Let’s be honest, the circumstances surrounding the ‘prisoner swap’ between Bowe Bergdahl and five high-ranking Taliban prisoners in Guantanamo Bay just don’t add up. The initial narrative President Obama pitched of the prisoner swap as a signal of successful negotiations, a necessary response for a fellow soldier whose health was in jeopardy, and further evidence that the ‘war’ in Afghanistan is indeed drawing to a close, has completely disintegrated as waves of questions continue to be raised about the facts, legality, and implications of the exchange, including:
Did President Obama break the law by not giving Congress 30 days notice of the prisoner swap?
Was Bergdahl a prisoner of war? If he deserted, is he still a prisoner of war?
What’s with Bergdahl’s father- his obvious beard, and evidence he has been, studying Pashto (he used it in the recent press conference, sparking deep discomfort among some) and trying to learn about his son’s captors?
What is Qatar’s role as an intermediary? How will keeping these 5 detainees in Qatar ensure American safety, as Obama claims?
If Bergdahl was a prisoner of war, and this was a prisoner swap, how does this impact the US classification of Guantanamo Bay detainees as ‘enemy combatants’ for over a decade? If they are now prisoners of war, do they get prisoner of war rights….finally?
In addition to these questions, discussions about Bergdahl are now largely centered around 1) the legality of the swap, and 2) the circumstances surrounding Berdahl’s initial disappearance from his base 5 years ago. The former debate is playing out between lawyers, politicians, and the media. At the same time, the latter debate has taken on a life of its own- it seems to be a sort of public trial and judgement on Bergdahl’s character, and whether he is ‘worth’ the efforts made to return him to America. As the discussions descend into a “bumper-sticker debate,” characterized by cliche claims and concerns, the following questions dominate the debate: Is he a deserter and traitor, who felt “ashamed” to be a soldier and was disillusioned with the war in Afghanistan? Or, is he a patriot, who served bravely and ‘suffered enough’ as a prisoner of war? What is more interesting than the ‘facts’ surrounding the story, is the frame being used. This is a classic band of brothers problem.
The band of brothers narrative has been used in reference to the US military for decades- and has become particularly salient during the wars in Afghanistan and Iraq. Ideals of the ‘special’ bonds of soldiers, comradeship, and the need to put one’s brother first have all become such embedded cliches that we hardly question them. It helps that the HBO TV series Band of Brothers spoon fed us the key elements of the band of brothers myth: war is primarily about combat, the ‘real’ story is the bonds between the men- not the politics of the war itself, the non-sexual bonds and relationships between men are exceptional- romantic in their own way, and essential to warfare. So here we are, with Bergdahl, who represents a band of brothers (BOB) problem. In fact, the ‘patriot’/’traitor’ debate is informed entirely by the band of brother myth and its implicit messages about soldier and national identity. Continue reading
Tag: Guantanamo Bay
Here at the Duck and elsewhere, there has been much discussion of the gaps between academia and the policy world. I took part in a program that seeks to bridge that gap–the Council on Foreign Relations International Affairs Fellowship–which I have mentioned here before. One thing I did not discuss here before is that such experiences can put one in morally challenging situations. Whenever Guantanamo comes up in the news, I am reminded of this. Why, see my tale belowe:
Regarding the revelations in the latest diplo-document-dump, there are some good questions to be asked. Charli is wondering who actually did the leaking and Ben Wittes is concerned about the effect that this will have on not only the government, but the detainees themselves:
Should it most upset the government, for whom the story represents yet another devastating failure to keep important secrets? Or should it most upset detainee counsel, for whom this trove means the public release of huge amounts of unsubstantiated speculation about clients who have not been charged and against whom it is far easier to write down disparaging information in intelligence reports than it is to prove such allegations in court. For both intelligence and civil liberties reasons, there are very good reasons a lot of this material has not been made public.
The Guantánamo assessments seem unlikely to end the long-running debate about America’s most controversial prison. The documents can be mined for evidence supporting beliefs across the political spectrum about the relative perils posed by the detainees and whether the government’s system of holding most without trials is justified.
