Global Policy Forum

By Isabel Hilton

Even the US Military's own Lawyers Realize Guantánamo is an Own Goal

Consider this theoretical possibility: if no weapons of mass destruction have been found in Iraq, is it also possible that there are no al-Qaida terrorists in Guantánamo? It seems far fetched, put so bluntly. If only by chance, it would seem likely that some of the detainees might be terrorists. The US secretary of defense, Donald Rumsfeld, argues that the inhumane incarceration, the secrecy and the abuse of any principles of justice are all justified by the fact that these prisoners are the hardest of hard cases. But given what we know of those who have been released, the refusal of the US to open the evidence to challenge, and the secrecy that surrounds the prison and all who languish there, the proposition is worth considering. And since none of us have been allowed to know much, it is worth listening to those who know a little more.

Lt Commander Charles Smith of the US navy is one of the five serving officers assigned to the defense of Guantánamo prisoners who attended a meeting in Oxford last weekend to discuss the realities rather than the myths of Guantánamo. Smith has visited Guantánamo Bay several times and has come closer than most non-inmates to what happens there.

When the military defenders were first assigned, they seemed like another implausible piece of the rigged and unfair process. The defenders, after all, are subject to military discipline and signed up to the military worldview. Their ultimate boss is the same Donald Rumsfeld who has already announced that even should a prisoner be found not guilty, he would not necessarily release him. The military defenders may never get their day in court with their clients, but they have already done invaluable service by denouncing Rumsfeld's system as impossibly unfair and challenging it in the US supreme court. But their concerns go deeper.

Smith, a military defense attorney for more than seven years, went to Guantánamo expecting his client to be a hardened terrorist. Instead, he met a Yemeni migrant who had got a job driving agricultural workers on Osama bin Laden's farm near Kandahar and had ended up as one of several drivers who chauffeured the man himself. Appalled by September 11 and by Bin Laden's reaction to it, he left his job as soon as he safely could, then, as war was imminent, took his wife to safety in Pakistan. He had returned to Afghanistan to try to sell his car and pack up when he was detained and handed over to US forces.

It makes sense to Smith that his client should have been detained as a potentially valuable intelligence source and a useful witness. But, he says: "Would you charge Al Capone's chauffeur with Al Capone's crimes? I had to ask myself, after I'd met him, is this really the best they've got? Are there no real terrorists in Guantánamo Bay?" Out of more than 600 people, only six have been designated for trial. Nearly 100 detainees have been released with no more explanation than had been given for their detention. One Afghan detainee was handed $100 by a US military officer as he arrived at Kabul airport, as though he were a taxi driver being tipped for carrying his bags.

The Tipton Three have given accounts of dreadful ill-treatment during their incarceration. Despite months of often violent interrogation - carried out, they say, with the participation of British officials - they too were accused of nothing. Now among those who have been deemed appropriate for trial - the inner circle of the hard core of the hardest of the hard - we find men like Smith's client, men who look strangely like innocent bystanders. It is, as Smith puts it, profoundly troubling.

Why should we care about this? We are, after all, confronted with a genuine threat from terrorism, and perhaps the Guantánamo detainees are not such a high price to pay for security. That, at least, appears to be the view of the US administration. But Guantánamo is not only a manifest affront to justice; it is the thin end of the wedge. In addition to those held at Guantánamo there are 13,000 prisoners in Iraq, detained without trial, and an estimated 6,000 in Afghanistan of whose fate almost nothing is known. "Evidence" obtained in secret interrogations - that we now know are so abusive that they amount to torture - is beginning to appear in other cases in other countries. If Guantánamo is allowed to stand, it could undermine justice across the world - without enhancing our security one iota.

If the fiasco of the phantom weapons of mass destruction has taught us anything, it is that those who hide behind intelligence may have bad motives, bad intelligence - or both. Good intelligence is a vital instrument against terrorists and too important to be misused. Judicial safeguards are not only civilized and ethical instruments, they are also a means of ensuring, as far as possible, that the court arrives at the truth. Without those safeguards, the wrong people get locked up - and, equally to the point - the wrong people stay free.

It is the duty of the legal defense to challenge the prosecution's facts and the interpretation of the facts. If the facts do not withstand the challenge, the accused goes free and, in a perfect world, the police redouble their efforts to catch the real perpetrator. But imagine if there is no defense - or if the defense is deliberately crippled. Translate that to terrorism and it is clear that Guantánamo is a huge obstacle to anyone who is serious about defeating terrorism. It may not be pretty, the US administration argues, but this is war: the interrogation may lack the usual safeguards, but it has provided a rich harvest of invaluable information. Perhaps. But that is not the view of several experienced FBI officers who have taken part in interrogations and who, concluding swiftly that Guantánamo was a waste of time, left to pursue the fight against terrorists in the real world.

After two years of appalling conditions, uncertainty and manifest injustice, any prisoner - especially an innocent one - will despair. In those conditions, he may talk, but, as any psychiatrist will testify, the information is unreliable. What an interrogator may perceive as a breakthrough may simply be a prisoner in despair of the truth, offering false confession, false accusation, invented testimony. "Why should an American care about a Yemeni?" asked Charles Smith. "Because the only way you can know you have the right man is with a fair, independent hearing. If my client seeks his rights, he may be denied a hearing at all: the president can detain him indefinitely." And why is he so determined to fight Guantánamo? "I agree with the president," he said. "Al-Qaida can't alter America. Only we can alter America. I have met the enemy, and he is us."