Guantánamo (65 page)
Authors: Jonathan M. Hansen
80
Goldstein,
Storming the Court
, 269.
Storming the Court
, 269.
81
Ibid., 232â33.
82
Ibid., 234. Cf. Arnesen, “HIV Prisoners,” 4â5.
83
Goldstein,
Storming the Court
, 143.
Storming the Court
, 143.
84
Ibid., 143, 148â49, 157â58.
85
McClintock,
Operation GTMO
, 208â209.
Operation GTMO
, 208â209.
86
Ibid., 211â12.
87
Sale v. Haitian Centers Council
, March 2, 1993, 509 U.S. 155; 113 S. Ct. 2549.
, March 2, 1993, 509 U.S. 155; 113 S. Ct. 2549.
88
Goldstein,
Storming the Court
, 230â38;
Sale v. Haitian Centers Council
, 27.
Storming the Court
, 230â38;
Sale v. Haitian Centers Council
, 27.
89
Judge Sterling Johnson quoted in Goldstein,
Storming the Court
, 275â76.
Storming the Court
, 275â76.
90
Ibid., 268.
91
Johnson quoted in ibid., 287.
92
Haitian Centers Council v. Sale
, 11.
, 11.
93
Ibid., 13.
94
Ibid., 14.
95
Ibid., 14â15.
96
Ibid., 18.
97
Sale v. Haitian Centers Council
, 10.
, 10.
98
Ibid., 27â28.
99
Ibid., 37.
100
Clinton quoted in Harold Hongju Koh, “Reflections on Refoulement and Haitian Centers Council,”
Harvard International Law Journal
35, no. 1 (Winter 1994): 2n6.
Harvard International Law Journal
35, no. 1 (Winter 1994): 2n6.
101
Ibid., 5, 17â18.
9 THE CHOSEN
1
Telephone interview with Norman A. Rogers, Nov. 8, 2010. Rogers asked that I not use his real name.
2
Ibid.
3
Author interview, Commander Jeffrey Johnston, U.S. Navy, Guantánamo Bay, Cuba, Oct. 28, 2008; follow-up telephone interview, Oct. 8, 2010.
4
Clarke quoted at
abcnews.go.com/International/story?id=80277&page=1
.
abcnews.go.com/International/story?id=80277&page=1
.
5
Author interviews of Rogers and Johnston, Nov. 8, 2010, and Oct. 8, 2010, respectively.
6
Department of Defense News Briefing, Secretary Rumsfeld and General Myers, Dec. 11, 2001, available at
avalon.law.yale.edu/sept11/dod_brief118.asp
.
avalon.law.yale.edu/sept11/dod_brief118.asp
.
7
Department of Defense News Briefing, Secretary Rumsfeld, Dec. 27, 2001, available at
avalon.law.yale.edu/sept11/dod_brief137.asp
.
avalon.law.yale.edu/sept11/dod_brief137.asp
.
8
This was the opinion of Thomas J. Romig, judge advocate general, U.S. Army (2001â2005), for instance. In a conversation with Pentagon general counsel William J. Haynes II in early November 2001, Romig told Haynes that Guantánamo would be the perfect choice to conduct fair and efficient military tribunals in concert with short-term detention. “I was not in the least bit troubled by using Guantánamo for military commissions,” Romig told me. “Once we got the rules straight, I expected that we could try these detainees and get them out of there within a year.” Telephone interview with Thomas J. Romig, Oct. 11, 2010.
9
Rogers interview, Nov. 8, 2010.
10
Ibid. Here Rogers is in very good company, by no means limited to “liberals.” Cf. among legions of other career military personnel, Thomas J. Romig; telephone interview, Oct. 11, 2010.
11
Rogers interview, Oct. 11, 2010.
12
Yoo has many critics, none more unremitting than Philippe Sands,
Torture Team: Rumsfeld's Memo and the Betrayal of American Values
(New York: Palgrave Macmillan, 2008), 230 and passim.
Torture Team: Rumsfeld's Memo and the Betrayal of American Values
(New York: Palgrave Macmillan, 2008), 230 and passim.
13
Author interview, John Yoo, Oct. 18, 2010, Berkeley, Calif.
14
Patrick Philbin, John Yoo Memorandum for William J. Haynes II, Dec. 28, 2001, 34â35, in Karen J. Greenberg and Joshua L. Dratel, eds.,
The Torture Papers: The Road to Abu Ghraib
(Cambridge, UK: Cambridge University Press, 2005), 29â37.
The Torture Papers: The Road to Abu Ghraib
(Cambridge, UK: Cambridge University Press, 2005), 29â37.
15
Ibid., 29â30.
