The majority of the detainees were captured as they were leaving Afghanistan in late 2001, and clearly not all of them were aid workers, peaceful Islamic evangelists, and travelers who happened to visit a terrorist haven just as the war was beginning.
When I toured Gitmo’s Camp V, reserved for the base’s most uncooperative detainees, I got a sense of who was there. As guards escorted a group of journalists through the automated prison doors, inmates began screaming in Arabic. “You are all traitors!” “You’re all shit!” “To hell with the Jews!” and “We are all fighters for a free Palestine!”
In May, the military said, dozens of detainees staged a riot, covering the floor with urine, feces, and spit, luring the guards inside by staging phony suicides, then attacking them with fan blades and broken lightbulbs.
But, although the Bush administration had claimed that the detainees had been “scooped up off a battlefield,” most of the lawyers’ clients were arrested by Pakistanis or Afghans and handed over to the Americans, often in return for bounties ranging from $1,000 to $10,000 a head. A recent study by the Seton Hall law school, based on the Department of Defense’s own data, determined that only 5 percent of the detainees were arrested by U.S. troops. The report included copies of flyers promising “wealth and power beyond your dreams” for turning in terror suspects.
Colangelo-Bryan parses the situation at Gitmo in a lawyerly way. “Although a majority of detainees are not even accused of any violent acts and we know that the biggest terror suspects in U.S. custody are held in secret sites, I think most of us recognize that there could be a relatively small number of very bad actors at Guantánamo,” he says. “But without even a vestige of due process, how do you separate the wheat from the chaff?”
Which is exactly the government’s dilemma. The lawyers say the answer to that question is to give the detainees hearings in U.S. courts, where they would have the opportunity to rebut the allegations made against them. That, however, would require the government to provide convincing evidence about crimes that took place thousands of miles away in the chaos of Afghan battlefields, something it would probably not be able to do. It would then have no choice but to free the detainees, even if they are openly hostile to the United States. Instead, the Department of Defense created its own legal process at Gitmo—so-called Combatant Status Review Tribunals, or CSRTs—which are presided over by three military officers. They don’t entitle detainees to see all of the evidence against them, nor do they allow lawyers at the hearings—instead, detainees are given an American military officer as a “personal representative.” Evidence obtained through coercion is permissible, and the detainees are not permitted to challenge whatever decision the CSRTs make.
In one notorious case, a 22-year-old German-born Turk named Murat Kurnaz was deemed an enemy combatant on the grounds that one of his friends blew himself up in an Istanbul synagogue. Kurnaz’s lawyer, 36-year-old Baher Azmy, a professor at Seton Hall law school, subsequently discovered that the alleged suicide bomber was alive and well and living in Germany, but there was nothing he could do to challenge the CSRT’s determination.
When Colangelo-Bryan returned to Guantánamo five months later, he found Al Dossari in terrible shape. Interrogators had questioned him about his lawyers and claimed that they were liars. He was still being held in isolation—he’d had virtually no contact with other human beings. During the one hour per week he was allowed to exercise, Al Dossari said, he was alone in a caged area. Letters from his family arrived long after they were sent and were heavily censored. The only reading material he was allowed was the Koran.
Colangelo-Bryan, like many of the attorneys, increasingly saw his mission as one of maintaining his clients’ morale, and he and Al Dossari spent hours talking about whatever came into their heads. Al Dossari once asked Colangelo-Bryan if he was Jewish—Joshua seemed like a Jewish name, he said. Colangelo-Bryan explained that he wasn’t, but that Joshua was a popular name in his neighborhood (he grew up on the Upper West Side). Al Dossari seemed disappointed with the answer. “I heard that the best lawyers are Jewish,” he said. “But I’m sure you’re good, too.”
Al Dossari said that his English was improving at Gitmo and that he had learned a lot of dirty words. When Colangelo-Bryan asked him what they were, Al Dossari was reluctant to repeat them. But when Colangelo-Bryan persisted, Al Dossari recited the list: cracker, motherfucker, slut, whore, wetback, inbred, nigger, and honky. “When he finished, he said very sincerely, ‘Please don’t tell my mother that I cursed,’ ” Colangelo-Bryan recalls.