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War on Terror Ignites Battle Over Course of US Justice
Published on Thursday, September 5, 2002 in the Toronto Globe & Mail
War on Terror Ignites Battle Over Course of US Justice
by Paul Knox
 

GUANTANAMO BAY NAVAL BASE, CUBA  -- The guys in the orange jump suits get nervous when Specialist Amelia Bailey comes around.

Many are prisoners from the war in Afghanistan, where women wear the all-concealing burqa and until recently were banned from paid work. Specialist Bailey, on the other hand, is a woman with smooth skin, intense black eyes, a job as prison guard and enormous power over them.

"Most of them don't speak to me because I am female," the 22-year-old military policewoman says with a drawl you could spread on toast. "Most of them, if they do speak to me, they don't look at me. Nine times out of 10 they'll cover their faces so they can't actually see me."

Guantanamo Bay
U.S. Marines escort a detainee prior to questioning at Camp X-Ray in this February 10, 2002 file photo at the naval base at Guantanamo Bay, Cuba.
REUTERS/Marc Serota
Covering their faces in front of a female guard is one of the few options enjoyed by the 598 prisoners at Guantanamo Bay. Inside its metal-mesh prison camp, named Camp Delta and surrounded by fences and razor wire, suspected members of the al-Qaeda terror network and Afghanistan's former Taliban regime are housed and periodically interrogated. But not within the limits of U.S. law.

Although Guantanamo Bay Naval Base is controlled by the United States, it remains Cuban territory. That means no judicial scrutiny of the captives' treatment because of the Bush administration's decision to deny them many of the privileges accorded to prisoners of war. It also means a historic challenge to the United States, a nation founded on the principles of individual liberty and checks on executive power.

Much more than a military outpost (and a minor one at that), Guantanamo Bay has become a symbol of a deepening post-Sept. 11 struggle over U.S. justice. A government that claims extraordinary powers to fight an extraordinary war has thrown a shroud of secrecy over its roundup of suspected terrorists abroad and at home. It refuses to say whom it is holding in connection with the Sept. 11 attacks at Guantanamo Bay or in prisons across the United States.

It has jailed more than 1,000 people and deported on minor immigration violations hundreds of people with no connection to terrorism. It has moved aggressively to thwart judicial and congressional scrutiny of its actions.

But opposition is growing from judges, lawmakers in Congress and civil libertarians who ask why cherished principles of transparency in U.S. justice must be flouted in the name of defending freedom.

"The notion that this is antithetical to what this country is all about is finally starting to penetrate," says Jane Kirtley, a professor of journalism and law at the University of Minnesota.

In a landmark ruling last week, a federal appeal court in Cincinnati said the government broke the law when it ordered secret deportation hearings for hundreds of immigrants rounded up after Sept. 11.

"The executive branch seeks to uproot people's lives, outside the public eye and behind a closed door," Judge Damon Keith wrote in the unanimous judgment. "Democracies die behind closed doors."

Other rulings, still under appeal, say the government must release the names of prisoners held in the United States and suspected of terrorist links. But the rulings do not apply to Guantanamo Bay, a 116-square-kilometre territory seized by the United States a century ago and held under a lease arrangement.

Reporters touring the base are driven to Camp Delta under military escort, past arid, cactus-dotted hills that slope down to the Caribbean Sea, but they are not allowed to come within 200 metres of the prison or steal more than a glance at the prisoners behind its fences.

Camp Delta holds inmates from 43 countries, all men, and all but a handful are Muslims. Officials say little else about them.

"We're trying to prevent future guests, if you will, from understanding what's happening down here," says Lieutenant-Colonel Dennis Fink, spokesman for Joint Task Force 170, the interrogation unit that periodically grills the Guantanamo prisoners about Sept. 11 and other terrorist activities.

"We don't want them to know what the process is about so they can prepare and train. We don't want them to know what we know and what we don't know. We don't want them to know who's here. All these factors will only contribute to the terrorists."

Pictures of the first shackled captives arriving at Guantanamo in January sparked worldwide condemnation. They were housed farther inland in chain-link cages at a site known as Camp X-Ray.

Stung by the criticism, military spokesmen are at pains to describe Camp Delta as more humane. Conditions are undoubtedly better than they would be in an Afghan or Pakistani jail.

But independent verification is not allowed. And something has led four to 30 prisoners -- depending on which military officer is telling the story -- to attempt suicide by hanging or wounding themselves.

