Detained: The unending legal black hole of Guantanamo

As we mark 20 years since the first detainees were brought to Guantanamo Bay, Moazzam Begg provides an overview of the long protracted struggle for justice for the men held in America’s legal and moral blackhole.

This piece was initially published as part of the report The Terror Trap: The Impact of the War on Terror on Muslim Communities Since 9/11, co-published by CAGE in 2021.

This article is published as part of CAGE’s new series of expert essays ‘Perspectives on the War On Terror‘.

Detainees

In 2001, I left the UK to work on humanitarian projects to build schools and construct wells in Afghanistan. When the US bombing began following the September 11 attacks I evacuated with my family to Islamabad, Pakistan. The events that followed were to change my life forever. 

On the night of 31st January 2002, unidentified officers of Pakistani Inter-Services Intelligence (ISI) accompanied by CIA agents forced their way into my home and took me away in front of my wife and children. I was taken to a secret location and held for several weeks. The interrogations, however, were carried out by the CIA and British MI5 agents. This was the start of my journey as a “detainee” of the USA.

From the moment US soldiers described us as “detainees” I challenged them. Considering I was taken from my house by unidentified gunmen in the middle of the night and kept in secret locations, I told my captors that I was an abductee, a victim of kidnap and false imprisonment. 

As children, we learn that detention is a power available to school teachers in order to discipline unruly pupils but, “detainees” know they’ll be going home after detention. As we grow older, we discover that the power to detain  lies in the hands of the state. And, while it’s a more serious affair when police are involved we know that they cannot hold us arbitrarily and indefinitely. 

Habeas corpus

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

These words are enshrined in Magna Carta², the ancient English writ which forms the basis for habeas corpus – the requirement that an arrested person is presented to the court before being detained or imprisoned.

It is found in the constitutions of many former British colonies. For example, when I was taken from my home in Pakistan my family issued habeas proceedings against the Pakistani government – although by that time I’d been handed over to the US. 

When nations like Britain, Canada, Australia and USA laud their higher “values” they often cite Magna Carta.

The evidence was not disclosed by British sources but discovered by Libyan rebels who stormed the offices of Libyan intelligence during the ‘Arab Spring’ and handed the incriminating documents to lawyers. 

Elsewhere, article 1, Section 9 of the US constitution forbids the suspension of habeas corpus without legal cause. In other words, suspects should be charged and tried or released. There is no third option. In truth, however, this civilisational ideal has repeatedly been violated – long before Guantanamo.

During World War II, over 100,000 Japanese Americans were held in internment camps on US soil on the basis of national security. During the Irish ‘Troubles’ Britain interned nearly 2000 Irish republican prisoners without charge. Most recently, several Middle Eastern and North African Muslims were interned for three years in 2001 as a precautionary response to the September 11 attacks in what became known as “Britain’s own Guantanamo” at HMP Belmarsh.⁵ 

Enemy combatants

When I first arrived at the US facility in Kandahar, Afghanistan, built to hold Taliban or Al Qaeda suspects, the argument that it was only a temporary measure may have justified the concept of ‘detainees’.

Around the same period, three men including US citizens Yaser Hamdi and Jose Padilla, alongside Qatari national Ali Al Marri, were held on US soil as enemy combatants. For several years they were held in incommunicado detention and denied legal rights and subjected to treatment akin to the Guantanamo prisoners – until they were charged with crimes in Federal courts⁹.  Impunity at Guantanamo was the reason it was selected as a prison.

The 45-square mile patch at Guantanamo Bay has been controlled by the US Navy for over 100 years and is currently under a disputed lease agreement with Cuba.¹⁰ Despite this, Bush’s legal advisers argued that US laws would not apply to detainees because it was technically outside US legal jurisdiction.

With its close proximity to the US mainland, Guantanamo served as the best place to hold captives while ensuring they could not access US laws. One US official described it as the “legal equivalent of outer space.”¹¹

No freedom despite Supreme court wins

While US military personnel and civilian workers ( US and foreign) are subject to US laws on Guantanamo, the prisoners are wilfully denied. This is even more surreal when compared to animal rights on the island.

Iguanas are omnipresent at Guantanamo and protected under the Endangered Species Act (1973). One prison camp was even named after them. Camp Iguana¹² was used to hold several of the 22 children¹³ in Guantanamo like 15-year old Canadian, Omar Khadr¹⁴, and 12-year old Afghan, Mohammed Jawad¹⁵.  Later, despite being designated “no longer enemy combatants” Guantanamo’s Uyghurs were held there. But the camp’s namesakes had more rights than its inmates.  

