Maybe none of them are terrorists
Even the US military's own lawyers realise Guantánamo
is an own goal
guardian.co.uk
Isabel Hilton
Wednesday March 31, 2004
The Guardian
Consider this theoretical possibility: if no weapons of mass
destruction have been found in Iraq, is it also possible that there
are no al-Qaida terrorists in Guantánamo? It seems far fetched,
put so bluntly. If only by chance, it would seem likely that some
of the detainees might be terrorists.
The US secretary of
defence, Donald Rumsfeld, argues that the inhumane
incarceration, the secrecy and the abuse of any principles of
justice are all justified by the fact that these prisoners are the
hardest of hard cases. But given what we know of those who
have been released, the refusal of the US to open the evidence
to challenge, and the secrecy that surrounds the prison and all
who languish there, the proposition is worth considering. And
since none of us have been allowed to know much, it is worth
listening to those who know a little more.
Lt Commander Charles Smith of the US navy is one of the five
serving officers assigned to the defence of Guantánamo
prisoners who attended a meeting in Oxford last weekend to
discuss the realities rather than the myths of Guantánamo.
Smith has visited Guantánamo Bay several times and has come
closer than most non-inmates to what happens there.
When the military defenders were first assigned, they seemed
like another implausible piece of the rigged and unfair process.
The defenders, after all, are subject to military discipline and
signed up to the military worldview. Their ultimate boss is the
same Donald Rumsfeld who has already announced that even
should a prisoner be found not guilty, he would not necessarily
release him.
The military defenders may never get their day in court with their
clients, but they have already done invaluable service by
denouncing Rumsfeld's system as impossibly unfair and
challenging it in the US supreme court. But their concerns go
deeper.
Smith, a military defence attorney for more than seven years,
went to Guantánamo expecting his client to be a hardened
terrorist. Instead, he met a Yemeni migrant who had got a job
driving agricultural workers on Osama bin Laden's farm near
Kandahar and had ended up as one of several drivers who
chauffered the man himself. Appalled by September 11 and by
Bin Laden's reaction to it, he left his job as soon as he safely
could, then, as war was imminent, took his wife to safety in
Pakistan. He had returned to Afghanistan to try to sell his car
and pack up when he was detained and handed over to US
forces.
It makes sense to Smith that his client should have been
detained as a potentially valuable intelligence source and a
useful witness. But, he says: "Would you charge Al Capone's
chauffeur with Al Capone's crimes? I had to ask myself, after I'd
met him, is this really the best they've got? Are there no real
terrorists in Guantánamo Bay?"
Out of more than 600 people, only six have been designated for
trial. Nearly 100 detainees have been released with no more
explanation than had been given for their detention. One Afghan
detainee was handed $100 by a US military officer as he arrived
at Kabul airport, as though he were a taxi driver being tipped for
carrying his bags.
The Tipton Three have given accounts of dreadful ill-treatment
during their incarceration. Despite months of often violent
interrogation - carried out, they say, with the participation of
British officials - they too were accused of nothing. Now among
those who have been deemed appropriate for trial - the inner
circle of the hard core of the hardest of the hard - we find men
like Smith's client, men who look strangely like innocent
bystanders. It is, as Smith puts it, profoundly troubling.
Why should we care about this? We are, after all, confronted
with a genuine threat from terrorism, and perhaps the
Guantánamo detainees are not such a high price to pay for
security. That, at least, appears to be the view of the US
administration. But Guantánamo is not only a manifest affront to
justice; it is the thin end of the wedge. In addition to those held
at Guantánamo there are 13,000 prisoners in Iraq, detained
without trial, and an estimated 6,000 in Afghanistan of whose
fate almost nothing is known. "Evidence" obtained in secret
interrogations - that we now know are so abusive that they
amount to torture - is beginning to appear in other cases in other
countries. If Guantánamo is allowed to stand, it could undermine
justice across the world - without enhancing our security one
iota.
If the fiasco of the phantom weapons of mass destruction has
taught us anything, it is that those who hide behind intelligence
may have bad motives, bad intelligence - or both. Good
intelligence is a vital instrument against terrorists and too
important to be misused. Judicial safeguards are not only
civilised and ethical instruments, they are also a means of
ensuring, as far as possible, that the court arrives at the truth.
Without those safeguards, the wrong people get locked up -
and, equally to the point - the wrong people stay free.
It is the duty of the legal defence to challenge the prosecution's
facts and the interpretation of the facts. If the facts do not
withstand the challenge, the accused goes free and, in a perfect
world, the police redouble their efforts to catch the real
perpetrator. But imagine if there is no defence - or if the defence
is deliberately crippled. Translate that to terrorism and it is clear
that Guantánamo is a huge obstacle to anyone who is serious
about defeating terrorism.
It may not be pretty, the US administration argues, but this is
war: the interrogation may lack the usual safeguards, but it has
provided a rich harvest of invaluable information. Perhaps. But
that is not the view of several experienced FBI officers who have
taken part in interrogations and who, concluding swiftly that
Guantánamo was a waste of time, left to pursue the fight against
terrorists in the real world.
After two years of appalling conditions, uncertainty and manifest
injustice, any prisoner - especially an innocent one - will
despair. In those conditions, he may talk, but, as any
psychiatrist will testify, the information is unreliable. What an
interrogator may perceive as a breakthrough may simply be a
prisoner in despair of the truth, offering false confession, false
accusation, invented testimony.
"Why should an American care about a Yemeni?" asked
Charles Smith. "Because the only way you can know you have
the right man is with a fair, independent hearing. If my client
seeks his rights, he may be denied a hearing at all: the
president can detain him indefinitely."
And why is he so determined to fight Guantánamo? "I agree with
the president," he said. "Al-Qaida can't alter America. Only we
can alter America. I have met the enemy, and he is us."
isabel.hilton@guardian.co.uk |
