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Guantánamo: Justice Delayed or Justice Denied?

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In the real world, guilt and innocence are clearly defined, and those believed to be responsible for a crime are considered innocent until proven guilty in a court of law. Since the 9/11 attacks, however, the U.S. administration has done away with such long-standing conventions.

Under the guise of waging a “war on terror,” those in charge of America’s post-9/11 policies — primarily Vice President Dick Cheney, defense secretary Donald Rumsfeld and their legal advisers — set an arrogant new course into uncharted waters. Determined that those they seized would not be protected as enemy prisoners of war, they discarded the Geneva Conventions, with their prohibition on “cruel and inhumane treatment” and coercive interrogations.

Less remarked upon, though no less significant, was their dismissal of the battlefield tribunals established under the Geneva Conventions. Held during every conflict in modern American history, including Vietnam and the first Gulf War, these tribunals enabled the military to call witnesses close to the time and place of capture, to separate soldiers from civilians caught up in the fog of war.

Instead of prosecuting “terror suspects” as criminals, however, the administration also turned its back on the U.S. court system, introducing a dystopian parody of the law, in which prisoners were held without charge or trial as “illegal enemy combatants.” Based on the presumption of guilt, this new system presented those detained with little or no opportunity to ever establish their innocence.

This was revealed explicitly last June, when Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, blew the lid on the Combatant Status Review Tribunals (CSRTs), Guantánamo’s version of the battlefield tribunals. Introduced after the U.S. Supreme Court ruled, in June 2004, that the prisoners had habeas corpus rights (in other words, the right to challenge the basis of their imprisonment in a courtroom), the tribunals were a deliberate snub of the Supreme Court, and were also a mockery of their battlefield predecessors, primarily because none of the prisoners was ever allowed to call an outside witness to testify on his behalf.

Adding insult to injury, the prisoners were not allowed legal representation, and were prevented from either seeing or hearing the classified evidence against them, which often consisted of confessions extracted from other prisoners under unknown circumstances. In addition, as Lt. Col. Abraham explained, the information compiled for the tribunals frequently consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and was, essentially, designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.”

Further proof of the administration’s disregard for justice was provided by one of Col. Abraham’s former colleagues at the Office of Administrative Review for the Detention of Enemy Combatants (OARDEC), who sent him an email supporting his actions, and also observed that, “after several detainees were found to be ‘not an enemy combatant,’ DoD took away that option and we had to start using the term ‘no longer an enemy combatant’ for those held for no apparent reason.”

This was indeed the case. Anxious not to admit that a single prisoner was innocent — partly to protect itself from lawsuits, but primarily, I suspect, because those in charge maintained, as they do to this day, that they were incapable of making mistakes — the administration cleared just 38 prisoners for release through the CSRT process, and made sure that all of them were labeled as “no longer enemy combatants.”

By the time of the CSRT’s successors, the annual Administrative Review Boards (ARBs), whose stated aim was to determine whether the prisoners still constituted a threat to the United States, the authorities rapidly dispensed with the claim that prisoners were “no longer enemy combatants.” Although 14 prisoners were labeled as such, the rest of those approved to leave Guantánamo (119 in total) were still explicitly regarded as “enemy combatants,” and were only approved for transfer from Guantánamo (to the custody of their home country, or a third country). By the time that decisions were announced for the second and third rounds of the ARBs, in February 2007 and February 2008, all of those cleared to leave (55 and 33 prisoners, respectively) were still regarded as “enemy combatants.”

Aside from the inconvenient fact that a great many of these men are, in fact, innocent men swept up in raids based on poor intelligence or sold to U.S. forces by bounty hunters, who should not be saddled for the rest of their lives with the label of “enemy combatant,” I raise these issues at this particular time for one pressing reason, which brings us back to “innocence,” that troublesome concept that has been banished by the current administration.

Of all the men held at Guantánamo, only seventeen have persuaded the government to drop its claims that they are “enemy combatants.” These men, who are all still in Guantánamo, are Uyghurs, Chinese Muslims who had fled government oppression in their homeland (East Turkestan, known to the Chinese as Xinjiang province) for the sanctuary of a run-down hamlet in Afghanistan’s Tora Bora mountains. When the U.S.-led invasion of Afghanistan began in October 2001, U.S. forces bombed the settlement, thinking that it belonged to al-Qaeda or the Taliban. Several of the men died, but the others fled into the mountains, hiding from the relentless bombing in a cave and eventually making their way to Pakistan, where they were sold to U.S. forces by opportunistic locals.

Throughout their time in U.S. custody, the Uyghurs have put up with many humiliations. Anxious to secure a lack of Chinese opposition to the invasion of Iraq, the U.S. administration invited Chinese interrogators to visit the prisoners in Guantánamo. The authorities also designated a Uyghur separatist group, the East Turkestan Independence Movement (ETIM), as a terrorist organization, claimed that it was linked to al-Qaeda and the Taliban, and then claimed that the Uyghurs in Guantánamo were all somehow connected to the group.

Nevertheless, several of the military tribunals were unconvinced. Seven of the Uyghurs were declared to be “no longer enemy combatants” after their CSRTs, although in two of these cases the Pentagon dismissed the original tribunal members and ordered second tribunals that confirmed the men as “enemy combatants.” Unwilling to return the five cleared Uyghurs to China, the administration eventually persuaded Albania to accept them in May 2006, but since then, despite being cleared for release through the ARB process, the remaining Uyghurs have been stuck in Guantánamo, as Albania’s largesse dried up, and no other country could be found that was prepared to take them.

In July this year, after a further ruling in the Supreme Court reversed legislation that had stripped the prisoners of their habeas rights in the intervening four years, the case of one of the Uyghurs, Huzaifa Parhat, was finally reviewed by a U.S. court. Stunned by the lack of evidence linking ETIM to al-Qaeda and the Taliban, and the Uyghurs to ETIM, the judges in the Court of Appeals in Washington D.C. “held invalid a decision of a Combatant Status Review Tribunal” that Parhat was an “enemy combatant,” and in the following months what was left of the cases against the rest of the Uyghurs crumbled, as the government admitted that it would “serve no purpose” to continue trying to prove that Parhat was an “enemy combatant,” and then did the same for the other 16 Uyghurs.

As a result, when Judge Ricardo Urbina of the U.S. District Court in Washington D.C. was required to make a decision about the Uyghurs’ fate two weeks ago, he had no hesitation in declaring, “Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful.” Furthermore, because no third country had been found that would accept the Uyghurs, he ordered that they be released to the care of communities in the Washington, D.C., area, and Tallahassee, Florida, which had put together detailed plans for their resettlement in the United States.

The core of Judge Urbina’s ruling was his understanding that the Uyghurs — to use those words dreaded by the administration — were innocent men, and had been imprisoned by mistake. Predictably, of course, the administration appealed, but all they had in their arsenal were recycled and thoroughly discredited claims that the Uyghurs were “a danger to the public,” who had “admitted receiving weapons training at a military training camp.”

Sadly, however, the sheer hypocrisy of the government’s position was overlooked by the judges in the Court of Appeals for the District of Columbia Circuit, who granted the government a temporary stay, and on October 21 the court reiterated its position, ruling, by two votes to one, to extend the stay, and scheduling oral arguments for November 24.

In the meantime, nearly seven years after the Uyghurs were seized and sold to U.S. forces in Pakistan, they remain imprisoned in Guantánamo, where they must, indeed, be wondering if innocence is a concept that the Bush administration has irrevocably destroyed.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.