Cells at Camp Delta measure two metres by 2.4 metres and are 2.4 metres high, spokesmen say. Each has a metal bed frame, sink and flush toilet. Meals conform to Islamic specifications; arrows stencilled onto the beds indicate the direction for Muslim prayers.

Inmates are allowed a shower and 15 minutes of exercise twice a week. They spend much of the day sleeping, says Sergeant B.J. Buehler, 23, one of about 1,000 guards.

If the inmates were considered prisoners of war, they would be entitled to organize their own group activities, maintain their rank structure and be housed in conditions similar to those of their captors. According to some interpretations, they could not be compelled to give more than name, rank, serial number and date of birth.

If they were sitting in a U.S. jail awaiting trial on criminal offences, they would have access to lawyers, regular visiting hours and considerably more exercise.

But in February, U.S. President George W. Bush said the United States does not consider the captives prisoners of war. His rationale, in part, is that they are terrorists rather than members of a military fighting unit.

Brigadier-General Rick Baccus, commander of the prison-guard unit at Guantanamo, says "some sections" of the 1949 Geneva Convention on prisoners of war are being applied to the inmates. He lists food and shelter, medical treatment and freedom of religion.

When asked who decides when to follow the conventions and when to ignore them, he replied, "That has been directed by the Secretary of Defence."

But the Geneva Convention says a "competent tribunal" should decide the status of detainees if there is doubt as to whether they are prisoners of war. The idea of Defence Secretary Donald Rumsfeld as sole arbiter does not sit well with Michael Byers, a professor of international law at Duke University in North Carolina.

"It's a blatant violation. . . ," he says. "There's quite clearly a disagreement and uncertainty about their status, so quite clearly international law demands a tribunal. It can be a U.S. military tribunal, but it can't be the Secretary of Defence."

Al-Qaeda members may not qualify as prisoners of war, says Tom Malinowski, Washington advocacy director for Human Rights Watch, a watchdog group. But even then, he asked, are not they suspects in a criminal investigation? In which case, should not the government have to prove it has reasonable grounds for holding them, and should not the captives be entitled to legal representation?

"It's not an army," he says. "It's a transnational terrorist network. . . . At what point does this war begin to resemble a law-enforcement operation? At what point do the Geneva Conventions no longer apply, and you have to apply domestic human-rights principles?"

Similar arguments were made in a U.S. court in the spring by lawyers for 12 Kuwaitis, two Britons and an Australian who are among the prisoners. But last month, the judge in the case ruled that Guantanamo is beyond the reach of U.S. justice.

Guantanamo Bay is not the only corral in Mr. Bush's terrorist roundup. About 2,500 kilometres north of Cuba, in western New York State, is a graveyard of immigrant dreams called the Buffalo Federal Detention Facility, where several prisoners suspected of links to Sept. 11 have been held.

The jail, at the end of a short road past a cornfield and a Comfort Inn, normally holds immigrants under threat of deportation, and prisoners whose cases are at various stages in the criminal courts. Under a bright blue sky, the razor wire surrounding its open yard gleams as though it has been polished.

Inside, the smell of white paint lingers in the visiting area. Speaking by telephone across thick glass panes, Ansar Mahmood told a story of bad fortune and hopes betrayed.

Mr. Mahmood, a slender 25-year-old with a captivating grin, has been in jail since January. He is a legal immigrant with no known connection to terrorism. Had the Sept. 11 attacks not taken place, he still probably would be a likable Domino's Pizza delivery guy in Hudson, N.Y., sending $400 to his family in Pakistan every month. His love affair with the United States began well. A university graduate, he applied for a U.S. visa and was chosen under a lottery system in 1999. He arrived the next year and was immediately impressed. "I felt freedom here," he says. "Nobody asked me: 'You are Pakistani; why did you come here?' "

His problems began on Oct. 9. He had been taking snapshots to send to his family, and a pizza customer had told him about a scenic view of the Catskill Mountains. When he reached the site, he saw two security guards and asked one to take his picture.

The man obliged. But what Mr. Mahmood did not know was that the guards were there because of heightened vigilance at a nearby water-treatment plant. A call was made, and later that evening, the police showed up at Domino's.

Mr. Mahmood quickly was cleared of terrorist links. But in checking him, authorities found he had co-signed a lease for his best friend's brother-in-law. That man was in the country illegally, and helping such a person obtain housing is a criminal offence.