16
Ibid., 30.
17
Lease of Certain Areas for Naval Coaling Stations, July 2, 1903, U.S.-Cuba, T.S. No. 426, 6 Bevans 1120. Cf. Michael John Strauss,
The Leasing of Guantánamo Bay
(Santa Barbara, Calif.: Praeger, 2009), 78â103.
The Leasing of Guantánamo Bay
(Santa Barbara, Calif.: Praeger, 2009), 78â103.
18
Joseph Margulies,
Guantánamo and the Abuse of Presidential Power
(New York: Simon & Schuster, 2006), 45â49. In making his case for the predominance of
Eisentrager
, Yoo understated the degree of U.S. sovereignty at Guantánamo Bay. “The fact that the United States can exercise some âjurisdiction' and âcontrol' over
the base is not the relevant factor for purposes of the analysis in Eisentrager,” he wrote. But Yoo's “some” is disingenuous. U.S. control at Guantánamo is absolute, as Yoo himself undoubtedly knew at the time; see Yoo to Haynes, Dec. 28, 35.
Guantánamo and the Abuse of Presidential Power
(New York: Simon & Schuster, 2006), 45â49. In making his case for the predominance of
Eisentrager
, Yoo understated the degree of U.S. sovereignty at Guantánamo Bay. “The fact that the United States can exercise some âjurisdiction' and âcontrol' over
the base is not the relevant factor for purposes of the analysis in Eisentrager,” he wrote. But Yoo's “some” is disingenuous. U.S. control at Guantánamo is absolute, as Yoo himself undoubtedly knew at the time; see Yoo to Haynes, Dec. 28, 35.
19
Ibid., 36.
20
As if struggling to be heard, Yoo has written about presidential authority in wartime in three books published since 9/11:
War by Other Means: An Insider's Account of the War on Terror
(New York: Atlantic, 2006), see esp. chap. 6;
The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11
(Chicago: University of Chicago Press, 2006), introduction and chap. 4; and
Crisis and Command: A History of Executive Power from George Washington to George W. Bush
(New York: Kaplan, 2010), esp. introduction and 401â427.
War by Other Means: An Insider's Account of the War on Terror
(New York: Atlantic, 2006), see esp. chap. 6;
The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11
(Chicago: University of Chicago Press, 2006), introduction and chap. 4; and
Crisis and Command: A History of Executive Power from George Washington to George W. Bush
(New York: Kaplan, 2010), esp. introduction and 401â427.
22
Philbin, Yoo, Memorandum for Haynes, 37.
24
Stephan Lewandowsky, Werner G. K. Stritzke, Klaus Oberauer, and Michael Morales, “Misinformation and the âWar on Terror': When Memory Turns Fiction into Fact,” in Stritzke, Lewandowsky, David Denemark, Joseph Clare, and Frank Morgan, eds.,
Terrorism and Torture: An Interdisciplinary Perspective
(New York: Cambridge University Press, 2009), 179â203.
Terrorism and Torture: An Interdisciplinary Perspective
(New York: Cambridge University Press, 2009), 179â203.
25
Karen Greenberg,
The Least Worst Place: Guantánamo's First Hundred Days
(New York: Oxford University Press, 2009), 3.
The Least Worst Place: Guantánamo's First Hundred Days
(New York: Oxford University Press, 2009), 3.
26
Darius Rejali,
Democracy and Torture
(Princeton, N.J.: Princeton University Press, 2007), 22.
Democracy and Torture
(Princeton, N.J.: Princeton University Press, 2007), 22.
27
Scott Shane, “Soviet-style âTorture' Becomes âInterrogation' in the War on Terror,”
New York Times
, June 3, 2007, Week in Review, 3; and Shane, “China-Inspired Interrogations at Guantánamo,”
New York Times
, July 2, 2008, A1, 14.
New York Times
, June 3, 2007, Week in Review, 3; and Shane, “China-Inspired Interrogations at Guantánamo,”
New York Times
, July 2, 2008, A1, 14.
