The view from Guantanamo Bay
- High court bars Guantanamo prisoners' appeal --
Court won't decide legal rights; but administration win may be temporary
02 Apr 2007
The Supreme Court rejected an appeal Monday from Guantanamo detainees
who want challenge their five-year-long confinement in court, a
victory for the Bush regime's legal strategy in its fight against [of]
terrorism. At issue is whether prisoners held at Guantanamo have a
right to habeas corpus review, a basic tenet of the Constitution that
protects people from unlawful imprisonment.
Guantanamo Bay Inmate Appeals Rejected by High Court 02 Apr 2007 A
divided U.S. Supreme Court turned away two appeals from Guantanamo Bay
inmates who sought to challenge their detentions in federal court,
declining to question a law that scales back judicial wartime powers.
The justices, voting 6-3, today left intact a lower court decision
that said the 2006 law validly bars federal judges from considering
habeas corpus petitions filed by prisoners at the U.S. naval base in
The view from Guantanamo Bay
February 04, 2007
GUANTANAMO BAY, CUBA - In what looks like a strangely choreographed
dance, they pace. Guards in camouflage and tan military boots walk
non-stop back and forth along two floors of cells. Their eyes are
trained on the row of small windows through which they watch detainees
also on the move. A few are sitting, one is rocking back and forth,
but most of them pace, almost keeping step with the guards. This is
Camp 6, the holding centre for nearly half of the 395 detainees still
housed at the U.S. naval base on the southeast corner of Cuba.
Canadian Omar Khadr now lives in this modern building modelled after a
Michigan prison. Officials boast that the guards are better protected
here than in other camps and that detainees enjoy more privacy and new
amenities, including air conditioning.
But lawyers for the detainees say the isolation there's little or no
contact with others at this facility is driving the men mad.
"They have never experienced anything like this at Guantanamo. They
pass days of infinite tedium and loneliness," states a U.S. Court of
Appeals petition filed last week by lawyers representing seven Camp 6
One man's neighbour, it continues, "is constantly hearing voices,
shouting out and being punished. All describe a feeling of despair,
crushing loneliness and abandonment by the world."
Two weeks ago, Khadr's military-appointed lawyer travelled here to
visit with the 20-year-old Canadian and prepare for his impending
military tribunal. But despite Lt.-Col. Colby Vokey's efforts, Khadr
refused to meet him.
Exactly why Khadr refused the visit is uncertain, but Vokey says it
adds to his concern about the Canadian's mental stability.
"It seems he doesn't want to have anything to do with anyone any more
the guards, lawyers he's becoming withdrawn from the world," Vokey
said in an interview.
During a December visit by U.S. civilian lawyer Muneer Ahmad, Khadr
was largely unresponsive.
For almost a year, Khadr's legal team has tried to bring in an
independent psychiatrist to assess their client, but so far visits by
non-Department of Defence doctors have been denied.
Canadian Foreign Affairs spokesperson Alain Cacchione said consular
officials continue to make "welfare visits," to Khadr. But when asked
the date of the last visit or an assessment of Khadr's condition,
Cacchione cited privacy concerns even though that information about
Khadr has been released in the past.
Cacchione says Canadian officials continue to speak with their
American counterparts to raise the issue of arranging a visit by
Khadr's two Edmonton-based lawyers, whom he has never met.
Khadr is here because the Bush administration has designated him an
"enemy combatant" and says he killed a U.S. soldier and injured others
in Afghanistan. He's the second-youngest son of reputed Al Qaeda
financier Ahmed Said Khadr, who was killed in Pakistan in 2003. The
Khadr family grew up close to Osama bin Laden's and after 9/11 family
members scattered throughout Afghanistan and Pakistan.
Khadr was captured in a town near the Pakistan border in July 2002, at
age 15, after a lengthy firefight during which he allegedly threw the
grenade that killed U.S. medic Sgt. Christopher Speer.
Four months later, after his 16th birthday, he was transferred to
Guantanamo and last year was one of 10 detainees charged with war
crimes the only one charged with murder.
Soldiers who witnessed his capture said in past interviews that they
didn't see a teenager that day, but rather a trained fighter who
wanted to kill Americans. The chief prosecutor for the Guantanamo
military tribunals later echoed these sentiments, calling Khadr a
Khadr appeared at the tribunal twice last year before the U.S. Supreme
Court deemed the process unconstitutional, thus forcing the Bush
administration to develop a new procedure sanctioned by Congress.
Guantanamo Bay's chief military prosecutor, Col. Morris Davis, has
prepared murder charges against Khadr, restarting the process of
putting the former Toronto resident on trial for war crimes.
