imagine if you’d been picked up by Al Qaeda, taken to a secret Al Qaeda prison and kept there incommunicado for six months, then flown to the other side of the world to an Al Qaeda Gitmo where they gave you an Al Qaeda lawyer to represent you. Think you’d have much faith in the system?”
At 10:45, the hearing finally comes to order and is over in 45 minutes. “Your right to counsel does not include, according to case law, a ‘meaningful relationship’ between yourself and your counsel – you don’t have to like them,” the judge lectures, before granting his request. When the judge remarks on how many lawyers Hadi has had in his years in Gitmo, Hadi, who has retained his composure throughout, stands up and calmly states that he has been waiting for his case to go to trial for more than six years. “It took a whole year for the government to bring charges,” he says through a translator. “Then they were changed, and my meetings with my defence were spied on. All the delay that happened in the past wasn’t because of me.”
Hadi offers no explanation about how he knows his meetings were spied on, and the judge doesn’t ask. It’s seemingly just one of an endless series of controversial, yet essentially peripheral, issues facing the war court, which has yet to address either the facts or the merits of the case, though it has addressed a wide variety of other topics over the years, ranging from whether the accused can wear camouflage vests in court to which shadowy government entity controls the hidden censor button. “In 2009, we had three full days of argument back and forth about what we do if the client says, ‘I don’t want to come to court’,” says the ACLU’s Denny LeBoeuf, one of Khalid Sheikh Mohammed’s attorneys.
More recently, there have been allegations that the government read the 9/11 defence attorneys’ e-mails and listened in on attorney-client conferences through a device disguised as a smoke detector. (In a lengthy response, the Department of Defense denied all of these allegations.) During one recent set of 9/11 hearings, an attorney for one of the defendants said she couldn’t advise her client of his rights “because I frankly don’t know what they are”. The judge didn’t seem to be sure either.
It’s these sort of absurdities that make you wonder if the military commissions, and Guantanamo overall, is by now nothing more than an elaborate theatre piece. “If Abraham Lincoln rode down there on a unicorn, I don’t think I’d even think twice,” says Navy Cmdr. Brian Mizer, a military defence attorney best known for representing Osama bin Laden’s driver, Salim Hamdan, before the military commissions in 2008. “It’s become such a toxic farce. The people there are just following orders, and their orders are to ride it out until it collapses.”
That collapse was supposed to have occurred six years ago, when President Obama, who’d made closing Guantanamo a centrepiece of his 2008 campaign, signed an executive order on his second day in office, January 22nd, 2009, instructing the military to close Guantanamo by the end of that year. At Camp Justice, 9/11 attorneys who’d been preparing for trial heard the news and threw a party, at one point forming a drunken conga line. But with Obama confronted by stiff Republican opposition and a slew of other priorities, including the battle over the Affordable Care Act and scaling down the wars in Iraq and Afghanistan, the fate of a few hundred Muslim men was pushed to the back burner. One proposal, to shut down Guantanamo by moving inmates to a supermax-style prison the administration was planning to build in Illinois, was quietly shelved after Obama’s own liberal base opposed the idea as creating a “Guantanamo North”.
This past November, the Obama administration was expected to release a long-awaited plan to close Guantanamo, which would involve resettling low-risk inmates in other countries, while bringing the remaining group to the United States. The current scenario reportedly includes a number of civilian and military detention options, including the possibility of building a brand-new facility, but as of December, the White House had still not released its blueprint. On December 1st, 2015, the Wall Street Journal reported the administration had rejected the Pentagon’s cost estimates to move and maintain inmates in the U.S., which could run as high as $600 million. Gary Ross, a Pentagon spokesman, tells me the administration is still working on ways to “safely and responsibly” close Gitmo.
Since 2010, Congress, however, has opposed all proposals to bring the Guantanamo prisoners to the U.S. In November, Speaker of the House Paul Ryan boasted of a veto-proof majority and claimed Obama “doesn’t have the authority” to close the base. The most recent National Defense Authorization Act, a $607 billion defence-spending bill, not only bans using federal funds to transfer and house the prisoners in the U.S., but also bans sending them to Syria, Libya, Yemen and Somalia.
Though the president could still attempt to close Guantanamo through executive order, the administration now seems to be more focused on reducing the number of prisoners, which would make it easier to bring those remaining few to the U.S. Any project of this nature will have to begin with the 48 men who have already been cleared by a multi-agency review panel, says former State Department official Clifford Sloan, who negotiated transfers with countries from Uruguay to Slovakia during his 2013-2015 stint as the Special Envoy for Guantanamo Closure. Most of these men, he notes, were approved for transfer in 2009, if not even earlier – one inmate recently transferred was approved in 2004. “It’s a very serious problem for our country that we have had people at Guantanamo for 14 years who were approved for transfer six years ago or longer,” he says. “Every person who has been approved needs to be transferred promptly, because every month we aren’t seeing transfers seriously undermines the president’s policy.”
