Opening Argument February 2006

Falsehoods About Guantanamo

The administration's unspoken logic regarding enemy combatants appears to be: Better to ruin the lives of 10 innocent men than to let one who might be a terrorist go free.
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"These are people picked up off the battlefield in Afghanistan. They weren't wearing uniforms ... but they were there to kill." —President Bush, June 20, 2005

"These detainees are dangerous enemy combatants....They were picked up on the battlefield, fighting American forces, trying to kill American forces." —White House press secretary Scott McClellan, June 21, 2005

"The people that are there are people we picked up on the battlefield, primarily in Afghanistan. They're terrorists. They're bomb makers. They're facilitators of terror. They're members of Al Qaeda and the Taliban....We've let go those that we've deemed not to be a continuing threat. But the 520-some that are there now are serious, deadly threats to the United States." —Vice President Cheney, June 23, 2005

"These are people, all of whom were captured on a battlefield. They're terrorists, trainers, bomb makers, recruiters, financiers, [Osama bin Laden's] bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker." —Defense Secretary Donald Rumsfeld, June 27, 2005

These quotes are representative of countless assertions by administration officials over the past four years that all—or the vast majority—of the prisoners at Guantanamo Bay are Qaeda terrorists or Taliban fighters captured on "the battlefield."

The assertions have been false. And those quoted above came long after the evidence of their falsity should have been manifest to Bush, Cheney, Rumsfeld, and their subordinates.

This is not to deny that many of the 500-odd men now held at Guantanamo and some of the 256 others already released (including 76 to the custody of their home countries) were captured on Afghan battlefields or were terrorists, or both. Nor is it to deny the difficulty of knowing with confidence which detainees could safely be released. Indeed, several released detainees have ended up rejoining Taliban forces in Afghanistan.

But reporter Corine Hegland's exhaustively researched cover story in this issue—studded with probative details and human stories that every serious student of the war against terror should read—provides powerful evidence confirming what many of us have suspected for years:

  • A high percentage, perhaps the majority, of the 500-odd men now held at Guantanamo were not captured on any battlefield, let alone on "the battlefield in Afghanistan" (as Bush asserted) while "trying to kill American forces" (as McClellan claimed).
  • Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.
  • Many scores, and perhaps hundreds, of the detainees were not even Taliban foot soldiers, let alone Qaeda terrorists. They were innocent, wrongly seized noncombatants with no intention of joining the Qaeda campaign to murder Americans.
  • The majority were not captured by U.S. forces but rather handed over by reward-seeking Pakistanis and Afghan warlords and by villagers of highly doubtful reliability.
  • These locals had strong incentives to tar as terrorists any and all Arabs they could get their hands on as the Arabs fled war-torn Afghanistan in late 2001 and 2002—including noncombatant teachers and humanitarian workers. And the Bush administration has apparently made very little effort to corroborate the plausible claims of innocence detailed by many of the men who were handed over.

    The administration has also disclosed very little about who the Guantanamo detainees are, excepting 1) redacted transcripts of 314 detainees' hearings before Guantanamo's nonjudicial "Combatant Status Review Tribunals" or CSRTs; and 2) somewhat more-detailed responses to the federal court petitions filed by lawyers for 132 of these 314 men.

    My estimates above are based largely on extrapolation from Hegland's analysis of these 132 federal court files. They appear to be reasonably representative of the men still at Guantanamo; certainly, the government has given no indication that its evidence is any weaker in these 132 cases than in the other 370 or so.

    It is, therefore, quite remarkable to learn (from Hegland) that well over half (75) of the 132 are not even accused of fighting the United States or its allies on any battlefield in post-9/11 Afghanistan or anywhere else.

    Indeed, only 35 percent of them (more precisely, of the 115 whose court files specify the locus of capture) were seized in Afghanistan; 55 percent were picked up by Pakistanis in Pakistan.

    The government's case for continuing to detain most of these 75 nonbattlefield captives is that other people of doubtful reliability have said they were associated with the Taliban or Al Qaeda, often in very indirect ways.

    The tribunal hearings, based largely on such guilt-by-association logic, have been travesties of unfairness. The detainees are presumed guilty unless they can prove their innocence—without help from lawyers and without being permitted to know the details and sources of the evidence against them. This evidence is almost entirely hearsay from people without firsthand knowledge and statements from other detainees desperate to satisfy their brutally coercive interrogators. One file says, "Admitted to knowing Usama bin Laden," based on an interrogation in which the detainee—while being pressed to "admit" this, despite his denials—finally said in disgust, "OK, I knew him; whatever you want."

    Hegland focuses on a self-described teacher of the Koran from Yemen who was arrested by Pakistanis at the age of 17 while fleeing the Afghan war and was later flown to Guantanamo. The only real evidence against him, wrote his nonlawyer "personal representative" (an Army lieutenant colonel), was a proven liar's claim to have seen the Yemeni—long before 9/11—with an AK-47 at bin Laden's private airport in Kandahar.

    This, plus something said by one Mohamed al-Kahtani while being driven mad by his tormenters (see below), was evidence enough for the tribunal to brand the Yemeni an enemy combatant.

    It's difficult to know how many of the 750 men taken to Guantanamo were dangerous to Americans when they arrived, let alone how many of the innocent detainees among them may have acquired a lust for American blood from years of being jailed, humiliated, and brutalized by Americans. The administration's unspoken logic appears to be: Better to ruin the lives of 10 innocent men than to let one who might be a terrorist go free.

    This logic would be understandable if the end of protecting American lives justified any and all means, including the wrecking of many more innocent non-American lives. So, too, would be the torture (or near-torture) in late 2002 of the above-mentioned al-Kahtani, after fingerprints had shown him to be the would-be "20th hijacker" turned away by a suspicious immigration agent a few weeks before 9/11.

    Al-Kahtani was interrogated for 18 to 20 hours a day for 48 of 54 days; he had water dripped on his head and was blasted with cold air-conditioning and loud music to keep him awake; his beard and head were shaved; he was forced to wear a bra and panties and to dance with a male jailer; he was hooded; he was menaced with a dog, told to bark like one and led around on a leash; he was pumped full of intravenous fluids and forced to urinate on himself; he was straddled by a female interrogator and stripped naked; and more—all under a list of interrogation methods personally approved by Rumsfeld.

    Al-Kahtani may well have had valuable information. But it appears that many other detainees who had no information—because they had no involvement in or knowledge of terrorism—have been put through "humiliating acts, solitary confinement, temperature extremes, use of forced positions" in a systematic effort to break their wills that is "tantamount to torture," the International Committee of the Red Cross complained in a confidential report to the government, excerpts of which The New York Times obtained in November 2004.

    The Pentagon responded then that Guantanamo was an oasis of "humane" treatment.

    Last July, the Pentagon elaborated in a report of an investigation into complaints by FBI agents of abusive interrogation methods. Many of these methods—such as shackling detainees to the floor for hours in painful positions, keeping them shivering cold during interrogations, grilling them for 16 hours nonstop, waking them up by moving them every few hours, using loud music and strobe lights—had been officially approved as "humane," the Pentagon report explained.

    Bush has also pledged that the Guantanamo detainees are treated "humanely." At the same time, he has stressed, "I know for certain ... that these are bad people"—all of them, he has implied.

    If the president believes either of these assertions, he is a fool. If he does not, choose your own word for him.

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    Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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