An interview with Carlos Warner of the federal public defender’s office in the Northern US District of Ohio, which represents 11 of the detainees at Guantánamo Bay Prison
The idea that as innocents, we are free, would seem a logical moral conclusion to any discussion around justice. It would also seem an abhorrence that a modern democratic country would act against this principle.
At Guantánamo Bay Prison (Cuba), the United States government has done just that. As part of an ongoing “war on terror” they have subjected hundreds of men to some of the most extreme forms of mistreatment seen in the modern world. There is little doubt that some of those who were rendered to Guantánamo were connected to acts of terrorism or combat activities, but the vast majority were not. The (roughly) 166 who remain are predominantly innocent men- many of whom have been declared innocent by the US government, but who are now approaching the 12th year of their detention- without trial, and with practically zero hope of release within their lifetimes.
Faced with this fact, and under deteriorating conditions- the majority of inmates have begun the largest hunger strike in Guantánamo history. In April 2013, the New York Times carried the astonishing testimony of Samir Naji al Hasan Moqbel who is one of the prisoners on hunger strike “One man here weighs just 77 pounds. Another, 98. Last thing I knew, I weighed 132, but that was a month ago… I’ve been on a hunger strike since Feb. 10 and have lost well over 30 pounds. I will not eat until they restore my dignity. I’ve been detained at Guantánamo for 11 years and three months. I have never been charged with any crime. I have never received a trial. I could have been home years ago — no one seriously thinks I am a threat — but still I am here“. He continues, “Last month, on March 15, I was sick in the prison hospital and refused to be fed. A team from the E.R.F. (Extreme Reaction Force), a squad of eight military police officers in riot gear, burst in. They tied my hands and feet to the bed. They forcibly inserted an IV into my hand. I spent 26 hours in this state, tied to the bed. During this time I was not permitted to go to the toilet. They inserted a catheter, which was painful, degrading and unnecessary. I was not even permitted to pray… I will never forget the first time they passed the feeding tube up my nose. I can’t describe how painful it is to be force-fed this way. As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn’t. There was agony in my chest, throat and stomach. I had never experienced such pain before. I would not wish this cruel punishment upon anyone“. Another inmate Fayiz al-Kandari describes how “…they won’t try us. They won’t let us live in peace, and they won’t let us die in peace“.
The situation at Guantánamo is a complex balancing act of national security, foreign policy, politics and law. To learn more I spoke to Carlos Warner of the federal public defender’s office in the Northern US District of Ohio, which represents 11 of the detainees.
Q: What was the rationale behind the creation of the Guantánamo bay
[Carlos Warner] It was the brainchild of Dick Cheney, Donald Rumsfeld and Paul Wolfwitz. They picked Guantánamo as they believed it was beyond the reach of all law. Obviously United States law, but also international law and beyond that the Geneva Conventions. It was picked purposely to be a legal black hole where the United States could bring people for (what was very publically stated as) interrogation purposes. It’s obviously no longer that, and is a ‘Frankenstein‘ of its original form.
Q: Did Guantánamo meet any of its ‘objectives’?
[Carlos Warner] Absolutely not. We’ve all heard President Obama state how Guantánamo actually cuts against our national security by remaining open. The best words come from the Bush Administration itself… Col. Lawrence Wilkerson (who was Colin Powell’s Chief of Staff) talked about how the vast majority of the people brought to Guantánamo were innocent- and how people like Cheney, Rumsfeld and Wolfwitz believed that holding innocent people was just collateral damage in their war on terror.
Guantánamo has created more terrorists than have ever passed through. It is the major recruiting tool used… it inhibits the United States’ ability to talk about human rights on a global scale… when you have the UN calling-up the United States on their human rights abuses at Guantánamo it makes it very difficult for the United States to then go to other places in the world and demand that they apply human rights.
Guantánamo has been a complete and total failure and I don’t think there’s a rational argument that it’s anything other than a terrible black mark on United States history.
Q: When did concerns begin to emerge about Guantánamo?
