MONITORING POLITICAL, ECONOMIC AND DIPLOMATIC
ISSUES AFFECTING THE WESTERN HEMISPHERE
Monday, May 14th, 2007
On June 29, the U.S. Supreme Court agreed to hear whether Guantanamo detainees may use habeas corpus to challenge their
detentions in federal courts, a right they heretofore have been denied. In Canada, this has spawned speculation that the
case of Omar Khadr, the only Canadian citizen being held at the military base, could be one of the first cases heard.
Khadr, who was fifteen years old when apprehended, has spent the last five years of his life locked away on the island
prison for allegedly throwing a hand grenade that took the life of a U.S. soldier after American troops raided and
opened fire on a building near Khost, Afghanistan, hitting Khadr three times and killing all the rest who were in the
structure at the time. Whether the new court ruling will produce any meaningful results for Khadr awaits an answer.
Unlike the governments of other western nations that intervened to repatriate their citizens held at Guantanamo,
Canadian authorities have failed to take forceful measures to protect the Canadian-born youth. In fact, in a welter of
technicalities, Khadr remains caught up in the U.S. government’s web of coldly calculated legalities, while the best
that Ottawa seems to be able to do is huff and puff.
The “Semantic” Debate
From its very inception, Guantanamo Bay has been shrouded in a mass of legal language that has prevented a clear view of
what routinely happens at the base. Deceptive euphemisms such as “robust interrogation” mask practices that are scarcely
short of torture and unalloyed abuse, while carefully crafted if meretricious loopholes have made these legal
conventions immune to the rulings of U.S. courts. In a COHA interview with Jennifer Schuett of Washington’s Center for
International Policy, she asserted that the operations at Guantanamo chronically have been conducted, under what is
nothing more than a “façade of justice.”
On June 4, all charges against Khadr were dismissed when Judge Army Col. Peter Brownback ruled that U.S. military
tribunals lacked the authority to try Khadr because he had been classified only as an “enemy combatant,” and not as an
“unlawful enemy combatant.” While the Canadian media dutifully reported the June 4 ruling to be a “semantic shocker,”
there is nothing new about this pitiable game of technicalities at Guantanamo - it seems that shoddy legalities are not
an exception, but rather a habitual norm at Guantanamo’s makeshift judicial offerings.
A Timeline of Doublespeak
Beginning with the military order that authorized the indefinite detention of suspected terrorists without due process
of law (November 13, 2001), preexisting international law and UN conventions, along with the unit of habeas corpus, were
tossed in the gutter as the Bush administration slapped together a set of self-serving rules that would carve out
unchecked power for the White House. Indeed, the abasement of language has played a central role in the operations of
Guantanamo. When the suicide of three Gitmo detainees in 2006 focused public concern on living conditions at the base,
U.S. authorities responded by deprecating these tragedies as acts of “Asymmetrical Warfare.” This term was also applied
to the 92-day hunger strike in which the U.S. military responded to the “warfare” by strapping detainees in chairs,
inserting large tubes down their noses and throats and pumping large quantities of liquid nutrients into their bodies.
As reported in the New York Times and in the Washington Post on March 1, 2006, detainees informed their attorneys that the forcefeeding tactic caused them to “urinate and defecate
on themselves and that the insertion and removal of the feeding tube was painful.”
Similarly, the U.S. government has repeatedly pointed to “Disciplinary Violations” as proof that Guantanamo detainees
represented the “worst of the worst,” as asserted by former Secretary of Defense (and noted humanitarian) Donald
Rumsfeld, and that harsh treatment towards them was entirely warranted. But in a 2006 report based entirely on
government documentation, Mark and Joshua Denbeaux of Denbeaux & Denbeaux exposed the fact that 43 percent of these so-called “Disciplinary Violations” that mandated punishment were
for merely spitting at the staff. Surely this is not the type of disobedience that has led the American public to feel
that the atrocious treatment of Guantanamo detainees had to be tolerated.
In the Name of National Security, Anything Goes
Many Americans have been able to turn a blind eye to what are now well-documented accounts of abuse at Guantanamo, on
the grounds that the offshore base is a necessary and effective tool in the war on terror. But the Denbeaux & Denbeaux report also revealed that approximately 95 percent of Guantanamo detainees were not even captured by U.S.
troops, but rather, by Pakistani forces or the Afghan Northern Alliance, which readily handed the men over to the U.S.
military for cash rewards. As handsome bounties on those who had been denominated as terrorists were distributed, U.S.
troops required no evidence that those being hauled off necessarily had any link to terrorism whatsoever. Furthermore,
because President Bush has denied these detainees the right to a legitimate trial, there has been no way to prove that
they were guilty of even some minor crime. In fact, of the some 775 who have been detained at the base, over 300 have
already been quietly released, some after years of imprisonment. The Ottawa Citizen has reported that Guantanamo is now
housing an additional 80 detainees designated to be returned to their home countries because they are no longer
considered a threat, or in other words, were never a threat to begin with.
COHA was able to speak with one of Khadr’s former attorneys, Kristine Huskey of the International Human Rights Clinic in
Washington, who shed light on the high number of “mistakes” in detaining the innocent at Guantanamo. “It’s so easy to
say that they are terrorists and that terrorists don’t deserve rights, but because they were never given rights to begin
with, like the right to a fair trial for instance, how did we reach the decision that they are even terrorists?” Not
only is Guantanamo revealing itself as a leprous locale morally, but now an ineffectual one as well.
