Authors: Jonathan M. Hansen
Guantánamo (48 page)
The U.S. government aimed to put the Haitian refugees beyond the reach of any law. Judge Johnson refused to go along. “If the Due
Process Clause does not apply to the detainees at Guantánamo, Defendants would have discretion deliberately to starve or beat them, to deprive them of medical attention, to return them without process to their persecutors, or to discriminate among them based on the color of their skin.”
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Nor was Johnson willing to endorse the Haitians' indefinite detention. “Testimony revealed that the Haitians were told that they could be at Guantánamo for 10â20 years or possibly until a cure for AIDS is found.”
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Process Clause does not apply to the detainees at Guantánamo, Defendants would have discretion deliberately to starve or beat them, to deprive them of medical attention, to return them without process to their persecutors, or to discriminate among them based on the color of their skin.”
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Nor was Johnson willing to endorse the Haitians' indefinite detention. “Testimony revealed that the Haitians were told that they could be at Guantánamo for 10â20 years or possibly until a cure for AIDS is found.”
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Things did not go so well for the Haitians and their counsel at the Supreme Court. On June 21 the High Court ruled 8â1, with Justice John Paul Stevens writing for the majority, that international and federal prohibitions on returning refugees to Haiti applied only to refugees already in the United States. The United States could do whatever it pleased with refugees at sea or at Guantánamo Bay. The U.S. statute had no legal bearing outside the United States, according to the Court, and both the text and the negotiating history of Article 33 precluded it from applying extraterritorially. “Although gathering fleeing refugees and returning them to the one country they had desperately sought to escape may violate the spirit of Article 33,” Stevens wrote, “general humanitarian intent cannot impose uncontemplated obligations on treaty signatories.” There was no judicial remedy for the High Court to draw on; Congress would have to pass new laws.
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In a scathing dissent, Justice Harry Blackmun chastised his colleagues for what he deemed to be a tortuous interpretation of the law. In 1968, Blackmun noted, the United States acceded to Article 33 of the 1967 UN Protocol on the Status of Refugees, which enjoined nations from returning “a refugee in any manner whatsoever” to a place where he would face political persecution; in 1980, Congress “amended our immigration law to reflect the Protocol's directives.” Now, suddenly, a majority “decides that the forced repatriation of the Haitian refugees is perfectly legal, because the word âreturn' does not mean return, because the opposite of âwithin the United States' is not outside the United States, and because the official charged with controlling immigration has no role in enforcing an order to control immigration.” The majority opinion might have been at least comprehensible had
there been ambiguity in the law. But that was certainly not the case here. “The language is clear, and the command is straightforward.” That should have been the end of the inquiry.
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there been ambiguity in the law. But that was certainly not the case here. “The language is clear, and the command is straightforward.” That should have been the end of the inquiry.
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In conclusion, Blackmun observed that the UN refugee convention of 1951 “was enacted largely in response to the experience of Jewish refugees in Europe during the period of World War II. The tragic consequences of the world's indifference at that time are well known. The resulting ban on refoulement, as broad as the humanitarian purpose that inspired it, is easily applicable here, the Court's protestations of impotence and regret notwithstanding.” Moreover, the plaintiffs claimed no “right of admission to this country.” Nor did they argue that the U.S. government had seized them illegally. They simply demanded “that the United States, land of refugees and guardian of freedom, cease forcibly driving them back to detention, abuse, and death. That is a modest plea, vindicated by the Treaty and the statute. We should not close our ears to it.”
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Looking back on “Operation GTMO” in the autumn of 1994, Professor Harold Koh, who argued
Sale v. Haitian Centers Council
before the U.S. Supreme Court, noted several “troubling” things. First was President Clinton's continuation of the Bush administration's policy of forcibly returning Haitian refugees to Haiti without an asylum hearing. Second, Clinton adopted Bush's exploitation of the U.S. naval base at Guantánamo as a “rights-free” zone. Candidate Clinton had vehemently denounced both policies in the 1992 presidential campaign: “I am appalled by the decision of the Bush Administration to pick up fleeing Haitians on the high seas and forcibly return them to Haiti before considering their claim to political asylum,” Clinton remarked in May 1992. “It was bad enough when there were failures to offer them due process in making such a claim. Now they are offered no process at all before being returned.” These policies were “a blow” not only to long-recognized human rights conventions and U.S. statutory law, but also to “America's moral authority in the world.”
