Broadcast on BBC One on Sunday, 5 October, 2003 at 22:15 BST.
Panorama uncovers the true picture of this new system of arrest, detention, interrogation and eventual trial by military commission, a key part of America's war against terror following the events of 9/11.
President Bush, in common with most Americans, is confident that Guantanamo Bay, where 600 or so men are held, is necessary, and makes us all safer.
As he puts it, the detainees are "bad people".
A six month investigation takes reporter Vivian White to Asia, Africa, Europe, and America, to talk to those on the receiving end of American justice, and to those responsible for administering it.
Panorama asks: is Guantanamo justice justified in the light of the new threat facing America and the rest of the world?
Vivian White also travels to Guantanamo Bay where he has access to the soldiers who guard the detainees. But no interviews are allowed with the detainees themselves.
And during part of their tour of the camp where no cameras are allowed, a detainee calls out, in English "Are you journalist?" "I'm from BBC Television" replies White.
He is swiftly banned from the camp, accused of breaking the "ground rules".
So to find out what detention at Guantanamo Bay is really like, Panorama travels to Afghanistan and talks to men who have been detained - for over a year- and then released.
The US authorities stress that detainees are humanely treated. But in an exclusive interview, one of the released men tells Panorama not just about his treatment in Guantanamo Bay but about the US detention centre in Bagram Airbase where he was held before being transported there.
He says that he was tortured - forced to kneel, with his hands shackled above his head, for long periods, and with a gun pointed at his head. The US military spokesman at Bagram, Colonel Rodney Davis says "it's not part of our culture, it's not part of what we do." We didn't come here to bring terror we came here to stop terror," he says.
Reporter: Vivian White
Producer: Fiona Gough
Deputy Editors: Andy Bell, Sam Collyns
Editor: Mike Robinson
NB: THIS TRANSCRIPT WAS TYPED FROM A TRANSCRIPTION UNIT RECORDING AND NOT COPIED FROM AN ORIGINAL SCRIPT: BECAUSE OF THE POSSIBILITY OF MISHEARING AND THE DIFFICULTY, IN SOME CASES OF IDENTIFYING INDIVIDUAL SPEAKERS, THE BBC CANNOT VOUCH FOR ITS ACCURACY.
RECORDED FROM TRANSMISSION: BBC-1 DATE: 5:10:03
VIVIAN WHITE: The call to prayer at Guantanamo Bay. Over 600 men are being held here by the USA as part of its war against terror. We've been to investigate Guantanamo justice.
They're not considered prisoners.
Sgt KEEFER: No sir.
WHITE: What's being kept for nearly a year and a half?
Sgt KEEFER: Detained personnel sir.
WHITE: In Afghanistan we've tracked down Guantanamo detainees who've been released.
SAYED ABASSIN: I spent 13 months in jail. The law was dead. There were no human rights.
WHITE: But a politician and lawyer close to President Bush says detention at Guantanamo is both necessary and just.
SENATOR CORNYN: I'm satisfied that the 660 at Guantanamo Bay are among the baddest of the bad, and I believe that the President is well within his power under our constitution, as well as international law, to do what we are doing.
WHITE: Now the Americans want to conduct military trials on Guantanamo, and two British detainees are top of the list, their families unable to affect events.
AZMAT BEGG: What is happening to the human rights in this world? Is there nobody can hear the truth?
WHITE: Tonight, judgements on Guantanamo justice from a judge of international repute and from the Red Cross.
CHRISTOPHE GIROD: The US authorities have put the detainees in Guantanamo beyond the law which certainly mean that Guantanamo is a legal black hole.
RICHARD GOLDSTONE: I do indeed believe that a future American President will have to apologise for Guantanamo.
WHITE: We examine the process of Guantanamo justice and we ask is it justified by 9/11 or is America defying the law to defeat terror? Our journey to Guantanamo in Puerto Rico where we were summoned at dawn to the US Naval Base there. US military is allowing some media access to Guantanamo but it's far from open access. Guantanamo remains a very secret place.
Sgt KEITH JOHNSON: There are things that you can and can't do; video that you can and can't shoot. Whatever interviews you do, they have to be set up through the taskforce public affairs first. You can't just come up to someone and start talking to them and interview them. No impromptu interviews, things like that.
WHITE: Guantanamo Bay is a US enclave at the South Eastern end of the island of Cuba, and the only way in and out of this remote place is on a flight arranged by the US military. After 9/11 and the attack on the twin towers a military order was issued by the President to create a new system for dealing with suspected terrorists. In January 2002 the prison camp was established on Guantanamo. The territory is held on an indefinite lease from Cuba. The Castro government regards it as an illegal occupation. Camp X-ray, the first prison, consisted of wire cages. Now, in Camp Delta, most men are in cages that are enclosed. Over 600 men are kept on Guantanamo; many have been there over a year. We were taken to meet their military wardens.
Sgt DAVID KEEFER: After the events of 9/11 sir, I feel it is my duty and every American's duty, to make the world a safer place. And if I can do just a minimal part down here to help that and extract justice on those that did cause the attacks, then so be it, I'll do it for however it long it takes.
