Who is at Guantanamo, anyway?
That's what I was wondering one hot day last July
when I walked across a prison yard
so silent and sterile as to be a little eerie.
Nothing grew in the yard. No grass or flower or tree or even weed.
We approached a hut. Inside was a man chained to the floor.
His name was Adele.
My firm had filed a habeas case for him the previous March.
But I have never seen him or spoken to him before.
Was he a terrorist? One of the worst of the worst.
Three weeks before I got to Guantanamo,
Vice President Cheney said,
the people that are there are people we picked up on the battlefield,
primarily in Afghanistan. They're terrorists.
They are bomb makers. They are facilitators of terror.
They are members of al Qaeda and the Taliban.
But something was off right from the first minute.
Something about the young man's gentle smile,
his calm, didn't fit.
On that day last July, I discovered
what President Bush and his lawyers at the Justice Department
had kept secret from the public
and even from the courts.
The military had concluded that Adele was innocent.
I repeat, the military had concluded that Adele was innocent
already at that point. Not a terrorist,
not an enemy soldier, not a criminal.
He had never been on a battlefield.
He had been sold to US forces from the soil of Pakistan,
a nation with whom we had never been At war,
Vice President Cheney says that Adele and men like him
were picked up on the battlefield.
according to a 2005 study conducted by the Seton's Hall School of Law,
5% were picked up on the battlefield.
I repeat, 5% of the 780 men who were held at Guantanamo Bay
were picked up from the battlefield.
Ninety five percent of detainees at Guantanamo were not.
So how did we get the rest?
We distributed leaflets with smiling Afghan individuals declaring,
quote, get wealth and power beyond your wildest dreams.
You can receive millions of dollars
helping the anti Taliban forces catch al Qaeda and Taliban murderers.
This is enough money to take care of your family,
your village, your tribe for the rest of your life.
Pay for livestock and doctors and school books
and housing for all of your people.
86% of the Guantanamo detainees were sold to the United States
by people who got those flyers.
Vice President Cheney says that these men are all al Qaeda fighters.
But what does the data show?
8% are al Qaeda fighters, 92% are not.
Vice President Cheney says
they committed hostile acts against Americans or their allies.
What does the data say? 55% of the detainees committed no hostile act
against the United States
or his allies or anyone else.
But by the way, Cheney and other Bush administration officials
construed the term hostile act extremely broadly.
For example,
fleeing from bombing by US forces was considered a hostile act.
Being sold to US forces. Hostile act for 60% of the detainees,
the only hook by which they were deemed enemy combatants
is that they were, quote,
associated with the Taliban.
But you have to understand that in 2001 in Afghanistan,
the Taliban were pervasive.
Except in a few strongholds of the Northern Alliance.
They controlled every village,
every town, every guest house.
If you traveled to Kabul and stayed in a guest house,
you associated with the Taliban.
According to the US government,
if you were conscripted against your will into a Taliban militia,
you quote, associated with the Taliban.
For two Saudis held at Guantanamo,
their association with the Taliban
is that the Taliban held them in prison
as enemies of its regime. I am not making this up.
Who was at Guantanamo?
Who were the 780 that were kept there?
They were privates, they were orphans,
they were the poor, they were the conscripts,
they were the cooks, they were the drivers.
What about the mayors, the ministers,
the Taliban generals, the people in power who had information?
Guess what? They were not there.
Because the big lie, the whopper,
the huge one, is that Guantanamo Bay held terrorists.
President Bush, Vice President Cheney, there. Amen.
Chorus in the Senate,
they will all tell you relentlessly that these people are terrorists.
But when you review the data,
when you search it for anything remotely like a terrorist attack.
A terrorist attack defined as an act of violence,
Against persons or property for bombing or bomb making
or the teaching of bomb making or the fundraising for it.
You find that most of all
that isn't who was at Guantanamo Bay.
Guantanamo Bay detention center is a 45 mile stretch of land
the United States has leased from Cuba since the Spanish American War.
After 9 11, President Bush needed a place where due process,
the courts and lawyers could not reach.
780 men and boys, many of whom were sold to the U S.
Military for a five thousand dollar bounty.
Who and what have we kept at Guantanamo Bay for the last 24 years?
Terrorists? No.
Illegal black hole? Yes.
Administration officials believed that
by labeling Guantanamo detainees enemy combatants,
it could hold them at Guantanamo indefinitely,
potentially for life, without charges or a trial.
At the same time,
the Bush administration made a series of determinations
that the prisoners at Guantanamo,
as well as others held as enemy combatants in the quote,
Global War on terror,
were not entitled to any protections under American or internet
or international law, including under the Geneva Conventions,
which were intended to ensure
that no prisoner would be outside the law.
If there was anyone at Guantanamo who conspired in the 9 11 murders,
then we would have liked to see them tried.
All that we lawyers have been asking for since the beginning
is a hearing, a chance to show whether someone really is a quote,
enemy combatant or Not
and when Guantanamo cases have come up for an actual hearing.
What happened after the case came under Supreme Court scrutiny?
While they released him,
they told us that these people were the worst of the worst.
And yet, rather than prove it,
rather than protect you and me from them,
they released them before a judge could see any facts.
Because they knew the Nazi war criminals were tried in the sunlight.
And the world has never doubted the judgment at Nuremberg.
But in no Guantanamo habeas case
has President Bush been willing to let a federal judge
hear a single fact about the worst of the worst.
Instead, in the name of, quote,
Global War on terror,
the president can seize anyone anywhere in the world
and transport him to Guantanamo Bay,
where he may be held without criminal charge or process.
The president may do so
even after he has determined that the person was taken by mistake,
as in Adele's case, and hold him as long as the, quote,
war on terror lasts. So I want to ask you a question.
How long will the war on terror last?
That is the beginning of an episode I posted two years ago
on my podcast entitled
the president and his captives.
Tony Mabe torture and the Legal Black Hole.
And I am sick to my stomach
about the fact that we have to talk about it again.
This is what will happen.