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| Not so much. |
Lawfare blog has a post on today’s Executive Order on Guantanamo Bay. (Link to the Obama administration’s fact sheet PDF here). Lawfare tends to be more conservative than most international law blogs, but it’s excellent and an absolute must-read for keeping up-to-date on all things law, national security and the war on terror. (Or as I like to call it, Saturday night!) There’s some good commentary on the refusal of Congress to help fund any progress on Guantanamo and some discussion of the return to military commissions.
More interesting for me is the section at the end of the Fact Sheet titled, “Support for a Strong International Legal Framework”. In it, the administration is basically stating that it is going to push for ratification of the 1977 Additional Protocol II to the 1949 Geneva Conventions and that it formally sees Article 75 of Additional Protocol I as customary international law. (Article 75 lists the “fundamental guarantees” in the Protocol for those “persons in the power of a party to a conflict”.)
The section says:
Because of the vital importance of the rule of law to the effectiveness and legitimacy of our national security policy, the Administration is announcing our support for two important components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions.
Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to which 165 States are a party. An extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions. Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict.
Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported.
Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.
My first quick thoughts on this are that this is a big deal and not a big deal.
The United States has signed, but not ratified, the two Additional Protocols. In the 1980s political appointee lawyers, such as Doug Feith (who declared the Protocols to be “law in the service of terror”) worked to undermine efforts to have the US ratify them. (Although, to be fair, this was a position that was supported by the New York Times during this period.) They were successful, and in 1987 President Reagan declared to the Senate that he would not send API to them for ratification, but that he would send (the much more limited) APII through. However, the Protocol has been languishing there ever since.
So in some ways, this can actually be seen as fulfilling an old Reagan administration policy.
However, I think the clear and strong support for Article 75 is important, and will probably be welcomed by many in the international legal community, perhaps at least as a small comfort for the general sense of disappointment that Guantanamo is still around.
Also, while I feel it is a good thing that the administration has formally declared Article 75 to be customary, I think this may be bad news for API advocates overall. The policy is likely a result of the fact that the administration believes that ratification of Additional Protocol I is still a long way off – particularly with Congress’ attitude towards international law, Guantanamo and the war on terror. Additionally, the fact that the administration states (not entirely unreasonably) that it has “significant concerns” over Protocol I (no doubt related to the controversial provisions in Aricles 1(4) and 44(3)) suggests that the overall sentiment towards API has not really changed that much.
Finally, and related to the above point, I would argue that this “fact sheet” seems to confirm a pragmatic Obama policy of trying to work with international law within the constraints imposed by a hostile Congress. While it may not be able to ratify all of the treaties that it (and many in the international legal community) would (probably) like to, it will seek to at least cooperate and work with the international legal institutions and regimes where possible.
QUICK UPDATE – The always interesting and occasionally controversial Ben Wittes gives his take on it here. Short version: Good policy, but too bad that the President and Congress can’t work it out.
QUICK UPDATE 2: (Geeze this is moving quick!) State Department statement on these developments here.
I finally took the time (and found the courage) to watch Steve McQueen’s “Hunger” (2008). It is the story of the events that led to the 1981 Irish hunger strike at Maze Prison in which Bobby Sands and nine other men died. The film is hauntingly beautiful from an aesthetic standpoint and horrifying intellectually. There are very few films which actually merit the adjective “powerful,” this is one of them.
(I am still processing this film in my mind, but I thought I would share a few thoughts in case others have seen it and thought it through…)
Critics will undoubtedly take issue with the film for its failure to contextualize the crimes (and therefore the punishment) of the IRA “terrorists,” but the film is not a history of the “Troubles” per se. Even if one absolutely condemns the violence of the Irish Republican Army (IRA), the film forces the viewer to confront the relationship between the state and the body.
