The Guantanamo Chronicles
United States vs. Noor Uthman Muhammed and Other War Stories from Guantanamo (Part 2)
The Afghanistan Training Camps
If the reader will oblige me for a few paragraphs, I will attempt to explain why and how the United States can legally have people detained at Guantanamo, and the single factor common to each of them.
If there is any one characteristic that ties together the detainees factually and legally, it is the camps. This one single common factor allows the government to detain certain people at Guantanamo. Legal types who have been trained in American constitutional law and the precept that persons detained by the government must either be tried for a crime or released as soon as practicable have a difficult time understanding how and why the government can hold a person in detention indefinitely, without charging them with any crime.
Contrary to what the uninformed think, it’s not because Presidents Bush or Obama, in a fit of executive fiat, say they can; it’s because the appellate courts that have reviewed the question have said the government can do so. How is that possible, you might ask? What’s the legal analysis that allows for this? Doesn’t this fly in the face of our constitutional history and legal jurisprudence?
In a nutshell, it has to do with the concept of “Law of War Detention.” Law of War detention is the ability to detain persons, who are determined to be “enemy combatants,” without trial or military commission, indefinitely. The most recent authority for the current concept of law of war detention was initially articulated one week after the 9/11 attacks, in the Authorization for the Use of Military Force of September 18, 2001 (hereinafter referred to as the “AUMF”). The Bush administration’s approach was that the Executive Branch may detain persons indefinitely based on the Executive branch’s inherent authority in Article II of the Constitution and the AUMF. It is very important in this respect for people to understand that while President Bush asked for this authorization, Congress — including most Democrats — gave it to him.
The Supreme Court first addressed the question of this new legal model for indefinite detention in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The Court did not address whether Article II provides the requisite authority to detain people indefinitely, but endorsed the Bush administration’s position that the AUMF was sufficient. The Court also ruled that detainees must be given some form of due process to contest their detention. As a result, Combatant Status Review Tribunals (CSRT) were set up at GITMO. These periodic review boards function much like parole boards, and provide detainees with the ability to contest their continued detention. The CSRTs have the authority to recommend that a detainee be released, and this has been done increasingly in recent years.
These administrative procedures have been subsequently upheld by the courts. Further, even U.S. citizens may be held as enemy combatants, and it matters not where they are captured or detained. (Prior to this case, competing analyses looked at citizenship and places of capture and detention to determine jurisdiction). The lower courts were left to determine individual cases (D.C. district courts and the federal circuit courts).
The Obama administration, despite all its claims during the 2008 campaign, continued the Bush approach, but relied solely on the AUMF for the authority to detain enemy combatants. The final standard for continued detention that eventually emerged from the courts was — and continues to be — any person who is found to (1) be a member of an AUMF-covered group, or (2) have provided substantial support to such groups, may be detained indefinitely. Al- Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), found that proof of support can serve as a sufficient condition for detention separate and apart from proof of membership in an AUMF-covered group.
Attending a training camp sponsored by an AUMF-covered group may justify detention, as might staying at a safe house associated with such a group. There are other factors that can go into the analysis, but having attended a terrorist training camp has been almost always held sufficient to detain a captured person indefinitely. And without going too much deeper into this question, this is probably one of the top reasons we still have approximately 40 people still detained at GITMO; each one of them has been through one or more training camps in Afghanistan, or is strongly tied to them or a specific terror group by evidence.
So with all that, one can see why evidence that a particular detainee attended a terrorist training camp became a very important factor in determining not only whether he would be detained, but also whether he would be prosecuted.
But what was the big deal about those camps anyway? Why did the government and the courts put so much weight on that factor alone?
Although estimates state there were at any time over 100 such camps in operation inside Afghanistan before 9/11, there were a select few major camps that began to emerge as being most closely-affiliated in some way with al-Qaeda.
