Obama's Guantánamo

Stories from an Enduring Prison

Jonathan Hafetz

• Publisher: NYU Press
• Year: 2016
• ISBN:
  9781479872404
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

The U.S. detention center at Guantánamo Bay has become the symbol of an unprecedented detention system of global reach and immense power. Since the 9/11 attacks, the news has on an almost daily basis headlined stories of prisoners held indefinitely at Guantánamo without charge or trial, many of whom have been interrogated in violation of restrictions on torture and other abuse. These individuals, once labeled “enemy combatants” to eliminate legal restrictions on their treatment, have in numerous instances been subject to lawless renditions between prisons around the world. The lines between law enforcement and military action; crime and war; and the executive, legislative, and judicial branches of power have become dangerously blurred, and it is time to unpack the evolution and trajectory of these detentions to devise policies that restore the rule of law and due process. Obama’s Guantánamo: Stories from an Enduring Prison describes President Obama’s failure to close America’s enduring offshore detention center, as he had promised to do within his first year in office, and the costs of that failure for those imprisoned there. Like its predecessor, Guantánamo Lawyers: Inside a Prison Outside the Law, Obama’s Guantánamo consists of accounts from lawyers who have not only represented detainees, but also served as their main connection to the outside world. Their stories provide us with an accessible explanation of the forces at work in the detentions and place detainees’ stories in the larger context of America’s submission to fearmongering. These stories demonstrate all that is wrong with the prison and the importance of maintaining a commitment to human rights even in times of insecurity.

1

Twelve Years After

Sabin Willett

The Flat Tire

One spring morning in 2009, my partner Susan Baker Manning and I walked out of the offices of the Department of Homeland Security in Washington, D.C., grinning ear to ear. We’d cut the deal. Two Uyghur clients would be freed from Guantánamo and brought to northern Virginia—perhaps within days. More than seven years had passed since the first interrogator told these men that they were innocent and would soon be freed. We’d been hard at their legal cases for more than four years. The cases had taken us to Guantánamo and the trial court, to Congress and the D.C. Circuit, to Albania and Sweden. At last, these two men had the end in sight. Ablikim and Salahidin would be freed. We were almost giddy.

It was a cold, sunny morning, and quiet outside the Nebraska Avenue complex. We knew things would not be quiet for long. A press fracas would erupt when our clients arrived in Northern Virginia. We’d have to prepare the men for sound trucks, shouted questions, microphones thrust at them. But over four years we had learned something about the press. If our clients could weather the initial flurry, the press’s attention would pass to other things. And as the excitement faded, perhaps the mythology of the Guantánamo “terrorist” would begin to fade with it.

We crossed the street to where Susan’s Austin Mini Cooper was parked, and found the right rear tire was flat.

The president’s bold pledge to close Guantánamo would soon be as flat as the tire. The deal we’d struck would collapse, and not just for Ablikim and Salahidin, the two Uyghur clients whom a senior officer of the department had just committed to bring to the United States. In a broader way, our deal would take the air out of the whole program for closing Guantánamo—out of Executive Order 13492 (which ordered the prison’s closure two days after Obama’s inauguration), out of the hopes of hundreds of men. Our deal would end up double locking the gates of the iconic prison, rather than opening them.

Of all the inmates, it was the Uyghurs who made Guantánamo the forever prison. Of all the prisoners, it was the indisputably innocent ones—the ones everyone agreed did not belong there—who inspired our country to make Guantánamo a monument and its inmates perpetual exhibits. The law of Guantánamo is the law of unintended consequences.

The Uyghurs

The Uyghurs are a Turkic people. They come from a region of Asia known to them as “East Turkestan,” and to the Chinese as Xinjiang, and practice a less conservative Islam than is common on the Arabian peninsula. Between Han and Uyghur people there has always been tension. In the last century, Uyghurs staged several uprisings against Chinese rule, and twice (in 1933 and 1944) briefly gained their independence. The First East Turkestan Republic, a short-lived attempt at independence, fell in 1934. A second East Turkestan Republic, a Soviet puppet state, existed from 1944 until Mao Tse Tung seized power in 1949.

