Operation Take Away My Freedom: Inside Guantanamo Bay On Trial

By David Rose

January 2004: (Vanity Fair: Pg. 88) 

At Guantanamo Bay, or "Gitmo," the U.S. naval base in Cuba, some 660 alleged
al-Qaeda and Taliban terrorists have been indefinitely detained without
hearings. Now the Supreme Court is joining the debate over their legal
status, and some of the military's own lawyers are opposing the tribunal
process scheduled to begin early in 2004. Investigating the cases of three
apparently innocent prisoners -- and discovering that some of Gitmo's toughest
critics are inside the Pentagon -- DAVID ROSE wonders if the camp may be a
graver threat to what America stands for than the terror it is meant to

In the beginning, in January 2002, when the first alleged al-Qaeda and Taliban
prisoners were unloaded from an army aircraft to kneel, shackled and
blindfolded, in the dirt at Guantánamo Bay, Cuba, the camp hospital was just a
row of tents. Its staff treated suppurating wounds sustained on Afghanistan's

Almost two years later, much has changed. The hospital I saw on a visit to
Guantánamo in October 2003 is made of steel and concrete -- an air-conditioned
refuge from the relentless tropical heat. There are spotless wards and a
dentist. But instead of the trauma wrought by combat, the Guantánamo medics
now spend their time treating wounds of the psychological variety, inflicted
not by shrapnel but by arduous, indefinite imprisonment. In 2002 there were
cases of tuberculosis. Nowadays, the most common illness is depression.

The number of detainees at Guantánamo has grown from 180 in the camp's first
month to some 660 today, and the primitive cages of its first facility, Camp
X-Ray, stand empty, smothered by tropical vines. They have given way to Camp
Delta, a dusty sprawl of cellblocks and interrogation trailers, pockmarked by
guard towers, girdled by rings of razor wire. Kellogg, Brown & Root, the
construction arm of Vice President Dick Cheney's old company Halliburton, is
set to build more cells, guard barracks, and interrogation rooms by mid-2004,
bringing detainee capacity to 1,000 -- and Halliburton's overall income from
Guantánamo to $135 million. Guantánamo -- "Gitmo" to the 2,500 Americans who
serve there -- has become an institution.

Shrugging off the spy scandal that hit the camp last summer, when two
translators and a Muslim chaplain were arrested for alleged security breaches,
Defense Secretary Donald Rumsfeld says Gitmo plays not one but three vital
roles in what the Pentagon calls the GWOT, or global war on terror. First, it
keeps terrorists "off the streets," until death if necessary. Second, it
turns them into sources of intelligence. Finally, with the first special
"military commission" tribunals set to begin at Gitmo early in 2004, it lets
America bring the perpetrators of terrible crimes to justice -- in accordance,
says Rumsfeld, "with the traditions of fairness and justice under law, on
which this nation was founded, the very principles that the terrorists seek to
attack and destroy."

Others, however, have doubts, and they're not all civil-rights campaigners or
Muslim groups abroad. Talking to senior figures inside the U.S. intelligence
community, the Pentagon, and its specialist cadre of military lawyers, I
encountered unease about nearly every aspect of Gitmo. Sources say the way
prisoners have been detained there indefinitely, without any kind of hearing,
may well breach international law. The practice also ignores a Central
Command regulation issued for American service personnel in 1995. Meanwhile,
military lawyers personally involved in the pending tribunals say the rules
governing them are so skewed as to make fair trials impossible. Sources say
that the lawyers believe they are being ordered to illegally violate their own
professional and ethical obligations, and are discussing a plan to file a
legal petition in a U.S. federal court.

The entire future of Camp Delta was thrown into question in November, when the
U.S. Supreme Court agreed to hear two cases filed by 16 detainees -- 12
Kuwaitis, two Britons, and two Australians -- asserting their right to appeal
their detentions in American courts.

Worst of all from a military standpoint, intelligence officials with extensive
experience in counterterrorism claim that Gitmo's intelligence value is
relatively low, and much of the information obtained there unreliable. Vanity
Fair has established that none of the al-Qaeda leaders captured since
September 11, 2001, has ever been held at Guantánamo Bay. Sixty-four
detainees innocent of any terrorist connection have already been released, and
officials admit there may be many more to come. The method of interrogation
now in use at Gitmo -- a formal system of escalating bribes in return for
confessions -- is almost certain to produce bogus testimony, experts say, and
the camp's interrogators are mostly young and inexperienced.