• al Farouq: Also known as the “airport camp,” it was located near Kandahar. The list of former attendees at al Farouq reads like a terrorist all-star roster, and includes John Walker Lindh (the “American Taliban”), David Hicks, the “Buffalo Six,” and four of the 9/11 hijackers. Lindh pled guilty to two charges: supplying services to the Taliban and carrying an explosive during the commission of a felony. He was sentenced to 20 years’ confinement without the possibility of parole. (Lindh was released in May, 2019). The Buffalo Six (known primarily as Lackawanna Six, but also the Lackawanna Cell, or Buffalo Cell) is a group of six Yemeni-American friends who were convicted of providing material support to Al-Qaeda in December 2003, based on their having attended an Al Qaeda training camp in Afghanistan together in the Spring of 2001.
• Derunta: Derunta had the distinction of being a sort of “graduate school,” and the place where terrorists were sent after initial training to gain follow-on training in bomb-making, chemical weapons, and poisons.
• Tarnak Farms: Located very close the Kandahar airport, this camp served as Osama bin Laden’s chief base of operations from 1998 until he fled during the American invasion after 9/11. Mohammed Atta, the pilot who flew American Airlines flight 11 into the north tower of the World Trade Center, and Ziad Jarrah, the pilot who flew United Airlines flight 93 into the ground near Shanksville, Pennsylvania, to prevent the passengers from retaking control of that flight, had both trained and recorded their “last will videos” at Tarnak Farms.
• Khalden: This camp started out during the Soviet occupation of Afghanistan, but was closed down by the Taliban in 2000. Our defendant Noor had at- tended this camp and served as its quartermaster. Like al Farouq, the list of terrorists who attended the Khalden camp at one time or another was note- worthy: Ahmed Ressam (the “Millennium” bomber), Zacarias Moussaoui (the self-proclaimed “20th hijacker”), Richard Reid (the “Shoe Bomber”), Ramzi Yousef (1993 World Trade Center Bomber), and two of the 9/11 hijackers, are all alleged to have trained at Khalden. Ressam was convicted in 2001 of planning to bomb the Los Angeles International Airport (LAX) on New Year’s Eve 1999, as part of the foiled 2000 “millennium attack” plots. In October 2012, he was re-sentenced to 37 years’ imprisonment. He is serving his sentence at ADX Florence, Colorado. Moussaoui pled guilty to conspiring to kill American citizens as part of the September 11 attacks. He is serving six life sentences without parole at ADX Florence, Colorado. Reid attempted blow up an airliner in flight over the Atlantic in the months after 9/11. He pled guilty to eight criminal counts of terrorism. He was sentenced to three life terms plus 110 years in prison without parole and is held at ADX Florence, Colorado. And Yousef was convicted for his role in the first World Trade Center attacks in 1993, and is serving a life sentence at ADX Florence, Colorado.
In light of these facts, it became a common part of our investigations to find out exactly who had been to one of these camps and what all they had done there. And the fact that many of the names mentioned above were serving long sentences in federal prisons gave us the opportunity to go see those terrorist prisoners in an effort to find out if they had known or seen others during their time at one of the camps. This wasn’t always a fruitful enterprise, but over the years a clearer vision began to emerge as new pieces were put into place, just as over time the picture in a jigsaw puzzle starts to come into better focus. The detainees always attempted to downplay their presence at one of these places, but in the end, the significance of their having been there was undeniable; these were not country clubs or vacation spots; these were places where people practiced killing.
The Island
The United States naval station on the southern edge of Cuba has an interesting history dating back to the Spanish-American War. American naval forces secured Guantanamo Bay for use in protecting the fleet during the Caribbean hurricane season of 1898. With the help of U.S. Marines, Cuban forces defeated the Spanish, and Spain formally gave up control of Cuba in the Treaty of Paris. During this period of “Manifest Destiny,” U.S. forc- es continued to occupy the area, and in 1901, Congress passed what became known as the Platt Amendment. This provided that the U.S. would continue to protect Cuba’s independence, as well as provide for its own defense, by maintaining a presence at Guantanamo Bay. The agreement with Cuba provided that Cuba would “lease” back to the U.S. the land for the base, and after some initial protest by some Cuban legislators, the agreement took effect in 1902. Ever since 1903, the U.S. has paid “rent” for the base, although Fidel Castro reportedly refused all rent payments after he took power in 1959.
