On Wednesday, the House Armed Services Committee holds a long-needed hearing into "the continued use of Guantanamo Bay as a detention facility." Will the hearing be the first crack of light into what one British judge condemned as a "legal black hole" or will it provide Congress with continuing cover for its reprehensible failure to confront America’s global detention problem?
Aziz Huq of the Brennan Center for Justice explains why these hearings are crucial to restoring checks and balances and what's missing from the witness list.
The Naval Base at Guantánamo holds roughly four hundred detainees. Although it is only the tip of the U.S.’s larger global detention system of military bases (e.g., Bagram in Afghanistan), CIA facilities, and client prisons (allegedly in Syria, Egypt, and Morocco), it is now a global symbol of the United States’ failure to live up to its ideals of fairness and justice. As explained at length elsewhere, this condemnation is warranted: Many Guantánamo detainees were picked up far from any battlefield, often by foreign officials hungry for a bounty. Even for battlefield captures, the Administration decided to forego the battlefield status hearings required by international law to sort the innocent shepherd from the dangerous combatant.
The result today is the detention of hundreds of people on dubious, or non-existent, facts. Rather than admit this, the Administration applies increasingly coercive interrogation techniques to detainees in the hope of "proving" they are dangerous. So it is at Guantánamo as it always was: the torturer justifies his bloody trade by the confessions extracted by his still-dripping tools.
Even Secretary of Defense Robert Gates acknowledges, "Guantanamo’s continued existence hamper(s) the broader war effort." It is "Mr. Cheney and Mr. Gonzales (who) remain committed to a detention plan that has become one of the most controversial elements of the administration’s counterterrorism program."
But this shouldn’t be surprising. Once disinfecting light gets shone on Guantánamo, the role of the Vice President’s office and the Justice Department in authorizing illegal interrogation tactics and side-stepping binding treaty provisions will become clear. Today’s scandal of a politicized Justice Department will pale in comparison to the image of government lawyers’ endorsement and encouragement of acts the United States has, since Nuremberg, prosecuted as crimes of war.
For that light to shine on Guantánamo, Congress needs to look closely. It needs (to hump metaphors) to take a scalpel and dissect in the light the situation of the overwhelming number of detainees who are not being charged in a military commission. It needs to ask why they have been detained. It needs to ask what evidence there is that these detainees have any connection to terrorism. It needs to inquire how these detainees have been interrogated—and what was done to detainees to prise from them the evidence of their own guilt. It is through such details that, inch by painful inch, Congress can deal with Guantánamo. It is the sole way for the truth of the place to come out. And it is the only way, as Secretary of Defense Gates intuited, that America’s reputation can be purged, and our moral standing in the world restored.
The witness list for Wednesday’s hearing, however, does not include the only people who can speak to this critical matter: their lawyers. The vast majority of detainees who have never been charged with any crime need legal representatives who can and should speak on their behalf.
There is one excellent lawyer slated to testify; but his client has been charged in a military commission. It is essential that Congress hear about the problems with military commissions—but these are separate and distinct from the problems with Guantánamo as a whole.
It is the detainees’ lawyers who have been excoriated repeatedly by the Administration, most recently by Cully Stimson, Deputy Assistance Secretary for Detainee Affairs in the Defense Department, who pressured the lawyers’ corporate clients to drop them. Unable to defend its detention decisions on the merits, the Administration has engaged in an ugly campaign of insinuated "guilt by association," suggesting to the public that the lawyers are "unwitting pawns of terrorists."
It is the detainees’ lawyers who travel to Guantánamo. It is the detainees’ lawyers who see the conditions there. It is the detainees’ lawyers who can speak of the grime and horror of the prison. And that is what matters here.
That is what has been hidden and is being hidden from the American public. No legal principles or high-minded recitations of human rights norms can take the place of the telling details, the truly guilty facts, here. That is what Congress, and the American public, deserve to and need to, have before them.
Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law. His book, with the former senior counsel to the Church Committeee Fritz Schwarz, Unchecked and Unbalanced: Presidential Power in a Time of Terror is out this week.