The value of Gitmo intelligence has been further reduced by the arrest of the
two camp translators on charges of espionage and disseminating secrets. "How
can anyone trust anything a detainee said when one of these guys was
involved?" one official asks.

Set aside the question of whether the system at Gitmo is morally or legally
wrong, these sources say. The real problem is that it isn't very effective.

Next to the hospital reception area is a well-equipped physiotherapy unit with
only one patient: a man who hung himself inside his cell last January. By
the time the guards cut him down he was in a coma, with irreversible brain
damage. He regained consciousness three and a half months later but will
never walk again.

In the camp's acute ward, a young man lies chained to his bed, being fed
protein-and-vitamin mush through a stomach tube inserted via a nostril. "He's
refused to eat 148 consecutive meals," says Dr. Louis Louk, a naval surgeon
from Florida. "In my opinion, he's a spoiled brat, like a small child who
stomps his feet when he doesn't get his way." Why is he shackled? "I don't
want any of my guys to be assaulted or hurt," he says.

By the end of September 2003, the official number of suicide attempts by
inmates was 32, but the rate has declined recently -- not because the
detainees have stopped trying to hang themselves but because their attempts
have been reclassified. Gitmo has apparently spawned numerous cases of a rare
condition: "manipulative self-injurious behavior," or S.I.B. That, says
chief surgeon Captain Stephen Edmondson, means "the individual's state of mind
is such that they did not sincerely want to end their own life." Instead,
they supposedly thought they could get better treatment, perhaps even obtain
release. In the last six months, there have been 40 such incidents.

Daryl Matthews, professor of forensic psychiatry at the University of Hawaii,
was asked by the Pentagon to spend a week at Guantánamo investigating
detainees' mental health and the treatments available. Unlike reporters --
who must agree in writing not to speak to prisoners -- Professor Matthews
spoke with the inmates for many hours.

Manipulative self-injurious behavior "is not a psychiatric classification," he
says, and the Pentagon should not be using it. "It is dangerous to try to
divide 'serious' attempts at suicide from mere gestures, and a psychiatrist
needs to make a proper diagnosis in each and every case." At Gitmo, Dr.
Matthews says, the "huge cultural gulf" between camp staff and prisoners makes
this difficult, if not impossible.

At the same time, attempts at suicide and self-harm fit into a broader
pattern. Chief surgeon Edmondson says that the most common ailment among the
Gitmo prisoners is depression. More than a fifth of Camp Delta's inmates are
taking Prozac or other antidepressants.

Why are the prisoners so gloomy? According to the International Committee of
the Red Cross, which has had access to Camp Delta since its inception, the
answer is obvious. "They have no idea about their fate, and they have no
means of recourse at their disposal through any legal mechanism," says Red
Cross spokesman Florian Westphal. "We have observed what we consider to be a
worrying deterioration in the psychological health of a large number of the

Edmondson is not so sure. "Their detention may be a factor," he says. "But it
could be some kind of pre-existing condition. You can't put your finger on

It certainly seems plausible that Gitmo might induce depression, not only in
prisoners but also in guards and other staff members. On my last morning,
Sergeant Tom Guminsky, 57, looks south across the empty Caribbean Sea.
"Remember that film Papillon? You know, the one with Steve McQueen about the
great escape [from the notorious French penal colony off the coast of Guyana]?
I was thinking about it the other day, and I thought, Yeah, this is Devil's

Guminsky, like most Americans at Camp Delta, has been snatched away from a
full civilian life: about two-thirds of both officers and enlisted ranks are
drawn from the reserves and National Guard. Students, businesspeople,
daughters, fathers -- with little warning they find themselves assigned to the
isolation of Gitmo's Joint Task Force for 10 months or a year. Guards I met
had left comfortable homes in Michigan and Arkansas for the eight-person
dormitories in Camp America, newly built by Brown & Root.

There is, at least, air-conditioning. But there is almost nowhere to go.
Gitmo's "downtown," built to service the American naval base -- which has
existed there for more than a century -- consists of a single general store, a
souvenir shop, three fast-food outlets, a small outdoor movie theater, and one
Jamaican restaurant, whose name is a source of mordant humor: the Jerk House.
Five miles to the north lies the forbidden Cuban border. Thanks to a monopoly
held by the communications firm L.C.N., phone calls to America cost up to 53
cents a minute. Cell phones do not function, and Internet connections are

A severe clampdown following this summer's arrests for alleged security
violations has made it still harder for joint Task Force members to stay in
touch. Laptop computers are now subject to inspection. "Some of us may have
personal messages or photographs of our spouses that we don't want the world
looking at," says Captain Gregg Langevin, 33, a family man and sales manager
from Worcester, Massachusetts.

