A decade ago, the internment camp at Guantanamo Bay was presented to the American public as a necessary exception to the rule of law. We were told that the global “War on Terror” required the president to have unchecked authority to label anyone he chose a threat to the United States and hold them indefinitely without charge or trial-and the power to operate a prison beyond the reach of the law.
We were told the men and boys swept up by U.S. forces during the early years of this war on terror were the “worst of the worst,” their crimes so heinous no jury trial could adequately judge their actions.
Ten years later, we know this was simply not true. By the government’s own account, 92 percent of the 779 men ever held in Guantanamo are not “al-Qaeda fighters.” In fact, the vast majority of the men and boys detained at Guantanamo Bay were simply caught fleeing the chaos of war when U.S. forces entered Afghanistan, many of them sold to the United States by local authorities in exchange for bounty. Many were picked up far from any battlefield.
Today, 171 men remain in Guantanamo. Although more than half of them have been unanimously cleared for release by the CIA, FBI, National Security Council and Defense Department, the prospect of them ever leaving this prison is now essentially impossible due to the recent passage and signing of the National Defense Authorization Act (NDAA) of 2012, which codifies indefinite detention for the first time since the McCarthy era and effectively prevents the transfer of any of the men still languishing there.
Apart from the human rights disaster it has created and perpetuated, the legal experiment that is Guantanamo has been spilling over into the domestic detention system for the past 10 years, particularly for Muslim, Arab and South Asian men. In domestic terrorism cases, some particularly egregious violations include the prolonged use of solitary confinement in communication management units (CMUs) and the use of special administrative measures in both pre-trial and post-conviction.
Some pre-trial suspects have been held in these conditions for over five years, destroying any meaningful right to due process. Moreover, in many of these cases, we are seeing the increased use of secret evidence that defendants cannot see, accompanied by “material support” charges that criminalize speech and conduct far removed from any terrorist activity. Fahad Hashmi, for instance, was in pretrial solitary confinement for almost three years for material support. The charges: He allowed an acquaintance to use his cell phone and store waterproof socks and rain ponchos in his apartment that were allegedly later delivered to al-Qaeda in South Waziristan.
While racism has long affected which populations are subjected to solitary confinement and other abhorrent prison conditions, a pattern of religious profiling is also emerging. Muslim prisoners are being disproportionately sent to CMUs, special prisons where their contact with the outside world is severely restricted without due process.
Pretrial solitary confinement, experimental isolation units, the use of secret evidence, material support charges that criminalize speech and the expansive authority to detain people broadly accused of association with terrorism are becoming the norm. As Sen. Lindsay Graham declared on the floor of the Senate while voicing his support for the NDAA, the entire world, including “the homeland,” is to be designated as a “battlefield.” For many people of color in this country, the last 10 years have proved that the United States has already become just one more battlefield in the global war on terror.
As a result of Guantanamo, we now face a two-tiered system of justice, one for Muslim and Arab men and those with unpopular political beliefs and one for everyone else. Separate systems of justice for Brown people should echo in our community.
Guantanamo matters to all of us.
Vincent Warren is executive director of the Center for Constitutional Rights, which has represented the men detained at Guantanamo for the last ten years.