Mr. Mahmood says he did not know his friend was in the United States illegally, but he signed a statement admitting guilt on the advice of his boss. People accused of violating immigration laws are not entitled automatically to legal aid, and Mr. Mahmood says he did not consult a lawyer first.

After pleading guilty to harbouring an illegal immigrant, Mr. Mahmood was ordered deported. He has a lawyer who is fighting the deportation and challenging a directive ordering mandatory detention for deportees. Civil-liberties advocates say the U.S. Justice Department deliberately used immigration law to question suspected terrorists without having to provide legal aid or persuade a court it had grounds to hold them.

"The rights of these people have been violated because they were suspects in a criminal investigation," says Human Rights Watch researcher Cesar Munoz.

In normal times, even immigrants who overstay their visas often escape deportation because no one has the time or money to embark on a massive search for them. It became harder for them after Sept. 11 -- particularly for Muslim or Middle Eastern immigrants, says Sophie Feal, a Buffalo immigration lawyer. Sightseeing at Niagara Falls was one of the riskier activities such a person could engage in, she added.

"The [Immigration and Naturalization Service] and law enforcement were watching. They'd see two Arab men in a car, and right away there would be 10 of them with guns drawn."

Prisoners have complained of beatings and harsh treatment, especially in the maximum-security unit at the Metropolitan Detention Center in Brooklyn, N.Y. But Mr. Mahmood says he has been treated well, adding that authorities were not wrong to question him.

"They're doing their job," he says. "If you see someone taking pictures at a water-treatment plant -- he's young, he's from Pakistan, he looks Muslim -- in my country they would do the same thing. But [what happened] after, that is not right, because I'm not dangerous to the community."

The government has won some court decisions on post-Sept. 11 practices. A judge in Chicago ruled that the government was within its rights to hold people indefinitely as material witnesses in connection with the terrorist attacks, without identifying them publicly.

But Gladys Kessler, a federal judge in Washington, ruled in June the government is wrong to withhold identities of the prisoners.

"Secret arrests are a concept odious to a democratic society," she wrote. The government is appealing her decision.

Justice Department officials defend the secrecy by saying they do not want to provide a "road map" to their investigations. They may go further. In a development that alarmed some, the Wall Street Journal said last month that authorities plan to expand the practice of designating U.S. citizens as enemy combatants, thus exempting them from civilian justice. Two jailed citizens, Jose Padilla and Yaser Hamdi, have received that designation and are challenging it in the courts.

As for the Guantanamo Bay prisoners, how much they know and whether any court would convict them of anything is an open question. The Bush administration said last fall that it would set up special military tribunals to try terrorism-related cases but has not done so.

Most of the prisoners have been here for months and are unlikely to know much about what Osama bin Laden is up to. His most senior associates probably are not here. There are reports that a key lieutenant, Abu Zubaydah, is being held at Diego Garcia -- a British-owned island in the Indian Ocean also used as a U.S. naval base.

But no one outside the U.S. military knows, nor will they any time soon. As long as the war on terror continues, the identities and locations of prisoners, their alleged wrongdoings and their rights, if any, seem to remain as distant as the tiny cells at Camp Delta.

The interrogations at Guantanamo Bay are "having results," Lt.-Col. Fink says, noting that criminals sometimes reveal details of their crimes years after their convictions.

"There's no timeline," he says. "Our mission is to interrogate and extract information that will assist in a global war on terrorism. How long we'll do that? We'll continue to do that until we're told to stop."

Change of venue
After criticism of the harsh conditions at Camp X-Ray, Taliban and al-Qaeda prisoners have been moved to Camp Delta, a larger facility designed to be more humane.
New living arrangements
While the open air cells are roughly the same size as those in Camp X-Ray, there are a few differences in the accommodations at Camp Delta:
- Walls are made of a heavy metal mesh, and the back wall (serving as the exterior wall of the blockhouse) is solid metal with a window.
- Each cell has a raised metal bed frame, a floor style toilet, and a sink with running water set low to the ground to accommodate religious foot washing.
- Prisoners are given a fluorescent orange jump suit, sandals, canteen, a sleeping mat, two blankets and a sheet, a copy of the Koran and prayer cap, two towels (one to serve as a prayer mat), a facecloth and toiletries (soap, shampoo, toothpaste and toothbrush).
- Meals conform to Islamic specifications, and arrows are painted on each bed to indicate the proper direction for Muslim prayers.
- Twice a week, the prisoners are allowed 15 minutes of exercise and a shower.

© 2002 Bell Globemedia Interactive Inc

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