Interrogation under torture was the modus operandi there, as I found out when we interviewed the newly freed "Tipton Three," innocent and wrongfully imprisoned young men from England. I was shocked by what they told me about the way prisoners were treated: Hooding, stripping, sleep deprivation, stress positions, dogs, removal of the Quran, forced shaving and sexual humiliation were common practices.
One of our clients, Mohammed al-Qahtani, was subjected to months of torture that was documented in a log kept by his guards. He was deprived of sleep for almost two months, stripped, held on the floor and sexually abused by a female interrogator, forcibly hydrated with liquids while shackled to a chair and not permitted to go to the bathroom. His CCR attorney, Gita Gutierrez, reported that Mohammed was still suffering from the effects of his torture and abuse: He "painfully described how he could not endure the months of isolation, torture and abuse, during which he was nearly killed, before making false statements to please his interrogators."
Mohammad never received a hearing. In fact, none of our clients received the hearings the Supreme Court required. In 2005 the military essentially declared all prisoners at Guantánamo "enemy combatants," not entitled to the protections of civil law. Congress and the president passed legislation, the Detainee Treatment Act, barring detainees at Guantánamo from bringing future habeas corpus challenges to their detention or its conditions. But in June 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the federal government did not have the right to set up special military commissions in Guantánamo. The ruling implied that the Bush administration would have to try detainees either by court-martial (as U.S. troops and prisoners of war are) or by a civilian federal court.
But the government still refused to give our clients hearings, and in October 2006 the president persuaded Congress to pass the Military Commissions Act, which abolishes habeas corpus not just for Guantánamo detainees but for any noncitizen the president labels an enemy combatant. We will take the Military Commissions Act, too, all the way to the Supreme Court, but for now it is law.
Five years have gone by and we are still fighting a Sisyphean struggle. No detainees at Guantánamo or in any other detention facility have yet had a hearing in a court. They are again waiting for our challenges to be heard -- that is, for the Supreme Court, for the third time, to decide that they have rights. But by that time six or seven years will have passed since the first post-9/11 prisoners arrived at Guantánamo.
The realities of imprisonment there are worse than I could have imagined. Five years ago, I assumed that the Bush administration would claim Guantánamo as a law-free zone where the Constitution did not apply and where no court could examine the legality of the detentions. But I never believed that the detainees would be tortured and subjected to cruel treatment. I was dead wrong.
It's true that many torture techniques used at Guantánamo appear to have stopped -- in part because we now have CCR and other attorneys going to the base, in part because the men at Guantánamo never had very much to offer. Under pressure military policy has shifted, and the men called the most dangerous terrorists have yielded very little information. But these techniques have migrated to other places, even more secretive.
And the sad reality is that torture is now more accepted than it was five years ago. The Military Commissions Act, in addition to abolishing habeas corpus, made cruel treatment and torture the law of our land. The act grants an amnesty to those in the administration who have engaged in torture and cruel treatment since 9/11, and it modifies U.S. criminal law so they can continue to torture with impunity in the future. At other U.S. detention facilities, such as those at Bagram, Afghanistan, and secret CIA sites around the world, the kidnapped and the captured are "disappeared" and can be tortured. In order to reestablish the rule of law, the human rights that are at issue at Guantánamo must be extended so that U.S. law governs all U.S. actions.
These rights include lawful trials. The administration now plans to build a $125 million courthouse at Guantánamo to try detainees by military commissions under new procedures that have not yet been fully outlined. Whether these are lawful will again need to be tested in the courts. And though the administration says it plans to try as many as 80 people, whether any such trials will ever happen is not clear.
So time moves almost surreally slowly on Guantánamo, where today more than 400 people are still imprisoned, the vast majority without charges. Despite all the Supreme Court rulings, despite the popular outcry, despite calls from the military's own lawyers, Human Rights Watch, Amnesty International, British Prime Minister Tony Blair, German Chancellor Angela Merkel and former U.N. Secretary-General Kofi Annan to provide the detainees with rights and close the camp, there's no sign that Guantánamo will be shut down soon.
I wish after five years I could say we are emerging out of a long dark night of detention, disappearances and torture. But rolling back the Military Commissions Act, through litigation and legislation, and reestablishing the rule of law are a huge task. It will take political courage, an aroused public and constant vigilance. I hope -- for the sake of prisoners, their families and America -- it does not take an additional five years.
About the writer
Michael Ratner is a human-rights lawyer and president of the Center for Constitutional Rights. This article was written with San Francisco-based journalist Sara Miles.
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