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Sale v. Haitian Centers Council
before the U.S. Supreme Court, noted several “troubling” things. First was President Clinton's continuation of the Bush administration's policy of forcibly returning Haitian refugees to Haiti without an asylum hearing. Second, Clinton adopted Bush's exploitation of the U.S. naval base at Guantánamo as a “rights-free” zone. Candidate Clinton had vehemently denounced both policies in the 1992 presidential campaign: “I am appalled by the decision of the Bush Administration to pick up fleeing Haitians on the high seas and forcibly return them to Haiti before considering their claim to political asylum,” Clinton remarked in May 1992. “It was bad enough when there were failures to offer them due process in making such a claim. Now they are offered no process at all before being returned.” These policies were “a blow” not only to long-recognized human rights conventions and U.S. statutory law, but also to “America's moral authority in the world.”
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Still, politicians were politicians. More troubling to Koh was the judiciary's failure to act as a check on the executive branch. By denying the Haitians international and domestic legal protections, the Supreme
Court simply followed the executive's lead: it read “unambiguous language as ambiguous,” it ignored the express “object and purpose” of legal codes, it elevated “snippets of negotiating history into definitive interpretive guides,” and it sanctioned the very injustices that international treaties on refugees had been “drafted to prevent.” Cutting across political parties and branches of government, the logic of this development was nothing short of ominous. If, confronted by social and political crises, the U.S. government could deploy nonsensical semantic distinctions, tortuous misreadings of legal precedent, and claims about the existence of geographical spaces where no law whatsoever applies to set aside a universal prohibition like the refugee convention, what, Koh demanded, did this bode for other equally inviolable laws against torture or genocide?
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Court simply followed the executive's lead: it read “unambiguous language as ambiguous,” it ignored the express “object and purpose” of legal codes, it elevated “snippets of negotiating history into definitive interpretive guides,” and it sanctioned the very injustices that international treaties on refugees had been “drafted to prevent.” Cutting across political parties and branches of government, the logic of this development was nothing short of ominous. If, confronted by social and political crises, the U.S. government could deploy nonsensical semantic distinctions, tortuous misreadings of legal precedent, and claims about the existence of geographical spaces where no law whatsoever applies to set aside a universal prohibition like the refugee convention, what, Koh demanded, did this bode for other equally inviolable laws against torture or genocide?
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THE CHOSEN
On the morning of September 11, 2001, a dead finch lay on a sidewalk outside the entrance to Bulkeley Hall, administrative headquarters of the U.S. naval base at Guantánamo Bay. To Lieutenant Norman A. Rogers, public works officer on the base, this seemed an ill omen, indeed. Just minutes before, Rogers had been down on Fisherman's Point inspecting the desalination plant when the telephone rang. The base commander was on the line: the United States was under attack. Two passenger planes had struck the World Trade Center in New York City; a third had hit the Pentagon. A fourth was believed to have come down somewhere in the countryside outside Washington, D.C. Rogers was ordered to lock the gates to the plant and report immediately to headquarters. A native of New York State, he drove toward Bulkeley Hall with his aunt's image running through his mind. In recent days, her office was supposed to have relocated from the towers across the Hudson to New Jersey, but he couldn't be sure. For Rogers, as for so many New Yorkers and U.S. military personnel, the fallout from this day was bound to be intensely personal.
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Rogers arrived at Bulkeley Hall just after the first tower collapsed (an event that, as a structural engineer, he had thought to be “impossible”). Among the assembled staff, there was a palpable sense of giddiness, as if everyone was itching for a fight. To Rogers, giddiness seemed out of place in the face of what were sure to be grievous losses.
“Hey, guys,” he remembers saying, “fifty thousand people work in those buildings; let's show a little respect.” Like American bases the world over, Guantánamo immediately went into lockdown. There was talk of heightened security and of the commander issuing sidearms. In fact, seated in an isolated corner of a totalitarian state, the American community at Guantánamo Bay could not have wished itself a safer location. Still, the uniqueness of the moment was reinforced when the general in charge of Cuba's frontier guard called to pledge his nation's solidarity. “We weren't involved,” he assured his American counterpart. “We've got you covered on this side. Nobody's coming over the fence.”