Private BRANDON SLAUGHTER: I work the blocks to safeguard the detainees from anything physically, mentally that could hurt them.
WHITE: And what do you think about the men whom you guard?
SLAUGHTER: I really don’t have a comment on that sir.
WHITE: Well you see them day in, day out. It's your job day in, day out and it's a pretty extraordinary job, and it is a job that you think… is it a job you're glad to be doing, and if so why?
SLAUGHTER: Yes, I'm very glad to do this in the fact that it keeps our nation safe and the other nations safe around the world from any harm.
WHITE: The official Guantanamo motto is 'honour bound to defend freedom'. Questions about pride in the mission were permitted by our military escorts but some straightforward questions about exactly what happened to the men they were guarding were ruled out of order. When the interrogators come along, how long do they take men away for and how often does that happen?
SLAUGHTER: Well it depends on how long….
OFFICER: (interrupting question) That's not… that's not… anything to do with interrogations we can't discuss.
WHITE: (to female soldier) Is your task here just to look after them day to day or is there a gradual process of interrogation and getting information out? Tell me, what's your task?
OFFICER: (again interrupting question) We really can't get into interrogation issues. It's just not something that we discuss.
WHITE: But however unwilling they were to discuss it, the prime purpose of Guantanamo Bay gradually became more and more plain. This was neither a normal prisoner of war camp, nor by any means an ordinary prison. It was a place to hold people and to interrogate them without a time limit.
Sgt KEEFER: These people are not considered prisoners, nor are they treated like prisoners as what we would treat a military prisoner as.
WHITE: They're not considered prisoners?
St KEEFER: No sir.
WHITE: What's being kept for nearly a year and a half?
Sgt KEEFER: Detained personnel sir.
WHITE: That's categorically different from being a prisoner, is it?
Sgt KEEFER: Yes sir.
WHITE: Is that better than being a prisoner?
Sgt KEEFER: Yes sir, as far as their treatment sir, yes sir, I would say it is. A prisoner is someone found guilty of a crime and being sentenced. These people here are no more than merely detained and we're extracting information.
WHITE: Merely detained and extracting information.
Sgt KEEFER: Yes sir.
WHITE: Extracting information for a year and a half!?
Sgt KEEFER: Sir, that's not my job. I'm not one of the investigators.
WHITE: Away from the prison camp was another Guantanamo - pure, recreated middle America.
JUDY STEINER, Officer's Wife, Guantanamo Bay: You just go about your life and you honestly do not think that we have the detainees over here. You don’t worry about it. The school system here is great. The teachers are really good with the children. It's just like a normal community except we don’t leave it. (laughs)
WHITE: The detainees can't leave Guantanamo either, but there'd be no question of asking them what they thought of their incarceration. We were eventually taken to the boundary of the prison, Camp Delta.
Lt MICHAEL MOSS: We don’t allow the media to interview the detainees… never allowed that.
WHITE: Why not?
Lt MOSS: Well that's first of all part of our policy and the Geneva Convention does state that you're not to put certain individuals on display to the media. It's not something we'd want.
WHITE: We were allowed into the prison camp but we weren't allowed to film. Only sound recording, a word picture, was permitted in this secret place.
I'm walking now along a line of cells which are 8' by 8' metal grids. We're deep inside Camp Delta. I can now see a group of men dressed in white, in T-shirts. These are detainees. They were just a few feet away the other side of the wire and one of them then spoke to all of us in English.
DETAINEE: Are you journalists… or whatever? Can we talk to you?
WHITE: We're from BBC television.
MILITARY ESCORT: Need to keep moving. Need to keep moving.
WHITE: We're from BBC TV.
DETAINEE: Thank you very much. After a long time we're looking you here.
ESCORT: You need to keep back.
DETAINEE: After a long time we're looking you here. It's amazing for us, strange. We should…
ESCORT: If you don’t move you're going to have to leave.
DETAINEE: .. saw you before but we're looking now and it's….
ESCORT: Bring 'em back. Let's go. The tour is over. Keep 'em walking.
WHITE: That contact with one detainee was too much for our hosts. We were excluded from seeing anymore of the prison camp. But that evening they took us to the movies. The show starts with a trailer. The troops are reinvigorated with the spirit of enduring freedom – the War in Afghanistan.
"The Opening Chapter"
I do solemnly swear…
To support and defend the constitution of the United States….
Against all enemies, foreign and domestic…
So help me God…
So help me God….
SOLDIER: I was once told by a commanding officer: "It's not a question of if we go to combat, it's a question of when".
WHITE: We had more questions to ask about detention in Guantanamo but we took our cue from the movie. They wouldn't all be answered here.
[FILM] Defeating the Taliban is what we went in there to do. We helped Afghanistan just the fact that we’ve hit a regime that was so oppressive and now they may have more freedom.