In the ensuing years, Guantanamo would become an important base of operations, first during World War Two, when Presidents Roosevelt and Truman visited three times, and especially during the Cold War and after Fidel Castro took power, engaged with the Soviet Union, and imposed a communist dictatorship. It likely reached its zenith on the word stage during the Cuban Missile Crisis of 1962, when all American families and civilians on the base were evacuated under the threat of impending nuclear annihilation.
After the end of the Cold War in 1991, the base’s political significance began a steady decline. By the end of the Clinton administration, its operational posture was a shell of its former self, as the number of forces stationed and ships anchored there diminished significantly. By the time the Bush administration settled on it as the site where captured War on Terror detainees would be held, it was all but forgotten as a place of any real strategic importance.
My first trip down to the island was noteworthy, to put it lightly. We took off from Andrews Air Force Base outside Washington in a chartered commercial jet, and flew almost due south for three hours, following the outer Bahamian islands down into the Caribbean. We maintained this heading until we were just west of the British Turks and Caicos Islands to Cuba’s east. Once we cleared Cuba’s eastern-most shoreline we turned due west into a pattern well off the island’s southern coast. I asked the guy next to me what we were doing. “We have to stay out of their airspace.” Naval Station Guantanamo Bay is located on the southern coast of Cuba, and I would learn when- ever we were landing or taking off from the base, we had to be in the airspace over the base. This made for an interesting approach and takeoff flight path. I wouldn’t exactly use the term “dicey,” but it definitely was not normal.
As we continued due west, the guy next to me pointed out the base off the right side of our aircraft. We flew past the western perimeter of the base, and then dropped lower into a turn toward the north. We readied for landing as the jet descended lower. Just as I thought we were feet dry over land, the pilot again turned back to the east, and I eventually lost sight of the airfield — which appeared to sit perilously close the ocean — out my right side window as the pilot lined up the approach. As we got lower I could see only dry, desert-looking topography off the left side, and the blue waters of the Caribbean coming up close on our right. When we hit the tarmac, we couldn’t have been more than 100 yards from the water on the right, which churned and sloshed against a cliff that dropped away to the ocean about 25 feet below. We taxied in very quickly and the crew opened the doors.
The first thing to hit me as I stepped onto the stairway was the stifling, humid Caribbean heat. This wasn’t the heat of south Texas where I had grown up in Houston, south Florida, or even Bahrain — a place where it could be both 120 degrees and 100 percent humidity at the same time; no, it was something all its own. We made our way over to security, stood in line, presented military identifications, country clearances, badges and the like, went into the small terminal, got our baggage, and hopped a shuttle bus for a short ride to the ferry pier.
The American naval base on the island of Cuba is shaped somewhat like an inverted “U;” two large landmasses are divided almost right down the middle by Guantanamo Bay, which opens on the south into the waters of the Caribbean Sea. The airfield is located on the west or “leeward” side of the base, and the main side of the base where almost everything is located is on the eastern or “windward” side of the base. To get from the airfield over to the main side of the base, we would have to take a ferry ride across the bay.
The ferry carried vehicles and people, and we made our way aboard. The ride took about thirty minutes as we plowed through the somewhat choppy waters near the mouth of the bay. As we got closer to the windward side, I could see a few, small navy ships docked up the coast, but I primarily saw the buildings on top of the old McCalla airfield, now unused. Up on that rocky, windswept point sat our offices, our living quarters, the old aircraft hangar, and our two “courtrooms,” one of which sat on the first floor of the converted aircraft control tower building and the other a recently-built, 12-million-dollar, state-of-the- art courtroom built to try the 9/11 co-conspirators, the alleged mastermind of the USS Cole bombing, and any other cases necessary. The entire area had been renamed “Camp Justice.”
Unlike most visions of Caribbean islands, with white, wide sandy beaches, crystal clear waters, and lush, swaying palm trees, the landscape on the south side of the is- land of Cuba that rose above Guantanamo Bay was filled with sunbaked and wind-blasted hills, interspersed with deep ravines, where cactus and scrub brush clung to rocky outcroppings in all directions. It was more like the desert topography of Arizona than some island vacation spot. Modern civilization appeared to have been slow in reach- ing this arid and uninviting no man’s land.
