Presidential Power:
Guantanamo's 'Enemy Combatants'

By Alan Shapiro

To the Teacher:

The establishment of a detention center at Cuba's Guantanamo Bay in 2002 was immediately controversial and remains so today. The student readings below include background on Guantanamo, the use of presidential power, the legal and physical treatment of detainees, and the future of the facility as a detention center.

Discussion questions and other suggested student activities follow. In connection with the Military Commissions Act of 2006, teachers may find useful "A Controversial New Law for Terror Suspects," also on this website.

Student Reading 1:
Some background

"The worst of the worst" Defense Secretary Donald Rumsfeld called them. President Bush called them "enemy combatants." They were men captured in Afghanistan after 9/11 and, beginning in January 2002, imprisoned in a detention center at Guantanamo Bay Naval Station, Cuba.

In time, the center held more than 750 terrorist suspects from 45 nations. Pakistani and Afghan Northern Alliance troops captured most of them, sometimes under unclear circumstances. Afghan troops sometimes received thousands of dollars in rewards from the U.S. for their prisoners. Today, more than five years later, about 375 men remain imprisoned at Guantanamo.

President Bush denied these men "prisoner of war" status and in February 2002 declared that "none of the provisions of Geneva [international treaties on the treatment of prisoners of war] apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world." Instead, according to the Pentagon, anyone "who was part of or supporting the Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners" would be considered "enemy combatants."

The Geneva Conventions, international agreements that have been ratified by most nations, including the United States, detail only how "prisoners of war" are to be treated. They do not recognize the designation "enemy combatant."

After years of imprisonment, about half of the Guantanamo detainees were released without being charged with terrorist or criminal acts--nor were they tried by military tribunals, as had been expected. In fact, no Guantanamo detainee has ever been convicted of anything. A military commission dismissed cases against two of the detainees. One man pleaded guilty to a minor charge and was repatriated to Australia. All of the detainees have been denied habeas corpus, the right to challenge their detention in an American court. (www.amnesty.org)

But on June 29, 2007, the Supreme Court agreed to hear, perhaps by December, the detainees' claim that they have the right to habeas corpus. It will then determine whether or not the U.S. Constitution protects the Guantanamo detainees.

In a 2006 ruling, Hamdan v. Rumsfeld, the Court declared that military tribunals violate international law. But later that year, with active support from the president, Congress passed the Military Commissions Act, authorizing military tribunals to try detainees. It also excluded detainees from Geneva Conventions protections.

Guantanamo Bay, 45 square miles of land and water in the southeast corner of Cuba, is 400 air miles from Miami. It became a U.S. Naval Base after Cuba was freed from the control of Spain following the Spanish-American War. Leased to the U.S. permanently in 1903, it is not legally part of the United States. One hundred years later Guantanamo became a detention center and, very quickly, the focus of controversy.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why do you suppose that the U.S. government used Guantanamo, rather than some mainland U.S. facility, to imprison detainees?

3. Why might President Bush have denied the detainees prisoner of war status under provisions of the Geneva Conventions? What provisions? If you don't know, how might you find out? Is the president in violation of the Geneva Conventions? Why or why not?

4. What protections does the Constitution give to suspects? Why?

Student Reading 2:
Who are the Guantanamo detainees and how have they been treated?

Are they terrorists?

The release of several hundred men from Guantanamo indicated that the U.S. government did not regard at least those detainees as terrorists. Those still in custody, Pentagon and administration officials said, include three groups:

1) The administration says that up to 50 of the detainees should be imprisoned "indefinitely in military brigs on American soil" without trial. A trial, they argue, "would risk exposing intelligence operations." (However, holding the prisoners without trial in this way would require congressional legislation.)

2) Another group of detainees, the administration says, should be tried in military courts.

3) The "largest group" of detainees could be released to their home countries. (New York Times, 7/3/07)

Competing studies based on information about detainees held at Guantanamo in 2004 and 2005 reported very different results. A study by the Seton Hall University School of Law and two lawyers who represent detainees determined that 55% of the detainees committed no hostile acts against the U.S. and its coalition allies. Only 8% were classified as Al Qaeda fighters.

