MAY 29, 2017
Originally published in the LARB Print Quarterly Journal: No. 14, Special Legal Issue
When I visited Guantanamo Bay in September, and in the weeks after, when this essay was written, no one I knew believed that Donald Trump would be elected. The detention facilities seemed to be winding, inexorably, down. The military commissions themselves looked like an experiment that had not played out as planned and that, whatever their eventual outcomes, provided a template on how not to do things going forward. I was producing, I thought, a snapshot from the end of an era. Now, the future of both the detention facilities and the commissions is more uncertain than ever, and the essay may instead be a snapshot of a system that is about to enjoy a second act.
– March 10, 2017
The departure-lounge vibe at Andrews Air Force Base felt like the beginning of a package holiday, one taken with a group of highly intelligent and mutually suspicious people.
On board the Miami Air charter flight, the judge got the front row, and all the other parties — prosecution, defense, media, NGO observers, and the victims and family members — clustered together in our assigned sections. When we landed at Guantanamo Bay Naval Base, I asked the young American sailor who checked my passport how was he doing, and he said: “I’m living the Gitmo dream.”
Indeed, it did feel like a strange dream, our ferry ride across the bay, over water so blue and beautiful it was almost painful to behold, on the far side of which was one of the world’s most notorious prisons. The heaven/hell dissonance of arrival there had never, I imagined, been lost on anyone.
I was in Guantanamo to attend three days of pre-trial hearings in the case of Abd al-Rahim al-Nashiri, the Saudi national accused of orchestrating the October 2000 suicide bombing of the USS Cole when it was docked at Aden, Yemen. Seventeen American sailors died in the attack, and 39 others on board were injured. If convicted, Nashiri will face the death penalty.
As of September 6, 2016, the day I arrived, Nashiri was one of 61 detainees left at Guantanamo, down from an estimated 677 in 2003 (a total of 780 men have been held there). Twenty-one of those remaining had been cleared for release, another five were waiting to hear if they’d be cleared. Twenty-five were so-called “forever prisoners,” not charged with anything but deemed too dangerous to release. Only 10 were or had been before the military commissions, charged with war crimes.
The commissions were established by executive order in the aftermath of the 9/11 attacks for the purpose of trying “enemy combatants” — non-US citizens deemed to be members of al-Qaeda or otherwise presenting a terrorist threat to the United States — who the government accused of war crimes. But the commissions have been plagued by controversy since their inception, bogged down in dubious legal rationales and tainted by the torture of those facing charges.
On the tarmac at the airport, Nashiri’s lead lawyer, Richard Kammen, had shown me his stuffed kangaroo, which he’d brought to court on occasion and placed on the defense table. As he pulled it out of his backpack, he said, “So that I never forget and the team never forgets what these proceedings really are.”
The landscape was baked dry. Everywhere had the feel of a deserted fairground. I slept in a tent, in the so-called Tent City, rows of canvas polytunnel-shaped units located in Camp Justice, the area of the naval base where the hearings take place.
Each tent contained six beds, separated by plywood boards and curtains, and had a large, noisy AC unit affixed to its exterior. The tents were kept ludicrously cold to deter the iguanas, banana rats, and mosquitoes. On hot Cuban nights, I wore flannel pajamas and socks to bed. Toilets and showers were in adjacent tents, and when I stumbled out at 3:00 a.m. to use the toilet, I experienced an inversion of the normal camping-style experience: instead of going from my warm bed into the cold night, I stepped from my refrigerated tent into the humid dark.
Most of the 100 tents were empty. I had just one tentmate — Carol Rosenberg, from the Miami Herald. When it became known, in 2002, that the first detainees were on their way to Guantanamo, Carol’s boss at the Herald told her to come down and stay till it was over. She was there the day the first detainees arrived, and has been covering the story since.
Carol has written on every aspect of the place, including the base’s traffic court, mordantly called by some Guantanamo’s functioning court. She told me she’d seen as many as 57 press people staying in Tent City. But there had been many nights over the past several years when she was the only journalist here. Gitmo is a story many media outlets — and most Americans — have largely forgotten.
Abd al-Rahim al-Nashiri was captured by the CIA in Dubai in November 2002. Much of what we know about what happened to him over the next few years can be found in the heavily redacted, 525-page executive summary of the study conducted by Senate Select Committee on Intelligence (SSCI) of the CIA’s Detention and Interrogation program, colloquially known as the Torture Report.
Nashiri was detained at various CIA black sites for four years, where he was subjected to beatings, sleep deprivation, and waterboarding. He was threatened with a handgun and a drill, regularly forced into “stress positions” (at one point prompting a medical officer to worry about his arms bring dislocated), told that his mother was going to be brought in (her rape was implied), and subjected to “forced bathing” with a wire brush.