On the seaward side of the prison, camp authorities have just opened an
evening bar, Club Survivor. One refrain I heard provided a bare consolation:
"This may be tough, but at least it's not Iraq."

Life for the detainees is rather less tolerable. Camp Delta's perimeter fence
is covered by tarpaulins, blocking from view the one relief from Gitmo's
pervading heat and dust: the sparkling sea. Even without the tarps, however,
most of the detainees -- the 550 in maximum-security conditions -- would have
few opportunities to enjoy the scenery. The best they can hope for, in return
for cooperative behavior, is to be led in handcuffs and leg-irons from their
cells to a small covered yard for half an hour of exercise, followed by a
shower and change of clothes, five days a week. Less amenable detainees enjoy
this privilege only twice a week. Visiting an empty cell-block with a
sergeant from Arkansas, I ask, "After several days, won't a prisoner and his
clothing be quite sweaty?" The sergeant shrugs.

Brown & Root's standard-issue Gitmo cell is a faded green metal box a little
larger than a king-size mattress: 54 square feet. Next to the narrow
wall-mounted bed is an Asian-style toilet, a hole in the floor, facing the
open grille of the door. The guards, some of them women, are supposed to pass
by the cell every 30 seconds. Next to the toilet is a small sink and a
faucet, so low that the only way to use it is to kneel. It produces tepid
water from a desalination plant. Like all the water at Gitmo, it's a pale
shade of yellow. (The Pentagon says the low faucets are designed to
"accommodate foot-washing for Muslim prayer needs.")

At the highest security level, prisoners are not allowed to keep a cup. If
they wish to drink, they must either bend to the faucet or borrow a cup from a
guard. They are also given the following items: a thin mattress and a
blanket; a T-shirt, boxer shorts, and trousers; a toothbrush, toothpaste,
soap, and shampoo; and a prayer cap and mat and a copy of the Koran. There is
no air-conditioning. When the temperature inside reaches 86 degrees, says the
sergeant, the guards are permitted to switch on ceiling fans in the hallway.
The lights stay on all night.

No one at Gitmo tries to be cruel. The Americans have gone to considerable
lengths to provide only food deemed to be halal under the strict requirements
of Islam, and each cot is etched with an arrow to indicate the direction of
Mecca, which Muslims face in prayer. I heard no expressions of hatred or
racism. "You always feel some sympathy, because they're human, too," says
Omar Morales, a guard from Puerto Rico. "You have to act like it was you in
there," adds his colleague Graylon Pearson of Tuckerman, Arkansas. "You say
to yourself, 'What can I do to make this better?'"

But the way Gitmo is organized adds to the psychological pressure. The camp's
superintendent is Sergeant Major Anthony Mendez, a career corrections officer
with 26 years' experience. In any ordinary prison, guards work to build
relationships with inmates. At Camp Delta, "we discourage that," and the
guard details assigned to each block are changed every day. In American
prisons, he says, "our philosophy is some kind of rehabilitation. That's not
our purpose here. We only have to keep them safe, secure, and healthy."

Physically healthy they may be. But according to Professor Matthews, the
forensic psychiatrist who examined the detainees, "it would be hard to imagine
a more highly stressed group of people." Matthews calls Gitmo "prison plus.
The stressors are incredible: never knowing if you'll get out, or when you'll
get out; being sealed off from the community; not having access to legal
counsel. In prison, relationships between inmates and guards are pretty
affirming. Here, they come from two universes."

Religion may provide solace for some detainees, but not all. My visit took
place shortly before the Muslim holy month of Ramadan, when even the least
observant Muslim will fast from dawn to dusk. The kitchens have made
arrangements to accommodate this, the chefs there tell me: meals can be taken
during the hours of darkness. But 20 percent of the detainees have asked to
be given their breakfast and lunch at normal times. If, as their captors
claim, they entered Camp Delta as Islamic fundamentalists, then it seems they
may have lost their faith.

