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Gitmo May Close, But Legal Problems Will Remain

September 26, 2009

By Judith Miller

It’s been a busy summer at the detention center in the U.S. base at Guantanamo Bay, Cuba. The joint task force in charge of the 226 remaining detainees is spending about $440,000 to expand the recreation yards at Camp 6. At nearby Camp 4, which offers communal living for the most “compliant” captives, the soccer yard is being enlarged. At Camp 5, a maximum-security facility, a $73,000 classroom is under construction. In March, the task force added art classes to the thrice-weekly instruction it offers in Arabic, Pashtu and English, courtesy of the U.S. taxpayer.

Although President Barack Obama vowed on his second day in office to close the detention center within a year, Gitmo’s officers say they intend to continue spending previously budgeted funds to improve life at the center until the last detainee leaves. “It’s business as usual around here,” the task force’s deputy commander, Brig. Gen. Rafael O’Ferrall, told me two weeks ago during one of the official tours Gitmo offers outsiders.

The point of the tour is to show that Gitmo, which Obama called a “stain” on America’s reputation, has become a model, if somewhat surreal, detention center — and therefore closing it and relocating its inmates is a largely empty political gesture that makes little sense.

My hosts would never dare publicly challenge their commander in chief’s orders. But they clearly believe that Gitmo no longer deserves to be seen as a symbol of human-rights abuses. “This place is synonymous with military abuse, and it’s just not fair,” said Rear Adm. Thomas H. Copeman III, the task force’s commander.

Officers at Gitmo are eager to distance themselves from the “enhanced interrogation techniques” that senior Bush administration officials approved soon after 9/11. “No one was ever waterboarded at Gitmo,” said Army Col. Bruce E. Vargo, commander of the Joint Detention Group.

Although it’s true that a 2005 Pentagon report concluded, after examining 26 complaints from FBI agents involving a small portion of more than 24,000 interrogations at Gitmo, that a few “high-value detainees” had been subjected to treatment that was “degrading and abusive,” it “did not rise to the level of prohibited inhumane treatment” or torture. Furthermore, those techniques — such as loud music, sleep deprivation, temperature manipulation and prolonged shackling — ended long ago at Gitmo, officers say. Since 2004, interrogation methods have adhered to the Army Field Manual, said Paul B. Rester, the Pentagon official in charge of interrogations: “Loud music has no place in my world.”

Officials are sparing little effort or expense to improve Gitmo. They provide captives with prayer rugs, beads, caps and Qurans in their native languages. Arrows point toward Mecca. The center spends about $4 million a year offering detainees a choice of six halal meals a day.

Detainees make roughly 7,800 visits a year to the medical center to receive state-of-the-art care. That includes colonoscopies for “age-appropriate” detainees; 25 have been performed so far. The medical center has one staff member for every two detainees

Hunger strikes are allowed, but only along with “voluntary force-feeding” — a phrase admittedly worthy of Orwell. Each day, most of the hunger strikers (about 18 percent of the detainees) line up for Ensure nutritional supplements. They ingest the supplements not through the mouth but through a nostril, via a yellow, spaghetti-size tube lubricated with olive oil. Of course, those who don’t “volunteer” are shackled and force-fed anyway. “They have a right to protest, and we have an obligation to keep them alive and healthy while they do so,” Copeman explained.

Detainees are screened for a variety of illnesses — diphtheria, tuberculosis, flu, HIV. “This place embodies the best of what we do as Americans,” one Navy doctor told me, without a trace of irony. Are the detainees grateful?“Some are, some aren’t,” he said. But like his clientele back in California, “most detainees don’t want to die.”

Still, some clearly do: There have been five documented suicides so far at Gitmo and many more unsuccessful attempts. The latest — Muhammad Ahmad Abdallah Salih, a 31-year-old Yemeni held here since 2002 — killed himself in June, apparently by hoarding pills and downing them all at once. (An internal investigation is ongoing.) Depression and other mental ailments among detainees are common, doctors acknowledged.

So Gitmo continues to expand its “intellectual stimulation program”: a library of more than 15,000 books, magazines, puzzles, electronic games and newspapers, as well as satellite TV and more than 315 movies on DVD.

Gitmo’s “compliant” detainees have access to recreational activity for as much as 20 hours a day — including soccer, basketball, ping-pong and gardening. “Noncompliant” detainees are confined to individual cells, about 10 feet long by 8 feet wide, for 22 hours a day, with two hours of daily recreation. That’s an hour more than most civilian prisoners get in U.S. maximum-security prisons, officers pointed out — but then, civilian U.S. prisoners have been tried and convicted of crimes.

This is the real problem with Gitmo — the fact that most of the detainees have not been charged with terrorism or any other crime. Satellite TV is all well and good, but not if you’re being held indefinitely without trial.

Ending the detainees’ legal limbo and ensuring them due process is far more important than closing down the prison they’re being held in. Yet there is little difference between Obama and his predecessor on some of the key due-process issues. Not only has Obama embraced George W. Bush’s notion of military commissions to try some detainees, with ostensibly bolstered rights for the defendants, but he has endorsed Bush’s position on “renditions” to countries with suspect human-rights records. And he agrees with Bush on preventive detention for a “fifth category” of detainee: captives who cannot be prosecuted by a civilian court or even by a military commission because of torture-tainted evidence or the need to protect intelligence sources and methods, but who “pose a clear danger to the American people,” as Obama puts it, and may be too dangerous to release. It is unclear how many detainees fall into this category.

While the administration ponders the detainees’ legal fate, it seems pointless to spend more money and energy moving them to “Gitmo North” — maximum-security prisons in the United States where they may be far more harshly treated.

It’s time for the Obama administration to acknowledge that Gitmo, or another center like it, will be needed as long as the war on terrorism — no matter what our commander in chief calls it — endures. But to ensure that such places do not become legal black holes, detainees should be assured of some kind of periodic, independent review of the allegations against them. They should have not only decent physical treatment but the legal right to challenge their detention in a way that does not jeopardize intelligence sources and methods.

Several legal experts have proposed legal compromises that would authorize preventive detention for terrorism suspects but with bolstered rights and a guaranteed, periodic, impartial review of the allegations that led to their detention. These schemes may not be perfect. But they may be the most effective way to protect American values while we continue fighting a war that we cannot afford to abandon.

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