As far as living accommodations were concerned, it was much improved over what it had been in earlier days. At Camp Justice, they had built two sets of trailer “towns” that housed approximately 40 people apiece. These units were similar in most respects to what we who had served in Iraq or Afghanistan had lived in there, but the ones at Camp Justice were an upgrade. Each unit housed one person, had an individual sink and wall-locker, twin sized bed, and small TV with Armed Forces Network (AFN).
Each unit had an air-conditioning wall-unit. And each unit shared a bathroom with a shower and toilet with another person on the other side. These were situated a short walk down the hill from our office spaces and the courtrooms. And depending on the size of the personnel footprint on any given week, most people could get a vehicle issued for personal use to get around the base. This fleet of vehicles typically consisted of small vans, or if you were lucky, small Jeep Patriots. But it didn’t matter; any kind of mobile transportation was a step up from Iraq or Afghanistan, where vehicles for the masses below the rank of O-7 were extremely rare.
The irony in this was that, for all of the relative niceties of the living accommodations, our ability to get real work done in our office spaces was challenged at times. The network was a mismatch of antiquated electronic band aids, cobbled together by contractors, and half the time nothing worked. It was anyone’s guess whether you’d be able to log in to email or get on the internet when you got to the office on any particular day. And by the time I got there, it was 2010. I wondered how anyone had gotten anything done back when they were just starting the new military commissions.
The base had a Navy Exchange (or PX), a McDonalds, a Subway, a Taco Bell, several 7-Day stores (small quick stop type markets), an officer’s club, and a small cafe that sold Starbucks coffee in the mornings. There were only a few other places to eat, including a place called the Cuban Club in an old Quonset building with a circular roof, an Irish Pub called O’Kelly’s, and a place called the Jerk House, where for under 10 bucks American you could get a half or quarter Jerk-seasoned chicken, several sides, and a Red Stripe, and where the base’s population of feral cats roamed around like skinny little demons, whining menacingly like they might jump up and rip your face off if you got too close. I would eventually become partial to O’Kelly’s and the Jerk House because the food was better at those places.
Another interesting characteristic of the island was its wildlife population. Every time we went down to the island we got a brief that it was illegal to “kill or eat” an iguana, a species that were protected on base. And they were everywhere you went, maybe because they had somehow figured out that on base they were safe, not so much on the other side of the fence. Last but not least, there were the “banana rats,” or hutias, big, rodent-like creatures that grew to be anywhere from 8 to 18 inches in length and who were, thankfully, herbivores.
Both species inundate the base because neither one has any natural predators there. I would routinely come upon iguanas while driving or running, and they would just sit there in the road stone-like, until I got too close for their comfort and they scrambled away much quicker than one might envision. The larger ones would never move a muscle, content that they owned the place and you were just some temporary annoyance that posed no real danger. The banana rats, on the other hand, were freaks of nature. Nocturnal vermin, they usually didn’t show themselves until the sun had set, and they sort of ambled more than they walked or ran. They never appeared afraid of us either. The entire place was surreal at times.
By necessity, the base had set up several things for people to do in their free time for the poor souls who were permanently stationed there. For instance, one could get a boating license and scuba diving certification, and those two things were not bad; the scuba diving was said to be outstanding. There was a dried-out, 9-hole golf course and driving range. There were four small beaches. And the base gym had been recently renovated, complete with an artificial turf playing field for soccer or football. If you were a runner, there were plenty of trails and roads that meandered and crossed back and forth throughout the area, along ravines, near coast-lines, and through the rocky hills, such that you had no excuse not to get in better shape when you were down there.
All in all, it wasn’t the worst place in the world to be; I had been deployed to Iraq, and I would choose Guantanamo ten times out of ten over Iraq. But its close confines could start to close in around you if you were down there too long. As with any deployment, the key was keeping oneself in some sort of daily routine, no matter how mundane it might be.
To be continued.
Glen Hines is the author of the Anthology Trilogy of books — Document, Cloudbreak, and Crossroads — and the recently released Cathedrals in the Twilight, all available at Amazon.com and Barnes and Noble. His writing has also been featured in Sports Illustrated, Task & Purpose, and the Human Development Project.
