Guantanamo's future

A move to hold the trial of the Guantanamo detainees in the camp itself will lead logically to its closure as a detention centre.

An institution like Guantnamo, in its present form, cannot and must not exist in the long term. We must find different ways of dealing with prisoners.

German Chancellor Angela Merkel in a January 9, 2006, interview to Der Spiegel

The general perception, especially in the Muslim world, is that Guantanamo is not a mere detention centre, as the United States government would have one believe, but actually a torture camp where hundreds are held on flimsy suspicions of terrorist links. Also, there is little accountability on the part of those who hold them at the camp. The unfortunate impression that the centre is used for systematic abuse of human rights of many innocent Muslims will be difficult to erase for a long time.

During his 2008 electoral campaign, candidate Barack Obama took an unequivocal stand that he would abolish the centre if he was voted to office. Actually, immediately after assuming the presidency, he issued an executive order that contemplated the centre's closure in January 2010. Nothing of that kind has taken place, and none in the government can predict when or whether this will happen.

Ironically, for several reasons, including the continuing terrorist threat to the country, President Obama seems unclear about Guantanamo's future. This is despite his approval, in December, of the alternative Thomson Camp in Illinois, to which Guantanamo prisoners are expected to be moved. The Guantanamo centre is still very much in existence, albeit on a lower key. Currently, there are fewer than 100 prisoners there awaiting their fate.

There is a public debate whether the centre should continue, and if so, in what form. National opinion is strongly divided, somewhat on party lines. This is so especially after the attempted bombings in the country, in December last year of a passenger aircraft in Detroit and in May at Times Square in New York. It is said that when President Obama entered office, a slender majority supported a Guantanamo closure. Opinion now seems to be in favour of its continuance.

History

Guantanamo has an interesting history. Situated on the south-eastern end of Cuba and providing the largest harbour in the area, it came under U.S. control in 1903, on perpetual lease, on the basis of a treaty the U.S. signed with Cuba. The treaty, however, conferred only a de facto right of possession on the U.S., while de jure sovereignty remained with Cuba. But the post-revolution Cuban regime of Fidel Castro disputed the legality of the transfer, saying that the whole transaction was vitiated by the duress that Cuba was subjected to when the treaty was signed by its President Tomas Estrada Palma. It is relevant, however, that the treaty recognised the U.S. right only to set up a naval base on the island. Establishing a prison camp there was possibly a violation that weakened U.S. moral authority to hold on to the island.

The focus now has shifted from the U.S. presence in Guantanamo to what is happening within the camp. The first transfer of prisoners from the mainland to Guantanamo came in January 2002 after a Justice Department ruling that the camp was outside the country's legal jurisdiction. It, therefore, gave a lot of flexibility to the handling of prisoners. This was followed by the government taking the position that detainees in the camp were not entitled to protection under the Geneva Convention. There was a slight setback to the George W. Bush administration when in June 2006 the U.S. Supreme Court ruled (in Hamdan vs Rumsfeld) that the prisoners had the safeguards contemplated by the Common Article 3 of the Geneva Convention.

In reaction, Congress passed the Military Commissions Act, 2006, which defined lawful and unlawful enemy combatants and also mandated that Guantanamo detainees were not entitled to access the U.S civilian justice system. Significantly, in June 2008, the detainees were declared enemy combatants, a classification that denied them the status of a prisoner of war, who enjoys protection under the Geneva Convention. As a corollary, the term enemy combatant came to be applied specifically to Al Qaeda members and supporters.

All the legal semantics possibly amount to mindless hair-splitting if one considers the number of charges of torture levelled against the camp authorities. In spite of all the transparency displayed by the Bush administration in its last years, many of those who spent time in Guantanamo and were subsequently released for want of evidence squarely complained of downright abuse and physical violence. (According to one report, about 780 persons have been held in Guantanamo so far. Of them, the majority have been either released or cleared. Only 30 of those who are still in captivity are likely to be prosecuted.)