WHITE: To find out more about what does happen inside Guantanamo we went to Afghanistan. The first theatre in America's war on terror after 9/11. We wanted to talk to some of the small proportion of men who'd been detained in there and then released by the Americans, and they're chiefly from Afghanistan. We travelled in with local guards on the Khyber Pass from Pakistan westwards over the border towards Kabul, the Afghan capital. So we were in Kabul on July 19th when we learnt that a group of 16 Afghani men who'd been imprisoned in Guantanamo had been flown back and were about to be set free. We were going to get first hand witness of life inside Guantanamo. This was their first moment of freedom. All these men had been captured as part of the so-called war on terror, but they hadn't been held as prisoners of war. Fighting in a war isn't a crime under international law. These men had been placed by the Americans into an entirely new category – enemy combatants – people suspected of being involved with terrorism to be held and interrogated until the United States no longer judged them to pose a threat. But they were never charged with any crime. In total 68 men have been released from detention in Guantanamo. None of them had any idea until the last moment how long they'd be kept there.
That night a group of these newly released men agreed to talk to us, and one of them recognised me from our visit to Guantanamo. He'd been among the detainees we'd briefly seen when one of them had called out to us as he told our translator.
ASSADULLAH MONSERA: (translated) I have seen this man. He came to Cuba. He was on the other side of the netting. He had a tape recorder with him. The American guards pushed him.. pushed this poor man. He stumbled. He was not seen after that.
MOHAMMED NAHIM FAROUK: (translated) We were in prison only because we are Moslems.
NUR HABIBULAH: (translated) Is this what they call human rights?
MONSERA: (translated) They said: "Go, you were prisoners of war". Were we given the rights of prisoners of war? Prisoners of war.. prisoners of war!
MOHAMMED AKHBAR: (translated) Why did they take me to Cuba. My young wife was left with no one to look after her. Who was to feed everyone? Who was to give clothes for God's sake to my children? They're very young… very young (sobbing).
Justice RICHARD GOLDSTONE, Former Chief Prosecutor, UN War Crimes Tribunals: I just don’t believe people should be treated in that way.
WHITE: But these are suspected terrorists.
GOLDSTONE: Even suspected terrorists shouldn't be treated in a manner which is unlawful.
WHITE: Unlawful? And that's, to you, the word that describes the Guantanamo process?
WHITE: US Senator John Cornyn recently visited Guantanamo Bay. He says his government has the right to defend itself by preventative detention there.
26th September 2002
[Film footage of Corbyn and Bush]
A close political ally of President Bush, he was a judge and attorney general in his home state of Texas.
Senator JOHN CORNYN, Republican, Texas: Well I'm afraid the war on terror has created a need for us as a matter of our self-preservation and national security to protect ourselves against terrorist attacks and to prevent them before they occur, not just to try people for criminal conduct after they've succeeded in killing thousands of people perhaps.
WHITE: But the Red Cross who have access to prisoners at Guantanamo are also now publicly critical of this novel legal process of indefinite preventative detention.
CHRISTOPHE GIROD (International Committee of the Red Cross): The point is that the US authorities have put the internees in Guantanamo beyond the law. That means that after more than 18 months of captivity for some of them, the internees have no idea about their fate, and no means of recourse through any legal mechanism.
WHITE: Back in Afghanistan we set off over roads that had been ground away by years and years of war to track down other men who'd been released earlier from Guantanamo. We headed south from Kabul and over the mountain pass towards the town of Khost, near the Pakistan border. We'd heard about a young man who'd been released in March after a long campaign had been fought on his behalf. He'd been wrongly arrested and detained for over a year. The man we wanted to meet had been a taxi driver. His name is Sayed Abassin. He'd been arrested by Afghanis and then handed over to the Americans. He tried to show them the papers that proved he was a taxi driver and protested that he hadn't been fighting.
SAYED ABASSIN: I spent 13 months in jail. My life is ruined. I experienced all the bitterness of life. Why? For which crime? I'd heard that in America or Europe when they arrest someone, they have proof. I saw none of that. I was just driving. Arrested and taken to prison. My hands were tied behind my back. They put a sack over my head and took me away in a helicopter.
WHITE: A passenger in his taxi was arrested too, Alif Khan, a businessman.
ALIF KHAN: When I came back, they'd taken my sign down. I put the sign back on and I put my name on it as well. I told my shopkeepers that I'm your landlord, you pay me the rent.
WHITE: While Alif Khan was inside Guantanamo, branded as an Al-Qaeda suspect, his business rivals grabbed his assets, including these shops, from him. Since his release he's fought to get his property back.
KHAN: (translated) Who rented you the shop? Alif Khan rented you the shop.
WHITE: Alif Khan says both he and Sayed Abassin were handed in to the Americans in return for bounty payments of several thousand dollars each.
ALIF KHAN: I told them that in Afghanistan there are many personal disputes. They handed me to you because of some personal feud. I am not Taliban, not a terrorist, not Al-Qaeda. People handed me over because someone wanted to gain influence – dollars or because of a personal dispute.
WHITE: But Alif Khan was transported from Afghanistan to Guantanamo. This is his testimony.
KHAN: They put cuffs and tape on my hands, taped my eyes and taped my ears. They gagged me. They put chains on my legs and chains around my belly. They injected me. I was unconscious. I don’t know how they transported me. When I arrived in Cuba and they took me off the plane they gave another injection and I came back to consciousness. I did not know how long the plane was flying for. It might have been one day or two days. They put me onto a bed on wheels. I could sense what was going on. They tied me up. They took me off the plane into a vehicle. We go to a big prison and there were cages there. They built it like a zoo.
