Guantanamo in the International Context By Ish Alsheik Who am I? • Corporate lawyer who should have been doing deals but got stuck representing accused terrorists because I’m Muslim and I know some Arabic (lucky me). I still got to do deals (before everything tanked – blame this guy, not me :). Let’s start with a timeline. January 11, 2002 • First detainees arrive in Gitmo. Shipped to Camp X-Ray. Open-air cages, concrete floors. ICRC makes first visit 6 days later. Gitmo? • Guantanamo Bay, Cuba. US assumed control under 1903 pursuant to the Cuban-American Treaty. Naval base there was actually established five years earlier. We never left. Cuba thinks we’re in violation of the 1969 Vienna Convention on the Law of Treaties. Additionally, the use of a detainment camp in Gitmo violates the terms of the original agreement. America’s response in a nutshell? Treaty Schmeaty, Agreement Schmagreement. Let’s take a quick break. • Please do not be offended by my clip art. • My sole intention it to not bore you. • Now then… One week later… • President Bush decides detainees' standing as terrorists disqualifies them from prisoner-of-war protection under the Geneva conventions. January 27, 2002 • Cheney calls the detainees "the worst of a very bad lot. They are very dangerous. They are devoted to killing millions of Americans.” Note that the propaganda has started despite a single charge brought against the prisoners. Innocent until proven guilty? February 19, 2002 • Center for Constitutional Rights (public interest law outfit in NY) files Rasul v. Bush, a habeas petition, in the D.C. circuit court on behalf of David Hicks, Shafiq Rasul and Asif Iqbal. In that case, the district court held that the Judiciary had no jurisdiction to handle wrongful imprisonment cases involving foreign nationals who are held in Guantanamo Bay. • Let’s fast forward: on June 29, 2004 – over two years later, the Supreme Court – in a 6-3 decision – reverses. One of many landmark decisions in the habeas litigation. February 27, 2002 • First hunger strike – at issue is ability to wear turbans. US eventually relents on this issue. • Recurring theme. • Forced feedings – very brutal, roundly condemned in international medical community. • Later, suicides (three in 2006). Admiral Harris says suicides “asymmetric warfare.” Bush admin continues to pound away with propaganda that paints hunger strike as a terrorist tactic. October 27, 2002 • First of many releases from Gitmo. • Since Gitmo opened, 775 detainees have come through the prison. • Roughly 270 remain. • Releases often times come unexpectedly and make little sense. • Importance of diplomacy – Saudi’s luck vs. Yemen’s. October 9, 2003 • Red Cross: "deterioration in the psychological health of a large number of detainees.” August 30, 2004 • CCR attorney is the first civilian attorney to meet with detainees at Guantanamo. • First step in getting a bunch of feel-good big firm bleeding heart liberal lawyers down there. May 2005 • Accounts of abuse of the Quran release. Guards kicking, throwing, flushing copies of Islam’s holy book. Riots internationally. Newsweek retracts story re: “flushing” under White House pressure. Serious doubts as to whether or now that means it didn’t happen. In an case, Gitmo the PR disaster becomes Gitmo the super-PR disaster. • Meanwhile, litigation goes on. What do you expect us lawyers to do? November 7, 2005 • Supreme Court says it will hear Hamdan vs. Rumsfeld, a case filed by Neal Katyal of Georgetown Law and Charles Swift of the Navy. At issue: whether military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949. • Fast forward to June 29, 2006. Supreme Court rules 5-3 that it has jurisdiction over the case and that the administration did not have authority to set up these particular military commissions without congressional authorization, because they did not comply with the Uniform Code of Military Justice and the Geneva Convention (which the court found to be incorporated into the Uniform Code of Military Justice). • Hamdan was ultimately tried by a military jury and was sentenced to 66 months. He had already served 61 months. Remarkable book about the whole ordeal by Jonathan Mahler (The Challenge: Hamdan v. Rumsfeld). February 15, 2006 • UN recommends closure of Gitmo. • Report highlights torture – which law profs who were hoping for a Supreme Court appointment said was kosher – and religious intolerance, as well as mental health and other concerns. September 28, 2006 • Congress passes law permitting Military Commissions. Government plans overpriced facility to hold commissions (anything for some Halliburton love.) Law sets framework for trying alien enemy combatants. 