Marjorie Cohn: Close Guantánamo Prison

Last month, in a little-noticed vote, the Senate rejected Democratic Senator Robert Byrd's proposal to delete funding for the US prison at Guantánamo Bay, Cuba. The amendment to the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 would have stripped HR 1268 of $36 million earmarked for construction of a permanent, 220-person military prison at Guantánamo. Opponents of the amendment said a new prison would keep detainees from being transferred to the United States, where terrorists might seek to free them.

These folks may well see the US federal courts, which now hear the Guantánamo inmates' habeas corpus petitions, as "terrorist." Before the Supreme Court instructed the Bush administration it must give prisoners access to our courts to challenge their detentions (see Supreme Court: War No Blank Check for Bush), the International Committee of the Red Cross called the Guantánamo prison a "legal black hole." Between 500 and 600 men and boys have been detained there for more than three years with no criminal charges against them, in violation of US and international law.

Many Republican opponents of Byrd's amendment are those who strive to destroy the time-honored filibuster in order to appease their right-wing Christian base. Some, such as Pat Robertson, would put independent judges in the same category as terrorists. In an interview with George Stephanopoulos, Robertson affirmed that judges who don't share his Christian values are a more serious threat to us than Al Qaeda.

It is not just Republican senators who voted against de-funding a permanent prison at Guantánamo Bay. Seventeen Democrats, including John Kerry, Hillary Clinton, and Barack Obama, joined all Republicans senators except Arlen Specter in supporting the new prison construction.

Although Democratic senators are currently waging a valiant battle to preserve the independence of the judiciary, many have wilted in the face of Bush's conflating of the war in Iraq with his "war on terror." They are afraid to stand up to him, demand that we save thousands of lives by pulling out of Iraq, and vote to bring a halt to the disgrace that is, in the words of the National Lawyers Guild and the American Association of Jurists, a veritable "concentration camp" at Guantánamo Bay.

Desecration of the Koran

Last week, the Bush administration forced Newsweek to back off a story about the desecration of Korans at Guantánamo after it provoked demonstrations, riots and more than a dozen deaths in Afghanistan. The Pentagon refuses to release the Southern Command's report, on which Newsweek based its article. Publicizing its content could disprove the magazine's allegations, if they are indeed false, as the Pentagon claims. The Red Cross documented "credible information" that supports "multiple" instances of disrespecting or mishandling the Koran there. Yesterday's Los Angeles Times reported that court records and transcripts contain "dozens of accusations involving the Koran." Allegations include having a guard dog carry the Koran in its mouth, guards scrawling obscenities inside Korans, kicking Korans across the floor, urinating on the Koran, ridiculing the Koran, walking on the Koran, and tearing off the cover and throwing the Koran into trash or dirty water.

Hunger strikes erupted in 2002 at Guantánamo after word got around that Korans were being desecrated. On Friday, 500 British Muslims chanted "Desecrate today, die tomorrow," in front of the United States Embassy in London.

Illegal US Occupation of Guantánamo

The real question the media should be asking is why our government continues to illegally operate its prison at Guantánamo Bay, scene of widespread of torture and abuse. The occupation of Guantánamo by the US military violates the 1903 and 1934 treaties concluded between the United States and Cuba.

Guantánamo Bay came under United States control in 1903 when Cuba was occupied by the US army after its intervention in Cuba's war of independence against Spain. The Platt Amendment, which granted the US the right to intervene in Cuba, was incorporated into the Cuban Constitution as a prerequisite for the withdrawal of US troops from Cuba. That provision provided the basis for a treaty granting jurisdiction over Guantánamo Bay to the United States.

The 1903 Agreement on Coaling and Naval Stations gave the United States the right to use Guantánamo Bay "exclusively as coaling or naval stations, and for no other purpose." Twenty-one years later, President Franklin D. Roosevelt signed a new treaty with the Republic of Cuba, which abrogated the Platt Amendment and the 1903 treaty.

But this 1934 treaty, in the spirit of Roosevelt's "Good Neighbor" policy, maintained US control over Guantánamo Bay in perpetuity until the United States abandons it or until both Cuba and the U.S. agree to modify it. The new treaty, however, specified that "the stipulations of [the 1903] agreement with regard to the naval station of Guantánamo shall continue in effect." That is, Guantánamo Bay can be used only for coaling or naval stations. Additionally, article III of the 1934 treaty provides that the Republic of Cuba leases Guantánamo Bay to the United States "for coaling and naval stations." Nowhere in either treaty did Cuba give the United States the right to utilize Guantánamo Bay as a prison camp.

Torture at Guantánamo Prison

US forces have used the Guantánamo prison to engage in torture and inhuman treatment of prisoners, in violation of the Geneva Conventions and the US War Crimes Statute.

A high-level military investigation concluded last month that several prisoners at Guantánamo were mistreated or humiliated. The findings were based on FBI agents' accounts that were never meant to be made public. The agents saw female interrogators forcibly squeeze male prisoners' genitals, and witnessed detainees stripped and shackled low to the floor for many hours.

Psychological torture has also been documented at the Guantánamo prison. "At least since 2002," according to Physicians for Human Rights, "the United States has been engaged in systematic psychological torture" of Guantánamo prisoners.

Several detainees released from Guantánamo last month allege they were tortured by US military guards. Seventeen Afghans said they had been victims of "indescribable tortures." Nasser Nijer Naser Al-Mutairi was picked up on an Afghan battlefield in 2001. His lungs and right leg were severely injured. After he was shipped to Guantánamo, he underwent several chest operations and an interrogation session that almost killed him, he said.

Mustafa Ait Idr, an Algerian citizen living in Bosnia, has been detained at Guantánamo Bay for three years. He filed a lawsuit alleging that US military guards jumped on his head, resulting in a stroke that paralyzed his face, broke several of his fingers, and nearly drowned him in a toilet.

Guantánamo: Symbol of US Hypocrisy

Instead of furthering the war on terror, the torture and abuse of prisoners at Guantánamo Bay has had the opposite effect. "For many Muslims, Guantánamo stands as a confirmation of the low regard in which they believe the United States holds them," according to the New York Times. "For many non-Muslims, regardless of their feelings toward the United States, it has emerged as a symbol of American hypocrisy."

Testimonials and photographs of atrocities emerging from Guantánamo feed anti-American sentiment. "Guantánamo provides rhetorical fodder for politicians seeking to bring down United States-allied rulers in their own countries," the New York Times reported. "It offers a ready rallying point against American dominance, even in countries whose own police and military have been known for severe violations of human rights."

As in US-run prisons in Afghanistan and Iraq, high-ranking military and civilian officials remain unaccountable for their torturous policies at Guantánamo. (See Team Bush Goes Unpunished for Torture). The State Department disclosed that 11 soldiers have been punished for abusing detainees at Guantánamo Bay. Yet only one was court-martialed, and he was acquitted.

Human Rights Watch says the United States should allow UN human rights monitors, including the special rapporteur on torture, to visit detainees held at Guantánamo Bay. If it had nothing to hide, the US would welcome the monitors.

The National Lawyers Guild and the American Association of Jurists have called on the United States to close its concentration camp at Guantánamo, release the prisoners there or hold trials in accordance with international legal norms, and return Guantánamo Bay to Cuba.

As a January editorial in the French daily, Le Monde, said, "The simple truth is that America's leaders have constructed at Guantánamo Bay a legal monster."

Democrats in the Senate must find their voice, not just on the filibuster, but also to oppose the perpetuation of one of the most disgraceful situations the United States has ever created.

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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