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“Hey, guys,” he remembers saying, “fifty thousand people work in those buildings; let's show a little respect.” Like American bases the world over, Guantánamo immediately went into lockdown. There was talk of heightened security and of the commander issuing sidearms. In fact, seated in an isolated corner of a totalitarian state, the American community at Guantánamo Bay could not have wished itself a safer location. Still, the uniqueness of the moment was reinforced when the general in charge of Cuba's frontier guard called to pledge his nation's solidarity. “We weren't involved,” he assured his American counterpart. “We've got you covered on this side. Nobody's coming over the fence.”
2
After a few tense days of curfews and impromptu security checks, life at the base returned to normal. For Rogers, “normal” in the days preceding 9/11 meant maintaining the base at minimal cost consistent with base security. The downsizing of Guantánamo began with the end of the migrant operations in the mid-1990s and the relocation in 1995 of the Fleet Training Group from Guantánamo Bay to Mayport, Florida. By the time Rogers arrived at Guantánamo in August 2001, most of the hard work associated with downsizingâeliminating programs and personnelâwas complete. Rogers's mandate was to identify further savings. When the U.S. invasion of Afghanistan began on October 7, 2001, Rogers could no more imagine Guantánamo playing a central role in the war on terror than he could imagine himself being asked to lead it. This was not to be Guantánamo's moment.
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“CENTCOM, PACOM, EUCOMâeverybody was contributing in some way,” navy commander Jeffrey Johnston recalled about the mobilization of U.S. forces in the immediate aftermath of 9/11. “Except us.” By “us,” Johnston meant SOUTHCOM, the U.S. Southern Command, based in Miami, Florida, whose job, among other things, is to oversee the Guantánamo naval base. In July 2004, Johnston, a civil engineer, would replace Norman Rogers as commander of public works on the naval base. In the autumn of 2001, Johnston was a junior officer working in antinarcotics construction along the Andean Ridge in South America. At that time SOUTHCOM was the smallest U.S. military commandâ“the card table at Thanksgiving dinner,” in Johnston's
words. It had no troops to send into battle. “We felt disenfranchised,” Johnston remembers; “the war was going on without us.” To make matters worse, there wasn't a senior officer on SOUTHCOM's staff who didn't know somebody who had been killed or injured in the terrorist attacks. Eager to do its part, SOUTHCOM could only watch as everybody else was called to action. “For months it seemed like there'd be nothing for us to do.”
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words. It had no troops to send into battle. “We felt disenfranchised,” Johnston remembers; “the war was going on without us.” To make matters worse, there wasn't a senior officer on SOUTHCOM's staff who didn't know somebody who had been killed or injured in the terrorist attacks. Eager to do its part, SOUTHCOM could only watch as everybody else was called to action. “For months it seemed like there'd be nothing for us to do.”
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But the kickoff of war in early October was followed by “a good opening drive.” Within a matter of weeks U.S. commanders found themselves in possession of thousands of Taliban and al Qaeda prisoners, some of whom were believed to possess high-value intelligence. The Bush administration wanted a place where interrogators could talk to detainees “pretty thoroughly,” Pentagon spokeswoman Victoria Clarke told reporters later that winter, a place beyond the reach of journalists and defense lawyers and the jurisdiction of federal courts.
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Starting in early November, rumors reached the naval base that the Pentagon was considering Guantánamo, along with a few Pacific Ocean atolls, as a possible site for a prison camp. Rogers found those rumors hard to believe. “No one would be so dumb as to bring detainees here,” he and his colleagues agreed. By contrast, the folks at SOUTHCOM welcomed the thought of “being in the game.” Soon the chatter about using Guantánamo as a prison subsided, and Rogers and Johnston and their colleagues went back to work
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.
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Starting in early November, rumors reached the naval base that the Pentagon was considering Guantánamo, along with a few Pacific Ocean atolls, as a possible site for a prison camp. Rogers found those rumors hard to believe. “No one would be so dumb as to bring detainees here,” he and his colleagues agreed. By contrast, the folks at SOUTHCOM welcomed the thought of “being in the game.” Soon the chatter about using Guantánamo as a prison subsided, and Rogers and Johnston and their colleagues went back to work
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.
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On December 11, 2001, in what appears to have been a case of conscious indirection, Secretary of State Donald Rumsfeld told journalists that the administration was still mulling the decision about where to hold detainees. Afghanistan, U.S. shipboard, the detainees' countries of origin, and locations in the United States were all under consideration.