WHITE: Sayed Abassin had been an admirer of western culture. He'd been beaten up by the Taliban for playing music in his taxi.
ABASSIN: If the Taliban had seen this, do you know how long I'd have been in prison?
WHITE: Goodness me, well!
ABASSIN: This Titanic.
WHITE: Oh it's Titanic. This is it.
WHITE: And you have the poster.
WHITE: You have the poster in your car.
ABASSIN: I like Titanic. Very good film, Titanic.
WHITE: And in Guantanamo Abassin kept on asking for western justice.
ABASSIN: I was frightened. It's still with me. But I wasn't scared of law. I asked them many times for international law, American law or Afghan law. If there is any kind of court I am ready to face it. If you have any evidence on me, and I am proved guilty, then that's fine. If anyone had listened… if they had been listening to me, I wouldn't have been in prison for 13 months.
WHITE: The Americans, Abassin, say that these special procedures have been necessary because America and the world are threatened by terrorists.
ABASSIN: I spent 13 months in jail. Was I a terrorist? Does America have any evidence that I was a terrorist or I killed anyone in Afghanistan? Does anyone have any evidence that I had links with the Taliban?
WHITE: At Guantanamo they were taken for repeated interrogations without any access to a lawyer.
KHAN: When I was taken for interrogation I told them that I am innocent. I am not a Talib or a fighter and that I wasn't Al-Qaeda or a terrorist. I said this to the American guard. Why did you bring me here to Cuba? If you bring innocent people here then you may as well bring all the innocent people from Afghanistan here. You did not come to bring security or for Al-Qaeda. You came for us poor innocent Muslims.
At Guantanamo, Camp X-Ray was replaced by a new prison, Camp Delta, at the end of April 2002.
WHITE: At Guantanamo the Americans stressed to us their treatment of detainees was humane. The detainees' physical description of Guantanamo agreed exactly with the Americans. But the detainees said their conditions of imprisonment were inhumane.
US Department of Defence Video
[Film footage: clips of detainees]
KHAN: Each container housed 48 cages. Everyone was in a cage individually. Every cage had a tap, a toilet and water for washing. There was room to sit but not enough to pray. We were praying with difficulty. My joints were damaged. The light was very bright there as well. They were switched on all the time. Because of that our eyes were damaged and from constantly having to look through the netting. There were other blocks and we were not allowed to speak to the people on the other blocks. If we talked to them, they would draw the curtains and they would take o[u]r bedding and blankets and they wouldn't give them back for three days. We would just have our towels to sit on.
SAYED ABASSIN: While I was there, I had problems with my knees. I was told by the military doctor to do exercises, and when I started doing them a guard came and locked me up in a container for five days. I hadn't done it by my own choice, I was told to do it by the doctor.
WHITE: The US military at Guantanamo stressed that they do everything possible for the health and welfare of detainees held now in Camp Delta. The Americans say there are rewards for good behaviour and withdrawal of privileges for what they term 'non-compliance'. Lights are kept on for 24 hours a day but they say this is for the safety of detainees and guards, and detainees are given eye shades if there's a medical problem.
Colonel ADOLPH MCQUEEN, Commander, Camp Delta: Yes, I am proud of the job that the soldiers, sailors, marine and coastguardsmen and airmen are doing within Camp Delta.
WHITE: Why? Why are you proud of the job you're doing?
MCQUEEN: Because we are detaining enemy combatants that have shown acts of violence and that are a threat to the US population and world population.
WHITE: But the detainees haven't been charged with any crime, let alone found guilty. Guantanamo's critics say that's unjust, and some of the guards recognise that.
Private JILL THOMPSON: They think we're wrong because we're holding them here, because we haven't charged them with anything. I think we are justified because if we can keep some terrorists here, if they are terrorists, out of the planning stages and execution stages, then we're saving millions of people around the world.
WHITE: I asked an army chaplain, responsible for the guards spiritual welfare, if he thought that detaining men without trial, and without them seeing their families was fair?
Lt Col HERB HEAVNER, Army Chaplain: [If] I occupied a lot of my time concerning myself with the fairness or the justness of what is taking place, I wouldn't be able to focus on my primary mission, and so that's where my focus is, and that's where it remains.
WHITE: You can't seriously be telling me that you have to overlook questions of the justness and the fairness of the whole operation here in going about your specific task, I can't believe you mean that.
HEAVNER: Well, again, that's where my focus is. As to my personal viewpoint or personal opinion, that's a matter for me and my conscience and my relationship with my God.
WHITE: If the prim[e] duty of governments is to protect their citizens, why isn't America justified in undertaking a process of unusual detention without trial, and prolonged interrogation to seek the answers and to defend itself and to defend other countries?
Justice RICHARD GOLDSTONE, Former Chief Prosecutor, UN War Crimes Tribunals: Well I don’t believe that that prolonged interrogation and detention without trial can be justified any more than torture can be justified. I think that in democracies there are certain measures that are simply ruled out, and which aren't very effective incidentally. You know, one hasn't seen any great results coming out of Guantanamo Bay.