Enforced limits on religious worship and child rearing are a staple in the region, and in early 1997, mass imprisonment of Uyghur dissidents sparked demonstrations in the city of Ghulja. On February 5, 1997, after two days of protests calling for independence, marchers were crushed by the army. Official reports put the death toll at nine, while dissident reports estimated the number killed at more than 100. According to Uyghur sources, more than 1,000 people were arrested on charges of “splittism,” “conducting fundamental religious activity,” and “counterrevolutionary activities.” Amnesty International documented as many as 190 executions carried out in the years immediately following the Ghulja demonstrations.

Before 9/11, the U.S. represented a beacon of hope to the Uyghurs, a place where religious freedom was secure. The World Uyghur Congress sometimes met here. Two Uyghurs who later would serve as our law firm’s translators, Nury Turkel and Rushan Abbas, had reached the U.S. as students and remained as refugees.

Other Uyghurs were fleeing the country in different directions. In the late 1990s and early 2000s, many young Uyghur men fled across the Chinese border into Pakistan, and then made their way across the border to Afghanistan, whose ruling Taliban regime welcomed any Muslim refugee. Many came across the border to Jalalabad. In the mountains nearby a Uyghur village was established. Here many of our future clients came together to “learn to pray,” as they would describe it. This meant, quite literally, learning Arabic and the required forms of worship in the Qur’an.

They were in this village when the towers fell on 9/11, and there in October 2001, when the U.S. bombing campaign began.

The bombing killed a number of men outright. Others fled to nearby caves. In the morning they awoke to a moonscape. With winter coming on, they began a journey on foot across the mountains to Pakistan, where they arrived sometime in December. By this time the U.S. had flooded the region with pamphlets promising bounties for the capture of terrorists fleeing the Tora Bora mountains. In December 2001, 16 Uyghur prisoners were delivered to the Americans and taken to Bagram Airfield Military Base in Afghanistan.

It was a hard winter. The detention cages at Bagram were cold and filthy, and the interrogations brutal and unsophisticated. There were no Uyghur translators. But some of the group spoke enough Arabic to be understood, and over those first months, interrogators came to understand that these men were not the enemy.

“You are fish flopping in the wrong net,” one interrogator told our future client Adel Abdul-Hakim.

The military did not know what to do with the clients. In classic form, some unknown officer decided to make them someone else’s problem. So in May and June 2002, they were flown to Guantánamo Bay, Cuba.

Guantánamo

The first Uyghur prisoner, seized from a hospital in Northern Afghanistan, arrived at Guantánamo in January 2002. Most of the other Uyghurs came from the village near Jalalabad, and arrived several months later. Twenty-three Uyghur men would ultimately arrive at the base.

During the next decade, Guantánamo would become a fencing ground for lawyers. In the beginning, prisoners had no legal rights and all status review was discretionary. Early habeas corpus challenges, brought by the Center for Constitutional Rights for other prisoners in February, 2002, were quickly dismissed, and the dismissal affirmed by the court of appeals. So for two years there was no interference from the courts. In those early days, every one of the 23 Uyghurs was told—repeatedly—by U.S. interrogators that his detention was a mistake, an error, and that the government was working to remedy it. Because U.S. law prohibits sending a person to a country where it is likely he will be tortured, and because country reports prepared annually by the U.S. State Department made plain that in China separatists faced torture, the men could not be sent home. There is some evidence that, very early in their captivity, the government made half-hearted efforts to settle them elsewhere. But it was a confusing time: the Afghanistan war was underway and the Iraq invasion was about to begin. For any host nation, offering refuge to the Uyghurs meant damaging relations abroad with China, while resettling “Guantánamo terrorists” risked political attack at home. Long before we met them, our clients had been branded with the indelible taint of Guantánamo.

Still, the Uyghurs’ early on-base relationship with U.S. interrogators was good. They volunteered their personal histories, believing that the U.S. would help them find a safe harbor, a refuge from Chinese communism. The interrogators told them that the U.S. was “looking for a country” to resettle them. They merely had to be patient.

But something else was brewing in Washington, an episode in U.S.-China relations of which a small but remarkable chapter would play out at the base.

