Authors: Jonathan M. Hansen
Guantánamo (50 page)
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The detainee-laden buses that whizzed by Norman Rogers and his construction team as it celebrated the feat of throwing up 120 prison cells in just over a fortnight was greeted at Camp X-Ray by JTF 160, a team of trained professionals from the U.S. Marine Corps base at Camp Lejeune, North Carolina, expert in the management and care of â¦
refugees
. Since the migrant operations of the 1990s, SOUTHCOM kept JTF 160 at its disposal, sending it down to Guantánamo once a year for refresher training. Though unfamiliar with Camp X-Ray, JTF 160 knew Radio Range like the back of its hand. “They were comfortable with Radio Range,” Jeff Johnston explained. “They had maps and plans drawn up. They exercised annually down there, under strict review.” Charged by the Pentagon to run the prison camp at Guantánamo, “SOUTHCOM defaulted to the same old pattern: they would take the plan they had in place, adapt it to the new demands, and say a prayer. Hopefully, it would work.”
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refugees
. Since the migrant operations of the 1990s, SOUTHCOM kept JTF 160 at its disposal, sending it down to Guantánamo once a year for refresher training. Though unfamiliar with Camp X-Ray, JTF 160 knew Radio Range like the back of its hand. “They were comfortable with Radio Range,” Jeff Johnston explained. “They had maps and plans drawn up. They exercised annually down there, under strict review.” Charged by the Pentagon to run the prison camp at Guantánamo, “SOUTHCOM defaulted to the same old pattern: they would take the plan they had in place, adapt it to the new demands, and say a prayer. Hopefully, it would work.”
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Running a prison camp for the alleged perpetrators of 9/11 was different from running a refugee camp. It required different techniques. It also required more men than the JTF had at its disposal at Camp Lejeune. At Fort Hood, Texas, home to the Eighty-ninth Military Police Brigade, army specialist Brandon Neely discovered on the morning of January 6, 2002, that he would be deploying to a new prison facility at Guantánamo Bay. This was to be “a detainee facility, not an EPW (or Enemy Prisoner of War) camp,” Neely remembered being told. Such a “detainee camp had never been run before”; “this would be the first time in history this had taken place since these people would not fall under the Geneva Convention.” Due to depart for Guantánamo early the next day, Neely recalled having difficulty falling asleep that night. “I just kept thinking about what we were told that dayâthat we were going to come face to face with some of the worst people the world had to offer, and that these were the people who had attacked and killed so many people in our country.”
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Though Camp X-Ray would be operational for only 110 days, it
remains the iconic image from the Guantánamo detainee operation.
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Neely first caught sight of it on the afternoon of January 7 as he and his fellow MPs made their way to that remote corner of the base. “We turned up ⦠the dirt road to the tents. Off to the left you could see the sparks coming from this area where it looked like people were welding.” Navy Seabees, the construction battalions under Rogers's command, were putting together the cells that would hold the detainees. Two days later Neely encountered the camp at close range. “It was like nothing I had ever seen before,” he testified. “The cellâor cages as I call themâwere small. âSomething like you would put a dog in,' I thought. And on top of that, it was all outdoors. Except for a small metal roof. The whole camp was rocks. No matter where you stepped you were stepping on rocks. But, âOh well,' I thought, âI was not going to be staying here.'”
remains the iconic image from the Guantánamo detainee operation.
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Neely first caught sight of it on the afternoon of January 7 as he and his fellow MPs made their way to that remote corner of the base. “We turned up ⦠the dirt road to the tents. Off to the left you could see the sparks coming from this area where it looked like people were welding.” Navy Seabees, the construction battalions under Rogers's command, were putting together the cells that would hold the detainees. Two days later Neely encountered the camp at close range. “It was like nothing I had ever seen before,” he testified. “The cellâor cages as I call themâwere small. âSomething like you would put a dog in,' I thought. And on top of that, it was all outdoors. Except for a small metal roof. The whole camp was rocks. No matter where you stepped you were stepping on rocks. But, âOh well,' I thought, âI was not going to be staying here.'”
