Thu Feb 09 2012

What to do with the prisoners?
by William Fisher
February 16, 2006

Foreign policy and human rights experts appear to agree with a soon-to-be-released United Nations report calling on the U.S. to shut down its detention facility at Guantanamo Bay, Cuba – but most believe that simply closing it misses a larger point: What to do with the prisoners?

And many of those interviewed by us are fearful that the George W. Bush administration will use the source of the report – the admittedly flawed United Nations Human Rights Commission -- to discredit its findings.

Currently in draft but expected to be released shortly, the report found that U.S. treatment of Guantanamo detainees violates their rights to physical and mental health and, in some cases, constitutes torture. It urges the U.S. to close the facility and bring the captives to trial on U.S. territory, charging that Washington's justification for the continued detention is a distortion of international law.

Compiled by five U.N. envoys who interviewed former prisoners, detainees' lawyers and families, and U.S. officials, the report is the result of an 18-month investigation ordered by the Commission.

The human rights body has been widely criticized because its 53 members include representatives of countries with questionable human rights records. These include Azerbaijan, China, Cuba, Egypt, Saudi Arabia, and Zimbabwe. The U.S. has been among U.N. member states attempting to reform the Commission, denying membership to countries that are known to commit human rights abuses.

While the U.N. team was refused access to prisoners at Guantanamo Bay – and did not visit the facility for that reason – it concluded that the violent force-feeding of hunger strikers, incidents of excessive violence used in transporting prisoners and combinations of interrogation techniques "must be assessed as amounting to torture" — are likely to stoke U.S. and international criticism of the prison.”

"We very, very carefully considered all of the arguments posed by the U.S. government," said Manfred Nowak, the U.N. special rapporteur on torture and one of the envoys. "There are no conclusions that are easily drawn. But we concluded that the situation in several areas violates international law and conventions on human rights and torture."

Prof. Nowak, a member of the International Commission of Jurists, is Professor of Constitutional Law and Human Rights at the University of Vienna and Director of the Ludwig Boltzmann Institute of Human Rights (BIM). Since 1996, he has served as Judge at the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo.

Human rights and legal advocates hope the U.N.'s conclusions will add weight to similar findings by rights groups and the European Parliament.

Prof. Erwin Chemerinsky of the Duke University Law School shares that hope. He told us, “I believe that the existence of the prison in Guantanamo and the treatment of the detainees there violates international law. However, if the base at Guantanamo should be closed, it is essential that something worse not replace it. For example, it would be much worse if the prisoners are then transferred to prisons in foreign countries beyond American courts' jurisdiction.”

This view was echoed by Gabor Rona, International Legal Director of Human Rights First (HRF), a New York-based advocacy group. He told us, “Whether or not Guantanamo stays open or is closed addresses only one symptom of a larger question: What will happen to the detainees? If closure means the U.S. is going to open up its legal environment to respect international human rights norms not only at GITMO but in all its detention facilities worldwide, that would be a step forward. If closing GITMO simply means shipping the detainees off to other places and fates where their rights continue to be violated, that would be no step at all. The U.S. needs to live up to its obligations under both U.S. and international law.”

Barbara J. Olshansky, Director Counsel of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights (CCR), told us, “With each day (GITMO) remains open, it presents a very ugly picture to the world of the U.S. decision to cast aside the rule of law and trample the most fundamental human rights.”

She added, “Guantánamo has become the symbol for our country’s decision to deny human dignity. At the same time, however, we remain very concerned about the actions the U.S. might take if it were to close the base. It has taken a great deal of effort to ensure that detainees are not transferred to indefinite detention or to detention under torture from Guantánamo. For the many detainees who do not have this judicial protection in place (because until very recently we did not have identifying information for them and/or authorization to represent them) we have no way of ensuring that the men are not rendered to indefinite detention or torture either in their countries of birth or some third country. “

Prof. Jonathan Turley of Georgetown University and a widely recognized authority on U.S. Constitutional and international law, told us, “Closing Gitmo would be a welcomed change. However, it will mean little if the underlying abuses continue at a dozen less visible locations. The problem is the underlying legal claims of the President and the continued failure of the government to comply with domestic and international law. The most important recommendation is that these individuals be given legitimate trials in federal court rather than the meaningless proceedings held at GITMO. The current proceedings have little resemblance to legal hearings. They are controlled by rules written by government prosecutors to guarantee conviction and stand as a fundamental affront to the most basic notions of the rule of law.”

