By Wayne S. Smith

Over the past few months, there has been a veritable avalanche of international demands that the Guantanamo prison be closed because of the mistreatment of prisoners there. The latest came on May 19 when the United Nations Committee Against Torture called on the United States: “To cease to detain any person at Guantanamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any state where they could face a real risk of torture.”

The Committee had heard arguments from a U.S. delegation insisting that detainees at Guantanamo were not being mistreated and that the U.S. had a legal right to hold them indefinitely without charges. The Committee by and large rejected those arguments. Holding people indefinitely without charge, as the United States has done with most of the prisoners at Guantanamo, is in itself a violation of the Convention Against Torture, the Committee noted.

The May 19 report followed another by a key UN agency, this one issued on February 15 by the Special Working Group on Arbitrary Detention. A 54-page report, it accused the United States of torturing inmates and of holding them without charges. It ended by calling for Guantanamo to be closed “without further delay.”

UN Secretary General Kofi Annan backed the February report’s call for the base’s closure, as did the European Parliament. On May 3, Amnesty International issued its own 32,000 word report charging that torture and other cruel, inhumane and degrading treatment of detainees held by U.S. forces is widespread and, in many cases, seem to be sanctioned by top U.S. government officials.

“Although the U.S. government continues to assert its condemnation of torture and ill-treatment, these statements contradict what is happening in practice,” said Curt Goering, Amnesty’s senior deputy executive director in the United States. “The U.S. government is not only failing to eradicate torture, it is actually creating a climate in which torture and other forms of ill-treatment can flourish.”

Javier Zuniga, Amnesty’s Director for the Americas, went even further. “Most of the torture and ill-treatment stemmed directly from officially sanctioned procedures and policies, including interrogation techniques approved by Secretary of Defense Rumsfeld.”

The Amnesty International report also called for Guantanamo to be closed.
On May 10, Great Britain’s Attorney General, Lord Goldsmith, added his voice to the chorus calling for Guantanamo’s closure. In his words, the base had become “a symbol to many…of injustice….The historic tradition of the United States as a beacon of freedom, liberty and of justice deserves the removal of this symbol.”

Most Americans would agree with him. What has been happening at Guantanamo is not what the United States is supposed to be about. It is a contradiction we need urgently to resolve.

Lord Goldsmith’s call was doubtless sparked by the charges of several British citizens recently released from Guantanamo after having been held there for some three years without charges. They returned to Great Britain and are now suing the U.S. Government, accusing it of torture and other human rights violations.

The U.S. denies these and other charges of wrong-doing at Guantanamo, but the denials ring hollow indeed. There have been dozens of verified cases of abuse over the years – at Abu Graib, Bagram and Guantanamo. And these were certainly not, as the Administration insists, simply the isolated acts of a few misguided soldiers. Hardly, there is, after all, that Justice Department memo written for the White House back in August of 2002 which states that neither the Geneva Conventions nor anti-torture provisions in various other international conventions apply to “unlawful combatants” captured during the war on terrorism. Indeed, it says, even the acts themselves may not really represent torture. “Certain acts may be cruel, inhuman or degrading,” says the memo, “but still not produce pain and suffering of the requisite intensity to fall within [the] proscription against torture.”
     
If you’re still breathing, in other words, then you must not have been tortured!

And then there was the 56-page memo dated March 6, 2003, written by Pentagon lawyers for Rumsfeld. It stresses that the President has “complete authority over the conduct of the war,” and that prohibitions against torture “must be construed as inapplicable to interrogations undertaken pursuant to his commander in chief authority.”

In other words, we can torture anyone we want so long as it’s ok with the President! Eventually, these memos were withdrawn, but not before they and others like them had circulated widely and set the tone. Never did President Bush or Secretary of Defense Rumsfeld take issue with their conclusions or disassociate themselves from them in any way. The memos set the stage for what happened at Guantanamo and various other U.S. detention centers, and the President and Secretary of Defense allowed that stage to be set.

Rumsfeld has often described the prisoners held at Guantanamo as “the worst of the worst.” He added to that description in June of 2005 by saying: “These are people all of whom [emphasis added] were captured on a battlefield. They’re terrorists, trainers, bomb makers, recruiters, financiers [Osama bin Laden’s] bodyguards, would-be suicide bombers, and probably the 20th 9/11 hijacker.”

And Secretary of State Rice, in responding to the UN Committee Against Torture’s report released on May 19, said: “We will be delighted when we can close down Guantanamo….But…what becomes of the hundreds of dangerous people who were picked up on battlefields in Afghanistan, who were picked up because fo their associations with al Qaeda?”

But if they are all such incorrigible terrorists, the “worst of the worst”, as Rumsfeld has put it, then how can it be that the Pentagon has just announced that it will shortly released 141 of them, or about one third of the some 490prisoners still held at Guantanamo, since they “no longer represent a threat to the U.S”? And why is it that charges have been filed against only some ten of the alleged “enemy combatants” still on the base, with charges pending against only some two dozen others?
If there is evidence of wrong-doing against those held at Guantanamo, it should be brought forward immediately. They should be charged or released. Probably most would be released, for many are innocent of any crime; few were “picked up on battlefields;” rather, they were simply picked up in sweeps, or handed over to American forces by warlords in return for bounties offered. A grave injustice has been done to many.

As Lord Goldsmith and others have pointed out, Guantanamo has become a stain on the banners the U.S. has always flown in defense of human rights, justice and fair play. If we are to regain credibility and fly those banners anew, Guantanamo should be closed. Indeed, if we are really to do the right thing, we should recognize that we are in Guantanamo today in blatant violation of the original treaty of 1903, and of its continuing agreement of 1934. These state flatly that the U.S. can use Guantanamo only as a “coaling or naval station.” We have no right whatever under the treaties to operate a prison there. And we have no need for “coaling and naval facilities.” Hence, we should wash our hands of it, abide by the treaty and return Guantanamo to Cuba, which had earlier indicated that it might turn the base into a medical research center for diseases prevalent in the Caribbean—a much better use for it than its present one.

According to international law, the violation of a treaty by one party provides grounds to terminate that treaty. Cuba would be within its rights to take the whole issue to the UN General Assembly, calling for a resolution stating that the U.S. was occupying the base illegally and demanding action by the International Court of Justice. In years past, such a resolution might have found few votes. But now, with the mood in the UN running strongly against the U.S. on the issue of Cuba (and many others), it might well pass, thus further embarrassing use. (We should note, for example, that Cuba was elected to the new Human Rights Committee with an incredible 135 votes , more than the two thirds of members the U.S. insisted should be the margin for election. More than anything else, this vote for Cuba was a means of sticking it to the United States). We should leave Guantanamo gracefully while still we can.

Wayne S. Smith is a long-time specialist on Cuba. He served in the American Embassy in Havana from 1958 until 1961, and was Chief of the U.S. Interests Section in Havana from 1979 until 1982. He is now a Senior Fellow at the Center for International Policy in Washington, D.C.