There are brutal scenes in which the bodies of the condemned appear Christ like after they have been abused by the prison guards. The state itself appears bodily in the mode of discipline, and the various trials of strength, dignity, and will inflicted upon the prisoners in spirals of barbarism inside the prison. Outside the prison, the bodies of the state are the target of ruthless assassinations by the IRA. The state also appears dis-embodied as the merciless voice of Margaret Thatcher:
“Faced with the failure of their discredited cause, the men of violence have chosen in recent months to play what may well be their last card. They have turned their violence against themselves through the prison hunger strike to death. They seek to work on the most basic of human emotions — pity — as a means of creating tension and stoking the fires of bitterness and hatred.”
The aim is obviously preemptive propaganda, but Thatcher’s rhetoric is fascinating. Hunger, the weapon of the weakest of the weak, is described as a continuation of terrorist violence. The slow, silent, lonely, and intensely painful drama of suicide through starvation is characterized as a mere sleight of hand, a cheap trick designed to stoke hatred by eliciting pity. While Sands and his colleagues did undoubtedly seek to elicit pity and revive the republican cause, their protest was more than a mere final trick.
From the vantage point of the film, the disembodied voice of Thatcher sounds un-human, desperate, and powerless to all but the most gullible and close-minded. It is clear that the hunger strike returns the state to a Foucauldian situation in which it must risk a trial of strength in public with the body of the condemned.
As an American, one cannot help but think of and note the contrasts with the treatment of detainees in the prisons at Guantanamo Bay, Abu Ghraib, Baghram, Kandahar, Diego Garcia, etc. There is no doubt that the treatment of prisoners held in these some of these facilities (e.g. Abu Ghraib) was as de-humanizing as the treatment inflicted on the Irish in Maze Prison. In Mullah Zaeef’s recent memoir, My Life with the Taliban, he writes bitterly of his experience in Guantanamo Bay:
“We were not given toilet paper or water to clean ourselves after using the toilet; only our hands could be used, but could not be washed afterwards. This is how those who claim to defend human rights made us live,” (Zaeef 2010, 196).
From what I understand the UK abandoned the practice of force feeding in 1917 after it led to the death of an Irish prisoner, Tom Ashe. The US government, however, still seeks to deny prisoners that it labels as terrorists the right to play even this “last card.” Some of the hunger strikers in American facilities like Guantanamo were reportedly force fed and prevented from vomiting nutrients. Mullah Zaeef’s recounts that eventually the doctor-in-charge at Guantanamo refused to continue force feeding the prisoners during the 2005-06 hunger strike.
One has to wonder what the practice of force feeding says about the US and its understanding of the body of the suspected terrorist. One could argue that the act of force feeding a mentally sound, political prisoner foreshadows a totalitarian impulse which we as Americans would prefer to associate with other regime types. Even the publicly released images of those prisoners in orange jumpsuits, kneeling in stress positions with heads covered and ears muffled, conjures a body completely turned over to the power of the state. The prisoner is in a limbo where they cannot be human and have absolutely no rights. That we as Americans tolerated such tyrannical behavior from our own government perhaps speaks to the autistic hysteria under which we have lived for nearly a decade. Either that or it speaks to the utter indifference we hold for those who are merely accused of being enemies of the state.
Language and Humanity
In the docu-drama “The Road to Guantanamo” (2006), there is an odd scene where an American prison guard (in real life his name is Brandon Neeley) asks one of the Tipton Three to rap for him. The guard becomes uncomfortable when he realizes that these kids being held in Guantanamo not only speak English but are products of an Americanized global culture. It is as if the body of the prisoner comes to have a soul, at least in the eyes of one guard for one brief moment. (Although it is not depicted in the film, the guard resigned from the US military in 2005. He has contributed to the Guantanamo Testimonial Project and has apologized to Shafiq Rasul for the treatment that was inflicted on him. The apology has been accepted).
If a common language can create a minimal sense of shared humanity even amongst sworn enemies, then it is stunning to realize what the Britons did to the Irish in Maze prison. In “Hunger,” the prisoners use Gaelic to organize their resistance, although not all of the prisoners speak the “national” language. And while all of the prisoners understand and speak English, there is almost no dialog between the prisoners and their keepers.