Yale Richmond, a veteran of 30 years in the U.S. Foreign Service, believes that “As long as (GITMO) remains open, it will be used against us. Better to close it.” But, he told us, “That raises the question of whether the prisoners should be tried in US courts, and what Rumsfeld, Cheney, and Bush (in that order) would say if some of them were found ‘not guilty’."

Christopher J. Roederer, Associate Professor of Law at the Florida Coastal School of Law, told us, “I do think that GITMO should be closed, or fully opened up to full inspection and access. The main problem with the report in my view is that there was no visit and no access to the prisoners – but whose fault is that? Did we accept Saddam’s assurances that there were no WMDs on his say-so? Did we not hold his lack of full cooperation against him?”

Experts we interviewed think there is a good possibility that the Bush Administration will try to use the troubled composition of the U.N. Human Rights Commission to discredit or dismiss the findings of the report.

Patricia Kushlis, a retired U.S. Information Agency officer and a specialist in international politics, public diplomacy and national security, told us, “I suspect the Administration will try to use this as a rationale for questioning the report's veracity, or at least credibility. Whether it will stick, or not, is another question.”

Prof. Roederer told us, “I only think it hurts as a rhetorical matter. It may work rhetorically to defend our actions by pointing back at our accusers as coming from ‘bad’ places, but that retort misses the point of the allegation. If the merits disclose violations it is no answer to say that other states are violating human rights or even that members of the Committee are focusing on the U.S. to move the spotlight off of their own countries. The charge is still left intact - two or more wrongs do not make a right.”

CCR’s Olshansky said, “Although the full membership of the U.N. Human Rights Commission includes states with less than ideal human rights records, the report that we have seen is being issued by unimpeachable sources”. She noted that the five individuals who prepared the report are the “foremost authorities” on the issues addressed in the report. “They have no role or responsibility for the actions of their home governments.”

Gabor Rona of HRF agrees. He told us, “ The people who researched and wrote this report are among the world’s most distinguished human rights scholars. They are independent of the countries that are members of the Human Rights Commission. The Bush Administration should consider their findings carefully and not respond by attempting to shoot the messenger.”

In November, the Bush administration offered three of the five members of the U.N. team the same tour of the prison given to journalists and members of Congress. But it refused to give the envoys access to prisoners, and for this reason the U.N. group declined the visit.

The report focuses on the U.S. government's legal basis for the detentions as described in its formal response to the U.N. inquiry: "The law of war allows the United States — and any other country engaged in combat — to hold enemy combatants without charges or access to counsel for the duration of hostilities. Detention is not an act of punishment, but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States."

But the U.N. team concluded that there had been insufficient due process to determine whether the more than 750 people who had been detained at Guantanamo Bay since January 2002 were "enemy combatants," and determined that the primary purpose of their confinement was for interrogation, not to prevent them from taking up arms. The U.S. has released or transferred more than 260 detainees from Guantanamo Bay.

It also rejected the premise that "the war on terrorism" exempted the U.S. from international conventions on torture and civil and political rights.

The report said the simultaneous use of several interrogation techniques — prolonged solitary confinement, exposure to extreme temperatures, noise and light; forced shaving and other techniques that exploit religious beliefs or cause intimidation and humiliation — constituted inhumane treatment and, in some cases, reached the threshold of torture.

Prof. Nowak also said the U.N. team was "particularly concerned" about the force-feeding of hunger strikers through nasal tubes that detainees said were brutally inserted and removed, causing intense pain, bleeding and vomiting.

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