Memo to Obama: Closing Guantanamo Can't Wait

By Andy Worthington, AlterNet. Posted November 19, 2008.

Sticking to a mantra that whatever the President chose to do was a justifiable expression of his role as the Commander-in-Chief during wartime, the administration was unconcerned that, when it began collecting prisoners during the invasion of Afghanistan, many of those held as "enemy combatants" were seized not by US forces, but by their Afghan and Pakistani allies, who were encouraged by bounty payments, averaging $5000 a head, that were offered for "al-Qaeda and Taliban suspects."

In his 2006 autobiography, In the Line of Fire, President Musharraf of Pakistan bragged that, in return for handing over 369 terror suspects (who were mostly transferred to Guantánamo), "We have earned bounty payments totaling millions of dollars." When researchers at the Seton Hall Law School analyzed 517 Unclassified Summaries of Evidence for the prisoners (documents laying out the Pentagon's case for holding them as "enemy combatants"), they discovered  that 86 percent were seized not by U.S. forces but by their allies, which indicated that the probability of innocent men (or Taliban foot soldiers with no knowledge of al-Qaeda) being passed off as serious "terror suspects" was enormous.

Just as disturbing is the realization that, once they were in US custody in the prisons at Kandahar airport and Bagram airbase, the majority of the prisoners who ended up in Guantánamo were never even screened to determine whether they should have been held in the first place. A senior interrogator at Kandahar and Bagram, who wrote a book about his experiences (The Interrogators) under the pseudonym Chris Mackey, stated explicitly that, under orders handed down from senior figures in the US military and the intelligence agencies, who were sent the prisoner lists from Afghanistan, all "non-Afghan Taliban/foreign fighters" were to be sent to Guantánamo. As Mackey noted, "Strictly speaking, that meant every Arab we encountered was in for a long-term stay and an eventual trip to Cuba."

The same was true of the majority of the 220 or so Afghans who were also transferred to Guantánamo. Although Mackey made it clear that only Afghans with "considerable intelligence value" were supposed to be sent to Guantánamo, it was not until June 2002, when around 600 prisoners in total had already been transferred, that those in charge on the ground in Afghanistan came up with a category of temporary prisoner, who could be held for 14 days without being assigned a number that entered the system overseen by the Pentagon and the intelligence agencies. It was, he explained, the only way that they could deal with at least some of the many innocent Afghans who ended up in their custody. Even this, however, failed to stem the flow of wrongly detained Afghans who continued to be sent to Guantánamo until the industrial-scale rendition of prisoners ended in August 2003.

This whole process was in marked contrast to the Article 5 battlefield tribunals, enshrined in the Geneva Conventions, which had taken place in all other US wars since the Second World War. Held close to the time and place of capture, these enabled the military to separate soldiers from civilians caught up in the chaos of war by allowing prisoners to present their case to a military review board, and to call witnesses. During the first Gulf War, for example, the military held 1,196 battlefield tribunals, and in nearly three-quarters of them the prisoners were found to be innocent and were subsequently released.

Guantánamo's deliberately flawed tribunals

When tribunals were finally allowed, they occurred up to three years after the prisoners were seized, and took place at Guantánamo, half a world away from the place of capture. They were, moreover, introduced solely as a rebuke to the Supreme Court. In June 2004, alarmed that prisoners seized in wartime were being held without any possibility of review (even if they maintained, as many did, that they were innocent men seized by mistake), the Supreme Court delivered an unprecedented ruling, granting the prisoners habeas corpus rights -- the right to challenge the basis of their detention before an impartial judge, based on an 800-year old English law that was one of the foundation stones of U.S. law.

As a mockery of the battlefield tribunals (and of the Supreme Court's intentions), the Combatant Status Review Tribunals (CSRTs) at Guantánamo prevented the prisoners from having access to lawyers, gave them no opportunity to present evidence in their defense, and prevented them from either seeing or hearing the classified evidence against them.

In addition, although they were empowered to call witnesses from outside Guantánamo, the authorities responded to every single request by claiming that they had been unable to contact them, even when, as Carlotta Gall and I reported for the New York Times in February, the witness requested by one particular prisoner (Abdul Razzaq Hekmati, an Afghan who died in Guantánamo of cancer on December 26, 2007) was Ismail Khan, a minister in Hamid Karzai's government.

See more stories tagged with: barack obama, military commissions, guantánamo, the guantánamo files

Andy Worthington is a writer and historian, and author of The Guantánamo Files.

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