Reflections on Guantánamo Bay, Cuba
by William E. Murane
Editor’s note: Five Algerians classified as enemy combatants and imprisoned at Guantánamo Bay are receiving pro bono assistance from Denver law firm Holland & Hart, at the request of the Center for Constitutional Rights in New York. Contributing writer William E. Murane, an attorney with Holland & Hart, offers a unique perspective as a former Judge Advocate General Officer in the U.S. Air Force, 1958–61.
I am a U.S. Air Force veteran and a loyal American. However, what I saw on a recent trip to the Guantánamo Bay detention facility and what I have learned about the process there is not consistent with my views of what the rule of law is and should be. In a June 12, 2008 ruling, as this article was going to press, the U.S. Supreme Court reinstated detainees’ rights to challenge their detention.
Guantánamo Bay is a large natural harbor on the southeastern tip of Cuba. It is occupied by the United States, under a 1903 indefinite term lease from Cuba. In World War II, it was a naval refueling station. Recently, it served primarily as a U.S. Coast Guard base — until the World Trade Center attack.
In 2002, Guantanamo Bay became a prison for individuals classified as "unlawful enemy combatants," captured mainly in Central Asia and the Middle East. Many were seized by bounty hunters for large sums of cash and turned over to the U.S. military or the CIA for transfer to the Guantánamo Bay facility, known as "GTMO." My partner Trip Mackintosh and I recently met there with three of our clients who are so classified.
At its peak, GTMO housed more than 600 detainees, of which about 250 remain incarcerated today, according to an April 2008 article in The New Yorker by Jeffrey Toobin. Of these, approximately 60 have been declared eligible for release, if a country willing to accept them can be found. This task is difficult because the United States refuses to rescind their classification as "unlawful enemy combatants." There also is the fear that some detainees would be tortured on return to their countries of origin. Even if charges were pursued against some 60 to 80 detainees, Toobin notes that more than 100 detainees were left with no plan except detention until the end of the "War on Terror." With the Supreme Court’s June 12 ruling, that situation is about to change.
Most of the "unlawful enemy combatant" detainees have been incarcerated for longer than six years without being informed of a single charge against them. Reports indicate that many were tortured after their capture, in transit to GTMO, and after their arrival at the detainment facility. Methods reportedly included beatings, sleep deprivation, subjection to temperature extremes, shackling of hands and feet together in awkward positions for extended periods of time and desecration of the Koran. There is concern that potential witnesses also have been tortured to do their captors’ bidding and stop the pain by accusing others.
Some compliant detainees are housed in what is known as Camp 4, where they can mingle and have access to a limited library. However, other detainees are confined, sometimes as punishment, to Camp 5 in windowless eight-by-twelve-foot cells for 22 hours a day.
The detainees communicate with each other by shouting through openings in the cell doors. Their only permitted reading is the Koran. They cannot see the sky and are permitted to bathe only twice a week. No visitors are allowed, except lawyers, doctors, embassy personnel and Red Cross representatives.
Litigation on behalf of detainees is focused on whether noncitizens are entitled to seek writs of habeas corpus in the courts of the United States. Essentially, this would require the President and his subordinates to explain to the court why an individual is being held. Although it was first argued that detainees were not entitled to writs of habeas corpus because they were outside U.S. territory, the Supreme Court rejected that position in Rasul v. Bush.
In response, President Bush established Combat Status Review Tribunals comprising military officers, to handle detainee cases. Again, detainees were denied basic court procedures, including statements of charges, counsel, summaries of evidence and names of witnesses. The Supreme Court weighed in again in Hamden v. Rumsfeld, stating that the Administration, absent an act of Congress, had no authority to establish the tribunals.
The Bush Administration responded with a successful lobby to pass the Military Commissions Act. Similar to the CSRT process, the MCA suspended retroactively the writ of habeas corpus for noncitizen detainees. The MCA allows classified evidence, which the detainee can see only in summary form. It also permits evidence obtained by coercion or without warrant or probable cause. Each detainee’s status is reviewed annually but, again, without providing any information about specific charges or evidence justifying continued confinement.
The MCA was challenged in the case of Boumediene v. Bush. In a five-to-four decision on June 12, the Supreme Court held that the GTMO detainees have the constitutional privilege of habeas corpus.
Ironically, "high value" terrorists, such as those charged in the military courts with orchestrating and implementing the World Trade Center attacks already have been allowed to retain lawyers, have been advised of the charges against them and have the right to call witnesses.
In 2005, our firm was recruited by the Center for Constitutional Rights, along with approximately 250 other lawyers and law firms around the country to provide pro bono representation to the detainees. We are working for five Algerians transferred to GTMO as alleged "unlawful enemy combatants." We have not been informed of any specific charges against our clients. We have filed lawsuits and related pleadings on their behalf, met with them and tried to keep in touch with their families when feasible. With the Supreme Court’s ruling, I anticipate that our efforts ultimately will help secure impartial hearings for our clients and I hope for safe passage for those who are released.