In any event, a Muslim prisoner will not find much spiritual help from the
camp authorities. When Captain Yousef Yee, the Muslim chaplain, was arrested
in September, charged with mishandling classified documents, he was not

His responsibilities -- ministering to Muslims both within the Joint Task
Force and among the detainees -- were assumed by the task force's head
chaplain, Colonel Steve Feehan. Feehan describes himself as "from the
conservative strand of the Southern Baptist Church." Is he a fundamentalist?
"I believe the Bible is literally true, yes. The world was created in seven
days." What about those who don't share his faith? "Without believing in and
accepting Christ, without faith, you cannot be redeemed," he says. "It's

Images of 9/11 abound at Gitmo. In the room guards use to send e-mails home,
a poster showing the World Trade Center cautions, "Are you in a New York state
of mind? Don't leak information -- our enemy can use it to kill U.S. troops
or more innocent people."

"Everyone was shocked," Captain Gregg Langevin says of the day last August
when his unit learned that Chaplain Yee was under arrest. "Forty-eight hours
earlier, he'd been standing up in front of us, briefing us on Islamic culture.
But there are people with mixed allegiances in all wars." Langevin admits
that he'd rather be at home, but he says he applies himself each morning to
the task of being cheerful and reminds himself of Gitmo's value in the war on
terror. "I know that good intelligence is being gathered."

Reporters are not allowed to speak with interrogators or anyone else who deals
with intelligence at Gitmo. The only testimony I hear is from General
Geoffrey Miller, the task-force commander. "We are developing information of
enormous value to the nation," says Miller, a slight, pugnacious man said to
be a strict disciplinarian. "We have an enormously thorough process that has
very high resolution and clarity. We think we're fighting not only to save
and protect our families, but your families also. I think of Gitmo as the
counterterrorism-interrogation battle lab."

But Miller's background is in artillery, not intelligence, and senior
intelligence officials with long experience in counterterrorism, who spoke to
Vanity Fair on condition of anonymity, question his assessment.

Opposite Camp Delta's main gate, there's a little wooden pergola where
journalists are allowed to watch who comes and goes. Spotting the
interrogators isn't difficult. Instead of battle dress and sweaty black
boots, they wear polo shirts, lightweight shoes, and khakis, and most of them
look surprisingly young -- well under 30. Interrogations take place day and
night in a row of what intelligence officers call "booths," located inside
converted trailers behind the cellblocks. Most of the interrogators entering
Camp Delta are accompanied by interpreters -- or "terps," in intelligence

Unlike Chaplain Yee, whose alleged crimes were small and technical, the two
men facing serious charges of taking classified information from Gitmo both
worked as terps, and neither appears to have been qualified for the front
lines in the war on terror. The first man arrested, Ahmad al-Halabi, 24,
moved from Syria to the Arabic enclave of Dearborn, Michigan, when he was in
high school. He was sent to Gitmo from a job as a supply clerk at Travis Air
Force Base, in California, and had no training as a translator.

The second alleged spy, the Egyptian-American Ahmed Fathy Mehalba, had already
tried a military career and failed. He had entered the army interrogators'
school at Fort Huachuca, Arizona, but was discharged for medical reasons. He
found himself at Gitmo as an employee of the San Diego-based Titan
Corporation, which describes itself as "a leading provider of comprehensive
information and communications products, solutions, and services for national

The use of employees such as al-Halabi and Mehalba threatens to undermine any
intelligence role Gitmo might have, says one official who speaks Arabic
fluently. At the same time, their recruitment reflects "the tremendous
shortage of qualified Arabists. Many of the terps used at Gitmo were hired
expediently, without proper screening."

The experience of dealing with Islamist terrorism since the early 1980s has
taught veterans in the C.I.A. and the military many lessons. Among them, one
official says, is that "it's far more effective to interview a suspect in his
own language." When America seized Abu Zubaydah, reputed to be one of Osama
bin Laden's closest associates, a Kuwait-based C.I.A. agent who spoke Arabic
and was schooled in Zubaydah's local dialect was flown thousands of miles to
lead the inierrogation. "Yet they're still using interpreters at Gitmo," the
official continues. "What does that tell you? That they don't think the
people there are very important. The big guys -- Abu Zubaydah, Khalid Shaikh
Mohammed [said to be 9/11's operational mastermind] -- do you think they're at
Gitmo? Of course not."