But a report prepared at the request of the Pentagon by a terrorism center at the West Point U.S. Military Academy said that 73% of the detainees were "a demonstrated threat" to American or coalition forces and that 95% were a "potential threat." (New York Times, 7/26/07)

Lieutenant Colonel Stephen Abraham, a 26-year veteran in U.S. military intelligence, spent six months during 2004-2005 as a panelist on the Combat Status Review Tribunals at Guantanamo determining whether individual detainees were "enemy combatants." He said, "What were purported to be specific statements of fact [about charges against detainees] lacked even the most fundamental earmarks of credible evidence." (www.hrw.org, 7/1/07) But Abraham's former commander in charge of the hearings, Rear Admiral James McGarrah, defended them before a Congressional committee a few weeks later as fair and a "very robust process."

The review tribunals conduct closed hearings in which detainees are denied both lawyers and access to much of the evidence against them.

According to Bob Woodward's account in Bush at War, administration officials discussed of how to treat terrorist suspects on September 12, 2001, at a National Security Council meeting. FBI Director Robert Mueller cautioned that the government must try to avoid tainting evidence so that any accomplices of the 9/11 terrorists could be tried in court. Attorney General John Ashcroft interrupted and said, "Let's stop the discussion right here….The chief mission of U.S. law enforcement…is to stop another attack and apprehend any accomplices to terrorists before they hit us again. If we can't bring them to trial, so be it."

David Cole, a lawyer and Georgetown professor, emphasizes the significance of "the overwhelming political pressure to prevent another terrorist attack that an event like September 11 places on government officials…." (New York Review of Books, 7/19/07)

Documents released last year by the Defense Department in response to a lawsuit brought under the Freedom of Information Act by the Associated Press quote statements by detainees. They range from pride in being classified as "enemy combatant" to bewilderment and even sarcastic humor.

Ghassan Abdallah Ghazi al-Shirbi, said, "It is my honor to have this classification in this world until the end, until eternity, God be my witness." He accepted accusations that he trained with Al Qaeda, was a "right-hand man" to Abu Zubaydah, a top Qaeda operative, and laughed "like pals with Osama bin Laden."

Another said, "I am only a chicken farmer in Pakistan. My name is Abdur Sayed Rahman. Abdur Zahid Rahman was the deputy foreign minister of the Taliban."

A Saudi, Mazin Salih Musaid al-Awfi was one of at least a dozen men who, at the time of his capture, possessed a Casio model F-91W watch. This, according to the military's Administrative Review Board, constitutes "relevant data" because such watches have been used in bombings by Al Qaeda. "I am a bit surprised at this piece of evidence," Awfi said. "If that is a crime, why doesn't the United States arrest and sentence all the shops and people who own them?" Another detainee, an electrical engineer from Kuwait whose evidence sheet also included the Casio watch, Abdullah Kamal said, "We have four chaplains [at Guantanamo]. All of them wear this watch." (New York Times, 3/6/06)

Have Guantanamo detainees been abused and tortured?

-President Bush has said repeatedly that the U.S. does not torture prisoners: "Torture is wrong no matter where it occurs, and the United States will lead the fight to eliminate it everywhere." (6/24/04) "We don't believe in torture." (3/16/05)

-The Military Commissions Act of 2006 permits "coerced evidence," that is, evidence produced from "high value" terrorist suspects by what the president calls "alternative" or "enhanced" interrogation procedures. The law prohibits torture, but the interrogator is not liable unless he or she "specifically" intended "to cause pain that amounts to torture." The law also permits the president to allow an interrogation procedure if he declares that it is not "cruel and inhumane." He may authorize methods that might otherwise be seen as illegal by international courts.

-"The International Committee of the Red Cross (ICRC) charged in confidential reports to the United States government that the American military has intentionally used psychological and sometimes physical coercion 'tantamount to torture' on prisoners at Guantanamo Bay, Cuba….The team of humanitarian workers, which included experienced medical personnel, also asserted that some doctors and other medical workers at Guantanamo were participating in planning for interrogations, which the report called 'a flagrant violation of medical ethics.'" (New York Times, 5/17/04)

-A later Red Cross visit to Guantanamo (6/04) found "humiliating acts, solitary confinement, temperature extremes, use of forced positions." Its report concluded, "The construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture."