From left: Khalid Sheikh Mohammed, Muhammed Rahim al-Afghani, Abd al Hadi al Iraqi and Mustafa al-Shamiri (who has been held for 13 years under mistaken identity).
As of December, the State Department has transfer deals in the works for the prisoners cleared by the review panel. These arrangements are all in different stages of the negotiating process, but they could potentially be worked out for all of the men by early 2016. Among the transfer requirements is that Secretary of Defense Ashton Carter sign off on the deals, which, as of this writing, he hadn’t done for 17 men currently in the pipeline, in part due to new congressional regulations that now need to be addressed. But the upshot of these delays, note both officials and attorneys for the prisoners, is that the transfers are thwarted by inaction.
“The dysfunction and obstacles that are put in the path of implementing this [transfer] policy are incredible,” one administration official tells me. “I know for a fact that there are people working on this issue within the government who are ideologically opposed to closing the facility. And there are a thousand ways that you can thwart policy through bureaucratic cunning or inaction, like when transfer packages just sit there on the defense secretary’s desk and don’t move. Or that the people in the building don’t get it to him.”
And yet, even if the administration does manage to speed up transfers and close the prison, it will not be able to shutter Guantanamo, which by now is less of a place than a metaphor for all of the post-9/11 national-security policies that have made the so-called global War on Terror intractable. “You don’t pick up people and bring them to an island prison and decide you’re going to figure out what to do with them later,” says George Clarke, who has represented six Gitmo inmates. “And yet it happened. And we’ve continued to detain people that didn’t do anything to deserve being detained for 14 years – not only that, we built an entire structure to institutionalise this policy.”
“The president knows that Guantanamo is wrong, legally and morally,” says Wells Dixon, senior attorney for the Center for Constitutional Rights, who has represented clients at Gitmo since 2005. “But the failure to ensure accountability for the sins of the prior administration is like trying to avoid treatment for mental illness with the hope that it will go away,” he says. “The more you ignore it, the more it comes back to haunt you.”
In order to cover Guantanamo, you must agree to become a captive of the U.S. military. This begins with what can be a 45-day vetting process that includes providing the military with a professional biography, a description of one’s news organisation and a signed 13-page media-ground-rules document, most of it oriented around “protected information”. This, as it’s defined, is not just classified material, but anything that if disclosed could “be expected to cause damage to the national security”. Failure to comply can result in one being kicked off the island.
These sorts of rules are fairly typical in any embed situation (during the war in Iraq, the media ground rules I signed were just seven pages long, however), but Guantanamo differs from most in that it’s an embed in a weird suburbia where no one is actually at war. The U.S. Naval Station Guantanamo Bay, as it’s called, is America’s oldest overseas naval installation, home to 6,000 U.S. military-service personnel and contractors, who live and work in what looks like a small American town, circa 1982. There are tidy suburban-style subdivisions, a school, a church, three Subways, a Walmart-style supermarket, an open-air movie theatre and a gym. In their off-hours, Guantanamo’s military personnel can go snorkelling and scuba diving. They can visit the souvenir shop to load up on iguana plush toys, or Gitmo-themed shot glasses, or tank tops with mottoes like, “It don’t GTMO better than this!”
That Guantanamo, which the 2,100 members of the JTF also inhabit, has nothing to do with the Guantanamo of the detention camps and the war court, both of which reside in isolated pockets of the base and have so little to do with the larger naval station that they might as well be on the moon. Indeed, the Bush administration considered Guantanamo “the legal equivalent of outer space”, as one White House official put it: an extrajudicial no man’s land to detain, interrogate and ultimately try the “worst of the worst”. By 2003, as then-Secretary of Defense Donald Rumsfeld would himself concede in a letter to the Joint Chiefs of Staff, the administration was aware that most of the men they’d rounded up were at best low-level foot soldiers – many of them not “captured on the battlefield”, as the JTF continues to assert, but, like Hadi al Iraqi, captured hundreds of kilometres away by foreign governments, or sold by Afghan and Pakistani tribesmen for $5,000 bounty payments the U.S. had widely advertised. Yet for years the Bush administration would maintain that the men possessed valuable intelligence, and even now, the Pentagon insists that Gitmo “remains a key intelligence resource”.
A crucial part of the Gitmo experience is the generally agreed-upon fiction that for whatever else might be going on at the base – soccer games, scuba trips, a screening of Straight Outta Compton – Guantanamo remains an “integral component of Operation Enduring Freedom”. This narrative begins immediately upon arriving at Camp Justice, which looks like a forward operating base in, say, Baquba or Kandahar, except it’s in the Caribbean. There are rows of canvas tents where some members of the war court, and all of the media and human rights observers who accompany them, sleep. But where most FOBs bustle with activity, much of Camp Justice feels, and looks, like a parking lot, if one with an overabundance of RESTRICTED AREA and NO PHOTOGRAPHY signs. Everywhere you look are barriers: metal barriers, interlocking plastic barriers, even Hesco barriers, those sand-or-dirt-filled canvas barrels that are ubiquitous in war zones – a few, I notice, have become planters.