In legal terms, the Guantanamo prisoners have less rights than iguanas.  Despite winning a series of Supreme Court rulings¹⁶ against the US government’s denial of habeas rights, no one has been freed from Guantanamo directly as a result. What these cases have shown, however, is just how often America has been willing to violate its own sacred constitution.

1. Rasul v. Bush (2004) ruled that the Supreme Court could hear cases of Guantánamo prisoners despite the government’s insistence that they had no rights to challenge their incarceration. 

2. Hamdi v. Rumsfeld (2004) found that a US citizen detained early on in Guantanamo had constitutional rights to petition courts to review his imprisonment. 

3. Hamdan v. Rumsfeld (2006) ruled that courts had jurisdiction to hear petitions which had been filed before Congress and that Combatant Status Review Tribunals (CSRTs) created by the US government in response to Rasul vs Bush violated the Geneva Conventions as well as its own Uniform Code of Military Justice.

4. Boumediene v. Bush ruled that the Military Commissions Act (2006) could not remove the right for Guantanamo captives to access the legal system despite government attempts. It added that all previous Guantanamo captives’ petitions were still eligible despite government attempts to reject them.

Instead of accepting these rulings as a means to follow due process, the US administration has gone to extraordinary lengths to ensure that no one could meaningfully challenge their imprisonment.

Kangaroo courts

The Detainee Treatment Act of 2005 was passed in order to remove prisoners’ abilities to make habeas claims by asserting that US courts did not have jurisdiction over “enemy combatants” detained in Guantanamo. However, Boumediene found that the government had acted unconstitutionally in denying prisoners’ habeas rights.  

Combatant Status Review Tribunals (CSRTs) came about in response to the 2004 court judgments by attempting to present some semblance of “due process” where none existed. CSRTs determined whether prisoners were correctly designated as “enemy combatants”.

Much of the process was based on classified evidence that prisoners could not see or challenge, lack of counsel, due process or protections. Like many, I refused to take part. 

I was one of the very first prisoners designated for military trial in Guantanamo.¹⁷

The fact that juryless US military tribunals – where evidence through duress and hearsay was admissible and where prosecutors could seek the death penalty – were being prepared placed enough pressure , alongside a high profile campaign mounted by my father, for the British government to intervene.

Senior British judges described the idea of Guantanamo trials as a “kangaroo court”.¹⁸ That’s essentially how I came home but, for others, the process was just starting.

The only court that exists for prisoners at Guantanamo was borne out of the attempt to deny them rights in the first place.

The Military Commission Act allowed “trial by military commission for violations of the law of war” against “enemy combatants”.

Among them is Khalid Sheikh Mohammed, the alleged mastermind of the September 11 attacks. After almost 20 years of torture, interrogations and legal proceedings, the military commissions are no closer to securing a conviction against him.

The inability to successfully prosecute Mohammed lies in the fact that he was subjected to waterboarding (a medieval drowning technique) and denied basic due process.

Evidence obtained under torture is not admissible in US courts.

Periodic Review Boards

In 2011, the Obama administration set up the Periodic Review Board (PRB) in order to determine whether prisoners could be freed or or remain incarcerated based on security assessments²¹.

When Donald Trump took office he reversed Obama’s desire to close Guantanamo and all but halted all the releases, including those cleared under PRBs.

While most of those convicted under the military commissions have gone home, those with no charges, like Moroccan, Abdul Latif Nasser, who was “cleared for release in 2016,” inexplicably he remained in prison until 19 July 2021 when he became the first Guantanamo prisoner to be freed under President Joe Biden.

The day after his return home, Nasser told the press: 

“I have no words to describe my overwhelming sense of happiness and joy. It is like a miracle after 20 years to be home and celebrate Eid together with my family.”²³

Abu Zubaydah and the torture programme

The majority of the prisoners in Guantanamo have been dubbed “forever prisoners” following PRB assessments. This renders men too innocent to charge but “too dangerous to release.” They include one of the most well-known prisoners in Guantanamo. 

The CIA torture programme, euphemistically called Enhanced Interrogation Techniques (EIT) was primarily designed for Zayn al-Abidin Muhammad Husayn (aka Abu Zubaydah).