2008 • Not so fast – in 2008, Supreme Court rules 5-4 on Boumediene v. Bush and Al Odah v. United States (cases were consolidated) that detainees at Guantanamo Bay should have a right to challenge their detention in US Federal Courts through habeas corpus petitions – i.e., MCA is unconstitutional. November 17, 2006 • Back to our timeline. Three detainees released to Albania? Tremendously significant and rife with difficulties. Significant: these three (an Algerian, an Egyptian, and an Uzbek) would have faced tremendous trouble at home or flat out couldn’t go home. Taken in by a poor Muslim country. Not popular with the citizens, plus how can poor country sustain foreigners who were stuck in prison for years? Harder and harder to place detainees who can’t go back home, particularly Uighurs (Turkic Chinese Muslims). December 7, 2006 • First detainees sent to Camp 6. Basically hell on earth (solitude, A/C blowing always, steel everything). March 26, 2007 • David Hicks (aka the Australian Taliban) pleads guilty in military hearing. Remarkable Story, tons of international implications • Australian. Trained in “al-Qaeda linked camps” in 1999 in Albania, came back to Australia, converted to Islam. Later that year, went to Pakistan. January 2001, goes to Afghanistan for training. Captured by Northern Alliance (a group of Afghan thugs/friends of the US military) and sold to Americans for a grand. Hicks, cont. • Shipped to Gitmo; tortured (beaten/medicated/sedated/sleep deprived/forced to watch attack dogs intimidate prisoners/anally assaulted while blindfolded). 2003 – Australia says they want Hicks to try him at home. No dice. Charges filed in 2004 pursuant to military commissions (US gov’t claimed that he trained with AQ, associated with senior AQ leaders, was issued weapons to fight US, and carried out surveillance against US); Hamdan decision killed that proceeding in 2006. More Hicks. • Proceedings re-established pursuant to re-establishment of commissions by Congress (pre-Boumediene ). Dick Smith, an Australian philanthropist, put up AU$60,000 of his own money to get Hicks a civilian defense (alongside his military defense) to secure a fair trial. On March 9, 2007, his lawyer said that David Hicks was expected to bring a case seeking to force the Australian Federal Government to ask the US government to free him. Hicks ultimately struck a plea bargain that allowed him to get credit for time served and made him serve less than a year of incarceration, all in Australia. April 2007, sent back to Australia to serve out remaining nine months of sentence. As part of the plea bargain, Hicks would have to be silent to the media for a full year – baloney in the US under our free speech laws but apparently enforceable Down Under. There have been strong suggestions that the federal government in Australia didn’t want Hicks interviews to interfere with the elections. Hicks, the conclusion. • Hicks as a gagged but free man (beats Gitmo any day.) Aftermath • John Howard, another Bush crony, gets knocked off by a liberal candidate – in this case, center-left PM candidate Kevin Rudd. • See also Spain (Jose Maria Aznar knocked off and replaced with Zapatero (who apparently either scares or confuses John McCain – still unclear)), the UK (Super Poodle Extraordinaire Tony Blair knocked off and replaced with Gordon Brown). • Democracy at work: Western leaders who supported Bush’s post 9-11 maneuvers tended to get swiftly replaced. Parliamentary democracies make it far easier to bring in a new PM – in the States, can only move every four years. Follow-up • My visits to Bahrain. • Trips to Gitmo. • Stress on diplomacy – of my 5 clients, 3 Saudis are out, 2 Yemenis stuck in Gitmo – no coincidence. The end.