“Operational Security,” I am told by a very bored-looking sergeant tasked with providing a media orientation, “is not censorship.” He explains, reading from a PowerPoint slide, that OPSEC, a fundamental element of Gitmo protocol, is “a risk-assessment process used to deny an adversary critical information about our operations”. This bans photographing any security features, including cameras, power generators, fences, locks, ships docked at piers, as well as the labyrinth-like ELC; and a mysterious hilltop building known as the Bunker, which, with its varied array of antennas shooting from the roof, looks like a listening post, though no one seems to know its purpose – military public-affairs minders give me a blank stare when I ask.
These security measures, along with the posters encouraging soldiers to use OSPEC EVERY DAY and DON’T BE A SPY, TURN ONE IN, only further reinforce the sense of Camp Justice as a hermetically sealed, if fake, combat zone, which is required to legitimise the military commissions, an equally bogus “battlefield” court. With the exception of Hadi al Iraqi, in fact, the commissions haven’t yet focused on actual war crimes. Instead, almost every one of the accused has been charged with “providing material support for terrorism”, which Congress declared to be a war crime in 2006, years after the men in these cases were said to have committed them. The Constitution itself bars Congress from criminalising anything retroactively, so nearly every case that’s been won in Gitmo has later been overturned in federal court. “They’ve managed zero convictions that aren’t guilty pleas in 15 years,” says Mizer. “To the extent that that’s impressive to anyone, that’s a very impressive record.”
“What’s important to understand about Guantanamo is not so much that it’s ‘outside the law’, as laws and policies have been tailored to legitimise completely illegitimate practices, often after the fact,” says Karen Greenberg, director of Fordham Law School’s Center on National Security and author of the upcoming Rogue Justice: The Making of the Security State, an account of the transformation of American justice after 9/11. “And to this day, the issues basic to American law – including fair and timely trials and a ban on abusive treatment in custody – have been supplanted by newer policies, buttressed by newer laws, which are politicised and subject to change. All of that turns Guantanamo into a living museum of what it means to break the law by rewriting it.”
The government’s attempt to “legalise” Guantanamo began in the wake of Hamdan v. Rumsfeld, the 2006 Supreme Court decision that found the Bush administration had exceeded its executive authority in detaining men at Guantanamo without due process. To attempt to rectify the situation, Bush proposed, and Congress passed, the Military Commissions Act of 2006, which created a system for holding, charging and trying “unlawful enemy combatants”, a category virtually unheard of in military law, giving them little to no legal protections while also shielding the administration from accountability for their prior actions, including torture.
Obama denounced the military commissions on the campaign trail, but as president decided not to abolish them. Instead, the administration came up with reforms, contained in the Military Commissions Act of 2009, which ostensibly brought the flawed war court in line with the rule of law. The act changed the Bush- era term “unlawful enemy combatants” to “unlawful enemy belligerents”, who were now given a guaranteed right to counsel. The new policy also banned evidence obtained by torture and limited the use of hearsay evidence to what the government could prove was “reliable”.
That hearsay was at all considered admissible evidence, though, was a wholesale rewriting of laws that have always banned hearsay evidence in any American civilian or military court. “Just to give you an example, the government is going to use 83 hearsay statements in the USS Cole case, some from people who are dead,” Mizer says, almost mystified. “No court in the U.S. would ever sign off on that.”
The official charged with bolstering these policies is the commissions’ chief prosecutor, Brig. Gen. Mark Martins, who Obama appointed to revive the floundering war court in 2011. A tall, hawkish-looking man with impeccable military bearing, who attended Harvard Law School at the same time as Obama, Martins has been one of the most forceful defenders of the military commissions. He signed on to prosecute Khalid Sheikh Mohammed after the Obama administration, succumbing to political pressure, withdrew its plans to try the 9/11 Five in Manhattan federal court.
“Let me emphasise that charges are only allegations,” Martins notes during one briefing, reminding me and two other reporters that, as would be true in any courtroom in the country, the Gitmo accused, including Khalid Sheikh Mohammed, are “presumed innocent until proven guilty”. It is also true that under the laws of war, Mohammed will never be freed, even on the remote chance that he is acquitted. Martins acknowledges that this throws into question whether the system has any legitimacy, “because is the trial really worth something if it doesn’t mean someone is going to go free?” but then tries to explain that, as Justice Robert Jackson, who led the prosecution of Nazi war criminals at Nuremberg, once said, a meaningful trial “has to have consequences either way”.