28
U.S. Senate Armed Services Committee, “Inquiry into the Treatment of Detainees in U.S. Custody,” Nov. 20, 2008, available at
www.scribd.com/doc/14539734/Inquiry-Into-the-Treatment-of-Detainees-in-US-Custody-Nov-20-2008
, 179n179. Moulton's testimony jibes with that of Lieutenant Colonel Daniel J. Baumgartner, also of JPRA, who, prodded by evidence provided by the Senate committee, remembered communicating with Richard Schiffrin of the Pentagon's Office of the General Counsel in December about “the exploitation process and historical information on captivity and lessons learned.” Testimony of Daniel J. Baumgartner Jr., USAF (Ret.), before the U.S. Senate Armed Services Committee, June 17, 2008, available at
armed-services.senate.gov/statemnt/2008/June/Baumgartner%2006-17-08.pdf
.
www.scribd.com/doc/14539734/Inquiry-Into-the-Treatment-of-Detainees-in-US-Custody-Nov-20-2008
, 179n179. Moulton's testimony jibes with that of Lieutenant Colonel Daniel J. Baumgartner, also of JPRA, who, prodded by evidence provided by the Senate committee, remembered communicating with Richard Schiffrin of the Pentagon's Office of the General Counsel in December about “the exploitation process and historical information on captivity and lessons learned.” Testimony of Daniel J. Baumgartner Jr., USAF (Ret.), before the U.S. Senate Armed Services Committee, June 17, 2008, available at
armed-services.senate.gov/statemnt/2008/June/Baumgartner%2006-17-08.pdf
.
29
Guter quoted in Tom Lasseter, “Day 4: Easing of Laws That Led to Detainee Abuse Hatched in Secret,” June 18, 2008, Guantánamo: Beyond the Law project, McClatchy Washington Bureau, available at
www.mcclatchydc.com/2008/06/18/38886/day-4-easing-of-laws-that-led.html#ixzz0nvz8fsuZ
.
www.mcclatchydc.com/2008/06/18/38886/day-4-easing-of-laws-that-led.html#ixzz0nvz8fsuZ
.
30
Addington quoted in Sands,
Torture Team
, 32; Comey quoted in Lasseter, “Day 4.”
Torture Team
, 32; Comey quoted in Lasseter, “Day 4.”
31
Johnston interview, Oct. 8, 2010.
32
Testimony of Specialist Brandon Neely, The Guantánamo Testimonials Project, Center for the Study of Human Rights in the Americas, University of California at Davis, available at
humanrights.ucdavis.edu/projects/the-Guantánamo-testimonials-project/testimonies/testimonies-of-military-guards/testimony-of-brandon-neely
.
humanrights.ucdavis.edu/projects/the-Guantánamo-testimonials-project/testimonies/testimonies-of-military-guards/testimony-of-brandon-neely
.
33
The camp housed detainees from January 11 to April 29. See
www.globalsecurity.org/military/facility/guantánamo-bay_x-ray.htm
.
www.globalsecurity.org/military/facility/guantánamo-bay_x-ray.htm
.
34
In many accounts of the Guantánamo detention facility, the
I
in IRF is mistakenly referred to as “Initial” or “Internal.” Neely compounds this mistake by changing the “Response” to “Reaction.” Neely, The Guantánamo Testimonials Project.
I
in IRF is mistakenly referred to as “Initial” or “Internal.” Neely compounds this mistake by changing the “Response” to “Reaction.” Neely, The Guantánamo Testimonials Project.
35
For a description and analysis of the IRFs, see Neely: “As far as IRFing is concerned, when I was there it went somewhat in this order: (1) The block guards would have a problem with a detainee (not listening, maybe saying something, or not following rules). The guards would then contact the duty officer for that shift. We were told âIf you were working a block and having a problem with one of the detainees and you couldn't handle it or get it under control, you should call the duty officer,' who was usually a E-7 (sergeant first class) or a 0-1 or 0-2 (first and second lieutenant). They would come to the block, assess the situation, and make the decision whether to take âcomfort items' away or call the IRF team into play. If the latter, then (2) the duty officer would come to the block with an interpreter and tell the detainee to do whatever he was told to and, if not, the IRF team would be called upon. (3) Once the IRF team was called upon and arrived on the block there was no âI am sorry, I will do it' from the detainee; the IRF team was going to enter that cage and hog-tie that detainee.” Cf.
humanrights.ucdavis.edu/projects/the-Guantánamo-testimonials-project/testimonies/testimonies-of-military-guards/an-analysis-of-the-immediate-reaction-force-reports
.
humanrights.ucdavis.edu/projects/the-Guantánamo-testimonials-project/testimonies/testimonies-of-military-guards/an-analysis-of-the-immediate-reaction-force-reports
.
36
See Convention III, Relative to the Treatment of Prisoners of War, 12 Aug. 1949, available at
www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68
.
www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68
.
37
Neely, The Guantánamo Testimonials Project. Neely's report of an absence of standard operating procedures at Guantánamo is confirmed by Specialist Luciana Spencer of the Sixty-sixth Military Intelligence Group. “When I began working the night shift I discussed with the MPs what their SOP was for detainee treatment. They informed me that they had no SOP.” R. Jeffrey Smith and Josh White, “General Granted Latitude at Prison,”
Washington Post
, June 12, 2004.