In the summer of 2002, the Bush administration sought UN Security Council support for a war resolution against Saddam Hussein’s Iraq. In order to procure, at minimum, China’s agreement not to veto a resolution, the U.S. government agreed to various concessions to the Chinese. Many related to Taiwan, but a few touched on Uyghur matters. In September, the U.S. agreed to designate a new group, the “East Turkestan Islamic Front,” on the State Department’s list of foreign terrorist organizations. It also agreed to grant to Chinese interrogators permission to come to Guantánamo and interrogate the Uyghurs. Although our clients were seized long before this designation, and although Congress never authorized war against “ETIM,” in years to come we would often contend with the allegation that our clients’ imprisonment at Guantánamo was justified by their “membership” in ETIM.

Guantánamo is, largely, a classified facility. I first visited in 2005, and was not permitted to meet clients there before undergoing an FBI background check. Finding translators was difficult because they too were required to be U.S. citizens. (The number of U.S. citizens willing to work as translators and fluent in Uyghur is limited.) Yet agents of the Chinese government were welcomed at Guantánamo in the fall of 2002 to interrogate the Uyghurs and given complete access to classified information that our clients had earlier volunteered to interrogators.

In 2003, the UN did not support the Iraq invasion and the Uyghurs were not delivered to China. But the 2002 interrogations had searing consequences for the Uyghur prisoners and for lawyers who would arrive years after. Prior to the arrival of the Chinese, our clients believed America was attempting to resettle them and candidly discussed details concerning their families and backgrounds. When they learned that this information was turned over to the Chinese, they lost faith in Americans, a loss of faith the lawyers would struggle for years to overcome.

By mid-2003, the government had largely lost interest in our clients. They were interrogated less often. They were living in Camp Four, the lowest-security camp. It was a Spartan existence, but peaceful. The men slept in a small dormitory and, within the fenced compound, could go in and out of doors at will. They generally ate outdoors at a shaded picnic table. They practiced their faith together, praying five times daily.

From early 2002 through mid-summer 2004, lower courts had consistently dismissed habeas challenges brought on behalf of detainees and denied lawyers even client visits, reasoning that there was no habeas jurisdiction over the Guantánamo naval base and so there was no reason for lawyers to have access. But late in June 2004, the Supreme Court issued its decision in Rasul v. Bush, which held that Guantánamo detainees enjoy the privilege of habeas corpus. In the fall, the first lawyers began visiting the base, and late that year, or early the following year, Abu Bakker Qasim, a historian of the struggles of the Uyghur people, dictated a letter, which another detainee wrote out in English. The letter, which bears an “unclassified” stamp and a fax legend of “Feb. 8, 2005,” lives in a frame on my office wall today. It requested legal assistance. Abu Bakker, his friend Adel Abdul-Hakim, and others signed it. The letter reached our firm late in February.

I knew little of habeas corpus or military law, and nothing of Uyghurs when I received this letter. Like most Americans, I assumed that Guantánamo Bay was a sort of POW camp where, as our government had put it, the “worst of the worst” were held. So I attended a post-Rasul conference and learned from military lawyers on the panel that the government contended that the base was a place beyond law. The government defended against claims that torture was practiced there by asserting that the courts had no jurisdiction over anything that happened at Guantánamo—a defense I didn’t find wholly reassuring. We decided to get involved.

We had never met the men and could not speak with them by phone, but our firm decided to take on Abu Bakker and Adel’s case. We filed a habeas petition for them in March 2005. It took more than three months to meet them, though. Susan and I, and then other members of our team, had to go through FBI background checks and then wait for the government to grant our request for a meeting. We met the men in mid-July 2005 in interrogation cells at Camp Echo, one of the camps at Guantánamo Bay.

The government had been surprised by the Rasul decision. Rasul meant lawyers would come to the base, and it meant that courts would begin to receive information about who the detainees actually were. So in late summer 2004, the government hastily implemented Combatant Status Review Tribunals (CSRTs), panels staffed entirely by military officers, whose avowed object was to determine whether a given detainee was properly designated as an “enemy combatant.” The strategic purpose of these tribunals was to head off judicial review. The government would argue that courts should defer to the CSRTs, much as courts defer to administrative agencies.