"It's a case where I believe we have evidence to prove that he made a
decision to take the life of a service member," Davis said in a
He said he hopes the case will be tried as early as this summer. If
his recommendations are approved, Khadr will be officially charged and
could appear before a military commission for pre-trial hearings
within 30 days.
Defence lawyer Vokey's visit to Camp 6 was supposed to be a chance for
him to show Khadr the evidence allegations, documents, video
provided by the prosecution.
"I'm not even close to getting ready (to defend him). I haven't been
able to talk to him about the case at all," Vokey said.
"Now, the conditions of his incarceration, his solitary confinement,
have caused his deterioration and I question whether he can
participate in his defence. It's difficult enough for any kid to
understand, much less anyone who has endured what Omar has been
through. He has an eighth grade education and the maturity level of a
It has been more than five years since the first detainees arrived at
the base on Jan. 11, 2002. Much has changed since those initial images
were captured of detainees clad in orange jumpsuits kneeling on the
airport runway or shackled to a gurney. Of the more than 700 who have
been held here over those years, about 380 have been released or
surrendered to their home governments.
But five years has brought new problems, such as the questions about
Camp 6 and the effect of prolonged isolation.
It was clear during the Star's visit last week that there's weariness
about the sustained international criticism. There's a defensiveness
that runs right through the chain of command from the camp's
commanders to the guards who endure assaults by some of the detainees
with what are referred to as "cocktails," concoctions of bodily fluids
More than one official referred to the "Manchester Document" as a way
to counter questions about the detainees' allegations of torture or
accusations that the conditions of their detention fall below the
international standard set out in the Geneva Conventions.
The document is an alleged Al Qaeda training manual unearthed by
police in Manchester, England, that advises would-be terrorists to
claim abuse and torture upon capture.
Brig.-Gen. Edward Leacock, the camp's second-in-command, said in an
interview last week that the accusations have never been substantiated
and he now believes Guantanamo is "probably the most transparent
detention facility in the world."
It's true that hundreds of lawyers, journalists, politicians and
members of non-government organizations have been escorted through
tours here and continue to do so.
But some things remain off limits, such as any interviews with
detainees. Journalists must sign ground rules that stipulate they will
not talk with detainees; doing that will get them kicked off the island.
Questions about the 14 so-called high-level detainees such as Khalid
Sheikh Mohammed, the alleged mastermind of 9/11, and Abu Zubaydah, who
is sometimes referred to as Al Qaeda's No. 3 leader are also met
It was announced in September that the 14 were brought here from
undisclosed CIA-run facilities around the world, but no one will say
where they're kept on the base, and none of these men has yet had
access to lawyers.
One day last week behind the wire of the detention facility, an
unidentified detainee shackled, handcuffed, wearing headphones and
with his eyes covered was led from a white van to a portable near
the empty Camp 2 and 3 facilities.
No pictures were allowed and repeated questions about the procedure
were met with shrugged shoulders. One official later confirmed that
the CIA normally travels in those vans and eventually a public affairs
lieutenant answered that whatever went on inside the portable faintly
marked 12A, was strictly a "need to know" scenario.
The message was clear. He didn't need to know, and neither did we.
Camp 6 wasn't supposed to operate this way.
It was intended as a good news story, hailed for its state-of-the-art
construction, controlled temperature and ability for inmates to interact.
The detention facilities are numbered by when they were built and they
have become more modern with time. Camp 4, which is still in
operation, houses what are known as "compliant detainees" who are
allowed to live communally in units surrounding an outdoor recreation
centre where they play basketball and other sports.
The plan for Camp 6 was to allow similar interaction described by
many as their lifelines while in custody during recreation and meal
But then came last spring's uprising in Camp 4, in which some of the
guards were ambushed. Two months later, three detainees hanged
themselves in one of the other camps. International condemnation followed.
"One of the questions we always ask ourselves at that point is do we
have what we call a medium-security terrorist?" said Brig.-Gen.
Leacock when asked if these occurrences changed Camp 6's operation.
"Well, we made an assessment based upon the threats that were imposed
by the detainees over a period of time, the threat of bodily fluids,
the verbal threats, we looked at both the attempted suicides and the
suicides themselves and we said we must take procedures to protect our
guard force and secondly also to address and do everything we can to
make sure the detainees are treated safely and humanely and not give
them an opportunity to harm themselves."
So Camp 6, the $37 million (U.S.) facility pieced together like Lego
blocks from prefabricated sections shipped from the United States,
began to change. The recreation area where Camp 6 detainees are
allotted two hours a day was caged into individual units.
The eating area with steel picnic tables at the centre of each
triangle pod of 22 cells is off limits indefinitely, so the men get
their food inserted through small slots in their cell doors.
Plexiglas and other shields limit any contact between guards and
Camp 4's bustling population was reduced to just over 30.