In addition to being chief prosecutor, Martins is also the commissions’ chief propagandist, a thankless task, given that, as he himself acknowledges, “None of our systems have yet been capable of holding a trial.” And yet, “there is value in just doing the process with rigour”, he insists. “The rigour of taking this on every day is what gives legitimacy to the whole system.”
If Martins does believe the system is legitimate, he may be the only one. “The last thing I’d want to do would be to prosecute these cases,” says retired Navy Lt. Cmdr. Kevin Bogucki, a longtime military prosecutor who spent eight years as a military-commissions defense lawyer before retiring in 2015. “These guys have no authority.”
“I think Gen. Martins does his best to put up a facade, but everyone thinks it’s a joke,” says Carlos Warner, a federal public defender who represents a number of Gitmo clients, though none the government intends to put on trial, though he’d love the chance. “I’ve told some of those lawyers that if I could represent one of their clients I would make it the kangaroo court it is. Like, we would show up wearing Bermuda shorts. I would never do that in federal court. But they’re not controlled by the CIA.”
The role of U.S. intelligence agencies in the commissions has been an underlying theme since 2013, when it appeared during one of the 9/11 hearings that outside censors cut the audio on the closed-circuit broadcast, incensing Judge Pohl, who had no idea who’d pushed the button. The following year, pretrial hearings were stalled when defense lawyers found out that an FBI agent had asked a member of their team to become a government informant.
In February 2015, there was yet another recess in pretrial hearings after both bin al Shibh and his co-defendant, Walid bin Attash, stood up after the court was called to order and identified a translator as a former CIA linguist who’d assisted in their torturous interrogations. The government didn’t deny that the translator had once been employed at a CIA prison.
Torture, which one 9/11 attorney refers to as “Guantanamo’s original sin”, defines every aspect of the war court. The government’s efforts to cover up the torture of men like Khalid Sheikh Mohammed or his co-defendant, Mustafa al-Hasawi, who was subjected to “rectal rehydration” by the CIA and now can only sit on a pillow, has led to rules unlike those of any other court in the modern history of the United States. Any piece of paper going into an attorney-client meeting is vetted for “informational contraband”. Every person in the war court, including translators and transcribers, must have a top-secret security clearance. Discovery material, which is typically shared between the prosecution and the defense, is given to defense attorneys only at the government’s discretion. As much of the material is classified, the accused are unable to see it, nor are their attorneys able to discuss it with them, even if that evidence pertains to their clients’ own experience.
“Until recently, we were told if any of the details of the torture were made public, it would cause grave damage to national security,” says David Nevin, Mohammed’s lead counsel. “Before that, we were told that if any of the words of our client were let out, it would cause great damage to national security. At one point, I asked them, ‘So if he says he likes peanut butter, that’s classified?’ With a straight face, they said yes.”
A prisoner communicates with another detainee who’s still inside his cell.
Mohammed’s and his fellow accused’s thoughts are no longer classified, but the details of what happened to them are, even after the release of the Senate Select Committee on Intelligence’s torture report, in December 2014. “Now it’s down to who did the torturing and where the torturing was done,” says Nevin. “You have this cascade of layer upon layer of secrecy. It’s an absurd situation. Think about someone having something inflicted on them, and therefore they possess classified information – their memories are classified, they are owned by the United States government.”
Dysfunction of the commissions aside, it could be argued that the men facing the war court are the lucky ones – they get to be tried. As of this writing, there are 97 men who will never see the inside of a courtroom, let alone be charged with a crime. Six have been there since the prison opened in 2002. These prisoners are the larger and, in many ways, more important story of Guantanamo, though they are also the ones Americans tend to forget. The government has helped significantly in this process by staffing Gitmo with a majority of National Guard and reserve troops on nine-month rotations, who’ve been programmed to see the men in their charge as not only dangerous but guilty.
The presumption of guilt, a pattern established by the Bush administration, was relatively unchanged even with the introduction of a special review process the White House began in 2009 to determine who each prisoner was and what it should do with them. Lawrence Wilkerson, who was the chief of staff to Secretary of State Colin Powell, notes that beyond the Bush administration’s recognition that many of the men in their custody were innocent, a pattern of negligence with regard to intelligence made it impossible for the Obama White House to know who was who. “The Obama administration had to accept what they inherited, which was not much: corrupt evidence, corrupt chain of custody, torture-obtained ‘evidence’, bribe-obtained evidence, word of mouth, and abysmal record keeping, to mention only a bit,” Wilkerson says. “They had an impossible task, so they just told the bureaucracy to clean it up. And that’s what has been going on since mid-2009. No one really knows who is guilty a lot, who is guilty a little and who is totally innocent – not in any way that would stand up in court and, I am tempted to say, not in any way, period.”