For a time, Nashiri was kept at a black site codenamed COBALT in Afghanistan. COBALT suffered from a particular lack of oversight in a program not generally strong on oversight. It reportedly operated in total darkness, with the guards wearing headlamps. Detainees were kept naked and shackled to the wall or to a bar on the ceiling. One CIA interrogator stated that some of the detainees there “literally looked like a dog that had been kenneled.” When their cell doors were opened, “they cowered.”
During a hunger strike protest, Nashiri was subjected to “rectal rehydration.” A nutrient supplement was infused into him “in a forward-facing position with head lower than torso.” The CIA has defended rectal rehydration as a medical technique, though medical experts say that, as the rectum is not an efficient way to absorb nutrients, the procedure is never medically necessary. It can result in damage to the colon, food rotting inside the digestive tract, and an inflamed or prolapsed rectum.
(One of the 9/11 defendants, Mustafa al-Hawsawi — accused of helping the hijackers with money and other logistical support — suffered chronic bleeding, an anal fissure, and rectal prolapse. Hawsawi always had a cushion on his chair in the military commissions courtroom — the reasons for which were apparently not broached even with his lawyer, Walter Ruiz, until after the Torture Report came out. Ruiz called what happened to his client “sodomy,” and said that after a bowel movement, Hawsawi had to manually “reinsert parts of his anus back into his anal cavity.”)
In 2003, the CIA’s chief of interrogations, whose presence had prompted Nashiri to “tremble in fear,” became concerned about him. He did not believe that Nashiri was withholding significant information, and, having received a proposed interrogation plan for him, informed the front office of the Counterterrorism Center that he would “no longer be associated in any way with the interrogation program due to serious reservation[s] about the current state of affairs.” In the same email, he said the program was “a train wreak [sic] waiting to happen and I intend to get the hell off the train before it happens.” But instead of easing up on Nashiri, HQ approved the continuation of his torture.
Dr. Sondra Crosby, a professor of medicine at Boston University and a consultant to Physicians for Human Rights, was allowed to examine Nashiri at Guantanamo on more than one occasion. Crosby, who has served as an expert witness for the defense, concluded that Nashiri was suffering from complex PTSD “as a result of extreme physical, psychological, and sexual torture inflicted upon him by the United States,” and was “most likely irreversibly damaged.” She added that in her many years of experience treating torture victims from around the world, Nashiri “presents as one of the most severely traumatized individuals” she had ever seen.
Aside from the Cole bombing charges, Nashiri is also facing charges related to the attack in 2002 on the French MV Limburg off the coast of Yemen, in which one crew member died and 12 others were injured.
Two years ago, the judge presiding over Nashiri’s case, Colonel Vance Spath, dismissed the Limburg charges for lack of jurisdiction. The chief prosecutor appealed, resulting in an 18-month recess, during which the special appeals court created by Congress for the military commissions reversed Spath’s ruling and reinstated the charges. But Kammen, looking to a recent Supreme Court ruling dealing with extraterritorial crime, was going to argue that the Limburg charges should, once again, be dismissed.
You may wonder why so much energy is going into what seems a mere addendum to the case. If 17 American military deaths are not enough to convict Nashiri, why would one Bulgarian death on a French-flagged tanker matter?
It may end up mattering a lot. There has been a running debate about whether Nashiri is even in the right court.
The military commissions have jurisdiction only over war crimes, and while the US government contends that it was in armed conflict with al-Qaeda for some years before 9/11, citing Osama bin Laden’s fatwa in 1996 and the 1998 Kenya and Tanzania embassy bombings, the United States’s official “declaration of war” is dated September 14, 2001. If the Limburg charges are dropped, and it is ultimately decided that the United States was not at war with al-Qaeda when the USS Cole was bombed in October 2000, then Nashiri shouldn’t be sitting before the military commissions at all but in federal court.
On August 30, 2016, the US Court of Appeals for the District of Columbia Circuit abstained from ruling on Nashiri’s petition to halt his trial by military commission, leaving the trial to play out in Guantanamo. The case could yet end up back in the DC Circuit on appeal. Though there would be serious issues related to double jeopardy, it’s conceivable that seven to 10 years from now, Nashiri could be facing another death-penalty trial in federal court for the Cole bombings.
If Nashiri is acquitted at Guantanamo, there is no reason to assume he will be released. According to the US government, he was a high-ranking member of al-Qaeda, and a leader of his own cell; he is alleged to have supported, logistically or financially, as many as a dozen plots to attack US and Western interests, including one to sink a US ship in the Strait of Hormuz; a plot to use an explosives-filled airplane against Western warships at Port Rashid, Dubai; and a plot to blow up the US Embassy in Sanaa. Nashiri’s Department of Defense Detainee Assessment states that he was “so dedicated to jihad that he reportedly received injections to promote impotence” rather than being distracted by women.
On the basis of these accusations, the US government could continue to detain Nashiri, post-acquittal, as an enemy combatant, shifting him into the category of “forever prisoner,” what Kammen calls “a euphemism for people who the CIA doesn’t want to be talking about what happened to them.”
