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CounterPunch
November
7, 2002
Geriatric Terrorists
on Guantanamo
by JOANNE MARINER
Last January, discussing the Bush Administration's
plans to transfer detainees from Afghanistan to Guantanamo, the
New York Times noted the Administration's emphasis on the men's
dangerousness. The U.S. naval base was being made secure, the
Times affirmed, in order to hold what Defense Secretary Donald
Rumsfeld had portrayed as "hardened criminals willing to
kill themselves and others for their cause."
"Every time people have messed with
these folks, they've gotten in trouble," Rumsfeld told reporters.
"And they are very well trained. They're very hardened.
They're willing to give up their lives, in many instances."
Evading the requirements of the Geneva
Conventions by insisting that there was no doubt as to the detainees'
status, the Pentagon firmly rejected calls made by Human Rights
Watch and other groups to grant the detainees individualized
hearings. Such hearings, in which the detainees' purported membership
in Al Qaeda or the Taliban could be assessed--and the legal implications
of that status determined--were dismissed as unnecessary.
Pentagon Secrecy
Because the Pentagon has barred journalists
and human rights groups from speaking with the Guantanamo detainees,
the public has had scant opportunity to evaluate Rumsfeld's claims
as to their dangerousness. Citing national security concerns,
the Pentagon has jealously guarded even the most basic information
about the so-called enemy combatants in its custody, refusing
to divulge such facts as their names and ages.
As a result of these restrictions, journalists
had to wait months to obtain first-hand information from any
of the detainees. The first detainee to be freed, who left Pentagon
custody on May 11, was a young schizophrenic. The Pentagon had
held him as an enemy combatant for four months on Guantanamo,
but U.S. officials refused to say why he had been taken captive
in the first place, or why it took investigators so long to diagnose
his mental illness. Needless to say, the ex-detainee himself
had no clue as to the reasons behind his arrest and confinement.
But it was the release of four detainees
just over a week ago that gave the public an especially compelling
reason to question the administration's Guantanamo detention
decisions. Three of the four released detainees are elderly--hardly
prime terrorist material--and the fourth seems more like a victim
of circumstances than a legitimate terrorist suspect.
Is This What
an "Enemy Combatant" Looks Like?
Here is the New York Times' description
of Faiz Muhammad, one of the just-released Afghan men that a
reporter visited on October 27:
Babbling at times like a child, the partially
deaf, shriveled old man was unable to answer simple questions.
He struggled to complete sentences and strained to hear words
that were shouted at him. His faded mind kept failing him.
Muhammad told journalists that he was
105 but he appeared to be in his late seventies. His advanced
age, and obvious senility, vividly belied the "enemy combatant"
label. A second released detainee, who walked with the aid of
a cane and was also thought to be in his late seventies, was
equally unmartial in appearance and demeanor.
The remaining two ex-detainees are a
thirty-five-year-old Afghan farmer and a sixty-year-old Pakistani.
While the Pakistani remains in the custody of his country's authorities,
and thus has not spoken to journalists, the farmer, Jan Muhammad,
told a pathetic tale of his journey into Pentagon detention.
Forcibly conscripted into the Taliban,
Muhammad surrendered to the forces of notorious Afghan warlord
Abdul Rashid Dostum late last year. While he was held captive
by Dostum's forces, Muhammad said, Dostum falsely informed American
soldiers that he and nine other prisoners were senior Taliban
officials. According to Muhammad, it was on the basis of that
shaky allegation that the Americans took him and others into
custody.
A Few Good
Apples?
Even someone familiar with the facts
about these unthreatening detainees might nevertheless ask the
following questions: What is the relevance of asking whether
these ex-detainees should have been brought to Guantanamo (let
alone held there for months)? Isn't it enough that the system
worked--that they were, after all, released? And even if a few
harmless old men were mistakenly taken into custody and held
for far too long, isn't it still quite possible that the hundreds
of other detainees currently behind bars on Guantanamo are dangerous
terrorists?