On January 9, 2002, forty-eight hours before the detainees were scheduled to arrive, Neely and his fellow MPs reviewed handcuffing and leg-shackling procedures. Neely had been assigned to an escort group that would be responsible for moving the detainees around the camp. The detainees “would be wearing a belt with cuffs,” and the MPs would “grab the back of the belt with one hand and, with the other hand, grab their arm. Since escorting was a two-man job, one of the people escorting would force the detainee's head down while we walked so he could not see where he was going.” Neely also underwent Immediate Response Force (IRF) training.
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IRFs consisted of a group of five men, usually heavily armed, whose assignment was to overpower recalcitrant or uncooperative detainees.
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IRFs consisted of a group of five men, usually heavily armed, whose assignment was to overpower recalcitrant or uncooperative detainees.
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And that was all. Before departing Fort Hood, the MPs received no “special training for working at Guantánamo,” Neely explained, and learned little or nothing about the Geneva Conventions. Indeed, at this point the relevance of the Geneva Conventions to the operation was far from clear. On the one hand, the MPs were told that the reason their own tents were rudimentary was due to Geneva's insistence that captors live no more than one step above their captives.
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On the other hand, the MPs were told repeatedly that Geneva did not apply to this operation. The ambiguity on Geneva was compounded by a general lack of guidance about the safe and legal treatment of
detainees. With the prisoners poised to arrive, no standard operating procedures (SOPs) constrained the guards' actions, Neely recalled; “we went out on a trial-and-error basis.”
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On the other hand, the MPs were told repeatedly that Geneva did not apply to this operation. The ambiguity on Geneva was compounded by a general lack of guidance about the safe and legal treatment of
detainees. With the prisoners poised to arrive, no standard operating procedures (SOPs) constrained the guards' actions, Neely recalled; “we went out on a trial-and-error basis.”
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The descriptions MPs got of their imminent charges made them indisposed to quibble over conventions of any kind. Like the U.S. public, Neely and his colleagues were told that the detainees had been “captured fighting the Americans in Afghanistan,” which would prove true of less than 5 percent of the detainees.
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The men due to arrive in a few days were “known terrorists” who had “helped in planning” the 9/11 attacks. “Our mission would be to guard these terrorists so the United States could get more info on attacks and possibly stop more terrorist attacks.” If the aim of Neely's superiors was to gin up hostility among the guards, it worked. Even before the first detainee stepped off a bus at X-Ray, “a lot of us, including myself, were pissed off,” Neely reported; “many people were out to get revenge for the havoc the United States had been through in recent months by these people.”
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In this the MPs only followed the example of their commander in chief, who in the immediate aftermath of 9/11 informed a group of advisors, “I don't care what the international lawyer says, we are going to kick some ass.”
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The men due to arrive in a few days were “known terrorists” who had “helped in planning” the 9/11 attacks. “Our mission would be to guard these terrorists so the United States could get more info on attacks and possibly stop more terrorist attacks.” If the aim of Neely's superiors was to gin up hostility among the guards, it worked. Even before the first detainee stepped off a bus at X-Ray, “a lot of us, including myself, were pissed off,” Neely reported; “many people were out to get revenge for the havoc the United States had been through in recent months by these people.”
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In this the MPs only followed the example of their commander in chief, who in the immediate aftermath of 9/11 informed a group of advisors, “I don't care what the international lawyer says, we are going to kick some ass.”
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Neely's confusion about the application of Geneva at Guantánamo emanated from on high. On the very day the first detainees arrived at the naval base, Defense Secretary Rumsfeld told reporters that the U.S. military intended “to, for the most part, treat [detainees] in a manner that is reasonably consistent with the Geneva Conventions.” Journalists pressed the secretary to explain “which parts, which rights, privileges of the Geneva Convention” the detainees would be granted. “To the extent that it's reasonable, we will end up using roughly the Geneva standard,” Rumsfeld replied. He hesitated to say exactly where the United States would “deviate from that or where we might exceed it.” In the end, the U.S. military would “probably be on both sides of it modestly.”