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In fact, by early December, Guantánamo had emerged as the administration's clear first choice. All other candidates were deficient in one way or anotherâU.S. sites for not-in-my-backyard political reasons; foreign outposts because the Pentagon could not take for granted even allied support for the kind of interrogations it envisioned; U.S. protectorates such as Guam because they lacked immunity from federal court oversight and were open to lawyers and journalists; finally,
Afghanistan, because it was still far from stable. Guantánamo met all these objections. Sovereign territory of a hostile state, it offered U.S. military personnel legal and diplomatic immunity. The U.S. military strictly controlled access to the base, securing it from prying eyes and enemies alike. Defense Secretary Rumsfeld later characterized Guantánamo as “the least worst place.”
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But allowing for the inconvenience entailed in transporting prisoners halfway around the world, Guantánamo seemed an obvious choice to many U.S. military officials.
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In fact, by early December, Guantánamo had emerged as the administration's clear first choice. All other candidates were deficient in one way or anotherâU.S. sites for not-in-my-backyard political reasons; foreign outposts because the Pentagon could not take for granted even allied support for the kind of interrogations it envisioned; U.S. protectorates such as Guam because they lacked immunity from federal court oversight and were open to lawyers and journalists; finally,
Afghanistan, because it was still far from stable. Guantánamo met all these objections. Sovereign territory of a hostile state, it offered U.S. military personnel legal and diplomatic immunity. The U.S. military strictly controlled access to the base, securing it from prying eyes and enemies alike. Defense Secretary Rumsfeld later characterized Guantánamo as “the least worst place.”
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But allowing for the inconvenience entailed in transporting prisoners halfway around the world, Guantánamo seemed an obvious choice to many U.S. military officials.
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Many, but not all. Establishing a pattern that would hobble the war on terror for the better part of a decade, civilian officials atop the Pentagon settled on Guantánamo as the site for a detention camp only after studiously ignoring the expert counsel of career military officials such as Norman Rogers. To Rogers, Guantánamo was absolutely not the place for such a mission. To begin with, having worked in naval intelligence, Rogers knew that secrecy was paramount in detainee operations, and that there could be no secrecy at Guantánamo Bay. As more candid U.S. military personnel had long since acknowledged, the naval base was surrounded by Cuban high ground. Perched on nearby hills, “every camera-toting Cuban tourist and his sister enjoyed comprehensive views of everything that went on at the base. Cuban intelligence had photographs of every single person who stepped off a US plane.”
Furthermore, the logistics and the cost of building, manning, and maintaining a prison on a base cut off from Cuba and nearly a thousand miles distant from the United States were prohibitive. Every piece of building material, from the smallest tack to the largest bulldozer, had to be shipped to Cuba by boat or plane. And this was as true of human resourcesâsoldiers, interpreters, interrogators, analysts, and the associated service personnelâas of construction material. The base had limited infrastructure and no hotels to accommodate the associated hordes. Construction at Guantánamo was “four times as expensive as at home, and ten times more difficult to complete.” War would only compound the logistical hurdles, as the buildup in Afghanistan monopolized cargo planes and transport ships alike. Finally, Rogers recognized, “there was the moral and legal risk of putting US servicemen and women above the law.” For years the
Army Field Manual
had provided the military with an unequivocal code of moral and legal conduct. To choose a detention site where the manual might not apply was to expose military personnel to legal persecution. In short, from beginning to end, as Rogers saw it, the plan to use Guantánamo for detention and interrogation was ill-advised. “Better to simply declare the detainees enemies of the state and dump them in Leavenworth,” he remembers thinking to himself. “Nobody would have even noticed.”
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Army Field Manual
had provided the military with an unequivocal code of moral and legal conduct. To choose a detention site where the manual might not apply was to expose military personnel to legal persecution. In short, from beginning to end, as Rogers saw it, the plan to use Guantánamo for detention and interrogation was ill-advised. “Better to simply declare the detainees enemies of the state and dump them in Leavenworth,” he remembers thinking to himself. “Nobody would have even noticed.”
