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.
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.
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.
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.