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Report from Guantánamo

Harper's Magazine
by Ken Silverstein
June 29, 2006

The Supreme Court ruled today that “President Bush overstepped his authority in ordering military war crimes trials for Guantánamo Bay detainees,” said an AP story summarizing the decision. “The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and Geneva Conventions.” There will be plenty of commentary in tomorrow's newspapers about the implications of the decision, but I thought this would be a good time to interview Marc Falkoff, a law professor at Northern Illinois University College of Law who represents 17 Guantánamo detainees, all Yemeni, about the current situation at the prison and about some of his cases.

I started by asking Falkoff about the recent suicides of three detainees at Guantánamo and the Pentagon's assertions that the men killed themselves as an act of “asymmetrical warfare.” He said that he had no direct knowledge of the three men who killed themselves and that some of his clients, by relying on their religious faith, are holding up well. However, other clients are absolutely despondent because they have been detained for years and see no prospect of being released. “It's possible that the detainees killed themselves in part as a way of making a political statement, and they might have done it as a combination of that and depression,” he said. “But to describe the suicides as 'asymmetrical warfare' is truly Orwellian.”

Falkoff described the case of Jamal Mar'i, who, like vast numbers of detainees, was nowhere near the battlefield when he was originally captured. In Mar'i's case, he was sleeping in bed in Karachi, Pakistan when he was picked up by local security forces in the fall of 2001; the United States has accused him of working for charitable groups in Pakistan that have ties to Al Qaeda.

Falkoff said that Mar'i—who has a four-year-old daughter he has never seen—has no ties to terrorism, and that even if the charitable groups he worked for received dirty money, Mari had no knowledge of that fact. “When I first met Jamal, he said all he needed was to have his case heard and everyone would see that he was innocent,” Falkoff said. “Now he won't even meet with us [his attorneys]. He said that we initially brought him hope but that we're now like a mirage in the desert and he can no longer live with hope.”

Some of his clients, said Falkoff, “are beaten up and beaten down.” Falkoff met one of those he was referring to last April. “One of his eyes was swollen shut and the other was a sickening black and blue. He had contusions on his body and bumps on his head. We brought him food and he couldn't swallow it.” Falkoff said the client, whose name he asked me not to print, told him that the military had established a new rule that prohibited prisoners from crossing over a line painted down the middle of their cells when guards came to speak with them or to deliver food.

“A guard came one day with food and was speaking English to him. He doesn't speak English and without thinking crossed over the line to get the food. The next thing he knows there is an Emergency Reaction Team putting on full riot gear and chanting like a football team about to face its arch rival. He didn't even realize that he was the one they were coming for until they stopped in front of his cell. They sprayed him with pepper spray and beat the crap out of him.”

Falkoff said that during the April visit, this prisoner was considering suicide. “He was wondering—if you're not acting rationally, would God punish you for committing suicide? It was alarming because he had clearly not yet attempted to kill himself since he was worried about going to hell. And he was trying to convince himself that God wouldn't punish him if he did, because he was in exceptional circumstances.”

Falkoff said that some of the detainees at Guantánamo might be Al Qaeda lieutenants or leaders, but it's hard to know anything given the way the United States is handling the evidence. One of his clients is Hassan bin Attash, who was 17 when he was picked up in Pakistan and sent to a U.S.-run prison in Afghanistan. Bin Attash has said that he was sent to Jordan for four months in 2002, where, he has said, he was tortured by the local intelligence agency, who beat the soles of his feet and then placed them in salt water. He was later returned to American custody and then sent to Guantánamo.

“I couldn't tell you whether he was guilty or innocent,” Falkoff said. “I have no clue because we haven't been able to talk to him about anything other than the abuse he suffered, and the judge in his case refused to require the government to justify his detention. I don't know what evidence the government claims to have against him or even the charges.”

Falkoff said that in the case of a number of his clients, “the accusations and evidence are beyond absurd. It's based on triple hearsay, which we have rightly rejected in our courts.” He said one of his clients went to Afghanistan before September 11th to teach children the Koran. He was picked up after the U.S. invasion and now stands accused of being an Al Qaeda and Taliban supporter, as well as a personal bodyguard for Osama bin Laden.

Falkoff said that the client admits that he was staying in a Taliban household and teaching Taliban kids, but that this was before the 9/11 attacks and the Taliban ruled the country at the time. He said that the spectacular charges against him came from another prisoner at Guantánamo.

“It's like the Salem witch trials,” Falkoff said. “They break down one guy who identifies others as being members of Al Qaeda, and then they go to those people and try to break them down and they end up with a web of nonsense. The whole system is based on getting people to crack; it's a classic tyrannical system.”

Falkoff is also critical of the media's performance in covering Guantánamo. “The military offers these Potemkin Village tours, and the press, to a remarkable degree, swallows it. They repeat the lie about how most of these people were caught on the battlefield. They say it's the most transparent prison in history, which is laughable.”

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