Among those shuffled to Camp 6 were the 18 Uighurs members of an
ethnic minority in northwestern China who have been detained since
they were sold for a bounty in Pakistan to the U.S. military in
December 2001. Their cases have long attracted controversy since the
men have claimed they were never aligned with Al Qaeda, but instead
opposed the Chinese government's control of their homeland. It was
their lawyers who filed the petition last week protesting Camp 6's
In March 2005, a U.S. review tribunal determined that five of the
Uighurs were "no longer enemy combatants," and could be released.
Albania eventually accepted them and they now reside at a housing
complex run by the United Nations.
Now, others have been told they're cleared for "transfer," which means
they can be returned to the care of their government, even though
they're still designated "enemy combatants."
But because China views the Uighurs as members of a rebellious
minority, the Americans won't return them to face torture or execution
and no other country has offered to accept them.
So they also live in Camp 6.
"These guys are on the brink. They don't know what to do and their
minds are warping," said one of their lawyers, Jason Pinney, in a
"To transfer these men to a solitary confinement style prison in their
sixth year of detention after telling them for years that they were
picked up by mistake and should be released is inexcusable."
The effects of housing inmates in what's known as "supermax" prisons
is being hotly debated in the United States.
In Texas and California, suicide rates among inmates in solitary
confinement are on the rise, prompting more studies and constitutional
In a case that could impact the future cases against Guantanamo
detainees, lawyers for terrorism suspect Jose Padilla questioned
whether their client is mentally fit to stand trial due to the effects
of his isolated incarceration.
Since Padilla is an American citizen, he was not held in Guantanamo
but rather instead held for 3 1/2 years in isolation on a military
brig and designated an "enemy combatant."
Before his lawyers could finish a court challenge to that designation
and detention, Padilla was charged criminally with conspiracy and
moved to Miami, where his case is being tried.
Although the U.S. naval base at Guantanamo Bay has been in existence
for more than 100 years, due to a land-lease treaty signed with Cuba
(the treaty states that both parties must agree to terminate the
agreement, so the U.S. has remained and Fidel Castro has protested by
never cashing the yearly rent cheques), the detention centre began as
a hastily constructed pen to hold the hundreds captured during the
U.S.-led invasion of Afghanistan.
The main priority at that time, shortly after 9/11 when many feared
more attacks on American soil were imminent, was the interrogation of
But Guantanamo has become a symbol for what critics allege is
America's disregard for domestic and international law.
On one of the boats that ferry journalists, lawyers and base workers
from the camp to their leeward-side accommodations, lawyer Gitanjali
Gutierrez clutched the box of baklava she'd just shared with her
clients and reflected on how Guantanamo has changed.
She was the first lawyer to speak with detainees in September 2004,
after the U.S. Supreme Court ruled that detainees had the right to
legal counsel and could challenge their detention. She has made the
trip here from her Center for Constitutional Rights office in New York
many times since.
"They were just shell-shocked. They were getting news for the first
time from outside," she said about those first meetings. "It has been
a downhill battle since ... and they now just struggle to maintain hope.
"This place isn't just illegal, it's immoral, and I don't think the
U.S. can afford to keep it open."
President George W. Bush has said he'd like to close Guantanamo, but
no one believes that will happen anytime soon.
For some critics, Guantanamo has become a quagmire.
"The irony is the administration is as much a prisoner of Guantanamo
as the prisoners," said lawyer Joe Margulies, author of Guantanamo and
The Abuse of Presidential Power.
"They are prisoners of their own rhetoric.
"What are they going to do? They've vowed to keep people in for as
long as they're dangerous. They've said that people like Omar Khadr
have to be brought to justice. They're getting pounded in the courts,
in Congress, in the public, in the press, in world opinion as each day
goes by, but what's the exit strategy? It's like Iraq. What are they
going to do?"
But officials here often respond to such questions with one of their
own: Where do the detainees go especially those who were likely
influential Taliban or Al Qaeda members?
The near future will bring new military tribunals for Khadr and a
handful of others. But the constitutionality of the process itself
including challenges to the use of coerced, hearsay or secret evidence
during the hearings is again likely to be argued all the way to the
The 14 so-called high-level detainees will appear before the review
tribunals to test whether they are enemy combatants. But no date has
been set, nor has the decision been made as to whether media can
attend the hearings.
For the 50-plus detainees who, like the Uighurs, have been cleared to
leave, negotiations continue on their detention in their home
countries or elsewhere.
And for the rest, now beginning their sixth year of detention with an
uncertain future, their cases are reviewed by a board each year to
decide if they remain a threat or if they can still provide intelligence.
Meanwhile, officials say, Camp 6 is nearly filled to capacity.
Michelle Shephard covers national security issues for the Toronto
Star. She can be reached at: mshephard@...
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