We assembled in the morning outside the courtroom. Security screening was similar to an airport but a good bit more amiable.
Journalists, visiting lawyers, and NGO observers watched the proceedings from a viewing gallery that was separated from the courtroom by soundproof glass. There was also a section in the gallery for victims and family members — the VFM, as they’re called — which could be made private from the other observers by a curtain. That week, the VFM numbered eight: the mother of a sailor who died on the USS Cole was there with her cousin, and the father of another victim had come with his brother; there were also two men who’d been serving on the Cole the day it was attacked, accompanied by their wives.
Nashiri was already seated when we entered the gallery. He looked surprisingly animated: smiling, chatty, joking with the guards. When a female paralegal joined the defense table, he stood and embraced her. Dressed in loose-fitting white shirt and pants, he seemed physically at ease.
Those of us in the gallery could see, but not hear, the proceedings as they unfolded on the other side of the soundproof glass. We could also follow them on screens above our heads, an audio-visual transmission that was on a 40-second delay, to guard against a spill of classified information. It sounds like a disorienting set-up but it was simply like watching everything in ongoing instant replay.
I already knew that Kammen and the chief prosecutor, General Mark Martins, existed in parallel worlds. What I’d heard Kammen refer to as “a farce,” Martins had called a “sharply adversarial process,” and “a system to be given the greatest credit.” Not all of the military prosecutors have shared Martin’s view. Over the last several years, seven lawyers from the prosecution side have resigned or requested transfer because of concerns about the ethics or legality of the commissions.
A graduate of West Point and Harvard, Martins helped draft the Military Commissions Act of 2009, which improved protections for defendants — for instance, restricting the use of coerced and hearsay evidence, and providing greater defense counsel resources — but which still falls far short of granting the due process rights afforded defendants under the US Constitution. (In 2008, the Supreme Court ruled in Boumediene v. Bush that parts of the 2006 Military Commissions Act were unconstitutional because they restricted detainees’ use of habeas corpus and access to federal courts. The ruling determined that detainees had the right to challenge their detention in federal court via habeas corpus. The Military Commissions Act of 2009 was, in part, a response to Boumediene v. Bush.) When Martins accepted the appointment of chief prosecutor in 2011, it was with the stated intention of demonstrating to the public that the commissions could be a vehicle for real justice.
In court, Martins tended toward the impassive, whereas Kammen’s affect was that of a man perpetually flabbergasted. Judge Spath, for his part, had the air of an affably world-weary game show host. He was relatively informal, droll without seeming blasé or insincere. He gave the impression that the three parties — the prosecution, the defense, and himself — were there to get a job done, and while it was not a particularly pleasant job, if they put their heads together, they might see the damn thing through.
Pre-trial hearings at Guantanamo have involved a lot of motions filed by the defense arguing for either abatement or dismissal because of aspects of the commissions process they deem unfair or illegal. Some motions have been in response to flagrant acts of misconduct, such as the FBI’s attempt in 2014 to turn a member of Ramzi bin al-Shibh’s defense team into an informant; others have been closer to Hail Marys. But all have aimed at chipping away at a flawed system.
One of that morning’s motions was a request for abatement until two attorneys appointed to the Nashiri team could get their security clearances. Everyone in the courtroom required fairly high-level clearance, and the two women had been waiting for about a year, during which time they’d been unable to sit in on certain conversations, view classified documents, or come to Guantanamo to meet their client. Nashiri, it seemed, had questioned their very existence.
“…torture, or whatever we’re going to call it.”
In a Q&A published in The New Yorker a few years ago, Amy Davidson discussed torture with Jose Rodriguez, who was director of the CIA’s Counterterrorism Center during the rendition, detention, and interrogation (RDI) period.
Rodriguez said to her, “I really resent you using the word ‘torture’ time and time again […] look, this is not torture.” He preferred “enhanced interrogation.” Rodriguez’s main argument seemed to be that (a) torture is illegal, (b) what the CIA did was legal because the Department of Justice declared it so, and (c) therefore what the CIA did couldn’t be torture. To which Davidson replied: “Does that come across as defining away torture?”
As sugar-coating euphemisms go, the use of “enhanced” seems particularly egregious; I can think of no instance in day-to-day discourse in which enhanced doesn’t have positive connotations. Who doesn’t want their experience to be enhanced?
I got the sense that even Judge Spath was a little weary of the semantics: “enhanced interrogation or torture, or whatever we’re going to call it,” he said in court.
Most of the time we didn’t call it anything, this thing that hummed through Camp Justice, as constitutive of the atmosphere as the humidity itself and, to a large extent, why all of this was here. Had things unfolded otherwise in the aftermath of 9/11, these men could have ended up in federal court, or even in a military commission on the US mainland. But when rapport-building gave way to torture, and a lot of tainted evidence was amassed, the Bush administration needed a place to put people they’d tortured and, in some cases, were still torturing, and — eventually, perhaps — to try them.