Guantánamo may even be "a bit of a front," designed to distract al-Qaeda, he
says. "It takes everybody's attention away from locations where big fish are
being held. The secrecy surrounding it makes everybody think that very
serious stuff is going on there."

The detainees' names and the reasons for their arrest are classified, so the
little that is known must be pieced together from information gathered from
their families and associates. A report by the International Justice Project
identifies 38 of the 42 nationalities the U.S. says can be found at Camp
Delta. There are prisoners from Afghanistan and the Islamic states of Asia
and the Middle East. But also Australia, Belgium, Canada, Chile, Denmark,
Sweden, and the United Kingdom. Almost 85 percent are between 20 and 40;
there are three juveniles, the youngest 13. Most detainees were arrested in
Afghanistan, but others were picked up in places as far away as Bosnia,
Zambia, and Gambia.

Multiple sources have confirmed that. while some real terrorists may be at
Gitmo, none of al-Qaeda's known leadership has ever been held there. Abu
Zubaydah and Khalid Shaikh Mohammed were initially interrogated at a secret
location under American control in Thailand. The "really experienced guys,"
the counterterrorism-interrogation specialists, have been deployed there, as
well as in Pakistan, in Jordan, and on what one source calls "floating
interrogation cells" in the Indian Ocean. "Some good stuff has come out of
Gitmo," says another official, "but it doesn't seem much in relation to the
various costs of keeping 600-plus detainees."

One of these interrogation specialists tells me how he would prepare for a
suspect interview. "I would normally spend a minimum of 90 days doing a
'P.I.' -- a preliminary inquiry -- on a subject, learning everything about
him. If warranted, I would dig deeper with subpoenas, wiretaps, etc.
Sometimes this could take a year or two before you get to the interview stage.
Bottom line: to be really successful at the interview you have to have a
'hammer,' something to hold over the subject's head to induce him or her to

General Miller makes it clear that he does not have access to staff of this
caliber. Seven out of 10 of the interrogators working in his "joint
interrogation group" are reservists, and they come to Camp Delta straight from
a 25-day course at Fort Huachuca. "They're all young people, but they're
really committed to winning the mission," Miller says. "Intelligence is a
young person's game—you've got to be flexible."

Some seasoned intelligence officials disagree. "Generally, the new hires
apprentice in the booths with more experienced guys," says one. "I certainly
know of no one at Gitmo having the opportunity or the luxury to be able to
prepare an interview for three months."

Another had met some of Miller's interrogators. "They were rookies, and none
were too keen on the process down there," he says. They knew that any
seemingly insignificant tidbit might later turn out to be important, but in
general "they just didn't feel that the process was going anywhere fast."

According to General Miller, Gitmo's importance is growing with amazing
rapidity: "Last month we gained six times as much intelligence as we did in
January 2003. I'm talking about high-value intelligence here, distributed
round the world."

He makes no secret of how this increase has been achieved: the introduction
of a "rewards and penalties" system, through which detainees can get a more
comfortable life in return for their testimony.

Colonel Jerry Cannon, the officer in charge of detentions at Camp Delta,
explains how it works. "The deal is: be a good detainee, obey the rules,
cooperate with your interrogators. . .Just having a bottle of water, so you
don't have to ask for a cup to fill with warm tap water, that's a big deal,
that's a comfort item." In all, there are 29 such items, including books,
board games, and an occasional hamburger from the base McDonald's. The most
cooperative prisoners are transferred to Camp Four, where, instead of spending
23 hours a day in a metal box, detainees can sleep in dormitories, play soccer
and volleyball, dine together, wear white clothing instead of orange
jumpsuits, and wash whenever they feel dirty.

But while Camp Four may be more humane, the system behind it, say experts in
interrogation, seems almost calculated to produce misleading intelligence.

Keith Caruso, an assistant clinical professor at Vanderbilt University, is a
former navy forensic psychiatrist and an expert on false confessions. "What
you're talking about here is inducements to confess. I would be very
concerned about the details, whether they're corroborated, and how much each
guy knew. Just because the conditions are right doesn't make all confessions
false. You may get true information. The difficulty is in telling them
apart. I'm not saying these guys from Fort Huachuca can't do this. But it
has some problems."

