Peter Jennings Visits Guantanamo Base

June 25, 2004 — -- Two and a half years ago, the U.S. naval base at Guantanamo Bay was little more than an aggravation to the regime of Cuban leader Fidel Castro. Today, Guantanamo Bay has become one of the most controversial facets of America's war on terror.

The day after the Sept. 11, 2001, attacks that shook the nation to its core, President Bush declared war on the terrorists who had done it. In an address to the nation, the president said, "Whether we bring our enemies to justice or bring justice to our enemies, justice will be done."

Less than a month later, the president ordered the United States to attack Afghanistan — to destroy Osama bin Laden's al Qaeda terror network and its Taliban protectors.

The campaign against al Qaeda thrust the country into an unprecedented type of war. In Washington, the Department of Justice and the White House began to grapple with the legal dilemmas of fighting an enemy that did not operate in the open or abide by the recognized rules of war.

On Nov. 13, 2001, with no advance notice to Congress, President Bush signed a military order that gave the Pentagon the power to try, sentence and even execute anyone he identifies as an "illegal combatant" — a suspected terrorist who had violated the laws of war.

By the end of that month, the last Taliban stronghold in Afghanistan fell to the Afghan Northern Alliance and U.S. forces. Thousands of men surrendered to the Northern Alliance, and some of them were handed over to the Americans.

Lt. Col. Anthony Christino, a 20-year veteran of Army intelligence who was not directly involved in the Afghan campaign, says investigators would have had difficulty in determining which men posed threats to U.S. interests. "There are any number of legitimate reasons why someone of Arab descent may have been in Afghanistan. And there are also Arabs who were clearly in Afghanistan training to become terrorists. So, the question becomes, how do you discern one from the other," Christino said.

Mark Jacobson, a member of Defense Secretary Donald Rumsfeld's prisoner policy team, said the administration had been preparing to hold tribunals for the men who surrendered in Afghanistan back in September and October of 2001, which, he said, is standard procedure for the military when it captures persons on the battlefield.

But based on the president's military order, everyone taken into U.S. custody had already been deemed an illegal combatant. The tribunals never took place.

"Some people were simply in the wrong place at the wrong time," Jacobson said. "A lot of them were the flotsam and jetsam of the battlefield. That's what happens on a battlefield."

And Christino noted that no U.S. official wanted to let any potential terrorist slip through their fingers. "You don't want to be the one who had in his or her custody the next hijacker."

The Legal Equivalent of ‘Outer Space’

Getting information from the men who surrendered meant getting them away from the battlefield to a place where U.S. officials could interrogate them — Guantanamo Bay became the designated base.

On Jan. 11, 2002, the first 20 prisoners from Afghanistan arrived at Guantanamo Bay. They were not told where they were. They were put in cages in a makeshift prison called Camp X-ray and dressed in orange jumpsuits. It is the color condemned men in the Arab world wear. They thought they were going to be shot.

Guantanamo had been chosen deliberately. It was, one official said, the "legal equivalent of outer space."

"No serious thought was given to bringing these terrorists and Taliban militia within the territory of the United States. That would be unwise for a whole variety of reasons, starting with security and also including creating the possibility of extended litigation," said Brad Berenson, a lawyer in the Office of the White House Counsel.

The Justice Department asserted at the time that Guantanamo was beyond the reach of U.S. law — and so beyond U.S. constitutional guarantees of habeas corpus, which requires justification for detaining a person.

Berenson explained the administration's rationale. "If the president decides that we are at war," he said, "and that the powers and weapons of war have to be used against these people such that we can detain and interrogate them without interference from lawyers or courts in order to protect the country, then that is really his decision to make."

Rumsfeld insisted the prisoners were "among the most vicious killers on the face of the Earth," that they included a man with links to the financing of 9/11, a bodyguard for bin Laden, an explosives expert for al Qaeda, and other "senior al Qaeda and Taliban operatives, who continue to express a commitment to kill Americans if released."

Incentive-Based Interrogations

Today, nearly 600 prisoners from 40 countries are being held by U.S. forces at the base. The standard cell in Camp Delta (the successor to Camp X-ray) is essentially a metal box a bit larger than a king-size mattress. There's a spray-painted arrow pointing toward Mecca for daily prayers. The lights are never off.

Soldiers patrol the cellblocks constantly, looking at every prisoner — "eyes on the target" they call it — every 30 seconds.

Gen. Jay Hood has been the commander at Guantanamo since March. His predecessor, Gen. Geoffrey Miller, is now running Abu Ghraib prison in Iraq.