[Carlos Warner] There were red-flags in the public’s eyes from the very beginning, but within the administration there were major red flags about Guantánamo in 2002/3 when they saw the people who were being transferred there. There were people transferred to Guantánamo who were sold for bounties, transferred there because of the watch they wore, where they slept or even just because they were Arabic men in Afghanistan. They were rounded up, brought to Guantánamo and many of them have remained there over 11 years.
Mainstream United States citizens do not view the world the same way that Neo Con’s and Dick Cheney might. Mainstream United States citizens maybe don’t understand who’s in Guantánamo, but they believe that men should be released if they’re innocent- and that men should be tried if the government feel they’ve done something. That’s not how some of the darker forces in our government, back in 2002 under the shadow of 9/11 thought. They felt that people should be held indefinitely- forever- just because they thought it was a good idea.
Q: What was the private sector involvement in Guantánamo?
[Carlos Warner] One of the first things I noticed during my trips to Guantánamo was that soldiers don’t do any of the menial tasks. Guantánamo is run by a company called Bremcor – they do all the landscaping… do all the food… maintenance the trucks and do the grunt-work which you would normally expect the military to do. Bremcor was there before the Guantánamo prison opened, and will be there long afterwards.
Guantánamo is extraordinarily expensive, even Obama said so. Each detainee- even the innocent men- cost the United States around USD 900,000 per year. The reason is that Guantánamo is on an island, in the middle of the Ocean and things need to be barged in. It’s an expensive place, and civilian contractors reap many of those benefits.
Q: What is the reality of prisoner conditions at Guantánamo and interrogation/security strategy?
[Carlos Warner] During one of my first visits to Guantánamo, I saw a big coil of barbed wire set out in the middle of a small field. It didn’t seem to be protecting anything. I asked a soldier what it was, and after some thought- and even some checking- he answered that it was decorative. You have a lot of that in Guantánamo.
The prison is not what it was in 2002. Back then it was Camp X-Ray and these men were basically held in cages. Now it’s more like what you might see in a modern prison. It’s built around what you would normally see in the United States. Sometimes these men are held in solitary confinement- now, with the hunger strikes going on- nearly all the men are held in solitary, some for 24 hours a day. Before the hunger strike, many of the men – and there are about 130 of them- lived in a very open and communal setting. They had access to their cells, but were free to move about and talk to each other for around 22 hours of each day.
What makes Guantánamo so horrible is the fact that the majority of these men are innocent and have no hope of release in the future. Our government has made no concrete steps to releasing these men- even the innocent ones who they agree should be released. They have been incarcerated for 11 years, have no contact with their families and have a phone call here and there through organisations like the Red Cross. Many of those at Guantánamo have grown from children to adulthood during their time there and their only portal to the outside world is people like me who come, visit them, bring them things and explain what’s going on. They used to have access to some media- but for the most part they are held there indefinitely, for life- with no hope of release.
Nowadays these men are being held- there are no interrogations going on. Certainly back in 2002-2005 there were terrible interrogations. I cannot speak for any individual client, but the kinds of things that went on at Guantánamo and other such places, have been widely reported. Those things are viewed as torture now, we should admit they were torture and we- as a country- have to commit to never do those sorts of things again. No matter how heinous we think an individual is, they are all human beings and should be treated as such.
Q: Do the detainees at Guantánamo have any legal rights or the ability to exercise such rights?
[Carlos Warner] Guantánamo was designed as a legal black-hole and remains as such. There is no legal remedy, nor any legal options for the men held there. These men are political prisoners, and the only way their situation will be resolved will be through political action in the US and abroad.
Right now there’s is a military commissions court at Guantánamo, but it does not operate under civil standards. There’s no attorney-client privilege, hearsay evidence is admissible- and even the judge does not control his own court room. Against this- you have the US Government saying that it is fair, transparent and just.