Gisli Gudjonsson, a professor at London's Institute of Psychiatry, is arguably
the world's leading authority in this field. "The longer people are detained,
the harsher the conditions, and the worse the lack of a support system, the
greater the risk that what they say will be unreliable," he explains.
Sometimes one suspect will supply the names of others, who will then in turn
confess. Each will appear to corroborate the others' statements, when in fact
all are false. This is what happened in the case of the Guildford Four, the
subject of Jim Sheridan's movie *In the Name of the Father*. They were
wrongly jailed in 1974 for blowing up two pubs in England and spent 15 years
in prison before the British authorities admitted their mistake. "The first
thing an interrogator should acknowledge is that you may get false information
from someone who is vulnerable."

General Miller, however, sees no cause for concern. "I believe we understand
what the truth is. We are very, very good at interrogation. . . . As many of
our detainees have realized that what they did was wrong, they have begun to
give us information that helps us win the global war on terror."

Spies and psychiatrists may have their doubts, but Donald Rumsfeld is
convinced that even the mere foot soldiers imprisoned at Gitmo are "among the
most dangerous, best-trained, vicious killers on the face of the earth." All,
he has said, were involved in an effort to kill thousands of Americans."

Yet since 2002, when these claims were made, 64 of these "vicious killers"
have been released, all after many months' detention. John Sifton, a
researcher for Human Rights Watch, has traced and interviewed some of them in
Afghanistan. They are all, he says, "the most extreme cases of mistaken
identity, simply the wrong guys: a farmer, a taxi driver and all his
passengers -- people with absolutely no connection with the Taliban or
terrorism." Several were victims of bounty hunters, who were paid in dollars
after abducting "terrorists" and denouncing them to the U.S. military.
"There's another group who were arrested after getting into land disputes," he

In the global war on terror, doubtful arrests are not confined to Afghanistan.
Wahab and Bisher al-Rawi are brothers in their late 30s. Their family left
Iraq for Britain after their father was tortured by Saddam Hussein's security
forces. Wahab became a British citizen, as did the rest of the family --
except for Bisher, who kept his Iraqi citizenship. The family had left land
in Iraq and thought that if one of them remained Iraqi it would be easier to
reclaim it when Saddam's regime came to an end.

In November 2002, the brothers and two other men -- Jamil al-Banna, a
Palestinian who had lived in Britain for several years, and Abdullah
al-Janoudi, a British citizen -- traveled to Gambia, a tiny state on the
western coast of Africa. Wahab had remortgaged his home, he says, and
together they raised $425,000. They had come up with a novel business idea:
a mobile plant to process Gambia's main crop, peanuts.

Wahab went first and, working through a local agent, spent most of the money
on equipment. When the other three arrived in Gambia's capital, Banjul, Wahab
was at the airport to meet them. There, however, all four men, plus the
agent, were arrested by the local intelligence service.

"At the very first interrogation, it was just Gambians, and I showed them all
the papers relating to the business," Wahab al-Rawi says. "We were in this
room at the National Intelligence Agency headquarters, and this big American
comes in. He said his name was Lee, and that he wanted to ask us some
questions. He said it would take no more than four days."

Instead, for the next 27 days the four were moved among a series of safe
houses in Banjul and interrogated regularly -- sometimes alone and sometimes
together -- by Lee, who was apparently a C.I.A. agent, by other Americans, and
by the Gambians. Wahab al-Rawi says the interrogators accused them of
planning to set up a terrorist training camp in the Gambian countryside. It
was an improbable allegation. Its small size aside, Gambia's biggest industry
is tourism by Western sun worshippers. It would not be an easy place to hide
a training camp. "I cooperated: I gave them all the answers," he says. "Yet
they really didn't seem to know what they wanted. At one session, they even
asked if I was working for the British Secret [Intelligence] Service." None
of the four, he says, had had any involvement with politics of any kind.

The men's families appealed to the British government, which apparently made
some kind of representation on behalf of Wahab and al-Janoudi, the two British
citizens. But British officials told the family that Bisher was not their
responsibility, and advised them to approach the government of Iraq -- despite
the fact that the al-Rawis were refugees from Saddam's regime, against which
Britain and America were about to launch a war.

Wahab and al-Janoudi were finally released and returned to Britain. The other
two men were shipped by the Americans to Bagram Air Base in Afghanistan. A
month later, they were taken to Gitmo, where they remain. "They'll have to
release them one day," Wahab insists. "They've done nothing." Meanwhile, he
and his partners have lost everything.

Bisher al-Rawi and Jamil al-Banna were charged with no crime in Gambia and
appeared before no court. Instead, they were spirited thousands of miles away
by the U.S. on the basis of secret evidence. They were, in a word, abducted.