Nonetheless, the message that all of the men in custody are in some way criminals is reinforced up the chain of command to officials with far more access to the prisoners’ records than their troops. “I’m not in the business of deciding guilt or innocence… [but] I firmly believe that these guys were doing things they shouldn’t have been doing, and that got them put in here,” says Col. David Heath, commander of the Joint Detention Group, which oversees prison operations. Heath also tells me that he fully supports the president’s plan to close Guantanamo and that “under appropriate security conditions”, Americans have nothing to fear from bringing the inmates to the U.S. “However, I have a responsibility to continue to run the facility until someone tells me to put them on an airplane and send them somewhere else.”
For reasons that, like most things at Guantanamo, are never made clear, journalists who come to Gitmo to cover a commission hearing are not allowed to also tour the camps. Instead, you have to leave Guantanamo and then come back again, having filled out the same mountain of forms and agreeing to the same media ground rules, this time travelling via a private charter out of Fort Lauderdale, Florida, to the same lonely airstrip, taking the same ferry and meeting up with the same media escorts, who will keep such close tabs on your behaviour that if mine could have followed me to the bathroom, they would have.
I revisit Gitmo in early October, about a week after I returned from Camp Justice, and this time I’m put up in a townhouse on one of the base’s suburban-style streets. Each morning for the next two days, I’m picked up by one of my four JTF minders, all National Guard troops in their twenties, and driven by van to a secluded, dusty enclave on the southeast corner of the base that some journalists have taken to calling the Detention Centre Zone. Hidden over the hills, the Zone is the JTF’s private fiefdom: a base within a base, with its own dining facility, movie theatre, minimart, mental-health facility, chapel and even a recreation area where MPs, stressed out from their 12-hour shifts on the prison blocks, can sit in massage chairs or play with therapy dogs. Some of the soldiers live in a trailer park known as Camp America and ride around in Humvees – “patrolling for the Al Qaeda invasion”, one journalist cynically notes. Like the ubiquitous Hesco barriers, Humvees are wholly unnecessary, but in the War on Terror mindset of the Zone, you can never be too careful.
A deep insecurity bordering on paranoia seems to infect the Guantanamo guard force, which bills itself as “the model organisation for safe and humane enemy combatant detention operations”, working, according to its website, “under the watchful gaze of the Nation and the world”. A JTF slogan, “Safe, Humane, Legal, Transparent”, is written on all of its official signs, documents, beer mugs. And yet the chief public-affairs officer, Navy Capt. Chris Scholl, knows it’s probably no use. “You guys are going to write what you’re going to write, and most of what you write is negative,” he says over lunch with me and David Jones, a journalist from the Daily Mail who Scholl seems to particularly dislike – in a prior story, Jones referred to Gitmo as a “gulag”.
If there are parts of the Detention Zone that could be called a gulag, we won’t see that stuff. Journalists and congressional delegations are given a sanitised version of the Guantanamo Experience, in which our military hosts, briefed that journalists, like their captives (and their captives’ lawyers), are in one way or another the enemy, will try to come across as open and accommodating, in the spirit of “transparency”, while remaining totally opaque.
“The night President Obama was elected, the detainees started chanting his name — and it freaked the guards out.”
The first stop on this Potemkin Village tour is the prison hospital, a series of large trailerlike buildings where, as will be true throughout the Zone, most of those in military uniform are nameless. Instead, in a nod to the dangerous terrorists in their midst, they have blank name tags, or numbers. “I’m sure you’re aware of some of the threats out there,” one lieutenant colonel from New Jersey tells me, explaining that their main concern isn’t their own safety, but their families’ back home. A guard later echoes that sentiment. “I’ve got a wife and kids,” he says, adding he never wears his wedding ring while on duty. “I don’t want these guys to know anything about me.”
A sign in the hospital reads detainees in the vicinity: maintain silence, which is odd, as the place seems empty. There are a few patients, we’re told, but apparently nowhere near where we might go. There are, by contrast, 125 people in the Joint Medical Group, a staff-to-prisoner ratio of almost one-to-one.
The highlight of this tour, and really the only reason to take it, is a discussion of force-feeding, or as it’s called in the Zone, “enteral feeding”, which became an issue in 2013 when more than 60 per cent of Guantanamo’s prison population went on hunger strike, a form of protest the military has dubbed “asymmetrical warfare”.
“Or maybe they’re so depressed by the fact that they’ve been cleared for transfer since 2006 and aren’t being transferred that they’d rather be dead than remain in Guantanamo,” says CCR’s Wells Dixon, whose organisation represents Tariq Ba Odah, who has been on hunger strike for eight years. He weighs 35 kilograms.
Enteral feeding is broadly considered a form of torture by physicians’ groups, and for several years a number of Guantanamo attorneys have been pressing the government to release 11 hours of video footage of former inmate Abu Wa’el Dhiab’s force-feeding, which a federal judge ordered released in 2014. Three separate commanders at Guantanamo have testified that releasing that information could “cause harm to national security” and have classified the tapes at the “secret” level.