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Eight days later, Rumsfeld elevated a vague and inchoate standard of detainee treatment into official U.S. military policy. In a memo to General Richard Myers, chairman of the Joint Chiefs of Staff, Rumsfeld
announced that “Combatant Commanders shall, in detaining Al Qaeda and Taliban individuals under the control of the Department of Defense, treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.”
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announced that “Combatant Commanders shall, in detaining Al Qaeda and Taliban individuals under the control of the Department of Defense, treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.”
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The ambiguity in Secretary Rumsfeld's orders would prove disastrous for detainees and guards alike, leaving the former defenseless and the latter vulnerable to war crimes prosecutions.
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As Rumsfeld dodged the questions of a skeptical press, other Bush administration officials finalized the administration's policy on Geneva. Like other important legal opinions in the aftermath of 9/11, the groundbreaking document on the subject emanated from the Justice Department's Office of Legal Counsel and the person of John Yoo. On January 9, Yoo circulated a draft memorandum among national security agencies on the “Application of Treaties and Laws to al Qaeda and Taliban Detainees.” The Pentagon had asked Yoo and his colleagues to answer “whether the laws of armed conflict apply to the conditions of detention and the procedures of trial of members of al Qaeda and the Taliban militia.” Yoo concluded that the laws of armed conflict applied neither to al Qaeda (“a non-State actor”) nor to the Taliban (rulers of a “failed state”). “Al Qaeda is merely a violent political movement or organization and not a nation-state,” he wrote; hence “it is ineligible to be a signatory to any treaty.” Further, “the novel nature of this conflict” made it doubtful “al Qaeda would be included in non-international forms of armed conflict to which some provisions of the Geneva Conventions might apply. Therefore, neither the Geneva Conventions nor the WCA [the War Crimes Act, the US law affecting Geneva] regulate the detention of al Qaeda prisoners captured during the Afghanistan conflict.”
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As Rumsfeld dodged the questions of a skeptical press, other Bush administration officials finalized the administration's policy on Geneva. Like other important legal opinions in the aftermath of 9/11, the groundbreaking document on the subject emanated from the Justice Department's Office of Legal Counsel and the person of John Yoo. On January 9, Yoo circulated a draft memorandum among national security agencies on the “Application of Treaties and Laws to al Qaeda and Taliban Detainees.” The Pentagon had asked Yoo and his colleagues to answer “whether the laws of armed conflict apply to the conditions of detention and the procedures of trial of members of al Qaeda and the Taliban militia.” Yoo concluded that the laws of armed conflict applied neither to al Qaeda (“a non-State actor”) nor to the Taliban (rulers of a “failed state”). “Al Qaeda is merely a violent political movement or organization and not a nation-state,” he wrote; hence “it is ineligible to be a signatory to any treaty.” Further, “the novel nature of this conflict” made it doubtful “al Qaeda would be included in non-international forms of armed conflict to which some provisions of the Geneva Conventions might apply. Therefore, neither the Geneva Conventions nor the WCA [the War Crimes Act, the US law affecting Geneva] regulate the detention of al Qaeda prisoners captured during the Afghanistan conflict.”
Nor could a “failed state” such as Afghanistan under Taliban rule trigger the Geneva Conventions, according to Yoo. The Taliban militia was no more “entitled to enemy POW status” under the Geneva Conventions “than al Qaeda itself.” Furthermore, Yoo proceeded, even if Afghanistan were technically a functioning state, “the President has the constitutional authority to suspend our treaties with Afghanistan pending the restoration of a legitimate government capable of performing Afghanistan's treaty obligations.” Besides, evidence suggested
that the Taliban was so “intertwined with al Qaeda as to be functionally indistinguishable from it.” This gave the Taliban more in common with an NGO “that used military force to pursue its religious and political ideology” than with a “functioning government.”
that the Taliban was so “intertwined with al Qaeda as to be functionally indistinguishable from it.” This gave the Taliban more in common with an NGO “that used military force to pursue its religious and political ideology” than with a “functioning government.”
