United States

Et Tu, Gitmo?

A gate inside Camp Delta

Inside the maximum security prison Camp Delta at Guantanamo Naval Base in Guantanamo Bay, Cuba.

F.B.I. agents serving on the United States Naval Station in Guantanamo Bay, Cuba, have complained to their supervisor of abuse meted out to alleged al-Qaeda and Taliban detainees. In December, these internal memos, acquired through the Freedom of Information Act, were made public by the American Civil Liberties Union.

The agents detail the use of loud music, strobe lights and prolonged shackling in interrogation booths. In one instance, the temperature in the booth was turned up so high that the prisoner tore out his hair, and in another, a female interrogator grabbed a detainee’s genitals and bent back his thumbs.

On Jan. 1, an unnamed former interrogator cited by The New York Times suggested that as many as one-sixth of the Camp Delta detainees had been subjected to harsh and/or painful interrogation methods. However, journalists who visited Guantanamo — including this reporter — were only given the opportunity to watch those interrogations that went amicably.

Following the public release of the F.B.I. memos, the Department of Justice broadened its definition of torture. In August 2002, an interrogation method qualified as torture only if it produced the level of pain associated with organ failure or death. The new definition now says that “severe physical suffering” is enough.

A.C.L.U. lawyer Jameel Jaffer talks with

The American government has justified using harsh interrogation practices in Guantanamo by arguing that detainees violated the rules of warfare, as outlined by the Geneva Convention, so they do not get P.O.W. protection. What is the A.C.L.U.’s position?

There are two different questions there. First, what’s the status of the detainees under international law? Our position is that detainees are presumptively entitled P.O.W. [prisoner of war] status until determined otherwise by what’s known as an Article 5 hearing under the Geneva Convention. What the government has done is categorically exclude people from the protection of the convention.

The second question is how detainees should be treated, independent of their status under the Geneva Convention. We don’t think that they should be tortured.

We were initially reluctant to call what’s been going in Guantanamo torture because all we had were the allegations of the detainees, and we were told by the government that the detainees were untrustworthy, that they were terrorists committed to destroying America and our way of life. Now, we have the allegations of F.B.I. agents, who describe interrogation methods that virtually everybody would agree are akin to torture.

These practices should not be sanctioned by any civilized country.

What is torture, and do the interrogation methods described in the F.B.I. memos qualify as such?

I think that the Justice Department took a much too narrow definition of torture [in August 2002]. It initially took torture to mean generating the same level of pain that would be felt at organ failure or death. That definition clearly does not comport with international law or even common sense understanding of what constitutes torture.

That’s not to say that defining torture is easy. There is an abstract legal definition — “severe pain or suffering” — but how it applies to a particular case is not always easy to determine. I think that some of the practices at Guantanamo are borderline, and reasonable people could disagree about them.

But defining what torture is can distract from a fundamental question: Is this something in which American personnel should be engaged? Keep in mind that international law also prohibits “cruel, inhuman and degrading treatment.” There is also a policy and a moral question. Is this what we are fighting for? Do we want this associated with us?

The C.I.A. has allegedly sent al-Qaeda operatives to foreign intelligence agencies to circumvent the American ban on torture. Is that legal?

No, it is not. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and domestic law prohibit American personnel from transferring detainees to the custody of countries to employ torture.

Should the C.I.A. refuse, on principle, information on al-Qaeda from allies who use illegal interrogation methods?

First, I would say the information is unreliable. Recently, there was an Israeli interrogator interviewed by The New York Times, and he said, “We found that, when you torture someone, you get unreliable information.” So, besides the moral and legal question, there is a question of efficacy. Obviously, I’m not an interrogator, but I think that it is common sense that, if you hold a gun to someone’s head, you can make him say whatever you want.

There’s a case of a Syrian-Canadian, Maher Arar, who was rendered by the U.S., it seems, to Syria in order to be tortured. Syria started giving the U.S. and Canada information that he was associated with terrorists, but it became, in the year that Arar spent in Syrian custody, that there was no evidence, that he was not really connected with terrorists, and he was released.

He’s back in Canada now, telling his story and raising awareness, at least in Canada, about the way these anti-terrorism policies can be used with quite frightening consequences.

According to the Constitution, aliens not on American soil lack due process rights. Is that why the alleged al-Qaeda and Taliban militants were first brought to Guantanamo Bay, Cuba?

I think we are in uncharted waters. The government’s position is that people not in the U.S. do not have due process rights, but I think it’s a little more complicated than that. Detainees who are in the custody and control of the U.S. certainly have some due process rights.

That said, the government’s position was that people held in Guantanamo could be kept in a legal black hole. However, the Supreme Court has ruled last year that people held in Guantanamo have the right to file habeas petitions in American federal courts, and the petitions have been filed and are being considered.

So far, nearly 230 Guantanamo detainees who have had their cases reviewed by the Combat Status Review Tribunal, and only two have been found to be civilians. Is the C.S.R.T. stacked against detainees or are most really enemy combatants?

The tribunal is stacked against the detainees. I cannot tell you how many should have been released. The detainees are prevented access to critical evidence against them; they do not have access to legal counsel. They have a personal representative at the tribunal with respect to whom there’s guarantee to confidentiality. There’s no right of appeal.

If the detainees are P.O.W.s, then they should be held until the end of hostilities, and I think that it is clear that the American war with the Taliban government is over. If they are not P.O.W.s, they should either be tried with war crimes or released, but only a handful of detainees have been charged with war crimes.

In 1990, a New York jury found al-Qaeda militant El-Sayyid Nosair innocent of the murder of Rabbi Meir Kahane despite 51 eyewitnesses. Is it realistic to expect the government to muster airtight legal cases against hundreds of detainees picked up off the Afghan battlefield?

First, what’s the alternative — to allow the government to pick up anyone in the world and hold him indefinitely? Second, the Justice Department itself — this was Ashcroft, not the A.C.L.U. — believed that it had the capacity to try suspected terrorists captured on U.S. soil in civilian courts. This was done after the first World Trade Center bombing, Oklahoma and the embassy bombings in Africa.

As for individuals apprehended on the battlefield, they should be tried by properly convened courts martial, as the Geneva Conventions require. If the government can’t muster legal cases against some of these people, the right question to ask isn’t “How to rig the game in the government’s favor” but “Why are these people still being held.”

The Pentagon says that at least 10 detainees released from Guantanamo have once again taken up the call to jihad. Are you concerned that more detainees freed from Camp Delta will do the same?

I have no way of verifying the government’s statistic. But I think it is a legitimate concern. We don’t want to release people who will go back to fighting the United States. What we want is some fair process to distinguish between people who are actual dangers to the U.S. or who committed war crimes and people who are civilians caught up in the whole war on terror.