Guantánamo: Five years and counting

I wish this dark period of detention and torture were over. But rolling back the Military Commissions Act and restablishing the rule of law are monumental tasks.

By Michael Ratner, with Sara Miles

Read more: Human Rights, Opinion, Torture, Guantánamo Bay

AP Photo/Brennan Llinsley

A detainee shields his face as he peers out the so-called bean hole used to pass food and other items into cells at Guantánamo (Dec. 4, 2006).

Jan. 10, 2007 | The first time I saw the U.S. prison camp at Guantánamo Bay, Cuba, was in 1992, and it struck me as one of the most frightening, desolate places I'd ever visited. U.S. dominion over the 45-square-mile military base was coerced from the Cuban government in the aftermath of the Spanish-American War, in the early 1900s, as a requirement for granting Cuba its independence. The base now has a population of 8,500; there are schools, a McDonald's, a golf course and a bowling alley, but the veneer of suburban normalcy is thin indeed. Guantánamo is known, above all, as a prison. And although Cuba has no jurisdiction whatsoever over what happens at Guantánamo, the U.S. government continues to insist that U.S. law does not apply there. The isolation is chilling. Neither a foreign country nor a U.S. territory, Guantánamo exists in limbo, a prison beyond the law.

Back before the "war on terrorism," Guantánamo was notorious as the world's first prison camp for HIV-positive people. For years, with the Center for Constitutional Rights, Harold Koh and Yale Law School, I represented Haitian refugees diagnosed with HIV who'd been imprisoned there by the United States in a semipermanent limbo. Federal District Court Judge Sterling Jackson, who finally ordered the surviving Haitians freed, described the deplorable conditions sick prisoners endured: "They live in camps surrounded by razor barbed wire. They tie plastic garbage bags to the sides of the building to keep the rain out. They sleep on cots and hang sheets to create some semblance of privacy. They are guarded by the military and are not permitted to leave the camp."

Outrage and lengthy legal battles finally succeeded in closing the prison camp. But even though the courts had ruled that the United States was responsible for what happened in Guantánamo, some government officials clearly decided to continue advocating for it as a place that could be not only out of sight but outside the law.

A new era dawned five years ago, when the first of several hundred post-9/11 prisoners were taken to Guantánamo on Jan. 11, 2002. They were described by then Secretary of Defense Rumsfeld as "the worst of the worst" terrorists, but none of their names were made public. Just one prisoner, an Australian, managed to have his embassy informed of his capture; his family was notified and went to an Australian lawyer. But the lawyer could not visit, see or speak with his client, nor could any other outsider. Guantánamo prisoners, said the United States, were to be held incommunicado, without any access to courts and without any right to file writs of habeas corpus.

I saw the lawyer's name in the paper and contacted him. The conversation led to a debate at CCR about whether to take the case. As a New Yorker, I had personal doubts about representing anyone suspected of being responsible for the 9/11 attacks; everyone at CCR knew our representation would be wildly unpopular. At that time no other human rights organization was willing to step in. And yet we decided to go ahead, believing that the right of every human being to challenge detention is fundamental. Habeas corpus, the central Western safeguard that prevents arbitrary loss of liberty, makes it impossible for people to be detained on the basis of a ruler's whim. It is the core hallmark of a free society, and we believed we had to defend it. On behalf of the Center for Constitutional Rights and a very small group of lawyers, including Joe Margulies and Clive Stafford Smith, I agreed to represent that first prisoner -- David Hicks.

Hate mail poured in. "These terrorists are not human, so human rights don't apply," said one letter.

But we continued to litigate our case, joined by another courageous attorney, Tom Wilner, from a major law firm. We argued that those imprisoned at Guantánamo had the right to file writs of habeas corpus and force the government to legally justify their detentions in court hearings. We lost in the district court and the appeals court, but we took the case, Rasul v. Bush, to the Supreme Court, and in June 2004 we won. CCR received scores of letters. This time they were not hate mail. Instead, we were told repeatedly that the writer's "faith in America had been restored."

Eventually, joined by hundreds of volunteer attorneys of all political persuasions, we filed habeas corpus petitions for everyone whose family we could find, and we won attorney access to the prison. Once we began to see clients we were able to get more and more names, and the veil of secrecy at Guantánamo lifted a bit.

Next page: Torture was the modus operandi