These men have a right to habeas corpus – in fact, I am assigned for habeas corpus purposes… but let me just briefly go over what the law on habeas corpus is. Firstly, we have to accept that all allegations made by the government as being presumed accurate. The burden of proof is on us to disprove what the government have said, and show it as inaccurate. This goes against all principles of a fair hearing. The horrible thing about it is that even if we were able to disprove the government, the US Courts have said they do not have the power to order someone’s release from Guantánamo. Even if someone at Guantánamo is granted the writ of habeas corpus, there is nothing they can do with it. They may as well hang it up in their cell as a certificate. The people who have had their writs granted remain there.
Our government, under the auspices of national security have classified all the litigation. I can’t even tell you on a particular case what the allegations might be against a particular client. I can’t tell you if they’re true or false. It’s like being accused of being in a bar-fight, but I can’t go to the bar, I can’t interview any patrons of the bar, I can’t take pictures of the bar… and I can’t even tell my client that he’s been accused of being in a bar fight. To call that due-process is plain false.
In the case of Guantánamo we see due process as being split into three elements. Firstly the Geneva Conventions, secondly the military commissions and thirdly a real trial- what we would call an Article 3 Trial in the US Federal Courts.
Congress and the President have said that Article 3 judges are ready, willing and able to accept the cases. The problem is the restriction on bringing these individuals to trial in the first place. The Government has effectively denied these individuals real justice- the chance for a full and fair trial in the Article 3 Courts. I agree with the President. If the Government can present a charge and prove it beyond reasonable doubt before a jury? …then individuals should be punished accordingly.
The military commissions are a complete mockery of justice. Somebody in our Government was recording all attorney-client meetings… they were listening to them and redistributing them. The prosecutors have had access to defence emails and files and have looked at those things. The Judge does not control his own court room… and that’s a shame, as I hear he’s an incredible jurist. You then get into the problem of the fact that these men cannot even choose their own lawyers! We have 800 years of history of trial and due-process history in the United States, and none of that is being applied in Guantánamo. They’re applying lipstick on a pig down there and asking the world to buy it- well, I’m sorry- but the world is not buying it. People have asked me if the military commissions are failing- and the fact is they have already failed. It’s just a matter of when people will throw in the towel. Certainly it would be unconscionable to execute someone under these circumstances, but that is just what our Government is doing.
The last part of this is the Geneva Conventions. Guantánamo was designed for the purpose of avoiding the Geneva Conventions. Dick Cheney, people of his ilk and even- at times- our own President have said that these people don’t fall under the Geneva Conventions because they are ‘enemy combatants‘. They don’t wear a uniform… Ari Fleischer last week said that he thought the Nazis were better than these people [at Guantánamo] because they wore uniforms! He said that on CNN! The conventions state that you must have a full and fair hearing at- or near- the battlefield, to determine if you were part of an enemy fighting force. These individuals have never had that. They’ve had minimal due process in Guantánamo without lawyers. Nobody can argue Guantánamo is at or near the battlefield. The bottom line is that the Geneva Conventions don’t apply.
Cheney, Rumsfeld and Wolfwitz designed Guantánamo to be a place to be out of the reach of the law, and it remains so today.
Q: What is the background to the current hunger strikes at Guantánamo, and what do you see as being the outcome?
[Carlos Warner] The last widespread hunger strike at Guantánamo was in 2006. This hunger strike occurred after 3 men purportedly committed suicide. During this time, the men’s Qurans were widely searched by linguists and soldiers- and they started a widespread hunger strike. This ended when the military allowed the men to voluntarily surrender their Qurans instead of having them searched. For 4 years, the Navy guarded the men and there was ‘detente‘ between them, and they got on famously. The men recognised the guards were just people- there to do a job- and that it wasn’t their fault they were there. You didn’t hear of any discontentment in the camps for over 4 years.