Although little individualized information
about the detainees is available, the delegations of foreign
government officials that have visited Guantanamo have said that
most detainees are between the ages of 18 and 28. At least in
terms of their physical capacities, these men might deemed fit
for the enemy combatant label.
The released Afghan farmer acknowledged,
moreover, that a number of high-level Taliban officials were
in custody on Guantanamo. And it is clear that the U.S. has substantial
evidence to implicate some of its prisoners in terrorist acts--men
such as captured Al Qaeda suspect Ramzi bin al-Shibh--although
the Pentagon has given no indication of whether these prisoners
are being held on Guantanamo or in another secure location.
Presumed Terrorists
Some of the Pentagon's detainees may
indeed be terrorists. Yet only if the international law prohibition
on arbitrary detention is dismissed as irrelevant, and the presumption
of innocence wholly ignored, can the Pentagon justify holding
hundreds of people in indefinite detention because of the atrocious
acts of a few.
Even though the recent releases do not
prove the innocence of the remaining detainees, they do demonstrate,
most compellingly, the weaknesses of the decision-making process
that guides these detentions.
Let me state my views clearly: Any process
by which a senile old man could be detained for ten months as
a terrorist--without court approval, or even access to counsel--is
one that demands urgent review.
U.S. government spokeswoman Victoria
Clarke told the press that the four detainees were released because
the Pentagon had determined that they "no longer" posed
a threat to U.S. security. But it would be interesting to hear
her explain how, ten months ago, the elderly Mr. Muhammad could
have been perceived as a national (oops, make that homeland)
security threat.
Even at the outset, of course, it was
readily apparent that the Guantanamo detainees were presumed
guilty--that the burden was on them to demonstrate their innocence
if they hoped to regain their freedom. What the recent releases
suggest, however, is that not only has the usual presumption
of innocence been reversed, but that detainees must prove their
innocence beyond any shadow of a doubt.
Interrogation
Fodder
And in fact, judging from some of the
statements made by Pentagon officials, a showing of innocence
may not even be sufficient. Much has been made of the detainees'
informational value--their potential usefulness in intelligence-gathering.
In announcing the recent releases, Defense
Secretary Rumsfeld said that the freed men were those who were
both non-threatening and not wanted for intelligence. Does he
mean to suggest, therefore, that the United States would arrest
and detain people indefinitely based on a hope or suspicion that
they might have useful information?
The wholesale practice of detaining people
as material witnesses within the United States is troubling enough,
but at least domestically the detainees benefit from a degree
of judicial oversight. On Guantanamo, a territory over which
no court seems willing to claim jurisdiction, the prospect of
indefinite detention for interrogation purposes is infinitely
more distressing.
(Update on the detainees' legal battles:
their claims have been dismissed in two U.S. district courts
for lack of jurisdiction and, most recently, in a French court;
one wonders when they will resort to the Cuban courts.)
Review by a
Competent Tribunal
At a minimum, the lesson to be learned
from the recent releases is that the detainees cannot simply
be lumped together as a group. As required under article 5 of
the Third Geneva Convention, they must be granted individualized
status determinations by a competent tribunal so that those who
might legitimately be deemed enemy combatants--or prisoners of
war--are separated from those who have been wrongly detained.
Rumsfeld, using even more blunt language
than usual, recently expressed his wish to "get rid of"
unnecessary detainees. Although more are expected to be released
soon, the trend still seems to be in the other direction. Just
two days after the four detainees left Guantanamo, another substantial
group of prisoners was transferred there, raising the total number
of detainees to 625.
In one of the more incongruous details
of the fight against terrorism, the New York Times reported that
guards at Guantanamo had given each detainee an American flag
patch. Although Americans like to associate the flag with freedom,
justice and fair play, one has to wonder what the detainees think
of it.
Joanne Mariner
is a New York-based human rights attorney.
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