Guantanamo's Orange Jumpsuit Justice

By JOANNE MARINER

Wednesday, May. 24, 2006

International criticism of the Guantanamo Bay detention facility has been growing in strength over the course of the year, but it reached a crescendo this month. In the past two weeks alone, the U.N. Committee Against Torture, the U.K. attorney general, and a prominent Australian high court judge have all called for Guantanamo to close.

Even President George Bush himself, in an interview on German public television, admitted for the first time that he would like to shut down the facility.

Bush undercut his remarks, however, by stating that the U.S. Supreme Court first had to decide whether the detainees there should be brought before civilian courts or military commissions. And this past Sunday, Secretary of State Condoleezza Rice echoed his comments, while adding further caveats. She said that the U.S. would be "delighted" to close Guantanamo, but claimed that the government was obliged to keep it open until alternative measures could be taken to control the people held there.

The fact that the Administration is even discussing Guantanamo's closure represents progress. But in terms of taking steps to remedy the problem, there is still far to go.

Prosecute the Guilty

President Bush's statements on German television were important in several respects. First, they were an implicit acknowledgment that Guantanamo has been a failure. With even the British complaining about the facility, that much was already pretty clear.

Second, and equally important, they were the first time that Bush indicated that the detainees should face trial, rather than be held in indefinite detention. This was a step forward, but one that Rice seemed unwilling to endorse.

In Hamdan v. Rumsfeld, a case currently before the Supreme Court, the justices will be ruling upon the legality of the military commissions established by the Bush Administration to try some of the detainees at Guantanamo. A ruling in the case is expected in June. But even in advance of that ruling, the Administration is free to remedy Guantanamo's problems.

But Only a Minority Are Slated for Prosecution

President Bush's remarks at least suggested that the Guantanamo detainees should get a trial -- whether in civilian courts or military commissions. Yet, to date, the Administration has indicated that only a fraction of the detainees will be prosecuted.

Only ten of the 460 detainees now held at Guantanamo have been charged before military commissions. The chief prosecutor, Air Force Col. Morris Davis, said a few weeks ago that charges were expected soon against about two dozen others. Administration officials have said in the past that they expect up to 70 to 80 detainees to be charged.

Hundreds more detainees are apparently not slated for prosecution. Instead, they are being held in indefinite detention on the basis of secret evidence that they have no way to effectively challenge.

Prosecution and Coercion

Although Secretary Rice labeled the Guantanamo detainees "dangerous people," the label means little without meaningful evidence to support it. And it is via the trial process that evidence is tested and found to be meaningful.

Guantanamo's problems have, however, complicated the possibility of future trials. Among the abuses that led to Guantanamo's notorious international reputation was the physical mistreatment of detainees. At least sixty detainees have made credible allegations of serious abuse at Guantanamo, as documented in a recent joint report by several human rights groups, including Human Rights Watch.

One detainee, Mohammed al-Qahtani, was reportedly subjected to weeks of sleep deprivation, isolation and sexual humiliation in late 2002 and early 2003. A review of al-Qahtani's interrogation log suggests that the techniques used during al-Qahtani's interrogation were so abusive that they amounted to torture. Another detainee, Mohamedou Slahi, has made similar allegations about abuse during interrogation.

The coercive interrogation techniques practiced at Guantanamo will no doubt hinder the trial process. When a confession is coerced from a criminal suspect, it can be difficult to prove, as due process requires, that his later prosecution is not based on the fruits of that coercion.

Guantanamo as Spectacle

Guantanamo has become a counterproductive spectacle. In Turkey, just yesterday, a man convicted of links to Al Qaeda tried to put on a courtroom show by wearing an orange jumpsuit similar to those used at Guantanamo. By exhibiting what is now an international symbol of injustice, he ridiculed the court and expressed disdain for its proceedings.

American justice was - and should be -- the envy of the world. Guantanamo is an anomaly that should not be allowed to stand.

There is no reason for the Bush administration to wait for a Supreme Court decision before closing Guantanamo. Any detainees implicated in criminal acts can and should be charged now. The rest should be released.


Joanne Mariner is a New York-based human rights attorney. Her previous columns on Guantanamo may be found in the FindLaw archive.

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