The Guantánamo Lawyers: Inside a Prison Outside the Law

Prelude

7 Prelude P. Sabin Willett: Who’s at Guantánamo 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 Adel. My firm had filed a habeas case for him the previous March, but I’d 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 Guantánamo, Vice President Cheney said, “The people that are there are people we picked up on the battlefield, primarily in Afghanistan. They’re terrorists. They’re bomb makers. They’re facilitators of terror. They’re members of al Qaeda and the Taliban.” 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 court: the military had concluded that Adel was innocent. Not a terrorist. Not an enemy soldier. Not a criminal. Never been on a battlefield. He’d been sold to U.S. forces from the soil of Pakistan, a nation with whom we have never been at war. Vice President Cheney says that Adel and men like him were picked up on the battlefield, but according to a 2005 study conducted by Seton Hall School of Law, five percent were picked up on the battlefield. Ninetyfive percent were not. How did we get the rest? We distributed leaflets, with smiling Afghans declaring, “Get wealth and power beyond your dreams. . . . You can receive millions of dollars helping the anti-Taliban forces catch al-Qaida 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 your people.” P. Sabin Willett’s comments are based on a speech he gave at Princeton University in February 2006. 8 Prelude Eighty-six percent of the Guantánamo detainees were sold to the United States by people who got the flyers. Vice President Cheney says that these men are al Qaeda fighters. What do the data show? Eight percent are al Qaeda fighters. Ninety-two percent are not. Vice President Cheney says they committed hostile acts against Americans or their allies. What do the data say? Fifty-five percent of the detainees committed no hostile act against the United States or its allies or anyone else. By the way, Cheney and other Bush administration officials construed “hostile act” extremely broadly. Fleeing from bombing by U.S. forces is a hostile act. Being sold to U.S. forces is a hostile act. Possessing a Kalashnikov rifle is a hostile act. It has been estimated that there were upwards of ten million Kalashnikovs in Afghanistan in 2001 and only eight million adult males. An adult Afghan male who hadn’t possessed a Kalashnikov was harder to find than an adult Texan male who hadn’t possessed a hunting rifle. If you walked into a restaurant in Kabul, you found Kalashnikovs hanging on the coat rack. For sixty percent of the detainees, the only hook by which they are deemed enemy combatants is that they were “associated with” the Taliban . But you have to understand that in 2001 in Afghanistan, the Taliban was pervasive. Except in a few strongholds of the Northern Alliance, they controlled every village, every town, every guesthouse. If you traveled to Kabul and stayed in a guesthouse, you associated with the Taliban. If you were conscripted against your will into a Taliban militia, you “associated with” the Taliban. For two Saudis held at Guantánamo, their association with the Taliban is that the Taliban held them in prison as enemies of its regime. I’m not making this up. Who’s at Guantánamo? Privates, orphans, the poor, conscripts, cooks, drivers. The mayors, the ministers, the Taliban generals—they’re not there. Take Sayed Rahmutullah Hashemi. He joined the Taliban as a young man. He became a party spokesman. Osama bin Laden came to his office. Is Rahmutullah at Guantánamo? No. He is a freshman at Yale. Some of his...