When Miller ran Guantanamo, he once said, there had been 22,000 interrogations in a system he devised and called "incentive-based." A comfort item, like an extra bottle of water, would be given for good behavior. It was all about reward and punishment. Because rewards could be determined by prisoners' level of cooperation with interrogators, the interrogators essentially determined prisoner treatment at Camp Delta.

The biggest reward for those who cooperate is a move to what is called Camp Four, where they wear white instead of orange and live 10 men to a room. They can be outside more in the exercise yard — if they behave.

Camp officials said repeatedly that no prisoners have been tortured at the base. "All of our interrogations are conducted consistent with all the provisions laid out in the Geneva Conventions. We are not torturing anybody, and anybody who has asserted so previously is lying. That doesn't happen here. Detainees are not beaten; they're not starved; they're not abused in any way," Hood said.

But the interrogations can be tough. They can occur any time of the night. Prisoners can be woken at any hour for interrogations, but they must be given five consecutive hours of sleep, Steve Rodriquez, chief of interrogations at the camp, said. And we have learned since that in late 2002, lawyers in the Justice Department and the Pentagon were arguing that under his wartime powers, the president could authorize "interrogation methods that might violate" laws forbidding torture.

"Infliction of pain or suffering per se," one memo said, does not "amount to torture." The pain or suffering must be "severe."

A few months later, the defense secretary approved a classified "matrix for stress and duress," listing the coercion that could be used at Guantanamo. It included holding prisoners isolated in dark cells and interrogating them for 20 hours at a time.

Some officials question the usefulness of continued interrogations at the base. "Given that a large number of [the prisoners] have been held for two years or more, I don't think that there is a continuing intelligence value for most of the people held at Guantanamo," Christino said.

In fact, Christino thinks there may be only "a few dozen, a few score at the most," who are continuing to provide useful information to interrogators.

Rodriquez said that there may be 50 detainees, of the nearly 600 prisoners, who are providing information.

Innocents Among the Detainees?

If the overwhelming majority of the detainees have yielded no useful information for interrogators, how many of the prisoners might not be affiliated with al Qaeda or involved with any terror activities?

Khalid al-Odah, a Kuwaiti, says there is at least one. His son, Fawzi al-Odah, has been held at the camp for nearly two years.

Fawzi al-Odah was among a group of five Kuwaitis picked up by authorities in a Pakistani village near the Afghan border in late 2001 and turned over to Americans. While held in Pakistan, the Kuwaitis had asked a guard to deliver a letter to their ambassador in Pakistan. They wrote that they had gone to Afghanistan legally to "provide humanitarian help to the needy Afghan people" during the war. The guard reportedly was too afraid to deliver the letter. Today, all five men remain in Guantanamo.

On April 20, the Bush administration's policies in the war against terrorism were being argued at the Supreme Court. The justices had agreed to rule on two cases brought by families of prisoners in Guantanamo: Rasul v. Bush, on behalf of two British citizens and two Australians, and Al-Odah v. the United States on behalf of 12 Kuwaitis, including Fawzi al-Odah.

The families had asked the high court asking to guarantee the Guantanamo prisoners a chance to argue their innocence.

The administration had answered that a president's wartime powers are so absolute that the courts — including the Supreme Court — have no business getting involved.

There were 19 so-called amicus briefs challenging the administration, including one from three former chief judge advocates.

John Hutson, who once served as the Navy's top lawyer, responsible for protecting the legal rights of all U.S. sailors, was among them. "We can't just sit back and say, 'We've got different rules now. Because they're terrorists, different rules are going to apply. We haven't articulated them, but by George, they're different,' " he said. "It's in a time of crisis that you have to cling ever more tightly to the rule of law. It's not a rule of law if you only apply it when it's convenient for you."

And for the first time in American history, members of the British Parliament, 175 of them, submitted a brief to the court.

The high court is expected to rule on the cases before the end of its current term.

A Permanent Prison: Camp Five

The United States has now completed a new permanent prison at Guantanamo Bay. It is called Camp Five. If prisoners are transferred here, said our escort officer, they know they are not going home.

Today, the United States is sending men to Guantanamo from various parts of the world. Six, for example, were picked up in Bosnia, another in Iran, and two men were delivered here from West Africa.

The courtroom for the military tribunals is ready. But after almost 2½ years in U.S. custody, only three prisoners have been charged. And not a single trial has begun or a date even set.

To Khalid al-Odah, the detention of his son is painful and incomprehensible. "It makes no sense, what they are doing. We become all, as families and as the detainees, victims of 9/11 — become like the Americans, victims of the 9/11."