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Rogers passed his arguments up the chain of command. How high those arguments proceeded is anybody's guess. As rumors that Guantánamo was in the running subsided, Rogers assumed that his opinion had been heard. He was wrong. In mid-December, SOUTHCOM received notice that Guantánamo was a finalist along with Guam as a detention site for the war on terror. Each command was to submit a proposal making the case for their place. “We really jumped on the opportunity,” Jeff Johnston explained. Though not intimately involved with Caribbean operations, Johnston was a navy man. “I eagerly shoved myself into the process, offering advice about construction costs.” By contrast, PACOM, the Pacific Command that oversaw the base at Guam, “didn't want the prison.” Much closer to the theater of battle, they “had bigger fish to fry.”
On December 23, 2001, six Learjets touched down on the runway at Leeward Point. If the Cubans were indeed watching, they saw exiting the planes a group of American politicians, dignitaries, and line officers that included Marine Corps general Michael R. Lehnert, veteran of 1990s migrant operations at Guantánamo, and the man slated to become the first commander of Joint Task Force 160, the unit in charge of detainee operations. Lehnert would not divulge whether or not JTF 160 was coming to Guantánamo. Rogers showed him around the base, taking him to sites that had been in use during the recent migrant operations. First they toured “Camp X-Ray,” located at the end of Sherman Avenue, down the road toward the northeast gate. This site had been used as a short-term holding facility to isolate recalcitrant refugees and for Cubans who, having failed the screening process, were slated to return to Cuba. Forty primitive eight-foot-square chain-link cells remained at Camp X-Ray, catching Lehnert's attention. Years of neglect had left the cells in bad shape. Then the group
proceeded to Radio Range, the largest continuous chunk of flat, developable property on the base, located over the hills and away from the heart of the naval community along the Cuban coastline. Formerly the site of some of the largest refugee camps, Radio Range retained plumbing and electrical infrastructure but little else.
proceeded to Radio Range, the largest continuous chunk of flat, developable property on the base, located over the hills and away from the heart of the naval community along the Cuban coastline. Formerly the site of some of the largest refugee camps, Radio Range retained plumbing and electrical infrastructure but little else.
In fact, Rogers and his colleagues tried to impress upon Lehnert that the place to situate a prison at Guantánamo, if at all, was Leeward Point, across the bay, away from the base population. There the JTF would enjoy freedom of movement and immediate access to the airfield in what was bound to be an “airfield mission.” With no infrastructure in place on Leeward Point, Lenhert wasn't impressed. “You can't build a prison fast enough there,” he told Rogers, providing a hint of what was to come. Besides, Lehnert didn't like the thought of his troops being isolated from the main naval community, including its many restaurants and recreational facilities. Leaving his chief of staff, the marine colonel William Meier, behind him, Lehnert departed Guantánamo late that day, his mind apparently made up. The next day, Christmas Eve, Rogers's phone rang yet again: “Start construction on the camp.”
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For Rogers and his staff, Christmas became a working holiday. All future holiday leaves, including Rogers's own, were immediately canceled. Folks already on vacation were summoned back. Even after they returned, Rogers and his crew were on “continuous mode,” he remembers, “with each of us doing the work of two.” As with every construction project at Guantánamo, the first task was to identify material and resources already at hand. Within minutes, Rogers embarked on the wholesale harvesting of chain-link fence from all over the base. They were soon in possession of hundreds of eight-by-eight-foot fence pallets that mirrored those used to construct the original Camp X-Ray. The size of the cells at X-Ray became the immediate object of criticism from inmates, activists, and even guards, who found them more suitable for animals than for human habitation. But the small size had nothing to do with exacting vengeance on the alleged perpetrators of 9/11. Rather, it reflected the way construction happened at Guantánamo, the new being built on top of the old with materials already at
hand. “At no point,” Jeff Johnston observed, “did engineers or architects grab a blank sheet of paper and say, âOkay, where's the best place, what's the best way, to build a camp?' That's a luxury public works officials at GTMO never had.”
hand. “At no point,” Jeff Johnston observed, “did engineers or architects grab a blank sheet of paper and say, âOkay, where's the best place, what's the best way, to build a camp?' That's a luxury public works officials at GTMO never had.”
Rogers and his crew worked away reconstituting fencing and welding “cages” amid immense pressure from the Pentagon, which called in every twelve hours to check on the status of the construction. On December 29, Rogers learned that the prisoners would arrive in two weeks. “We'll be ready,” Colonel Meier assured his boss. “If necessary, we can bind detainees back-to-back, surround them in concertina wire, and guard them with M16s.”
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