So far, the only “successful” conviction that has come out of the base is that of David Hicks, the Australian who plead
guilty to conspiring with the Taliban. But the Hicks case ended in a plea bargain in which he could be sent home to
Australia to serve a nine-month sentence as long as he remained silent about the operations of Guantanamo and agreed to
never write a book on his time in captivity. As Shuett pointed out in her COHA interview, “It doesn’t make any sense. If
Hicks is really a terrorist, why are they giving him only 9 months?”
While it is a rather grave mistake to lock away and punish innocent men for years on end, few seem concerned about this
type of error. Drowning in a culture of fear, Americans seem content to accept an erosion of ethics in the name of
national security. Furthermore, the apathy in Ottawa is a marker of complicity in the staging of such transgressions.
Canadians, while showing little regard for Khadr’s rights, have demonstrated that they too, have bought the idea that
human rights abuses are acceptable in the name of U.S. security. What is painfully clear is that in the War on Terror,
some lives count more than others.
There is no Torture at Guantanamo (Technically, of Course…)
On August 1, 2002, the Justice Department specified that U.S. law “prohibits only the worst forms of cruel, inhuman or
degrading treatment,” meaning that the U.S. military can legally engage in a number of atrocious interrogation practices
so long as they are not “the worst” of the genera. In fact, under U.S. Assistant Attorney General Jay S. Bybee, torture
was redefined so as to extend only to suffering “equivalent in intensity” to the pain of “organ failure… or death.” With
this designation in place, the U.S. military has gone on to engage in “robust interrogation” that includes sexual
humiliation, locking detainees in stress positions for hours on end, holding their heads in toilets, exposure to extreme
temperatures, prolonged sleep deprivation, forcefeeding, beatings, and solitary confinement.
In an attempt to wade through the thicket of legal tape masking the interrogation practices at Guantanamo, COHA
conducted an interview with Shane Kadidal, an attorney who is currently working on behalf of Gitmo detainees at the
Center for Constitutional Rights in New York City. According to Kadidal, the inhumane torture tactics used at Guantanamo
“go back to the Nazis.” With the opening of Camps 5 and 6, the Guantanamo military violated the Geneva Conventions by
keeping detainees locked in solitary confinement with no natural light for days on end. As Kadidal explained, the “more
insidious tactics now being implemented have consequences that are even harder to undo, harder to document and harder to
explain to the public.” The Geneva Conventions prohibit punitive confinement for prisoners of war who were obeying the
laws of war. Prolonged solitary confinement has been shown over the years to be particularly psychologically
devastating. But the U.S. government has found ways to paint over these tactics as well. “The military spins them as a
positive thing, saying that each guy has his own room,” said an incredulous Kadidal.
An End in Sight?
The operations of the Guantanamo military base have been made possible by coldly calculated legal work at the highest
level, with the Washington Post calling Vice President Dick Cheney the mastermind of Guantanamo’s framework. But for all of Cheney’s careful planning,
Gitmo’s makeshift judiciary has failed to hold up in the U.S. Supreme court. It seems that no amount of obscurantism can
conceal the fact that what is going on at Guantanamo Bay is not only inhumane and devoid of rectitude, but illegal as
well. The June 29 ruling will allow Guantanamo detainees to have their cases heard in legitimate, free-standing U.S.
courts, rather than in President Bush’s military tribunals where judges have been legally bound by a “presumption in
favor of the Government’s evidence” (the Detainee Treatment Act of 2005). Kadidal found the recent decision by the
Supreme Court to be “tremendously hopeful,” suggesting that it may mark a turning point in the fate of the captives.
Inaction is an Action that Leaves Canada Complicit in Grave Human Rights Abuses
During her COHA interview, Khadr’s former attorney commented on his morale, noting that his hope has all but
deteriorated. In late May, Khadr fired his American lawyers, saying that the military commissions were such a travesty
to justice that he would not validate the system by participating in it. Huskey said that she supported his decision,
although she conceded lightheartedly that “nobody likes to be fired.” As the Bush administration has continued to
circumvent rulings of the highest U.S. courts by passing carefully crafted measures through congress (with the Military
Commissions Act of 2006 being the most noteworthy), there has long been recognition that Guantanamo is beyond the rule
of law. Huskey explained that “as his [former] lawyer, I came to grips with the fact that real relief for Omar was not
going to be found at Guantanamo and it was not going to be found in the federal court system. The only hope was going to
be with Canada.”
But with the Harper government in place, Canada seems to have lost its backbone. Even as stories of abuse continue to
leak through the cracks in Guantanamo’s tawdry legal system, Canadian authorities have yet to make any move towards the
repatriation of their last remaining citizen at the base. In similar circumstances, Britain, France, Germany and
Australia, among other countries, negotiated to have their nationals sent home where they could be tried by a legitimate
judicial regimen. It is not that these countries are defending terrorism; what is at stake here is the core nature of
democratic societies and the fundamental rights of those who dwell in them.
In the case of Khadr, it is clear that what is “unlawful” is that that there is a young man who has yet to be convicted
of anything, sitting in a prison camp renowned for its calculated human rights violations while a dispute over
technicalities continues indefinitely. Prime Minister Stephen Harper’s inaction has demonstrated an unsettling specter
of complicity in Guantanamo’s torture and other heinous practices that are in clear violation of international laws.
When confronted with a letter signed by 25 federal political officials calling for Khadr’s repatriation, the Harper
administration responded that it would be “premature and speculative” to begin negotiations on behalf of the Prime
Minister’s countrymen. After five years of word games, it is clear that an intervention in the Khadr case would not be
“premature,” but rather, is long overdue. It is time that the Harper administration revives its long-sedated conscience
to come up with some fancy footwork of their own device and demand that Khadr be sent home — right now — where he might
obtain his fair day in court.
This analysis was prepared by COHA Research Associate Laura Wayne
July 10th, 2007
Word Count: 2200
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