One of the issues to be litigated in these cases is the question of just what it means to say that statements are free of the taint of torture. This was touched on during the Nashiri hearings in relation to Ahmed Haza al-Darbi, who is expected to testify against Nashiri. Darbi negotiated a plea deal related to charges stemming from the attack on the Limburg, though his sentencing won’t take place until at least 2017, after any testimony. Part of the plea deal was his agreement not to sue the United States over the conditions of his confinement.
Darbi arrived at Guantanamo in 2002, having been tortured at Bagram Air Force Base in Afghanistan. Darbi made statements in 2002. He also made “clean” statements in 2007. And he will make more statements in the actual courtroom, should he testify there. On day three of the Nashiri hearings, a defense attorney, Lieutenant Commander Jennifer Pollio, argued that “treatment received in 2002” was, and will be, relevant to statements from all three of these periods. “The impact of torture is long-lasting … these things don’t happen in a void.”
Indeed, they don’t. How long might the effects of torture be said to linger? How does that length of time relate to the nature and the extent of the abuse, and to individual factors that affect subsequent adjustment? Isn’t it possible that statements — partially or entirely inaccurate ones — that I’ve made under duress are statements that later, although I’m no longer in danger or obvious distress, I’ve come myself to believe? How can these questions and their answers be quantified in a meaningful and accurate way?
The day of my arrival on the base, we went to the supermarket to stock up on food for the week. The supermarket is in the Navy Exchange complex, or the NEX; nearby is a Subway, a McDonald’s, a video store, and various other strip-mall amenities. Carol, who must’ve shown journalists around the NEX supermarket a thousand times, showed me around the NEX supermarket. In the yoghurt aisle, a gray-haired man, who looked for all the world like someone just in from a relaxing round of golf, smiled benignly at us. When he’d wheeled his cart away, Carol said, “That’s the judge. It’s like small-town America here.”
In the supermarket, I had that feeling — unsupportable here — that one has when happening on a source of plenty in a place of scarcity, and I had to refrain from scrambling around excitedly and buying way too much.
On the way out, through the wi-fi-equipped patio, which was full of people clustered at tables and glued to their phones, and looked remarkably like the real world, I said to Carol: “Wasn’t it strange, in the early days, to come grocery shopping and know that a few miles down the road people were being tortured?”
Indeed it was, she said, and more horrific still when the three detainees were found dead in their cells in 2006. (The official government line was that the three men had killed themselves by hanging in a suicide pact, but some journalists and lawyers investigating since have argued that there are a number of inconsistencies in the government’s account.)
It was hard to feel that horror, though. The cognitive dissonance that arose from the nearness of a suburban-Florida-style shopping mall to a former black site dissipated quickly, and what lingered was a grim, low-frequency bad vibe, made grimmer by the fact that it was frankly easy to get on with the day while breathing that air. There I was, squeezing oranges for ripeness while down the road a man was having to manually reinsert part of his anus. Two realities normally worlds apart — my comfortable existence and the heinous deeds done in the name of protecting that existence — were suddenly in close proximity. Some of those heinous deeds may well have bolstered my security; others seriously undermined it. What do I know? What do I want to know?
When asked about the methods used to “protect the nation,” Rodriguez had said, “I don’t subscribe to the notion that the American people need to know everything.” He might as easily have said want to know everything.
I was given — even at Guantanamo — the luxury of looking the other way. Some of that luxury was mandatory. In the case of Camp 7, where the “high-value” detainees are held, its location and whatever goes on there were hidden from me: classified.
By the end of day two, having dinner in O’Kelly’s Irish Pub, eating fish tacos, surrounded by big-screen TVs broadcasting sports and news, a large crowd of Filipino migrant workers playing bingo in the huge room adjacent to the pub, I’d already given up asking Carol about the weirdness of grocery shopping and torture juxtaposed. Whatever there was to say about the air of this place seemed either banal or inexpressible.
When the detention center, or the detainees themselves, were spoken about by anyone in an official government capacity, it was in the form, not surprisingly, of talking points — mantras of the “humane and legitimate” detention that rules the day, canned responses that more often than not ended up in the cul-de-sac of: “I don’t know. That’s a policy decision.”
Carol could be counted on to throw a wrench into this polite discourse, remarking bluntly, just by the way, on how so-and-so got such-and-such shoved into an orifice. (In the more bureaucratic language of the SSCI report: “[l]ater that same day, Majid Kahn’s ‘lunch tray’ of hummus, pasta with sauce, nuts, and raisins was ‘pureed’ and rectally infused.” Later that same day?) Carol’s comment — delivered as I was enjoying the view out the window of our climate-controlled van, the bay shimmering fantastically in the sun, our driver a National Guardsman who seemed so laid back and conflict-averse I actually asked him how on earth he survived in a war zone (he said the “California” manner was a good thing in a place like Iraq, because such people worked better on a team) — pinged in my consciousness like the snapped fingers of a hypnotist, jarring me from my talking-point-induced stupor.