The military doctors explain that inmates are allowed to starve themselves until they’ve lost 15 per cent of their body weight, become dehydrated or show signs of organ failure, at which point the standard operating procedure requires the prisoner to “opt to be enterally fed as part of their peaceful protest”. Given that they’ve already opted not to eat, it’s unclear what is optional about being compelled to receive sustenance, but I suspect it’s more about how they choose to get it – by walking peacefully to the medical facility to be administered a feeding tube through the nose or by being dragged from their cell and strapped into a chair. Side effects from long-term enteral feeding include chronic constipation and stomach paralysis. In Ba Odah’s case, his body has begun to reject the nasal feeds. These issues are handled “professionally”, the medical staff insists.
There are currently fewer than 10 men receiving nasal feedings, we’re told, but who can really be sure: The military stopped releasing data on force-feeding in December 2013. “We decided for operational reasons not to release it,” one of the medical officers says. “We’re trying to do the best thing for the detainee’s health.”
Being on the “feed list” is a sign of “non-compliance”, which is discussed during a brief walk-through of Camp Five, Gitmo’s maximum-security prison, where some 40 to 50 mostly noncompliant inmates are held. We see none of them, however. Instead, eight military officials, most of them officers, accompany me and the Daily Mail through an empty cellblock where we are shown a “single-person cell”, which by any other name would be solitary confinement, except that solitary, like “prisoner” or “force-feeding”, is not a word used at Guantanamo. Each cell is nine square metres, with a long sliver of window the width of a Bic pen, and contains a concrete bed slab with a thin foam mattress, a stainless-steel toilet/sink contraption and two clothes hooks, designed to hold up to 18 kilograms, which, we’re informed, was done so that it would be impossible to hang oneself from them.
A prisoner is shackled at Gitmo. “In most cases, there is no evidence a detainee committed a crime other than the word of another detainee,” says lawyer Tom Wilner.
Prisoners in Camp Five are monitored by two guards who patrol the block, checking in on their captives every one to three minutes. They receive their food through a slot in their door known as a “splash box”. Splashing, it is explained, is another act of protest, accomplished when an inmate fills up a water bottle or Styrofoam cup with feces, urine, blood, vomit or some other bodily fluid and attempts to throw that on the guards “to show their displeasure with the policies”. The officer giving the tour points to the soundproof foam on the ceiling, which is dotted with what looks like dried shit. “That’s the remnant of a splashing event right there,” he says, explaining that the tiling is impossible to clean.
Virtually everything is put in the splash box: food, water, changes of clothes, books. This gives the guards almost no physical contact with the inmate. I ask one young soldier, who in his non-Gitmo life is a prison guard at Fort Lewis, Washington, if there is anything unique about the inmates from his perspective. “I make a point not to know anything about them,” he says, eight months into a nine-month tour.
The tour is exhausting and frustrating, and utterly pointless in many ways other than to serve what I come to believe is its central purpose: to blight out the existence of the prisoners. And yet, they exist. For a brief 15 minutes, we are allowed to glimpse them, behind one-way glass, while touring Camp Six, a medium-security prison where “highly compliant detainees” live in communal blocks. A couple of men dressed in ragged-looking clothes shuffle around, most wearing headphones to listen to the large TV posted above them. One older man in a prayer cap sits at a table leafing through a thick book. In a small gated area, two masked guards stand with a book cart, gingerly handing books to men who reach for them through the bars. The effect is like watching animals at a zoo.
Our request to observe evening prayers, or morning prayers, is denied. So are requests to talk to the language teachers, art therapists, individual counsellors or any other personnel who have meaningful interaction with the detainees. The reason is the vague “policy”, which I begin to understand is itself a form of newspeak in a place where the vast number of inmates are being held without charge, many having been cleared for release long ago, with no idea when or if they might be released. When confronted with these points, Scholl once again insists that this is a policy question that should be best taken up in Washington. “All I can tell you is that the care of the detainees has been probably really, really great under any law of war-detainee program,” he says. “If you’re in Camp Six, you can’t walk out the door, [but] you can watch anything on TV. Any time, free.”
These kinds of conversations or non-conversations happen throughout the day, and after a while, I begin to wonder, is Gitmo the most wilfully ignorant place I’ve ever been, or is it even worse than that? Surely the inability to answer even the simplest of questions in a straightforward manner, if at all, isn’t incapacity, it’s refusal. The result of this, though, is that the Detention Centre Zone has become a banal, no-thinking bubble, exactly the mentality needed to maintain the status quo. “You can’t have kids understanding the background of this place because it would be very hard for them to do their jobs,” says attorney George Clarke, a former Marine.