Washington Post
, June 12, 2004.
38
See Mark Denbeaux and Joshua Denbeaux, “Report on Guantánamo Detainees: A Profile of 517 Detainees Through Analysis of Department of Defense Data,” Seton Hall University Law School, 2006, available at
law.shu.edu/publications/GuantánamoReports/Guantánamo_report_final_2_08_06.pdf
.
law.shu.edu/publications/GuantánamoReports/Guantánamo_report_final_2_08_06.pdf
.
39
Neely, The Guantánamo Testimonials Project.
40
Quoted in Richard Clarke,
Against All Enemies
(New York: Free Press, 2004), 24.
Against All Enemies
(New York: Free Press, 2004), 24.
41
Department of Defense News Briefing, Secretary Rumsfeld and General Myers, Jan. 11, 2002, available at
www.defenselink.mil
. Defense Secretary Rumsfeld himself seems to have remained vague on the extent to which the Geneva Protocols informed the Guantánamo operation through at least the end of January 2002. Asked by a skeptical press whether it wouldn't be wise to allow for some media access to the Guantánamo camp, a Rumsfeld suddenly solicitous of Geneva responded that “there is something in the Geneva Convention about press people around prisoners; thatâand not taking pictures and not saying who they are and not exposing them to ridicule, which is the genesis, as I understand it, of the convention requirement.” Department of Defense News Briefing, Secretary Rumsfeld, Jan. 22, 2002, available at
avalon.law.yale.edu/sept11/dod_brief139.asp
.
www.defenselink.mil
. Defense Secretary Rumsfeld himself seems to have remained vague on the extent to which the Geneva Protocols informed the Guantánamo operation through at least the end of January 2002. Asked by a skeptical press whether it wouldn't be wise to allow for some media access to the Guantánamo camp, a Rumsfeld suddenly solicitous of Geneva responded that “there is something in the Geneva Convention about press people around prisoners; thatâand not taking pictures and not saying who they are and not exposing them to ridicule, which is the genesis, as I understand it, of the convention requirement.” Department of Defense News Briefing, Secretary Rumsfeld, Jan. 22, 2002, available at
avalon.law.yale.edu/sept11/dod_brief139.asp
.
42
Memorandum for Chairman of the Joint Chiefs of Staff, Jan. 19, 2002, in Greenberg and Dratel, eds.,
Torture Papers
, 80. See, for example, Rumsfeld's press conferences on January 16 and 20, at
www.defenselink.com
.
Torture Papers
, 80. See, for example, Rumsfeld's press conferences on January 16 and 20, at
www.defenselink.com
.
43
This is the source of the criticism of retired Marine Corps colonel Ann Wright. See
www.codepink4peace.org/article.php?id=1335
.
www.codepink4peace.org/article.php?id=1335
.
44
Memorandum for William J. Haynes II from John Yoo and Robert J. Delahunty (Yoo is known to be the principal author) on the Application of Treaties and Laws to al Qaeda and Taliban Detainees, Jan. 9, 2002, U.S. Department of Justice, in Greenberg and Dratel, eds.,
Torture Papers
, 38â39.
Torture Papers
, 38â39.
45
Author interview, John Yoo, Oct. 18, 2010, Berkeley, Calif. As well as the following; see, for example, Colin L. Powell to Counsel to the President, undated, “Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan,” in Greenberg and Dratel, eds.,
Torture Papers
, 122â25. Cf., John Barry, Michael Hirsh, and Michael Isikoff, “The Roots of Torture,”
Newsweek
, May 24, 2004, available at
www.globalpolicy.org/component/content/article/157/26905.html
.
Torture Papers
, 122â25. Cf., John Barry, Michael Hirsh, and Michael Isikoff, “The Roots of Torture,”
Newsweek
, May 24, 2004, available at
www.globalpolicy.org/component/content/article/157/26905.html
.
46
Your Draft Memorandum of Jan. 9, William H. Taft IV to John C. Yoo, Jan. 11, 2002, National Security Archives, available at
www.torturingdemocracy.org/documents/20020111.pdf
. For a scholarly perspective on the Yoo memo, see Stephen P. Marks, “International Law and the âWar on Terrorism': Post-9/11 Responses by the United States and Asia Pacific Countries,”
Asia Pacific Law Review
14, no. 1 (2006): 42â74, esp. 61.
www.torturingdemocracy.org/documents/20020111.pdf
. For a scholarly perspective on the Yoo memo, see Stephen P. Marks, “International Law and the âWar on Terrorism': Post-9/11 Responses by the United States and Asia Pacific Countries,”
Asia Pacific Law Review
14, no. 1 (2006): 42â74, esp. 61.
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