Guantanamo in the International

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					 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.
• 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
     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
                  August 30, 2004
• CCR attorney is the first civilian attorney to meet with detainees at
• 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
               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
• 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.
• 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
          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
  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.)
• 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.
• 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.