The tribunals were roundly criticized for failing to provide a modicum of due process—and those failings later would be confirmed by the Supreme Court. But in the meantime, the blizzard of legal thrust and parry that would characterize the next years had already begun. Each challenge from lawyers would be met with a new system of “status review”: CSRTs in Guantánamo trailers, administrative review boards, habeas corpus hearings in district courtrooms in Washington, and briefly, Detainee Treatment Act cases in the Court of Appeals.1

No one in the government could say, “Well, it’s a foreign war in a strange land, fought, in the beginning, from the air—not surprising that the military made a few mistakes. Let’s put them right.” With the bar assaulting the whole concept of Guantánamo root and branch, and the Bush administration battling back, no mistake could be admitted. So detainees who had been cleared for release years before were put back through review tribunals—and many, having previously been cleared, were now designated as “enemy combatants” in order to stave off judicial review.

What happened to the Uyghur detainees in this regard was passing strange. Some panels determined that Uyghur detainees were not “enemy combatants.” The Pentagon’s response? Put them through a second panel. In some cases the “mulligan” cleared the prisoner again, and in some cases the panel got the message and discovered that the prisoner was in fact an enemy. Detainees who emerged from the Kafkaesque gauntlet were labeled persons “no longer” enemy combatants—because mistakes were never made.

One can imagine how the men felt about this. All of them had been told, years before, they were innocent and the government was “trying to find a country for them.” Now they would be put through tribunals? And if the tribunals cleared them, put through a second round of tribunals?

“Siz Gunasiz!”

On Bastille Day 2005, I walked into that first hut with high anxiety. I had never met the men, never seen any military file about them. I had no idea whom I would meet. We had not even been able to secure a Uyghur translator, and spent much of our first meeting in an elaborate game of charades, attempting to work through our Arabic-language translator.

But I learned from Abu Bakker that he and Adel had just emerged from this strange time warp. Years after being reassured that they would be resettled, they were sent back for “status review.” Abu Bakker told us about his own CSRT review. They had given him a paper, he said. The paper read, “Siz gunasiz.” We were struggling with translation that first day, and so we went through this part again, slowly. He’d been through the CSRT—in the trailer, with the three military officers? Yes—and then another one. (Another one? Did he mean a second day? No, he meant another one, a second tribunal. Susan and I looked at each other, not quite comprehending.) At the end they gave him a piece of paper? Yes—he had it in his cell. And it said what?

“Siz Gunasiz!” (“You’re Innocent!”)

(Confronted with the bureaucratic doublespeak of the form—“the detainee is no longer designated as an enemy combatant”—our clients had asked an MP what the English meant. It means you’re innocent, he said.)

The same, we learned, had happened to Adel.

On our return from Guantánamo, we filed emergency motions in federal court, and District Judge James Robertson summoned the parties to a hearing. All through that fall he demanded to know what the government was doing about our clients’ situation. But just before Christmas, he issued his ruling, dismissing the case because, he concluded, the court could not order the release of the men in the U.S. and it could not order release anywhere else. As Virgil says, there is a heartbreak at the heart of things.

We filed an expedited appeal. In May 2006, on the eve of argument, the government mooted the appeal by sending Abu Bakker, Adel, and three other Uyghurs, all of whom had been cleared by a CSRT, to Tirana, Albania. Four of them live there still. In 2007, Adel was able to claim asylum in Sweden, where his sister was granted refuge some years before. He has since remarried and has a child. Abu Bakker remains in Tirana.

Habeas Corpus: Book Report or Remedy?

In those first meetings with the clients, we had learned something interesting—many companions of Abu Bakker and Adel, having been cleared by one CSRT, had been put through a second, which declared them to be enemy combatants. So we filed petitions for them as well. But the government resisted, arguing that we did not have the correct permission from the clients to do so. Almost a year of wrangling ensued before we could me...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Introduction
• 1. Twelve Years After
• 2. The Wrong Person: How Barack Obama Abandoned Habeas Corpus
• 3. President Obama’s Failure to Transfer Detainees from Guantánamo
• 4. The Boumediene Case after the Supreme Court
• 5. “Too Dangerous to Release”: Debunking the Claim
• 6. Mental Illness before Guantánamo
• 7. You Love the Law Too Much
• 8. First, Do No Harm
• 9. Nourishing Resistance: Tariq Ba Odah’s Eight-Year Hunger Strike at Guantánamo Bay
• 10. The “Taliban Five” and the Prisoner Exchange
• 11. Hamdan: The Legal Challenge to Military Commissions
• 12. A Tale of Two Detainees
• 13. More Kafka than Kafka
• 14. Storytelling #Guantanamo
• About the Contributors
• Index