Exclusive: Caught in America's legal black hole
Guantanamo still holds 176 detainees, and one of them is about to stand trial – in a test of Barack Obama's resolve to embrace the rule of law
Monday 09 August 2010
Have a nice flight with Country Airlines," said the smiling stewardess, "and enjoy your trip." Standing on the gangway of the Sun Country 737, she could have been welcoming us aboard a jet bound for any one of America's favourite holiday destinations.
But the US military-chartered aircraft taking off from the Andrews Air Force Base in Washington this weekend was heading for somewhere not altogether known for its leisure facilities.
As we approached the US naval base of Guantanamo Bay on the edge of Cuba's south-east coast, I wondered about the legality of the ominously wide terms of the liability waiver form I had to sign on condition of entry.
Under these agreements, journalists are warned that their presence in Guantanamo exposes them to serious risk from both the negligence of the US military and possible terrorist attack. The US government cannot be held responsible for any injury caused by either of these threats.
Welcome to the legal black hole that is Guantanamo.
In the distance one can just make out the runway, extended in 2001 to accommodate the giant military cargo planes which first carried the shackled prisoners from the battlefields of terrorism to Camp X-Ray. Ahead lies the Cuban mountain range which shelters Guantanamo Bay from the territorial claims of America's communist neighbour.
Since the September 11 terror attacks on the American mainland, Guantanamo Bay – until then a forgotten US naval base used for holding Haitian refugees – has become synonymous with international kidnapping and torture in the name of the US "war on terror".
It is the hub of the American programme of rendition in which hundreds of foreign nationals, including 20 British citizens and residents, have been flown thousands of miles around the world to be shackled in cages beyond the protections of international law.
Guantanamo Bay has also been the scene of barbaric tortures, vehemently denied by the Bush administration and now openly confronted by Barack Obama. It was here that the CIA, with the blessing of the Bush administration, developed the particularly grisly interrogation practice called waterboarding, where suspects are subjected to simulated drowning.
After winning the American elections nearly two years ago Barack Obama promised to end renditions and tear up the CIA's torture manuals. At the heart of the President's human rights policy was the closure of Guantanamo within a year of the first day he entered the White House – a target he missed.
Eight months after that deadline passed, the starboard view from the Sun Country 737 is irrefutable evidence that Guantanamo Bay is still in business.
The dozens of military buildings and the supporting civilian industry that dot the windward side of the bay are proof that the injustices of Guantanamo cannot be wished away by a few heartfelt sentences – even if they are uttered by the West's most powerful leader.
For sure there is outward change: the detainees are no longer forced to wear orange jumpsuits and the infamous Camp X-Ray detention centre has been decommissioned, surrendering its barbed-wire fences to the creeping Cuban undergrowth.
But as we approach our landing site there is no disguising that we are flying into a legal black hole, where 176 of the original 800 prisoners are still being held without charge or trial in conditions condemned as unlawful and unconscionable by nearly every international human rights organisation.
This week one of the 176 will stand trial in what is being regarded as a test of America's new willingness to confront the brutal legacy of George Bush's war on terror.
The case against Omar Khadr, a Canadian citizen and the youngest of the inmates, is emblematic of Guantanamo Bay's injustices. He is the first child to be tried for war crimes since the Nuremburg prosecutions against the Nazis after the Second World War.
Omar Khadr was captured by US forces in Afghanistan in July 2002 when he was just 15, and after interrogation in Afghanistan flown to the US naval base. He was later accused of war crimes for allegedly throwing a grenade which killed an American soldier.
Clive Stafford Smith, the legal director of the London-based human rights group Reprieve, says the Khadr case will show the world that the discredited military commissions are incapable of delivering justice.
"I have met Omar at Guantanamo – he was a child and still had the scars from the injuries he suffered during the fighting," said Stafford Smith. "The worst they can say about him is that he was with his father's friends when he was caught up in an attack by American soldiers.
"Prosecuting him is like holding a major crimes trial for a member of the Hitler Youth while ignoring the cases against the Nazi leaders. Never mind the fact that the whole process is illegal in the first place."
Khadr's trial is the first case to be heard in full since the resumption of hearings after the US Supreme Court ruled that the military commission system was unlawful under both military justice law and the Geneva Conventions.
Soon afterwards President Obama suspended all the trials so that modifications could be made to the process that would satisfy the courts.
Central to Khadr's defence is his claim that he was tortured while being held at the US detention centre at Bagram in Afghanistan. It was there that he shared a cell with Moazzam Begg, the Briton and former Guantanamo detainee.
He alleges that he was hung up on a door frame, threatened with rape, urinated on and used by one of the soldiers as a human mop to clean the floor. His legal team argues that any confession cannot be relied upon because it was made under torture.
The US prosecution denies Omar Khadr was tortured and says that his statements were made voluntarily.
Guantanamo Bay is the oldest overseas US naval base and is the only military establishment located in a country with which America does not maintain diplomatic relations. The United States leased 45 square miles of land and water from Cuba in February 1903 for use as a coal-fuelling station. A 1934 treaty reaffirming the lease added a requirement that termination of the lease requires the consent of both the US and Cuba governments, or the US abandonment of the base.
Since Fidel Castro came to power by overthrowing the US-backed regime, tensions between the two countries have grown, and in 1961 the US broke off diplomatic relations with Cuba. Over the passing years the US military presence at Guantanamo Bay has become a focal point for some of the tensions between the two states.