WHITE: But Senator Cornyn says: "Richard Goldstone wouldn't know as this is highly classified information." On his visit to Guantanamo, the former lawyer and ally of President Bush was allowed to observe interrogation through a one way mirror.
Senator JOYN CORNYN, Republican, Texas: There is no rubber hose, there is no coercion, there's no threats. It is basically.. it's based on a series of rewards going from a solitary cell, on a cell block…
US Department of Defence Photo
…to a group facility where maybe as many 10 might live with more freedom. To me the best success, and we can't solely attribute it to that, but it's the fact that in America at least, we have not experienced another September 11th in the last two years.
WHITE: But the questions about the Guantanamo system of justice start thousands of miles away, in Afghanistan itself. Many of the men sent to Guantanamo are held initially by the Americans at Bagram Airbase, 35 miles north of Kabul. We were told by men of their severe treatment here. Bagram is the command centre of Operation Enduring Freedom, the war in Afghanistan. American troops are still in Action here. But elsewhere on the base, there's another secretive facility, for holding and interrogating newly captured men.
Colonel RODNEY DAVIS, Coalition Joint Task Force, Afghanistan: We provide relatively, barring any operational constraints or restrictions at specific time, free access to the ICRC, to the International Red Cross, we provide that access.
WHITE: You said you provide relatively free access to the Red Cross….
DAVIS: There are times when… when….
WHITE: What does relatively free access mean?
DAVIS: Well basically it's free access except for when we perhaps may be engaged in something that's operational and we can't afford to have someone interfere with operations. But I mean that's… I mean we're talking a very small portion of the time.
CHRISTOPHE GIROD, International Committee of the Red Cross: We do have access to Bagram Detention Centre. However, only to detainees a few weeks after their arrival, which means that during this few weeks some people might be released and we would never know of them having been held in Bagram, and they would never have seen an ICRC delegate, or they might be transferred to some other unknown places and we would not know of them, and that's the problem, and that's what we're negotiating with the US.
WHITE: This was all that we were shown of the Bagram detention centre. The place the detainees described, a hanger with cages inside, didn't seem like the building we were allowed to film. Detainees told us that Bagram was a much worse place than Guantanamo itself.
ALIF KHAN: I spent 45 days in Bagram. They interrogated 2-3 times every day. The chains were on me all the time. They would put a hood on my face and tape my eyes. Then they would take me for interrogation that will last 2 hours
SAYED ABASSIN: There were all sorts of problems because talking was not allowed. There were interrogations, soldiers were shouting – "No talking". The lights were on 24 hours a day. Big, big bulbs.
KHAN: They weren't letting us sleep, night or day. They were banging the walls with sticks, making lots of noise. The lights they were using meant we could not see.
WHITE: Is it the case that when you're trying to get more information out of people you consider here to be intelligence suspects, Colonel Davis, that you keep bright lights on all the time?
DAVIS: I really couldn't tell you whether or not they keep the lights on all the time, part of the time, whether or not they get 20 glasses of water or 10 glasses of water. Whether or not they walk around for 5 minutes or 10 minutes.
WHITE: Why not?
DAVIS: Once again, for operational security reasons.
KHAN: The Americans would make me kneel like this, with hands like this (above head). We were made to kneel like this for one hour. One of them was standing in front of me, the other was pointing the Kalashnikov.. the gun he had with him. We were made to kneel for 2-3 hours. If we moved our face to the side they would make us stay for a further 2 hours. If we moved just slightly it would increase to 3 hours. We would become unconscious. You see, you see this, my knees was very badly bruised.
WHITE: There have been other reports as well of stress and duress techniques being used on detainees by the Americans at Bagram Airbase.
I've been told by a man who was deemed to be innocent by the Americans, who was deemed to pose no threat after he'd been released by Guantanamo having been through here at Bagram, that when he was here at Bagram he was held for hours on end with his arms raised, shackled. Is that what goes on here?
Colonel RODNEY DAVIS, Coalition Joint Task Force, Afghanistan: I don’t know the specific case you're referencing but I think you would have to agree, America, and for the
most part the other countries involved in this coalition, don’t have a reputation for treating individuals in an inhumane way. It's not part of our culture.
WHITE: How would you describe these sorts of techniques, what would you describe them as?
Justice RICHARD GOLDSTONE, UN War Crimes Tribunals, 1994-96: Well I would describe those techniques as forms of torture.
WHITE: Not as psychological torture or stress and duress? To you that's torture plain and simple.
GOLDSTONE: Well it's a form of torture. Stress and duress of that degree would be a contravention.. I'm using torture in its technical legal sense under the Torture Convention.
WHITE: Two men have died mysteriously within their first few days of being in US custody at Bagram. Their death, certified by an American military pathologist not as natural accidental but as homicide. We went to the village of Deerak, a day's drive from Kabul, to meet the family of one of these men called Dilawar. He was taken to Bagram in December. He only survived a few days. He was 22. He worked as a farmer and also drove a taxi, and he was arrested after a rocket attack on a big American base nearby. Our visit to Dilawar's family house attracted a crowd of sympathetic relations and neighbours.