The Guantanamo victims complain about brutal physical assault, sexual degradation, forced drugging and religious persecution at the camp. Confessions under duress and solitary confinement are the other commonly levelled allegations. The list, of course, includes the infamous and barbaric water boarding of those subjected to interrogation by the Central Intelligence Agency, an uncivilised practice that was sought to be justified by the Bush government, which initially took the position that this was not within the strict definition of torture.

Also relevant to a study of Guantanamo conditions is the fact that the camp reported a number of suicides or attempts to commit suicide. While 41 attempts by 25 detainees were admitted by the authorities, there were also three unnatural deaths at the camp, most probably successful suicides. The latter were described by Rear Admiral Harry B. Harris, who headed the camp in 2006, as an act of asymmetric warfare conducted against us.

Confusion

Apart from indecision about the future of Guantanamo, recent reports suggest that there is confusion within the Obama administration on how to proceed against those who have been charged with criminal acts for which there is definite evidence. The debate is whether they should be tried by military commissions or regular civil courts. If it is the latter, the question is where: Could the trial be held in an ambience of openness and under an unassailable cover of security, especially for the jury whose anonymity is to be protected at any cost.

A full-blown controversy has been generated by the administration's reported rethinking of the last November decision to try a principal 9/11 conspirator, Khalid Sheikh Mohammed, in a civilian court in New York city. The original decision to transfer his files from a military commission was influenced by two court rulings, which were nearly categorical that terror detainees were entitled to a lawyer and a trial. The fact that these were not important entitlements in a military commission hearing had possibly persuaded the Obama administration to opt for a civilian court.

Louis Freeh, former Director of the Federal Bureau of Investigation, and Judge Eugene Sullivan wrote a well-argued Op-ed column recently in The Washington Post making the case for a federal trial in a court that could hold the hearings in Guantanamo itself. According to them, Congress has the authority to expand the geographical jurisdiction of any federal court. In this case, it would be the Federal District Court of Southern New York that could bring Guantanamo Bay under its jurisdiction.

Incidentally, this was the New York court that was originally designated for the main 9/11 hearing. This novel suggestion that has been widely welcomed by many knowledgeable jurists takes into account at least three factors. First, it satisfies the country's commitment to the rule of law, a reputation that suffered greatly after the U.S. response to 9/11 and its aftermath. Secondly, such a civilian trial will deny the perpetrators of terrorism any special status that they would claim if they were arraigned before a military commission.

Finally, a move to hold the trial in Guantanamo would not only not deny security to New Yorkers but also save a huge amount of public money. Freeh and Sullivan cite the precedence of military base islands such as Midway Atoll, Wake Island, Johnston Island and Kingman Reef, which had been brought under the jurisdiction of specified courts in the U.S. They also draw attention to the poor record of convictions ordered in the past by military commissions as against the outcomes in a civilian trial.

Interestingly, former Attorney General Michael Mukasey disagrees with Freeh and Sullivan on the grounds that jury anonymity would be a problem in Guantanamo and the modest convictions against terrorists ordered by military commissions in the past were just an aberration rather than a regular pattern. In this context, he recalls how the conspirators in the assassination of President Abraham Lincoln were tried by a military court even after the Civil War was over and were sentenced to death. Also, a civilian court was no more likely to impose the capital sentence on terrorists as evidenced from the lower punishment awarded by them to the September 11 plotter Zacarias Moussaoui or to those charged in connection with the East Africa embassy bombings that killed hundreds of people.

I had the privilege of discussing with Freeh and Sullivan their article when I met them recently. They dismiss Mukasey's criticism as one based on non-legal grounds and policy issues rather than on criminal justice concerns. I am more than convinced that they talk a lot of sense, and I am confident that opinion within Congress will soon crystallise itself in favour of the Freeh-Sullivan formula. That would also lead logically to the closure of Guantanamo as a detention centre. There are lessons here for Indian observers, who often complain about the lack of sensitivity in our criminal justice system in tackling terror and its perpetrators. Innovation rather than blind tradition should mark all public systems, especially the one dealing with crime and justice. And holding a court in a place that is used only to lock up suspects is indeed an innovation par excellence.