Oh yes, I thought. Oh yes. There is that.
“…actually, I think that’s my divorce trial…”
If anything offered a glimpse into why the commissions at Guantanamo — this messy hybrid system that is short on precedent and full of fuzzy rules — are so gummed up, it was the testimony of Lieutenant Commander Stephen Gill. For a few months in 2015, Gill had worked for the Office of the Convening Authority, which functions in military justice a little like a tribal elder: when a crime is committed within the ranks, the convening authority convenes a court — a military commission — to try the case. At Guantanamo, the authority is responsible for the overall management of the commissions process, including logistics, referring charges to trial, negotiating pre-trial agreements, and choosing the jury pool of military officers. There is no parallel body in the federal courts system, and the defense has argued that the convening authority’s dual administrative and prosecutorial role violates due process.
In early 2015, the convening authority was embroiled in controversy when the Department of Defense, based on the authority’s recommendations, issued an order requiring all commissions judges to move to Guantanamo and to live there until their cases were concluded. Given the unattractiveness of that prospect, the order would have provided clear incentive for judges to either wrap things up quickly or resign from their cases. The defense cried foul, as did the judges, who ruled it an attempt at unlawful influence. The Department of Defense quickly revoked the order. The senior Pentagon official who headed the authority resigned in the fallout.
Judge Spath issued an order disqualifying the convening authority lawyers involved from having anything more to do with the Nashiri case. Gill, who was unconnected with the controversy, had been called by the defense to testify that the lawyers Spath had disqualified had continued to involve themselves in the Nashiri case.
Via a video feed from Alexandria, Virginia, Gill explained that he had observed a pattern of conduct in violation of the order, and had begun to complain. When he was stonewalled, he went all the way up the chain of command to the chief prosecutor, Mark Martins, the then chief defense counsel, and a relevant person at the Department of Defense.
In late April, Gill was fired from the convening authority. The narrative that emerged from the defense’s questioning was one of clear cause and effect: Gill was a whistleblower who’d been fired because of his complaints. Gill was a foot soldier in the fight for integrity. If he seemed a bit peevish and defensive, it was with good and righteous reason.
But during cross-examination, a prosecutor, Lieutenant Paul Morris, asked Gill if he wasn’t in fact fired because of concerns among his superiors over his security clearance being renewed? And hadn’t he tried to get his wife to drop a “restraining order” she had against him because he too was concerned about his clearance?
Morris then transmitted an email for Gill to read, sent by Gill to his wife, who had presumably given it to the prosecution. (Gill, we learned, had been involved in a rather ugly divorce for the last three years.) In the email, Gill said that his wife should tell their daughters that their college education would have been paid for but for their mother’s refusal to drop the restraining order, thus preventing their father from getting the security clearance he needed to continue the job to earn the money to pay the college tuition.
This wasn’t good, and Gill, who was growing sweatier, made things arguably worse by saying he didn’t actually believe what he wrote but was only trying to “strong-arm” his wife into “retracting her false allegations” — using “a hardball litigation tactic against an opposing party.”
There was squirming in the gallery.
The prosecution moved on — to Gill’s reckless driving violations, to what he had or hadn’t reported on his security clearance questionnaire, to whether in his hometown newspaper he’d overstated his role in prosecuting terrorists in Afghanistan. And what about all those civil suits he’d filed? Against the Navy Federal Credit Union and the Commonwealth of Massachusetts; against the Navy itself, for $1 million for emotional distress after he’d been let go from a civilian contract in 2004. Had he sued Chrysler for breach of warranty?
“I sure did,” he said. “I bought a car that was in the repair shop 38 times in six months…”
The VFM were, somehow, braving it out. I imagined this excursion into the less salubrious aspects of Gill’s life — illuminating though the larger point may ultimately be about the malfunctions of the military commissions and the convening authority’s attempted meddling — was excruciating for them, a reminder of the fact that we were nowhere near a trial, let alone a conviction.
Just before the judge excused us, he suggested a date for a session some weeks hence to continue with Gill’s testimony, to which Gill responded: “actually, I think that’s my divorce trial…”
What’s Wrong With Federal Court?
Given that 17 years after the Cole bombing and 16 years after 9/11, we are still in the pre-trial phase, could federal court possibly be any less effective? The federal courts have a strong record with terrorism-related cases: prosecutors have won more than 350 convictions since 2001. The military commissions, by comparison, have completed just eight cases; three of the convictions have been overturned in their entirety and one has been partially overturned.