ASLODIN KHAN: God bless you. We are content that it's Allah's will our son was murdered. He was innocent. He was completely innocent. We pray to Allah, the all seeing Allah, for he was innocent.
WHITE: Dilawar has left a widow and a young child. The family had just one small photograph of him.
And this is Dilawar.
Besides that, they had the detailed death certificate which they'd been given when Dilawar's body was returned to them. They'd never properly understood what this document meant. They hadn't known how Dilawar had died.
It says that Dilawar died by blunt force injuries, in other words that he was hit by something blunt, blunt force injuries. It was homicide. He was killed.
The certificate said Dilawar had a pre-existing heart condition but the family knew nothing of this. He died within his first few days of being brought to Bagram. That meant that the Red Cross never had any access to him during his detention in American custody.
GULSOBIN KHAN: My nephew has gone now. God may accept his martyrdom. They shouldn't harm other Moslems the same way. They should watch out for Al-Qaeda and terrorists. They shouldn't arrest ordinary people. They should not oppress if they have come to help Afghanistan. If they do, then no one will like the Americans.
WHITE: It's a fact, isn't it Colonel Davis, that two men have died in US custody here at Bagram with the cause of death having been determined by an American pathologist as being homicide?
DAVIS: That's true.
WHITE: What comment would you like to make on that?
Colonel RODNEY DAVIS, Coalition Joint Task Force, Afghanistan: That's true, and that probably bears evidence of the very point I'm trying to make. I think we have a history of providing for full disclosure. America and its coalition partners aren't known for holding information. We tend to share the good, the bad and the ugly, and we've fessed up, if you will, to a few mishaps we've had here since we've engaged in the war on terrorism.
WHITE: The US authorities have been conducting a criminal investigation into the deaths at Bagram for over 6 months without any outcome so far.
SHAPOR KHAN: What should we think? My brother is already dead. If they hold hundreds of investigations he will not come back to life for us. What good are their investigations?
WHITE: And some detainees in Guantanamo were neither captured on the battlefield, nor even arrested inside Afghanistan at all. For them the process of Guantanamo justice and the questions that it raises begin even earlier. These men were taken from other countries into US custody with little respect for legal processes. Moazzam Begg is a British detainee prospectively facing trial at Guantanamo by a military commission for suspected terrorism. He was held for over a year at Bagram first. The only contact with his family, letters organised by the Red Cross, some censored by the authorities.
"I'm writing this message late at night which is usually when I can't sleep because of thinking and worrying all the time. It's nearing a complete year since I've been in custody, and I believe there's been a gross violation of my human rights."
AZMAT BEGG, Father: I normally see him when I go to sleep. I talk to him. I touch him, I feel him. But I don’t know really when I'm going to see him particularly when I'm going to see him.
WHITE: Moazzam Begg was living with his family in Islamabad in Pakistan when he was arrested, not in Afghanistan. American power and the process of Guantanamo justice has a long reach. Moazzam Begg's family understand that the men who took him were from the Pakistani Security Services and Americans acting together.
SALLY BEGG, Wife: That night he was playing with the kids and he was very happy and I told him that I was going to go to sleep because I was very tired and I've just found out that I'm pregnant with the fourth child, and the next thing I was woken up with a policewoman and guards with Kalashnikov. They didn't explain nothing. They put me in a room with my kids. They searched the house from top to bottom, took what they wanted, came and asked me a few questions and then walked away. I asked them: "When is he going to come back?" They said: "In two days."
WHITE: But that night, in January 2002 was the last that she saw of her husband. Moazzam Begg managed to make one brief phone call to his father.
AZMAT BEGG: He said that: "Daddy, I'm arrested and I'm being taken to some unknown destination. I was arrested by two Pakistan man [sic] and two Americans. And I'm being taken, and my wife and my children are there in Islamabad."
WHITE: Moazzam Begg had been taken from his house and disappeared. So an attempt was made to secure his basic legal rights. Lawyers in Islamabad brought an action for so-called habeas corpus, so Moazzam Begg would have to appear in court in person. But his lawyers failed. The Pakistani authorities denied all knowledge of Moazzam Begg. Meanwhile, he was taken into US custody in Afghanistan.
ABDUR REHMAN SIDDIQUI, Solicitor, Pakistan: It was totally illegal. It was a blatant violation of law.. a gross violation of law and the constitution. You see, constitution guarantees us the sanctity of house, constitution guarantees us that anybody who is to be arrested or has been arrested.. you see for alleging any offence, he has to be produced before the court within a period of 24 hours.
WHITE: And what happened in Islamabad wasn't unique. We've established that the illegal removal of suspects into American custody in Guantanamo has happened across three continents. We travelled to the Gambia in West Africa. Two men from Britain on a visit here never returned. They were taken to Bagram too, and from there to Guantanamo Bay. The two men taken from the Gambia were Jamil Al-Banna and Bisher Al-Rawi, both UK long-term residents.
Jamil Bisher, his brother and a friend had set off from Britain last year to establish a peanut processing business in the Gambia. They were arrested at the airport in the capital of Banjul.
