When I was getting ready for a trip to Guantanamo Bay last week, I read an article written last year by a young interpreter (and now lawyer) who was working with some of the attorneys for the detainees. Titled “My Guantanamo Diary,” it was a vivid and urgent piece that painted a grim portrait of a place where evil flourishes amid the scrub of the Cuban coastline.
In the article, the interpreter describes the anguish and helplessness she feels after meeting the detainees, most of whom she believes to be innocent. But initially she was conflicted: She admits to one of the lawyers for the detainees that the guards had seemed so friendly.
"Yeah, they're nice,” the lawyer, Tom Wilner, a partner in the Washington office of Shearman & Sterling LLP, shoots back. “But this whole place is evil -- and the face of evil often appears friendly."
That perfectly captures Guantanamo: The face of evil often appears friendly.
It’s a sentiment shared by almost everyone you talk to, those on both sides of the debate. Soldiers and lawyers, military officers and human rights activists—everyone sees evil at Guantanamo.
They just believe the evil lies within different people.
Wilner, who has been representing detainees March 2002, believes most of these men were simply swept up by mistake and now are being imprisoned indefinitely and unlawfully, mostly in isolation. To lawyers like Wilner, Guantanamo represents one of the single biggest human rights abuses in American history.
But the officers and soldiers standing watch see evil elsewhere. They see it in the detainees, whom they consider murderous terrorists (or people who actively supported the murderous terrorists).
They think the detainees have conned lawyers and the international human rights community into believing they’re innocent shepherds, loving family men who just happened to be at the wrong place at the wrong time. Some were in that category, no doubt, they say, but those men have been released.
Like much of the debate over Guantanamo, what’s seems clear is not.
When you go to Guantanamo, you have an almost visceral feeling when you see the detainees. They look exactly like what detainees would look like in a movie, if Hollywood weren’t worried about the stereotypes. And you wonder: Is that KSM? Where is he? Is he 30 feet away? Which cell is he in? (They won’t tell you—they say even the guards don’t know). Or is that a shepherd? Was he simply in the wrong place at the wrong time?
Is that the face of evil? Or a friendly face?
About 300 detainees are at Guantanamo now, down from nearly 800, and they’re held in three different facilities. Of them, 10 percent of them are considered “highly compliant,” and they’re in the most relaxed conditions in Camp IV—even though they’re still under heavy guard and tight security. But they can wander around in a dusty outside courtyard, eat when they choose, sit at picnic tables as long as they like, do their laundry, watch movies and take classes.
That doesn’t mean they’re the least dangerous, though—it was in Camp IV where a riot occurred last year, and the guards say detainees can be cooperative simply to trick them.
The rest are in what are essentially maximum security prisons. They’re kept in narrow cells 22 hours a day. A soldier stares at them through a sliver of a window on the door every few minutes. Their food is delivered through a hatch on the door and is closely monitored. (They can’t, for example, keep their apple until later.) They can go outside into a larger cage for two hours a day.
Mostly, they pace. Back and forth, in their cells or outside. (“That’s all they do,” says one soldier. “They just pace.”) Sometimes they hold prayer beads.
And you wonder what they’re thinking. Are they plotting another murderous attack? Or praying for strength to return to their families and live in peace?
For the past five years, the military has made those judgment calls. It has designated all these men “enemy combatants” and decided which of them belong here—essentially, which ones are evil and which ones are not.
The hearings take place in a small room before three officers, only one of whom is a lawyer. No other lawyers are present. The detainee sits before his “judges” in a plastic chair, his feet shackled to the floor. He doesn’t have access to all the evidence against him. He is limited in evidence he can present.
Lawyers for the detainees say those procedures are woefully inadequate, that the deck is so stacked against the detainees that there’s no way they can possibly make a case that they are innocent. They argue that the detainees have a constitutional right to get into federal court, with a lawyer, to make the case that they should be released.
But the government says those procedures are thorough and fair. We’re at war, they say, and we can’t treat them like drug dealers who are prosecuted in the United States. Because they’re foreign nationals not being held on U.S. soil, the government argues, they aren’t entitled to the full protection of the Constitution—and shouldn’t be.
Today, the Supreme Court will hear those arguments. It’s a major case—perhaps one of the most significant wartime cases in modern history.
In the legal briefs, the issue before the Court seems deceptively straightforward: Can the hundreds of detainees now being held at Guantanamo Bay get into federal court to challenge their detention? Or did Congress lawfully strip the courts of jurisdiction to hear those claims?
The answers could well decide the future for many of these detainees and, in doing so, the future of Guantanamo, itself (remember that the government sent detainees here precisely because it believed they wouldn’t have access to US courts). And, at the end of the day, the answers could well shape how the government pursues and prosecutes terror suspects.
If the Court rules for the detainees, it could order the military to conduct more complete hearings. Or it could say they’re entitled to hearings before a federal trial judge—and that would raise all kind of hard questions. What kind of hearing will those detainees get? What evidence will they have access to? How was that evidence obtained? What sources and methods did the government use to get it?
Those questions are extraordinarily difficult, and they carry enormous risks.
The American criminal justice system is premised on the bedrock foundation that it’s better that one guilty person go free than an innocent man remain behind bars. It’s why we have rules of evidence and procedures in place to protect a defendant’s rights. But at Guantanamo, the rules are different and must be different, the government says. These detainees are waging war against the United States, they say, and allowing one guilty person to go free could bring death and destruction to tens of thousands of Americans.
“What we have on the war on terror was a group committed to killing up to 80,000 people in one morning. The U.S. criminal justice system doesn’t deal with folks who want to kill 80,000 people,” says Capt. Pat McCarthy, the government’s lead lawyer at Guantanamo. “The courts are not well suited to making an exception because this is KSM versus this is just Joe Blow, who was picked up on a DUI stop and happened to have a crack pipe in his car.”
Today, the Court will begin sifting through those arguments. How it will resolve the case—and what that will mean—is, like everything else in this high-stakes debate, unclear.