The last stop on the tour is Camp X-Ray, the infamous, long-closed internment site where Gitmo’s earliest prisoners were held. This is a highlight of the tour because it is the place most associated with Gitmo, but, as our minders stress, it was open for only 92 days. During that time, the prisoners lived in dog cages, and the dogs that helped to guard them lived in air-conditioned kennels. “The only guys out here with air conditioning were the dogs,” a sergeant says, reciting a script that stresses even the interrogators were uncomfortable in the heat.
Camp X-Ray is overgrown now, with tangled vines creeping across the cages. And yet there is still an awfulness about it. The interrogation sheds, in particular, remind me of Abu Ghraib, which I mention to the sergeant, who isn’t sure what I’m talking about. Guantanamo was the incubator for the abusive interrogation policies that would be exported first to places like Bagram and Abu Ghraib, and then to detention zones throughout the world. The sergeant was 10 when this occurred. “They told us about Abu Ghraib during training,” he says. “The one thing they kind of hit on over and over is ‘Don’t take pictures’.”
A prisoner is escorted to interrogation in 2004.
‘The night Obama was elected,” says the Miami Herald’s Carol Rosenberg, “the detainees started chanting ‘Obama, Obama, Obama’, and it freaked the guards out.” Rosenberg, an incisive and dogged reporter who’s been covering Guantanamo since 2002, delights in these bits of colour. “It took me three trips to get that,” she says.
Rosenberg is the doyenne of Gitmo: winner of numerous press freedom awards and a hero to countless lawyers and activists who see her as “Guantanamo’s conscience”, as Fordham Law’s Karen Greenberg calls her, the holder of all the institutional memory of a place that otherwise lives and breathes plausible deniability. In 14 years, Rosenberg estimates, she’s spent more than 1,000 nights at Guantanamo, covering the commissions, which she live-tweets, and reporting on the hunger strikes, suicides and quiet desperation of the prisoners whose sagas she tracks in numerous stories, as well as an online record she maintains on the Herald’s website. This meticulous recounting of numbers and facts tells a far darker, if more truthful, story of Guantanamo, breaking down the tremendous costs of maintaining the Detention Centre Zone and laying bare the inanity and futility of the war court.
Though many in the Pentagon respect her, the JTF approaches Rosenberg with a mix of fear and loathing, notably Scholl, who seems threatened by her immunity to military spin and relentless focus on issues he finds superfluous, such as where sources were on September 11th, 2001. “I promise you no one here thinks about 9/11,” he says, even though 9/11 references are everywhere: from the Ground Zero paintball field to the gigantic American “Flag of Honour” portrait hanging in the lobby of the JTF Headquarters, whose stripes are made up of the names of every single person who was killed in the 9/11 attacks. In Gitmo’s early days, new MPs were taken to Ground Zero before they started their tour.
“The entire reason for this place is 9/11,” I tell Scholl.
“We don’t dwell on it,” he says.
This attempt at message management is tragic. Terrible and deeply un-American things happened at Guantanamo as a result of 9/11, which Rosenberg, along with the men she calls “captives”, bore witness to. Though the abuse and brutal interrogations have ended, there is still the ongoing, if silent, torture of being interned without legal recourse at the end of the world. Gitmo exudes this sickening and unsettling reality. It is impossible to be anywhere within the Detention Zone, in particular, without being reminded that what the place is really all about, hidden from public view and outside the realm of memory, is suffering.
Buildings stand empty at the now-closed Camp X-Ray in 2009. Gitmo’s earliest inmates were held in dog cages.
One of the stories Rosenberg has covered extensively pertains to the endless purgatory of the subset of men known as “law of war” prisoners, or as she dubbed them in 2012, “forever prisoners”, whose repeated description as “too dangerous to release” is what is driving much of the opposition to shuttering Guantanamo. The forever prisoners were known only by their inmate numbers until 2013, when Rosenberg filed a FOIA request to compel the government to release the names of the prisoners. But the allegations against them have largely remained shrouded in mystery, beyond government assertions that the men they continue to hold under the laws of war are “known” Al Qaeda operatives. “If you look at the evidence against these people, it’s absolutely bullshit,” says Tom Wilner, the attorney who was lead counsel on the landmark 2008 Supreme Court case Boumediene v. Bush that affirmed the right of Guantanamo prisoners to challenge their detention based on the government’s evidence. “In most cases, there is no evidence that a detainee committed a crime or trained for terrorist activities other than the word of another detainee who may, himself, have been tortured, or who told his interrogators what they wanted to hear.” Many of these informants have recanted, he says. “None of this would hold up in court. At best, it raises suspicions. And you cannot, in a democratic society, hold people based on suspicion.”