Perhaps the point of the film is that language itself dies as the body is subject to increasing pain. And it is the death of language that permits such depravity.
According to the Department of Defense, many of the captives released from the U.S. prison on Guantánamo Bay “return” to extremist activity — and the rate is increasing. This is from the LA Times story of January 7:
A new report estimates that one-fifth of the detainees who have been released from the U.S. military prison at Guantanamo Bay, Cuba, have resumed extremist activity, a Defense Department official said Wednesday, a figure that intensifies the debate over the prison.
The Pentagon report on the released detainees remains classified and officials refused to discuss it publicly. But Pentagon Press Secretary Geoff Morrell acknowledged the numbers had risen since April, when the department said about 74 former detainees — about 14% of those released — had returned to hostile action against the United States.
Readers might recall that President Obama promised nearly one year ago to close the prison within a year.
Dan Froomkin has a thorough takedown of the Pentagon study and I’d encourage everyone to read it. Note that most of his arguments are based on the work of Seton Hall researchers directed by Law Professor Mark Denbeaux. The Seton Hall team has repeatedly debunked DoD claims about Guantánamo and effectively spanked the media for reporting on the official claims without some degree of journalistic skepticism.
So, what’s wrong with the Pentagon reports and claims?
- The Pentagon refuses to provide names, making it virtually impossible for researchers to verify their claims.
- By DoD’s definition, “returning to the fight” apparently includes detainees speaking out publicly against their incarceration at Gitmo.
- Officials, if pressed, acknowledge they don’t really track former detainees, so their conclusions are largely speculative.
- Most detaines cannot “return” to the battlefield since the arrested weren’t ever really combatants and were never charged with anything
Clearly, the Pentagon continues to signal that it’s not going to watch silently as the President’s team works to close the Guantánamo prison. They’re obviously picking a political fight and domestic political allies in Congress will help them — remember the silly NIMBY debate about Khalid Sheikh Mohammed? What Froomkin suggests is that a malleable media with a poor short-term memory will help them.
Republicans say they don’t want terrorists in their backyard — even if their backyard is a federal maximum security prison.
Apparently, Democrats in Congress are somewhat frightened by this stance because they have refused to provide $80 million to finance the closing of Gitmo. They will deny funds until the Obama administration provides a plan to provide justice for the prisoners at Gitmo.
While that use of leverage might make some sense, the Republican argument against moving prisoners to the US is purely political theater. It simply doesn’t stand up to basic scrutiny. Consider:
1. U.S. federal prisons already host a number of convicted al Qaeda terrorists.
2. The U.S. has more people in prison than any other country — both in absolute and relative terms. The U.S. is good at confining people.
3. Many U.S. prisoners were really bad people on the outside — and some of them tried to inspire violent action by likeminded people. Charles Manson. John Gotti. Timothy McVeigh. Jeffrey Dahmer.
4. Very importantly, most of the detainees at Gitmo are not hardened terrorists. In fact, the evidence to-date reveals quite the opposite.
Khalid Sheikh Mohammed is a bad man, but he’s a mid-40s guy in custody and largely isolated from the outside world.
I’m pretty sure the U.S. could imprison him and other inmates without too much trouble.
A conference was recently held at the University of Maastricht on Human Rights and Methodology, which explored the following questions:
By which criteria can a product of human rights research be qualified as a methodologically sound piece of work? What are examples of such good practices and what are examples of practices that are unsatisfactory from a methodological point of view? And are there aspects and considerations that are typical for the methods of research applied in the field of human rights?
In his keynote, David Forsythe lamented the paucity of methodological rigor in human rights scholarship, which tends to be legal or normative in character. And Todd Landman argued for the importance of treating human rights as any other subject in the social sciences, with causal and constitutive propositions subjected to rigorous analysis.
In this vein, I’d like to know how to construct a research project that could attempt to objectively test some propositions culled from political rhetoric about detainees in the global war on terror. Though detainee treatment on the surface seems to be (and perhaps should be) a moral debate, in actuality both sides consistently invoke explanatory arguments to make their case. Most of these claims should be empirically testable. To wit:
Hypothesis: Coercive interrogation techniques are effective and necessary as a means to extract “actionable intelligence” from the enemy.