A minefield, which used to deter immigrant Cubans fleeing to American territory, now serves as a last obstacle to escaping prisoners.
Today 1,100 army and navy personnel are engaged in guarding the 176 detainees held in nine separate camps at Guantanamo.
The list of rules governing the behaviour of both soldiers and detainees runs into many pages.
For a military camp so internationally castigated for its failure to adhere to the rule of law there are an awful lot of dos and don'ts at Guantanamo Bay.
There is also a strict code of conduct for visiting journalists. Orange barriers restrict the movements of the press to defined areas of Camp Justice, where the commissions are housed. Military minders are on hand to ensure journalists don't venture from the permitted routes.
Photographs of military personnel or sensitive installations are strictly forbidden. And all pictures have to be viewed by the military censors before they can leave the island.
Journalists are also forbidden from interviewing Cuban and Haitian migrant workers.
Punishment for breaking these rules is at the very least immediate expulsion from Camp Justice.
My accommodation for the next three weeks will be a tent which I am told will not protect me from the extreme temperatures. The US military advises me to bring strong sunscreen for the day to protect against the Caribbean glare and an extra blanket for night time when the air conditioning can make it very chilly. I am acutely aware that these are two luxuries not available to the detainees who have frequently complained about the pain of being exposed to extreme temperatures.
But America remains defiant in the face of criticism of its war on terror. Journalists who question the legality of Guantanamo are directed to this statement: "There is no question that under the law of war the US has the authority to detain persons who have engaged in unlawful belligerence for the duration of hostilities, without charges or trial. Like all wars, we do not know when this one will end. Nevertheless, we may detain combatants until the end of the war."
In the dock: Indoctrinated as a child, held at 15
Omar Khadr was 15 when he was captured after a battle in July 2002 with US forces in Afghan-istan. Now 23, he'll finally have his day in court this week. If found guilty, he will be only the fifth terror suspect to be convicted in the eight years since George W Bush created the first military commissions at Guantanamo. He will be the first under the Obama administration.
Khadr was nine when his father, an alleged al-Qa'ida financier, took him from Canada to Afghanistan and introduced him to the world of jihad. Psychiatrists are expect to testify this week that Khadr viewed al-Qa'ida through the eyes of a child who didn't understand that his father's activities were linked to terrorism. It appears that his indoctrination led him to take up arms against US-led coalition troops after the invasion of Afghanistan in late 2001.
Under international law, a child captured in combat should be treated as a victim rather than a combatant. The US military has accused him of killing a US soldier with a hand grenade and spying on the US.
Even his military defence team alleges that his confessions were extracted under torture. The US prosecutors insist that he was not tortured and all his statements were made voluntarily.
Bin Laden's cook awaits sentence
At one time or another, Ibrahim Ahmed Mahmoud al-Qosi is alleged to have been Osama bin Laden's cook, bodyguard, chauffeur and personal accountant.
Today the 50-year-old Sudanese is expected to become the first Guantanamo detainee to be convicted and sentenced under President Barack Obama's administration.
In an effort to bring an end to his eight-year detention without trial, al-Qosi has struck a deal with the prosecution and pleaded guilty to some of the terrorism charges, although the exact terms are not expected to be made public until today when he appears before a military commission.
The US military claims al-Qosi was deployed to the mujahedin front line in Afghanistan in 1990. A year later, he was asked to work as an accountant for Bin Laden in Khartoum, and joined him in the Tora Bora mountains in September or October 1996. After the US-led invasion of Afghanistan, he fled to the Pakistan border armed with a Kalashnikov rifle and was captured by Pakistani tribes.
He was turned over to Pakistani officials then transferred to US custody and taken to the Guantanamo Bay detention centre, where he has been held for eight years and seven months.
History of the base
December 1903 The US leases the 45 square miles of land and water for use as a coal-fuelling station.
6 February 1964 Castro cuts off water and supplies to the base after the US government fines Cuban fishermen for fishing in Florida's waters.
1991 The naval base's mission is expanded as some 34,000 Haitian refugees pass through Guantanamo Bay.
2001 After the terrorist attacks in New York, Guantanamo Bay is prepared as a holding centre for suspects arrested in America's war on terror.
January 2002 The first of what will eventually be 775 prisoners arrive.
April 2002 Camp X-Ray, the temporary detention camp where there were allegations of abuse, is closed. Prisoners are transferred to high-security Camp Delta.
March 2003 US Court of Appeal ruled that detainees did not have a right to have their case heard in an American court.
January 2005 The Pentagon announces an investigation into the alleged mistreatment of prisoners at the camp.
February 2006 The United Nations calls for the camp to be closed.
June 2006 After three detainees hang themselves, President Bush says he hopes to close the camps.
December 2006 Camp Six opens, housing the remaining 430 detainees.
July 2008 The International Herald Tribune reveals that US military trainers based an interrogation class in 2002 on a copy of a study of Chinese torture techniques used during the Korean War to obtain confessions. The methods used included sleep deprivation, stress positions and exposure.
January 2009 Barack Obama outlines plans to close the camp within a year.
April 2009 The US Senate Armed Services Committee releases a report providing evidence of links between the abuse of prisoners at Guantanamo Bay and at the Abu Ghraib prison in Iraq.
January 2010 US officials admit that the camp will not close by Obama's original 22 January deadline.
August 2010 176 of the original 800 prisoners are still being held without charge.
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