-According to the military, Mohamed al Kahtani confessed that he was supposed to be the 20th hijacker in the 9/11 terrorist attacks. He was segregated from other prisoners for nearly six months, interrogated for up to 20 hours a day, made to stand naked in front of female soldiers, forced to wear lingerie, led around on a leash and forced to perform a series of dog tricks and had his copy of the Koran squatted on by an interrogator. This report comes from an investigation by Air Force Lieutenant General Randall Schmidt, who concluded that such treatment "was sometimes degrading but did not qualify as inhumane or as torture." (New York Times, 7/14/05)

-"The hopelessness you feel in Guantanamo can hardly be described. There is no trial, no fair legal process. I was alleged to have participated in terrorist training in Bosnia and Afghanistan. I've never been to Bosnia and the only time I visited Afghanistan was thanks to the hospitality of the CIA in an underground prison--the Dark Prison--outside Kabul," said Bisher al-Rawi, a British citizen who was arrested at the airport in the West African country of Gambia in 2002 and turned over to U.S. custody. He was released without charge or trial in April 2007. (Amnesty International, www.amnesty.org)

-"Our principal health problem down there [Guantanamo] is gain of weight, we feed them so well," said Karl Rove, the president's top political advisor. (www.denverpost.com, 7/09/07)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Are all, most, or some of the remaining Guantanamo detainees terrorists? Based on the reading, what conclusion do you reach and why? How do you explain the different results of competing studies of the Guantanamo population in 2004-2005 and the contradictory comments of two officers involved in the Combat Status Review Tribunals?

3. Why would congressional legislation be necessary to imprison any terrorist suspects indefinitely without trials on American soil? (See the Constitution: Article 1, Section 8, Paragraph 11)

4. Consider the following points of view. Which point of view do you support and why?

Defense Secretary Robert Gates: "The biggest challenge is finding a statutory basis for holding prisoners who should never be released and who may or may not be able to be put on trial."

New York Times editorial (7/15/07): "Challenge? The very idea is anathema to American democracy….Give the president a dictator's power to select people for detention without charges on American soil would be an utter betrayal of their oath to support and defend the Constitution…."

5. What problems do the terrorist suspects pose for the administration, according to the Woodward book? What weight do you think should be given to the "overwhelming political pressure" that Cole cites?

6. Most of the Guantanamo detainees do not appear to have been terrorists. Why, then, are several hundred still imprisoned?

7. Why would the participation of doctors in planning for interrogations be "a flagrant violation of medical ethics"?

8. Write a definition of "torture." Under your definition, have Guantanamo detainees been tortured? If you think they have not been, why not? If you think they have been, why do you suppose that President Bush has repeatedly declared that the U.S. does not torture prisoners?

Student Reading 3:
What rights for detainees? What future for Guantanamo?

Should detainees at Guantanamo be protected under the U.S. constitution and the Geneva Conventions?

President Bush's position: U.S. constitutional rights protect only American citizens who are terrorist suspects and individuals captured on U.S. territory - and no one else. Guantanamo is not U.S. territory. The Geneva Conventions are designed for soldiers who become prisoners of war in conflicts between countries. Geneva does not provide any other type of designation. Terrorists do not wear uniforms, do not claim allegiance to any nation, do not follow the laws of war and represent an unprecedented and very dangerous threat. The commander in chief has the legal power to make these decisions about the Constitution and the Geneva Conventions.

The critics' position: A Guantanamo detainee is helpless without any rights. He has no way to require that the government explain before a judge why he is being held. Habeas corpus is fundamental to a civilized society and should cover everyone, whether an American citizen or not. Without this right, an individual is subject to abuse and torture. If evidence against a detainee is obtained by torture, it will not be admissible. This is a major reason why in more than five years not a single Guantanamo detainee has gone on trial for terrorism or war crimes. It is also why the government ends up holding anyone it wants indefinitely and without explanation. The results are devastating for detainees and the reputation of the United States.

Why doesn't the United States put all the remaining detainees on trial?