In September of last year, this all changed. The Navy handed off supervision of the camps to the army. The guards were hardened veterans from Afghanistan and Iraq. Many of them were involved in detention groups in those theatres. That’s when the rules started to change. Remember, these are innocent men… Someone in the army will have taken the view that ‘this camp doesn’t fit our view of what it should be…‘ – and the crack-down began. Leaks of this started to leak out to the media in early January. There was a shooting- where a man was shot with rubber bullets- unheard of before. There was also reports that at Camp 7, at the military commission hearings, all the men’s legal documents and papers were being taken away once they went to court. Nobody knew why this was occurring. The situation came to a head in February 2013 when there was a complete shakedown of the camp. The guards came and took everything away from the men and searched Quran’s in the same manner as 2006. As a reaction, the entire camp began hunger striking. I was in Guantánamo the week after this began, and 130 out of 166 men were hunger striking. At the time, the military said ‘no this is a fraud, only 5 people are hunger striking‘ – but the number has slowly built and now the military say it’s 100- well, it’s still in reality 130.
There was another event on April 13th, where the men were attacked by the guards. At the time, I said publically and privately, that we could de-escalate the situation and these individuals could start eating again if the military would have a negotiation and implement what they did in 2006, allowing the men to voluntarily surrender their Qurans. The military has no institutional memory, and when I told them that in 2006 this was a solution? they simply didn’t believe me. These soldiers simply continue to escalate matters to the point where now- they’re admitting that the vast majority of the camp is hunger striking, and being tube fed. The military say that only two-dozen men are being tube-fed, but they never attach names to that. It’s our view that they tube-feed a different two-dozen every day.
You are at a point now where the entire camp is dug-in and hunger-striking over this new regime. Certainly the fuel driving the fire is the hopelessness of their indefinite detention. They see no way out, and are now being locked down by a new military regime. The military could end this hunger strike if it de-escalates, but it has so far not chosen to do that. Having an entire camp not eating food is not a sustainable solution for anybody.
You have 86 men who are engaged in a peaceful hunger strike. These are men who the Government have agreed to release but refuse to release. The Government are now force-feeding these men to keep them alive, when their only wish is to die peacefully.
The President swore in 2009 that he’d close Guantánamo within a year. Someone close to the situation would tell you again, and underscore- that he could close it in a year- if he had the political courage to do so. He has the authority to close Guantánamo, and could do so easily within a year.
The reality of this is that even the military have said that people will die if this continues.
Q: Is Guantánamo unique?
[Carlos Warner] The United States have detention facilities like this throughout the world. It’s part of what we do as a country. Guantánamo is unique because of the type of people who are there. It doesn’t even require debate, the majority innocent. They’re being held there because we, as country, have no desire to release them.
In other parts of the world, I would hope that we pick people up off the battlefield, try and figure out who they are as part of a full and fair hearing, and if we find they are part of an enemy fighting force that has done bad things? we detain them… otherwise, we release them. That is not happening in Guantánamo.
At Guantánamo, people are held indefinitely- for life- regardless of whether they were innocent when they arrived.
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By campaigning for justice at Guantánamo we are not stating that we should simply release everyone, but rather that we need to apply fair and just principles to assess those who are innocent (and deserve to enjoy their liberties as such) and those who are not (and thus who may receive punishment for their actions).
Regardless of the loopholes used, the fact remains that detainees at Guantánamo are Prisoners of War, and under the Third Geneva Convention they are expressly guaranteed fair trial rights- and as a Center for Constitutional Rights report states, “…these fair trial guarantees are considered so essential that ‘willfully depriving a [POW] of the rights of a fair and regular trial prescribed in this Convention’ is deemed a ‘grave breach’ of the convention – i.e., a war crime.”
Guantánamo is not unique. In a 2005 interview, William Schulz [then] executive director of Amnesty International’s Washington branch described how “…the U.S. is maintaining an archipelago of prisons around the world, many of them secret prisons, into which people are being literally disappeared, held in indefinite, incommunicado detention without access to lawyers or a judicial system or to their families…” he added: “…in some cases, at least, we know they are being mistreated, abused, tortured and even killed.”
One of the core functions of government is to ensure that citizens of their country enjoy security. This is something which you and I as members of a population assume governments will do- and often, we give little thought to how. What we sometimes forget is that every decision a government makes is made in our name, and on our behalf.
Unless the madness at Guantánamo ends, we will all have blood on our hands.