Federal court prosecutions include that of the only person yet tried in relation to 9/11 — Zacarias Moussaoui, who was arrested before the attacks after he aroused suspicion at a flight school in Minneapolis when he paid in cash and only wanted to learn how to take off and land. Moussaoui is now serving six life sentences. Other convicted terrorists include Richard Reid (the Shoe Bomber), Umar Farouk Abdulmutallab (the Underwear Bomber), four men behind the World Trade Center truck bombing in 1993, several men involved in the embassy bombings in Kenya and Tanzania, and Boston Marathon bomber Dzhokhar Tsarnaev, who passed only two years between arrest and conviction. All of these men are at so-called supermax prisons in the United States, where they cost the taxpayer about $75,000 per year, far less than the estimated $11 million a year it costs to detain one person at Guantanamo.
But since 2010, Congress has banned the use of any federal funds to transfer detainees to the United States or to hold them here. Many lawyers claim that the avoidance of federal court is almost all to do with the CIA wanting to keep details of the torture program under wraps. But given that a lot of material related to torture has already become available, albeit in heavily redacted form, one wonders if the government wouldn’t be better off just lancing the boil and getting all this over with. But various issues make this an unattractive option.
One is that additional details that could then come out about the torture program may not simply be more of the same. Kammen has called the executive summary a “very sanitized version of the truth,” while a December op-ed in The New York Times written by two former senators said that the full report contains “volumes of new information.”
There is also the possibility that individuals contracted by the CIA, as well as agency employees, could be called upon in federal court to testify — which is exactly what happened recently in a Guantanamo-related case. In 2015, the American Civil Liberties Union filed a lawsuit on behalf of three former detainees against James Mitchell and Bruce Jessen, the ex-US military psychologists contracted by the CIA to design and run the RDI program. Jessen and Mitchell are being sued for torture, non-consensual human experimentation, and war crimes. The trial is schedule for June 2017. On October 4, 2016, a federal judge ruled that Jose Rodriguez and John Rizzo, the CIA’s former acting general counsel, will be compelled to answer questions under oath about the RDI program. It is unprecedented in the country’s history for a top-ranking CIA official to be deposed on operational information by a private party, and it just the sort of airing the CIA doesn’t want.
The Windshield Tour
I took a “windshield tour” of the detention complex. I expected it to be a drive-by, chop-chop sort of outing, in which we’d be discouraged from looking too closely at anything as we whizzed past, but the tour was far more leisurely than I’d imagined. It felt oddly like one of those aimless road trips from my youth, or like an indie short, but with lots of concertina wire.
We parked first outside the entrance to Camps 5 and 6. Philip Crowther, a radio and TV journalist, set up his camera gear. We were both immediately struck by the red US mailbox, a flash of color in an otherwise baked-dull landscape. It had the word “Amnesty” on it. I wondered for a moment if it was a cruel joke — as though the detainees might mail their letters to Amnesty International right there — but it turned out to be a drop box for things like lighters and cigarettes that aren’t allowed inside the camp.
Camp 5 was then being repurposed into a medical clinic for low-value detainees at a cost of $8.4 million; construction was expected to be completed in about a year. It seemed a lot of money to sink into a place whose population was shrinking, but the budgetary decision went back a couple of years. Our public affairs guide, Captain John Filostrat of the Joint Task Force (JTF), which oversees the detention facilities, said that the JTF’s “ultimate goal is to close the detention facility.” When I asked him how that might change under a new administration, and he said that their position depended on “what the Commander-in-Chief wants,” I suspect neither of us was seriously imagining a Trump victory.
Because of a federal preservation order that bans the destruction of evidence, documents, and information related to all sites where those who have been detained at Guantanamo have been held, the medical clinic was, according to Captain Filostrat, being constructed “around” the actual cells.
There was little to see from outside but the guard tower and the rather grim-looking entrance — a lot of cyclone fencing covered by green canvas. Guards were visible behind the fencing, but we had to be careful their faces didn’t appear in any pictures we took. (Later, when our photos and film were vetted, I had to crop my long-distance shots because they showed a lock in a door.)
As we snapped photos from across the road, a military vehicle paused politely to allow us to finish, and it was almost impossible not to imagine that this place might one day be a tourist destination, an option on a package holiday to Cuba. More notorious prisons have met a similar end, and already there was a strange sense of slippage in the air. Gitmo T-shirts and mugs were available at the base stores, including a JTF GTMO DETAINEE OPERATIONS T-shirt depicting a silhouetted guard shack and a roll of barbed wire.
Gitmo-as-detention-center and Gitmo-as-entertainment were blurring. When I Googled images of Camp X-Ray — the cluster of cages and shacks where the first detainees were held — what I got by default were not pictures of the detention center complex but rather dozens of images from the film Camp X-Ray, in which Kristen Stewart plays a US soldier who forms a friendship with a detainee. What I also saw in my searches were lots of smiling group photos, many in front of the Camp Justice sign and, in the case of the Atlanta Falcons cheerleaders, taken while touring Camps 5 and 6. A recent John Oliver sketch on why the US government should close Gitmo contained a clip of what Oliver described as news crews touring a Camp 5 cell “like it’s a million-dollar listing.” A young military man, his face hidden, explained that a typical cell in Camp 5 had 95 square feet of living space, met all American Correctional Association standards, and had access to amenities such as the prison library.
