Guantanamo and the betrayal of American values

San Francisco Chronicle
By Almerindo Ojeda
June 17, 2008

Guantanamo, the prison, may close soon. But Guantanamo, the experience of lawlessness, will remain with us for a long time. If we as a nation are to recover from it - and achieve reconciliation with the rest of the world - we will have to take stock of the many facets of this experience.

First, there is the issue of human trafficking. One of the little-known facts about Guantanamo is that the majority of those imprisoned there were not seized by American forces; they were snatched instead by our supposed allies - mostly Afghans and Pakistanis - who were operating in areas where we issued substantial bounties for the capture of members of Taliban and al Qaeda.

Then, there is the issue of abduction and forced disappearance. Some of the individuals incarcerated in Guantanamo were seized on or near the battlefields of Afghanistan - even if mostly fleeing from them. But many were seized far away from any battlefield. Some were seized in the streets of Pakistan. Others were taken from their homes, late at night, and in front of their families. Some were abducted a continent away in Gambia, or in a Bosnian courthouse, after leaving a trial that had exonerated them of terrorism charges.

Once kidnapped, the abductees were taken to black sites - secret prisons into which they effectively disappear. Guantanamo itself was a black site until 2006, when the Department of Defense was forced to release the names of the prisoners there.

There is also the issue of child abuse. According to documents released by the Department of Defense, the three youngest prisoners in Guantanamo were three Afghan boys, Naqib Ullah, Assad Ullah and Abdul Qudus. According to U.S. medical and flight records, Abdul Qudus was no more than 14 years old when he entered Guantanamo; the others were no older than 15.

Let's not forget torture.

Last month, the Inspector General of the Justice Department released a report detailing the instances of abuse witnessed by FBI personnel at Guantanamo. According to this report, FBI officers personally observed deprivations of food, water, clothing, light and sensory input; prolonged shackling in painful positions, use of extreme temperatures and loud music, use of military dogs on or near prisoners; threats of injury to prisoners or their families, and even a materialization of such threats through extraordinary rendition (overseas transfer for the purpose of interrogation under torture). Things got to the point that FBI officers began to compile a "war crimes file" with their observations.

And forms of religious abuse, both coarse and refined, have been reported as well.

A military interpreter has reported that a female interrogator smeared a detainee with fake menstrual blood in order to render him unclean for prayer, thus preventing him from seeking strength and solace from his religion. And both Department of Defense investigations and FBI officers have reported offensive treatment of the Koran.

None of these practices are licensed by law, be it military, civilian, national, international, human or divine. In fact, the very point of Guantanamo was to create a prison law could not reach - a prison, that is, where law could be breached. It was somewhat ironic that Guantanamo was the place where trials by military commission were scheduled to take place this year.

The predecessors to the trials by military commission were the Combatant Status Review Tribunals. Forced on the Department of Defense by the Supreme Court, these were tribunals in which the prosecution gets to write the rules, appoint the judge, appoint the defense, place both under its military command, and remove either at its pleasure. A similar process has been taking place in the military commissions. The goal of these tribunals is to determine whether a prisoner was properly classified as an enemy combatant. But enemy combatancy is such a recent crime that it was not recognized as such until after it was committed - a case of retroactive application of the law. The evidence presented by the prosecution can be hearsay. It can be coerced. It can be secret. Even from the judge. The prisoner does not have the right of self-defense and may only call witnesses that the judge considers reasonably available. Only fellow prisoners have been considered as such - and then not all of them. The staff for the defense gets appointed by the prosecution. The defense can only appeal decisions on procedural grounds - when, for example, the prosecution failed to follow the rules it imposed on itself. The prosecution, on the other hand, may appeal the verdict, and may even order a new trial. With a different judge.

Finally, prisoners found to be improperly classified as enemy combatants may still be held captive until the end of the war on terrorism. And many have.

Let us hope that the recent Supreme Court decision, news of which comes to us at the moment of writing, will help restore us to ourselves and reconcile us with the rest of the world.

Almerindo Ojeda is professor of linguistics at UC Davis and principal investigator of the online Guantanamo Testimonials Project (http://humanrights.ucdavis.edu), which holds the materials cited in this column.