WAHAB AL RAWI: We were all arrested, including me, which was a total surprise. I never thought it would happen, not in Gambia.
WHITE: It was the Gambians who arrested them, but the four were then interrogated by Americans about suspected links to terrorism. Wahab Al Rawi, formerly an Iraqi, now a British citizen, at first insisted they had no right to question him.
WAHAB AL RAWI: Every time the American tried to interview me in the first couple of days I refused to say anything, I refused to cooperate with him. I wanted to see the High Commission, I wanted a lawyer, and every time he would say: "No". At one time he said: "Well the British authorities know that you are being arrested. It is them who have asked us to arrest you."
WHITE: Their interrogation by the Americans continued. No one had any access to a lawyer. For Wahab Al Rawi it lasted 27 days. The four men were taken to a succession of secret locations in the Gambia. Wahab Al Rawi says the questioning included implied threats.
WAHAB AL RAWI: They would suggest that if they weren't there to protect us, that we would have been beaten for example, or sexually assaulted for example. It was a suggestion. It wasn't meant as a direct threat but it is.. sounded like a threat.
WHITE: Wahab Al Rawi was released and allowed to leave the Gambia, but two men were kept behind in American custody, and once again I found there'd been an attempt to bring habeas corpus proceedings so as to get the two men produced in court and released. And again, the best efforts of a noted local lawyer, this man, Borry Touray, failed because his clients were flown out of the country by the Americans to Bagram instead.
BORRY TOURAY, Solicitor, Gambia: What happened really amounted to kidnapping because.. I say this because the only justification, the only circumstances under which the Americans would have taken these people out of the country was by a legal process, and under our law, under international law, they could not have done that. And the fact that they decided to do it extrajudicially… or extrajudiciously, it means that what they did amounted to kidnapping.
WHITE: The same thing has happened in Europe. The United States has taken men to Guantanamo, ignoring local legal processes. After the war in former Yugoslavia the US led the way in building a democratic Bosnia Herzegovina as part of the Dayton Peace Accord [A] special new court, the Human Rights Chamber was founded with national and international judges. And yet last year, the United States ignored the court that it helped to create to the alarm of its senior judge.
Judge MICHEL PICARD, President, Human Rights Chamber, Bosnia-Herzegovina: It's clear that the world is not safe anymore because of the behaviour of the United States. When the United States feel that they do not have to comply with laws in any country of the world, because of the fight against terrorism, it shows that everything can happen everywhere.
WHITE: In Sarajevo in January last year the Americans ignored protesters and the court. Six men who'd been accused of plotting to blow up the American and British embassies were to be released from jail for lack of evidence. There had been a rumour they might instead be handed to the Americans and taken out of the country. The Bosnian Human Rights Chamber issued an injunction forbidding this. It was ignored. The men were driven straight into American custody and then flown to Guantanamo.
PICARD: The American Embassy in Sarajevo was well aware that the Human Rights Chamber issued a decision prohibiting Bosnia Herzegovina to expel the applicant by force. So I believe that the American Embassy, when they accepted to take into custody the applicant, were aware that they could not do that, and they were aware that they could not take them to Guantanamo because it was contrary to the order of the Human Rights Chamber.
WHITE: On Guantanamo itself, they fly the flag, but Guantanamo justice has been shown to be beyond the reach even of America's courts. Last year lawyers in Washington brought a test case on behalf of a group of detainees. But the US government argued that as Guantanamo was held on a lease from the Cubans, it wasn't sovereign US territory, so American courts had no jurisdiction there. The government won the case. It was an American lawyer's turn to be astonished.
TOM WILNER, Detainees' Lawyer, Washington: The fact is that these people are held by American troops in an area that's totally under US control, that the United States itself has said for all practical purposes is American territory. To say that the United States could avoid jurisdiction in those circumstances is really like Alice in Wonderland. It just makes no sense.
WHITE: Guantanamo, to its critics, is a legal black hole and some men detained and interrogated indefinitely in the camp with no family visits have apparently been unable to withstand the strain. The American authorities say there have been 32 suicide attempts on Guantanamo.
You saw detainees try to hurt themselves, you saw this?
ALIF KHAN: Oh yes, two men next to me went crazy. They were trying to kill themselves. All their stuff was taken from the cell except for their underclothes and a shirt so they couldn't try to strangle themselves again. There were also others who went mad.
WHITE: Why are so many men here apparently under stress?
Colonel ADOLPH MCQUEEN, Commander, Camp Delta: I am not aware that so many men here are under stress. Again, we provide a 24 hour medical coverage for all the detainees here and any physical or mental problems are all being addressed by professional medical staff here at the camp.
CHRISTOPHE GIROD, International Committee of the Red Cross: Imagine now you're behind bars, not knowing what your fate is, for how long you're there, not knowing even if you are going to be given due legal process. You can't start counting the days and nothing… the like. So therefore it put the detainees under huge stress and huge psychological pressure. And we've been witnessing [in] Guantanamo a deterioration as a result of the psychological health of the inmates because they have no idea about their fate.