Our little group piled back into the van, and we moved on to Camp Iguana, which for years was home to 22 ethnic Uighur Muslims from China. Most were captured in Afghanistan in 2001, turned in to the US military for the now famous $5,000 bounty. They said they’d gone to Afghanistan to escape persecution in China. Even after the United States determined that they had no links to al-Qaeda and were not a threat, they couldn’t be sent back to China because they were likely to be tortured there. Over the years, they’d been scattered between five countries, until finally, in 2013, the last three were transferred to Slovakia.
The Camp Iguana compound sat on the very edge of a cliff overlooking the sea, a cluster of low-slung buildings, inching toward dilapidation, behind cyclone fencing. The JTF logo with the bald eagle was peeling off the signboard. The heaven/hell of the Gitmo gestalt was there cast in stark relief — all that barbed wire and the stunning Caribbean just below. Philip remarked that at least these detainees had a view, but the captain corrected him: there was heavy netting in place when the camp was occupied.
Camp Iguana radiated a dark energy. It wasn’t just abandoned; there was something tainted about its bleakness. The sign on the locked gate that said simply “Off Limits” called to mind contaminated land, as though a chemical spill had occurred there. Camp Iguana might be how all of this will feel in decades to come, if it isn’t crowded by tourists paying top dollar for a night in an authentic disused cell.
The Social Contract
Chief Prosecutor Martins was given to emphasizing that the charges against Nashiri were “only allegations,” that the accused was “presumed innocent unless and until proven guilty.” The victims and family members said otherwise, and they spoke, at least those who were there that week, with one voice. They were certain that Nashiri was guilty, and they blamed the defense and their “delaying tactics” — what a 9/11 family member called “judicial jihad” — for the way the case has dragged on. But they were adamant that they were going to see it through.
“I’m here so al-Nashiri sees my ass every time,” said Joe Pelly, who was on the Cole the day it was hit. The emotion among them was still incredibly raw. At the press conference, a number of them were in tears.
Let us assume for a moment that Nashiri is guilty, and that he was responsible for the deaths of 17 sailors who were not engaged in active combat at the time of the attack. What is the problem — as one of the family members asked, rhetorically, at an informal roundtable — with torturing him? Wasn’t the killing of those sailors and the pain inflicted on their loved ones a form of torture? Wasn’t the PTSD that Pelly lived with “every friggin’ day” a form of torture? (“What I saw on board doesn’t go away.”) Saundra Flanagan, who lost her son in the attack and wore a T-shirt with his name on it, said wearily, “I’ve been hearing for 16 years about Mr. Nashiri’s mental states.” Back in the 1990s, President Bill Clinton looked her in the eye and promised justice. Sometimes, in nightmares, she saw her son.
Cue John McCain, that strange star in our firmament, who can occasionally be counted on to depart from the Republican orthodoxy and go to bat for what he believes. McCain, who was tortured as a POW in Vietnam and so speaks with a moral authority on the subject that no other member of Congress can claim, has been vocal and consistent in his opposition to the CIA’s torture program, and torture generally, as both morally debasing and ineffective. His oft-quoted lines float rightly free of any particular “they”: “It’s not about who they are. It’s about who we are.”
During our media roundtable with the family members and victims, James Parlier, who was on board the Cole and treated wounded sailors, said of Guantanamo: “It’s unfortunate that some of those people did wind up here that probably weren’t guilty and had to serve a lot of time, but this is war. It’s like the people that get killed when a round goes off and you don’t intend it.”
Parlier described stories he’d heard of guards at Gitmo who had behaved with discipline and dignity in the face of provocations from detainees. “I was proud of them,” he said, “for being able to grit their teeth and take it and do the right thing.” He said that what we have learned through all of this “is that as American people we are humane.”
The world may balk at the notion of Guantanamo as evidence of America’s humanity, but I think what Parlier was gesturing toward was the rule of law: that abstraction that can protect us from our worst selves, and that has at its core the belief that there is something that takes precedence over an individual life.
The interdependence of the two — the concept and the singular, suffering individual — is paradoxical, for if there is something larger at stake than my own suffering or my life, and that something is the law, it is also true that the law is intimately connected to each individual life, and in fact would be meaningless without that referent; singular cases, after all, are what law is comprised of.
I may not call to mind what Parlier does to evidence some redemptive potential here. I may think instead of the recent federal court ruling in the ACLU case taken against the architects of the RDI program, the case that may yet give torture victims their day in court, hold some perpetrators accountable, and attest to the strengths of our federal judicial system. But I think we are looking in the same direction. I think we are acknowledging that, paradoxically, it is by submitting to an abstraction that we remain, or become again, humane.
