Seymour Hersh
Prisoners at the Guantánamo Bay prison circa 2002. / Shane T. McCoy/US Navy
America’s federal courts are not playing fair with the innocents who remain wrongly imprisoned at the US detention camp in Cuba
It was just another federal court decision dealing a further blow to the fate of one of the few remaining souls at the tormented prison at Guantánamo Bay, a chunk of soil on the southeast coast of Cuba that was a spoil turned over to the United States after its victory in the Spanish-American War. The well-documented horrors that went on in the military prison set up there after the 9/11 attacks became a recruiting tool for disaffected young Arabs eager to demonstrate their hatred of America.
The US Court of Appeals for the DC Circuit ruled in early April that a federal government prisoner, a businessman from Yemen named Abdulsalam Ali Abdulrahman al-Hela, could not be kept locked up if he was no longer deemed to be a threat. But the Court did not rule, as his attorneys wanted, that al-Hela, who is not a US citizen and was captured in a foreign country, had a constitutional right to due process. Al-Hela was initially captured twenty-one years ago in Egypt and, after two years in Central Intelligence Agency black-site prisons, was shipped to Gitmo for further enhanced interrogation—aka torture.
An internal review board eventually cleared him for release to a nation that employs what the board called “appropriate security measures.” But war-torn Yemen, al-Hela’s home, was not considered safe, and he remained in jail. Hence the new trial, whose same old finding once again had to evoke dismay for sixteen other prisoners who have been approved for release but not to a nation considered safe.
In essence the appellate court adopted the government’s contention that the earlier proceedings against al-Hela and the use of classified intelligence to justify his detention did not violate his acknowledged constitutional right to due process. In so doing, the court was parroting the government’s two main arguments that had been used successfully in scores of prior detainee trials. The first was that federal courts should find that due process does not apply to Guantánamo detainees. The second was that even if you, as the judge, do conclude that due process applies in general to the cases brought by detainees, it doesn’t matter because the detainee got due process anyway.
All of this has been asserted again and again in federal courts with no sense of irony. al-Hela was told by the judge in the case in hand: “We assume without deciding that the Due Process Clause applies.” Al-Hela’s attorneys responded in a subsequent filing that their client would “continue to serve what amounts to a life sentence, as cruel in its own way as the horrific physical torture that he endured in the CIA’s ‘dark prisons.’”
I’m far from a lawyer, and I could not grasp the meaning of a court keeping a cleared-for-release detainee of more than two decades in prison indefinitely because of an assumption that due process applies but did not prevail there because he did get due process. One senior member of the defendants’ bar at Gitmo, who asked not to be named, assured me that the al-Hela case would never be accepted by the Supreme Court as now constructed. “What the appellate court was really saying is, ‘Hey, we’re trying really hard to give the guy a meaningful process. We’re doing all we can. But aw, fuck it—the guy who tried the case [in the lower federal district court] tried really hard and that’s enough. He was doing all he could.’ The larger question regarding constitutionally is that the courts are not in a political position to say prisoners at Guantánamo are entitled to due process. It’s not about law.”
Another lawyer with Supreme Court experience asserted that the issue at stake in the al-Hela case “has nothing to do with the law. There’s no objective principles here. It’s the same with abortion, the ‘free press,’ ‘reasonable search and seizure’ and everything else in the Constitution. It’s made up. It’s fugazi. Courts can do anything they want. A court can say there is a right to abortion because there’s some stray clause [in the Constitution] that mentions ‘liberty’ and so that liberty must cover the right to abortion. Another court the next day can say abortion is unconstitutional because the same clause mentions ‘life.’ When you’re a Supreme Court justice you can do anything. It’s 100 percent political. Not the slightest bit of jurisprudence.
“Everyone knows that this Guantánamo business is nuts,” he said. “But not a single person [on a federal court or in the White House] has the balls to take responsibility for being the guy who ended it.”
I wrote about Guantánamo in 2004 in magazine articles about the abuse of inmates at the Abu Ghraib prison in Iraq, one year after President George W. Bush and Vice President Richard Cheney responded to 9/11 by attacking the regime of Saddam Hussein, a despotic leader who happened to harbor the same fear of radical Islamists as did those running the White House. The abuse at Abu Ghraib was eerily similar to that at Guantánamo, in terms of insanely violent interrogation tactics that were not designed to produce effective results. There was a mysterious presence there that confounded Antonio Taguba, the Army major general who was assigned to investigate prisoner abuse at Abu Ghraib in the wake of reporting by CBS and later by me in a series of articles for the New Yorker. I did not meet and befriend Tony Taguba for more than a year after my reporting that depicted the stacking of naked prisoners in a pyramid with young female Army prison guards simulating masturbation and taking photos. I also reported on a few savage murders of prisoners that were conducted by what were clearly American Special Operations officers, many wearing Army uniforms with no name tags. I later learned from Taguba that he could get no authority during his mandated investigation of the prison abuses to seek out and question any American intelligence officials. It was a mystery left unsolved.
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