WHITE: Among the detainees on Guantanamo are three children, one of them 13 years old. They are kept here in a separate camp called Camp Iguana. Their detention has been especially controversial. They've been recommended for release. But some of the adult detainees face a military trial, a final chapter in the process of Guantanamo justice is being prepared for them, not ordinary courts but specially constituted military commissions. Two British detainees are among the first six to be designated for this process. Mr Begg learned the news from a message left overnight no his answer phone.
[Voice on Answer Phone]
Hello, Mr Begg, it's the Foreign Office. I just have some news about the Americans having designated some people for the military commission and your son is one of them. I'll speak to you later. I'll try calling you later.
WHITE: Mr Begg was besieged and questions were immediately asked about the justice of the proposed Guantanamo military commissions. The British Government has said that negotiations with the Americans, which are still continuing, have already achieved substantial improvements in the rules for these trials.
AZMAT BEGG, Father: I was told by the Foreign Office that: "Don’t worry, your son will not be executed." I said: "Why?" and they said: "We have got feeling". I said: "What feeling you're talking about?" He said: "I've got a strong feeling." I said: "Could you please write it down your feelings and let me know." They said: "No, no, no, we can't do that."
17th July 2003
WHITE: The US Government has told Tony Blair that there will be no death penalty for the two UK detainees, but the rules still say there will be no right of appeal to any other court in America or internationally. The military commissions have been created by a presidential order. The ultimate appeal in the Guantanamo process is to the President.
PRESIDENT BUSH: The only thing I know for certain is that these are bad people and we look forward to working closely with the Blair government to deal with the issue.
Justice RICHARD GOLDSTONE, Former chief Prosecutor, UN War Crimes Tribunals: The officers who will preside over those courts are all military officers, subject to the command of their commander in chief, President Bush, and their commander in chief has already stated publicly that the people being held on Guantanamo are bad people.
WHITE: Does that matter?
GOLDSTONE: It matters a great deal. You know.. if I was one of those accused people I don’t believe that I would think that I was being tried by an independent impartial court.
WHITE: In Washington we went to see one of the military lawyers from the Office of Military Commissions in the Pentagon which will run the Guantanamo trials.
The President has said at a press conference side by side with Tony Blair, the British Prime Minister, that what he knows for certain about the people detained at Guantanamo is that they're bad people. Do you, as a lawyer, share his view?
Major JOHN SMITH, Office of Military Commissions: Well these were individuals who were detained fighting against the United States, so in that sense he would consider them. However, when the President decides that someone is eligible for trial by Commission, he's not saying anything about their guilt. What he's saying is, this person is a member of Al-Qaeda. They've somehow been involved with terrorism or harboured someone and that it would be appropriate for a Military Commission to hear a case against them.
WHITE: Moazzam Begg has been detained for over a year and a half.
SALLY BEGG, Wife: In one of the letters he says: "I have to make a decision that's going to affect all our lives." My husband is desperate to come home. I think he's desperate to see his son that he's never set eyes on. He will say anything to get out of the situation that he's in.
AZMAT BEGG, Father: What is happening to the human rights in this world. Is there nobody can hear the truth? Nobody wants to know what Moazzam Begg is in, for what reason?
WHITE: You hear Moazzam your son calling out to you.
AZMAT BEGG: Yes, I do. I do.
WHITE: And you can't reply to him.
AZMAT BEGG: I cannot do anything. I cannot do anything (sobs).
WHITE: The lawyers responsible for the military commissions say that the concerns about them are misplaced, and that the trials on Guantanamo, when they happen, will be seen to be fair.
MAJ SMITH: When you do see a commission happen, when you see things that you see in everyday civilian criminal court, the presumption of innocence, the burden of proof beyond a reasonable doubt, an open trial for the media to cover, when you start seeing all those things, the accused represented by a defence counsel, I think people will see these as a full and fair process and I think at the end of the day they will be legitimately recognised and people will say an accused did get his day in court.
AZMAT BEGG: They want to convict him. They have decided they will convict him, otherwise the entire real issue of the drama which has taken place for the last one and a half year will go down the drain, and Mr Blair, and Mr Bush, will not let it happen.
WHITE: The critics of the Guantanamo process charge America with creating injustice in the name of the fight against terrorism.
Justice RICHARD GOLDSTONE, UN War Crimes Tribunals, 1994-96: Certainly the democratic world regards it now as a great injustice and I've no doubt that history will judge it to be that. I do indeed believe that a future American president will have to apologise for Guantanamo Bay.
Senator JOHN CORNYN, Republican, Texas: Well I don’t think a president of the United States needs to apologise for protecting the security of the American people, and particularly innocent civilians who did not start this conflict but were the victim of a terrorist attack, and I think the highest duty of a president is to protect the American people.
WHITE: How should a democracy defend itself against terrorists with no respect for law? The risk is that inside Guantanamo America may have built a system to defend democracy by unlawful means.
Next week we investigate the impact the Pope's conservative teachings on sex have on ordinary people worldwide. If you'd like to comment on tonight's programme please visit our website at bbc.co.uk/panorama.
KEY YIP LAM
Assistant Producer and Camera
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