Counter-hypothesis: Coercive interrogation techniques are in-effective and counter-productive.
Hypothesis: Human rights violations by a super power erode the human rights regime itself.
Counter-hypothesis: Human rights violations by a super power strengthen the human rights regime by galvanizing other “good citizen” states against the hegemon’s practices.
Hypothesis: Governments that abuse foreigners are likelier to then abuse their own citizens.
Counter-hypothesis: There is no such necessary relationship, because governments draw a distinction between foreigners and citizens; they are capable of abusing the former while protecting the rights of the latter.
You see what I’m suggesting.
If human rights activists are going to base their arguments on utilitarian claims rather than normative claims, would it be a good idea to make sure these claims are not specious? Do political scientists have a role to play here? Or is the role of the “responsible” scholar never to attempt to falsify arguments, however specious, that might conceivably stay the hand of vengeance?
“The third hearing of my man took place at two o’clock at night; I had previously worked for eighteen hours on end. He had been woken up; he was drunk with sleep and frightened; he betrayed himself. From that time I cross-examined my people chiefly at night….Once a woman complained that she had been kept standing outside my room the whole night, awaiting her turn. Her legs were shaking and she was completely tired out; in the middle of her hearing, she fell asleep. I woke her up; she went on talking, in a sleepy mumbling voice, without fully realizing what she was saying, and fell asleep again. I woke her once more, and she admitted everything and signed the statement without reading it, in order that I should let her sleep. … That the wife had been kept waiting on her feet the whole night was due to the carelessness of my sergeant; from then onwards I encouraged carelessness of that kind; stubborn cases had to stand upright on one spot for as long as forty-eight hours. After that the wax had melted out of their ears, and one could talk to them….
“My colleagues had similar experiences. It was the only possible way to obtain results. The regulations were observed; not a prisoner was actually touched. But it happened that they had to witness–so to speak accidently–the execution of their fellow prisoners. The effect of such scenes is partly mental, partly physical. Another example: there are showers and baths for reasons of hygiene. That in winter the heating and hotwater pipes did not always function, was due to technical difficulties; and the duration of the baths depended on the attendants. Sometimes, again, the heating and hot-water apparatus functioned all too well; that equally depended on the attendants. They were all old comrades; it was not necessary to give them detailed instructions; they understood what was at stake.”
— Arthur Koestler, Darkness at Noon
Arthur Koestler’s 1941 novel A Darkness at Noon recounts the arrest, imprisonment, and eventual execution of an Old Bolshevik (who is a composite figure) during the purges and show trials of the late 30s. It’s a brilliant novel–every time the protagonist starts to become sympathetic, we are reminded that he himself has been responsible for the “physical liquidation” of dozens, perhaps hundreds of people (the numbers are unclear), purging those who represented ideological weak spots, until he himself becomes identified as an ideological weak spot. He’s a bit like Tony Soprano–every time I started to like him, he killed someone with his bare hands.
In the passage above, one of the jailers, an old party hand himself, recounts the interrogation techniques he used to break recalcitrant kulaks who refused to divulge where they had hid “excess” (probably non-existent) grain.
These techniques probably sound familiar to you, because they are now being used by American interrogators in Guantanamo Bay, Cuba (and possibly elsewhere). I have repeatedly read investigative reports that trace these techniques to a Cold War era program intended to train US soldiers to withstand interrogation if captured by the Soviets or the Chinese.
And still they shy away from the absolute truth, perhaps unable to face the bald facts: we are using the techniques of the KGB and NKVD, the great bogeymen of the Cold War.
We even justify ourselves using their logic:
“In the opposite camp they are not so scrupulous. Any old idiot of a general can experiment with thousands of living bodies; and if he makes a mistake, he will at most be retired. The forces of reaction and counter-revolution have no scruples or ethical problems.” —Darkness at Noon (again)
Can we truly say that freedom and liberty have triumphed over oppression?
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