In many cases, say Wilner and others, inmates have been put in indefinite detention based less on what they may have done before they arrived at Guantanamo than what they’ve said or done while there. Not surprisingly, some indefinite detainees have expressed hatred for Americans. One of Carlos Warner’s clients, Mansoor Abdul Rahman al Dayfi, was kept in indefinite detention in part due to his rhetoric. Al Dayfi was one of the first prisoners to arrive at Guantanamo in 2002, profiled as having prior knowledge of the 9/11 attacks. In July 2015, a military-intelligence assessment concluded that he was “a low-level fighter who was aligned with Al Qaeda, although it is unclear whether he joined the group”. Yet during his detention, the report notes, he “expressed support for terrorism”.
“You have a lot of guys like that,” says Warner. “Mansoor never should have been in Gitmo to begin with. But in 2007, he was going with the ‘Fuck you guys, I’m going to kill as many Americans as possible’, and so when he goes in front of a panel they go, ‘Well, he’s dangerous.’ Well, yes, but he’s also innocent.”
In a March 2011 executive order, the White House created a parole-board-like system, known as Periodic Review Boards, to assess an inmate’s continued threat level. This panel, convened by the Defense Department, was supposed to review each of the forever prisoners within a year. Instead, the PRB, for unspecified reasons, didn’t have its first meeting until 2013. Since then, 19 men have been before the board; 16 of them, including al Dayfi, were found transferrable, with possibly no links to extremism or terrorism whatsoever.
One forever prisoner, Mustafa al-Shamiri, was held for 13 years under the belief that he was an Al Qaeda agent. In December 2015, al-Shamiri was granted a PRB hearing, during which the DOD acknowledged it had mistaken him for someone else.
Warner says some forever prisoners are dangerous. “The problem is the whole group gets lumped together,” he says. “The process is so opaque it’s impossible to know whether or not these guys are innocent. All we know is they will never face trial and the government has acknowledged guilt cannot be proven, until things like al-Shamiri happen, and it’s like, ‘Whoops, wrong guy.'”
A review of the cleared inmates’ files shows that “compliance” is a factor in deciding who gets a review. Mansoor al-Dayfi, for instance, gave up his hostile rhetoric by 2010, learned English, became a fan of American pop culture, including Little House on the Prairie, and was one of the five designers of the Milk & Honey Project, a business plan for a self-sufficient farm in Yemen. Three of the five were granted PRBs; all were then put on the transfer list. “I encouraged Mansoor to use his time wisely,” says Warner. “These are people. They’re not animals.”
Another one of Warner’s clients, Muhammed Rahim al-Afghani, has a Plenty of Fish profile. Warner explains he set it up for Rahim, a multilingual forever prisoner interned at Camp Seven, as a sort of “Dada approach”, given that everything at Guantanamo is irrational anyway. “Something has to make people pay attention,” he says. “Sixty per cent of Democrats believe Guantanamo should remain open – that says we need to work on our message. If they begin to see Rahim as a human being, maybe they’ll also pay attention to what happened to him.”
Rahim was the last prisoner to arrive at Guantanamo, in March 2008, having spent approximately seven months in the CIA’s secret network of prisons. There, according to the Senate report, he was subjected to a variety of abuses, including prolonged sleep deprivation of more than five consecutive days in some instances, while shackled and wearing a diaper. These techniques failed to produce any intelligence.
The government issued a press release about Rahim, allegedly detailing his enemy activity, but it appears to be about another person entirely. This account, which Warner views as an example of the government’s general confusion, describes a low-level Al Qaeda operative, not, as was alleged about Rahim, a close associate of Osama bin Laden with “ties to Al Qaeda… throughout the Middle East”. A subsequent government report, filed in federal court in response to Warner’s habeas corpus petition seeking Rahim’s release, portrays him as a member of bin Laden’s inner circle, information based mostly on the word of two fellow Gitmo prisoners, and an informant who may have been subjected to torture.
Warner says that there is no indication that Rahim was an associate of bin Laden’s. Rahim did fight in Afghanistan, notes his brother, Basit, who I interview via Skype from his home in London, but it was during the war against the Soviets. Indeed, he and Warner note, Rahim worked for a time with the CIA. “The irony is, the ISI [Pakistani intelligence] picked him up, and the first thing he said was he wanted to talk with the CIA,” says Warner. “He trusted them because he’d worked with them, and he thought they’d help him.”
Whatever may be true about Rahim, Warner says, the government has told him that he will never be charged, or tried. Nor, Warner says, will he likely get a PRB, as no high-value prisoner as yet has been given that option. Warner hopes to convince the government the only thing “high value” about Rahim is that he bore witness to his own torture. In the meantime, Rahim writes Warner brief, often one-paragraph notes, some of which resemble haiku, on topics ranging from LeBron James to Donald Trump to Caitlyn Jenner (who he suggested use spray tan on her legs). In one note from 2013, he said he reads Rolling Stone. Not long ago, he sent Warner a brief letter, quoting Camus: “The only way to deal with an unfree world is to become so absolutely free that your very existence becomes an act of rebellion.” He then wrote, “I AM HERE.”