In 2002, CIA operative Gina Haspel was dispatched to direct a CIA site in Thailand, code-named Cat’s Eye²⁶. Here, Abu Zubaydah was kept in coffin-sized boxes and waterboarded over 83 times. In 2018, Haspel became the first woman to head the CIA. 

Abu Zubaydah was eventually sent to Guantanamo but not until he’d suffered an odyssey of rendition and torture. Whilst in Guantanamo, however, he won damages against Poland, Romania and Lithuania in the European Court of Human Rights which ruled they’d been involved in his abuse²⁷.

US allegations against Abu Zubaydah also began to crumble after details of his own diaries evidenced that he was neither part of Al Qaeda nor involved in plots against the USA²⁸.
In almost two decades Abu Zubaydah has never been charged with a crime.

Legacy of torture

In 2002, General Geoffrey Miller was tasked with running Guantanamo.

With EITs at his disposal, Miller ensured that torture and Guantanamo would become synonymous in the eyes of the world. Sensory and sleep deprivation, physical and sexual assault and isolation form part of the documented experiences of Mohammedou Ould Slahi²⁹ – who was freed in 2014 – and Mohammed al-Qahtani³⁰ – stil in Guantanamo – just two examples that detail Miller’s direct role torture.

The evidence the US was looking for came from a close associate of Abu Zubaydah. When he was captured by the US, just like Abu Zubaydah, Ibn al-Sheikh al-Libi was touted as one of the highest ranking members of Al Qaeda.

Like Abu Zubaydah, Al-Libi was also sent on a torturous world tour. In Egypt, Al-Libi gave the confession America had been looking for: that Saddam Hussain was supplying Al Qaeda with WMDs.

This information was passed back to the US Secretary of State, Colin Powell, who presented it as “credible” evidence. It became one of the key justifications to invade Iraq.

The only problem was that Al-Libi’s confession was made under duress and was completely untrue. Thereafter, he was sent to Libya and turned up dead in his cell in 2009 in the infamous Abu Salim prison³³. As for his confession, not only were there no WMDs in Iraq, Al Qaeda had no connection to Saddam Hussain or presence in Iraq. That only happened after and because of the US invasion. 

Miller was in charge of Camps Bucca in Iraq, the prison that became the birthplace of Islamic State (IS)³⁴. In a cruel twist of fate, IS captives accused of torturing US citizens are currently facing trial in America. Amongst other things, they stand accused of waterboarding their victims and dressing them in Guantanamo-style orange jumpsuits – before executing them³⁵. 

End of an era

Freedom from Guantanamo doesn’t automatically mean an end to persecution. In 2014, 23 prisoners – 18 Yemenis, 4 Afghans, and a Russian – were transferred to the UAE as part of the US resettlement program.

Upon arrival, they were all imprisoned without charge³⁶. Six years later, they remain incarcerated – except for the Afghans who were released in 2020. Hamidullah Tarakhail, who’d also spent 5 years imprisoned by the Soviet Union during its occupation of Afghanistan, said the UAE prison was worse than what he’d experienced³⁷.

In 2014, five senior Taliban members imprisoned at Guantanamo were freed and resettled in Qatar as part of a historic prisoner exchange between the US and the Taliban. The five helped set up the Political Office for the Islamic Emirate of Afghanistan and played a key role in negotiating the US withdrawal from Afghanistan with American leaders³⁸.

In 2014, five senior Taliban members imprisoned at Guantanamo were freed and resettled in Qatar as part of a historic prisoner exchange between the US and the Taliban. The five helped set up the Political Office for the Islamic Emirate of Afghanistan and played a key role in negotiating the US withdrawal from Afghanistan with American leaders³⁸.

In July 2021, US troops quietly abandoned the Bagram Airbase – by slipping away in the middle of the night without telling the new Afghan commander. It was a fitting end. 

Most of the Guantanamo prisoners had never been to America but, America has come to them. They came from over forty different countries and saw something no one else did. 

While nine prisoners never left Guantanamo alive and 39 remain imprisoned, the rest of us told the world what we saw and made sure the world’s most infamous prison was never forgotten.

As the current US administration announces its intention to close Guantanamo – once more,  it is inevitable that future generations will look back and grapple with the ideals the USA espouses and the dark legacy of imprisonment and torture at Guantanamo Bay.