Finally, Yoo addressed the question of whether the president was bound by so-called customary international law of armed conflict in his treatment of enemy detainees. Customary international law consists of broadly held, often unwritten norms and conventionsâagainst torture, for instance. Yoo concluded that such law “does not bind or restrict the actions of the United States military, because it does not constitute federal law recognized under the Supremacy Clause of the Constitution.” And yet, though customary international law did not bind the president, he retained the “constitutional authority as Commander-in-Chief to interpret and apply the customary or common laws of war in such a way that they would extend to the conduct of members of both al Qaeda and the Taliban, and also to the conduct of the U.S. Armed Forces towards members of those groups taken as prisoners in Afghanistan.” Hitherto widely held to be binding on all parties (including U.S. presidents) at all times in all contexts, the customary international law of armed conflict became, according to Yoo, an instrument available to the U.S. president at his discretion.
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Yoo insisted that his Geneva memo was intended to clarify the conditions of detainee confinement rather than authorize abusive interrogation techniques, but that is not how many Bush administration officials interpreted it.
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On January 11, just as the detainees arrived at Guantánamo, and as Rumsfeld parsed the fine points of detainee treatment before the press, William H. Taft IV, legal advisor to Secretary of State Colin Powell, wrote Yoo a note arguing that the memo was wrong on all scores.
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Some of Yoo's mistakes were sophomoric. “The draft memorandum badly confuses the distinction between states and governments in the operation of treaties,” Taft wrote. Failed states did not cease to be parties to treaties. Yoo's argument was “contrary to the official position of the United States, the United Nations and all other states that have considered the issue.” Nor was Yoo correct that the president could simply suspend U.S. obligations under Genevaâa
notion both “legally flawed and procedurally impossible at this stage.” Finally, in claiming that nothing in the U.S. Constitution bound the president to abide by customary international law, Yoo ignored the very existence of international law itself.
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On January 11, just as the detainees arrived at Guantánamo, and as Rumsfeld parsed the fine points of detainee treatment before the press, William H. Taft IV, legal advisor to Secretary of State Colin Powell, wrote Yoo a note arguing that the memo was wrong on all scores.
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Some of Yoo's mistakes were sophomoric. “The draft memorandum badly confuses the distinction between states and governments in the operation of treaties,” Taft wrote. Failed states did not cease to be parties to treaties. Yoo's argument was “contrary to the official position of the United States, the United Nations and all other states that have considered the issue.” Nor was Yoo correct that the president could simply suspend U.S. obligations under Genevaâa
notion both “legally flawed and procedurally impossible at this stage.” Finally, in claiming that nothing in the U.S. Constitution bound the president to abide by customary international law, Yoo ignored the very existence of international law itself.
This last mistake exposed Yoo's larger aim. “John,” Taft wrote, “I understand you have long been convinced that treaties and customary international law have from time to time been cited inappropriately to circumscribe the President's constitutional authority or pre-empt the Congress's exercise of legislative power.” Similarly, Taft understood Yoo's “desire to identify legal authority establishing the right of the United States to treat the members of the Taliban Militia in the way it thinks best.” Taft himself shared Yoo's sentiment in both regards. Still, Taft could not endorse Yoo's conclusion to the president or secretary of state.
Two weeks later, David Addington, legal counsel to Vice President Cheney, would argue in a memo signed by White House counsel Alberto Gonzalez that the war on terror constituted a “new paradigm” in international relations, calling for new policies and procedures unanticipated by Geneva. In his response to Yoo, Taft anticipated this argument and flatly rejected it. “In previous conflicts,” he noted, “the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.” Cutting straight to the heart of the matter, Taft insisted that “only the utmost confidence in our legal arguments could ⦠justify deviating from the United States' unbroken record of compliance with the Geneva Conventions in our conduct of military operations over the past fifty years.” Yoo's legal analysisâ“actually incorrect as well as incomplete”âscarcely amounted to that. “We should talk,” Taft concluded, as if summoning an errant student to his office.
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