On October 7, I read four letters published in The Washington Post. They were written by Zayn al-Abidin Muhammad Husayn — better known as Abu Zubaydah — the so-called guinea pig, or “person zero,” for the torture program.
Like Nashiri, Zubaydah is classed as a high-value detainee and kept in Camp 7; unlike Nashiri, Zubaydah has never been charged with anything and never appeared in court. In fact, until his Periodic Review Board hearing in August, when reporters and human rights advocates watched a live video of the short unclassified part of the session, Zubaydah had not been seen in public since his capture in Pakistan in 2002. At that time, the Bush administration had regarded him as the first big catch in the post-9/11 manhunt and labeled him the number three man in al-Qaeda.
According to the SSCI report, the CIA detained Zubaydah for four years at black sites in Thailand, Poland, and elsewhere. He was first questioned by FBI agents using traditional rapport-building techniques. Ali Soufan, an Arabic-speaking FBI agent who had long worked on al-Qaeda, has always insisted that Zubaydah was cooperating with the FBI, providing valuable information, including identifying Khalid Sheikh Mohammed as the mastermind of the 9/11 attacks.
Over the protests of FBI agents, as well as some in the CIA, the agency — advised by Jessen and Mitchell — lobbied Washington for permission to move on to harsher methods. The interrogation team cabled an additional request: “in light of the planned psychological pressure techniques to be implemented, we need to get reasonable assurances that [Abu Zubaydah] will remain in isolation and incommunicado for the remainder of his life.” Explicit assurances were provided a few days later.
Zubaydah was waterboarded 83 times, kept in a cramped box, subjected to sleep deprivation, shackled in stress positions, and slammed into a wall. He was subjected to approved and improvised forms of torture. In 2005, the CIA destroyed dozens of videotapes of his interrogations.
By that time, it had become clear that Zubaydah had never been a high-ranking member of al-Qaeda, but was rather — according to people like Ron Suskind, the Pulitzer Prize–winning journalist who has written extensively on US counterterrorism — more like a minor logistics man, a clerk. The US government has long since abandoned its initial assessment of Zubaydah.
In addition to six volumes of diaries written between 1990 and 2002, confiscated by the Americans when Zubaydah was captured, Zubaydah’s lawyers say that their client wrote three more volumes in which he describes his torture in detail. These later accounts remain classified; his lawyers have seen only redacted copies of them. Zubaydah’s mental and physical health has long been a matter of discussion. He sustained a head injury while fighting against the Russians in Afghanistan in the 1980s, and somewhere between his capture in 2002 and his arrival at Guantanamo he suffered the loss of an eye — possibly an existing infection that went untreated.
Because much of what is known or said about Zubaydah’s health is still presumptively classified, one of his lawyers, Amy Jacobsen, wouldn’t comment directly on it when we spoke over Skype in October, only to say that her client had suffered “hundreds of seizures” since he was brought to Guantanamo, and that “it is reasonable to expect, based on the torture he endured, that there’s a connection” between the torture and the seizures.
Zubaydah was not allowed to speak during the public session of his hearing in August. Instead, a half-page statement about him, written by his government representatives, was read out on his behalf. The letters published in the Post therefore represent the first time Zubaydah’s lawyers have been able to share a communication of his with the outside world. Here is one of the letters:
Here is what I think about the human mind:
It is like a scale for weighing, which can measure up to 1 kilo only. It can be extremely precise, telling in fine detail to the hundredth and thousandth decimal place the weight of a beautiful diamond. But try to consider something too great, 10 kilos, 20 kilos, beyond its comprehension, and you will break the scale.
So, too, for me: there are ideas which are beyond human comprehension and if we try to consider them with our 1 kilo scale, it will break the scale, by which I mean, it can make you crazy, or it will read at most a measure of 1 kilo, which is to say, give an inaccurate reading. Of course, this does not mean that we should stop searching and trying to comprehend, but as we do so, it must be understood within the limits of our scale.
 “The Torture Report Must Be Saved,” December 9, 2016, by Carl Levin and Jay Rockefeller. Levin was chairman of the Senate Armed Services Committee, and Rockefeller chairman of the SSCI.
 This issue has been a source of controversy. A recent government filing to the District Court in DC advised the Court that the FBI would be creating “digital recordings” that could then be turned into 3-D mock-ups of certain areas of Camp 5 in order to maintain a record of those facilities. And, in early 2016, defense teams learned that Judge Pohl, in response to top-secret prosecution filings, had allowed the prosecution to destroy evidence related to a former CIA black site.
 The Periodic Review Board is a panel composed of members of six security agencies that decides between continued detention or transfer to another country. On October 27, the Board announced that Zubaydah would remain detained in order to “protect against a continuing significant threat to the security of the United States.”