The same could be said for Moazzam Begg, a father of four (the youngest of
whom he has never seen) from the British city of Birmingham. In 2001, he took
his family to Afghanistan in order to open an elementary school. As war with
the Taliban loomed after 9/11, the family sought refuge in Pakistan. In
January 2002, Begg was seized from a house in Islamabad in the middle of the
night. Before reaching his destination, he was able to call his father in
England on his cell phone and tell him he had been taken by Americans and
placed in the trunk of a car.

Begg, whose family denies he had any link with terrorism, was taken to Bagram,
where he spent a year, and finally to Gitmo. His lawyer is the veteran
civil-rights attorney Gareth Peirce, who is best known for helping to expose
miscarriages of justice in another war on terror -- Britain's struggle against
the Irish Republican Army. Peirce, who was the basis for Emma Thompson's
character in "In the Name of the Father," says, "Begg was unlawfully seized.
There seems to be a new world order, an acceptance of utter illegality. You
have all these wonderful treaties after World War II—the Geneva Conventions,
bans on torture—and all of them have been torn up."

(In November, during Bush's visit to Britain, Colin Powell told the BBC that
the U.S. might turn over British detainees.)

Speaking to reporters within days of Camp X-Ray's opening, Donald Rumsfeld
sounded a little hazy about its legal justification. "There are a bunch of
lawyers who are looking at all these treaties and conventions and everything,
trying to figure out what's appropriate," he said. Meanwhile, the camp was up
and running.

The Gitmo process is possible only because America has determined that its
detainees are not enemy prisoners of war (E.P.W.'s) as defined by the Geneva
Conventions, the international treaties signed by the U.S. and almost every
other nation after the Second World War. Much of what happens at Gitmo --
close confinement in tiny cells for 23 hours a day, the denial of basic
comforts for refusing to talk to interrogators -- would be illegal if the
detainees were classified as E.P.W.'s. Indefinite detention would also be
impossible. But the Geneva Conventions don't apply to the detainees, because
they are "unlawful combatants," Rumsfeld said for the first of many times in
January 2002.

In fact, the conventions do allow prisoners to be classed as unlawful
combatants, rather than as regular E.P.W.'s -- if they aren't wearing a
uniform or insignia, for example, or don't follow a recognized system of
command. But they add that whenever there is doubt whether a prisoner
deserves "unlawful" status, he has a right to a judicial hearing. None of the
660 Gitmo detainees has ever had such a hearing. I ask Lieutenant Colonel
William Lietzau, one of Rumsfeld's main legal advisers on Guantánamo, how
America justifies this position. Lietzau replies that President Bush has
determined that any member of al-Qaeda or the Taliban would be an unlawful
combatant, and there simply is "no doubt" that the Gitmo detainees were
members of one or the other organization.

How can he be so sure? After all, numerous detainees, their families, and
attorneys are contesting that exact point, to say nothing of the 64 so far
released. "There are extensive classified procedures," Lietzau says. But he
admits, "This is unilateral, as you would put it -- a U.S. call."

It also represents the quiet, and until now little-noticed, burial of a U.S.
Central Command regulation issued on February 7, 1995. Entitled "Captured
Persons: Determination of Eligibility for Enemy Prisoner of War Status," the
regulation, if followed, would completely reverse what happens to prisoners at
Guantànamo Bay. Instead of allowing America merely to declare a captive
"unlawful" and deny him a hearing, the regulation states, "A person who has
committed a belligerent act . . . shall be treated as an EPW until such time
as his status has been determined by a Tribunal." The prisoner must have an
interpreter "who shall be competent in English and Arabic (or other language
understood by the Detainee)." The tribunal should be chaired by a military
lawyer -- known as a "judge advocate" -- trained to act in courts-martial, and
witnesses must testify under oath. The detainee has the right to be present,
to cross-examine witnesses, and to look at documents. Unless the evidence
shows he does not deserve it, the prisoner must be given full E.PW. status.

Lietzau says he is "not surprised" by the Centcom regulation, although he has
not seen it. Why does he think it was buried? Lietzau pauses. "As with many
things in this war, the order became somewhat moot." The law of war has
always developed in response to changes in the way wars are waged, he argues,
and the nature of the war on terror requires the law "to adapt and advance."
Nevertheless, there should be "some kind of due process" to determine

Copyright: Vanity Fair

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