A major reason, says the Bush administration, is that a trial for detainees like Khalid Sheikh Mohammed (the accused mastermind of the 9/11 attacks who is being held at Guantanamo) would endanger intelligence operations. For example, his lawyers could legally force the government to reveal its secret sources of information and all of its evidence against him. Another reason is that "many detainees were captured in combat situations across the Middle East that did not allow the sort of formal collection of evidence required by trials in the United States." (New York Times, 7/3/07)

Critics view U.S. behavior as hypocritical. President Bush claims to be promoting democracy in the Middle East while denying detainees such fundamental democratic legal rights as due process. Most are doubtless innocent of any terrorist act. Few, if any at this point, have any useful intelligence to offer.

Should Guantanamo be closed?

"I would close Guantanamo, not tomorrow, but this afternoon. I'd get rid of the military commissions system and use established procedures in federal law or the manual for courts-martial."
--Colin Powell, former Secretary of State, 6/26/07, "Meet the Press"

"Although our critics abound and at home have called for Guantanamo to be shut immediately, they have not offered any credible alternatives for dealing with the dangerous individuals that are detained there."
--John Bellinger III, legal advisor to the State Department (www.washingtonpost.com, 6/22/07)

According to reports in the New York Times and the Washington Post, President Bush's advisers are looking for a legal way to permit the long-term detention of foreign terrorists in the United States. In the face of persistent criticism from human rights and other groups around the world, the president has publicly declared his desire to close Guantanamo. But he says he is seeking a legal and safe way to secure dangerous terrorists.

A United Nations Committee Against Torture declared that detaining people indefinitely "without charge" and without other "legal safeguards" at the Guantanamo detention center is "a violation of the UN Convention Against Torture." The detention center, it said, should be closed. (5/18/06)

Guantanamo detainees have staged many hunger strikes, which have been broken only by force-feeding men who are strapped in "restraint chairs" for hours at a time. Four detainees have committed suicide, and at least 40 others have tried unsuccessfully, according to the international human rights group Amnesty International.

Camp commander Rear Admiral Harry Harris Jr. said he believed that a June 2006 suicide attempt "was not an act of desperation but an act of asymmetrical warfare waged against us." The inmates, he said, "have no regard for life, neither ours nor their own."

The New York Times editorialized: "These comments reveal profound disassociation from humanity. They say more about why Guantanamo Bay should be closed than any United Nations report ever could." (6/12/06)

"The central question," lawyer David Cole writes, "is how to respond to the pressure for security without assuming excessive power and condoning abuses." Cole points out that assuming such power is not new in American History. A congressional committee investigating the use of executive power in 1975-1976 revealed "extensive abuses of executive power during the cold war, including widespread illegal spying on Americans." (New York Review of Books, 7/19/07)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Imagine yourself a Guantanamo detainee who knows he is not a terrorist and has not committed any crime. What difficulties would you face in proving your innocence?

3. Why haven't the detainees been charged and tried?

4. What problems are there for the Bush administration in closing Guantanamo?

5. What evidence do you find in the readings and your knowledge of the post-9/11 situation in the U.S. to indicate that the president must consider "how to respond to the pressure for security"? Has President Bush assumed "excessive executive power"? Has he been "condoning abuses"? If he has, what should be done about it? If he has not, why not?

For writing

Write a well-developed essay in which you either:

• Support the opinion of either Colin Powell or John Bellinger III
  
  
• Support or oppose President Bush's decision to declare the Guantanamo detainees "enemy combatants" and to deny them the protections of the Constitution and the Geneva Conventions.
  
  

For inquiry

• President Abraham Lincoln's decision to deny habeas corpus during the Civil War
  

• Origins of the U.S. lease of Guantanamo
  

• Geneva Convention protections of prisoners of war
  

• The Bill of Rights and its protections for those accused of crimes
  

• The congressional Church Committee's 1975-1976 investigation of the use of presidential power during the cold war
  
  

For citizenship

Write a letter or an e-mail to the president, your senators and/or your congressperson on what you think should be done about Guantanamo and its detainees.

See "Teaching Social Responsibility" for other suggestions to involve students in educational efforts on Guantanamo issues.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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