[sm] Guantanamo: `People the law forgot' (Guardian, 3 Dec)

>From the (long!) article: "Guantanamo is a bleak, dull, repressive place
for its inmates...it is not dissimilar to facilities in the harsh US
civilian prison system."

-Sanjoy

http://www.guardian.co.uk/print/0,3858,4810625-103680,00.html (part 1)
http://www.guardian.co.uk/print/0,3858,4810767-111575,00.html (part 2)

People the law forgot 

It is almost two years since the Guantanamo prison camp opened. Its
purpose is to hold people seized in the 'war on terror' and defined by
the Bush administration as enemy combatants - though many appear to
have been bystanders to the conflict. Images of Camp Delta's
orange-jumpsuited, manacled detainees have provoked international
outrage. But the real horror they face isn't physical hardship, it is
the threat of infinite confinement, without trial or access to legal
representation. James Meek has spent the past month talking to former
inmates and some of those involved in operating the Pentagon's
Kafkaesque justice system. He has built an unprecedented picture of
life on the base, which we present in this special issue

James Meek
Wednesday December 3, 2003
The Guardian (London)

One summer's day in Cuba in 2002, a 31-year-old Pakistani teacher of
English named Abdul Razaq noticed something unusual in the familiar
patterns of movement among the orange-suited figures in the mesh cages
on either side of him. Two or three cages along from his own, a fellow
Pakistani prisoner, Shah Mohammed, was silently going about trying to
hang himself from a sheet lashed to the mesh. He had the cloth around
his throat and he was choking.

Other prisoners in neighbouring cells had noticed and, as they usually
did when a detainee in the United States prison camp in Guantanamo Bay
tried to kill himself, they raised a hue and cry in their many
languages.

"First we shouted at Shah Mohammed to stop, but when he didn't, we
called the guards," says Razaq, who was released from Guantanamo in
July, and returned to his home town in October after three months'
detention by the Pakistani authorities. "The guards came in and saved
him. It was the first time he attempted this in my block, then he was
taken to another place. He appeared to be unconscious."

It was one of four suicide attempts by Mohammed while he was in
Guantanamo. He was released in May and lives in the Swat Valley, on
the far side of the Malakand Hills from Peshawar, a few dozen miles
from Razaq's home. It is a district of God-fearing, conservative,
cricket-loving yeomen, who are passionate about their land and
liberty, and protective of their right to bear arms; the fields of
sugar cane and tobacco are well tended, and prices in the gun shops
are more reasonable than their counterparts in America. In the
mornings, a crocodile of small boys in black berets, walking to
school, stretches for miles.

Mohammed, who is 23 and a baker by trade, is 5ft 3in and light on his
feet. He has been having nightmares ever since he came back. His face
peers out from behind a lustrous black beard and long hair like a
child hiding between the winter coats in a wardrobe. In Kandahar and
Guantanamo, he was interrogated 10 times.

His face only lights up when you ask about fishing. He has been doing
a lot of it - mostly for trout - since his return. The other day he
caught a five-pounder with his Japanese rod. "The biggest damage is to
my brain. My physical and mental state isn't right. I'm a changed
person," he says. "I don't laugh or enjoy myself much."

Asked why he tried to commit suicide so often, Mohammed is vague. He
talks about worries over troubles at home; his mother's health, his
brother's business, and "my own problems". But his attempts at
self-harm at Guantanamo began after he was confined, without
explanation, in a sealed punishment cell for a month - not, it seems,
because he had broken camp rules, but because the American authorities
had nowhere else to put him while they were finishing new facilities.

In India Block, as the block of punishment cells is known, "there were
no windows. There were four walls and a roof made of tin, a light bulb
and an air conditioner. They put the air conditioning on and it was
extremely cold. They would take away the blanket in the morning and
bring it back in the evening. I was kept in this room for one month.
We'd ask them: 'Is this a sort of a punishment?' And the translator
would say, 'No, this is being done on orders from the general.'"

As treatment for Mohammed's suicidal state of mind, US medics injected
him with an unknown drug, against his will. "I refused and they
brought seven or eight people and held me and injected me," he says.
"I couldn't see down, I couldn't see up. I felt paralysed for one
month - this injection, the effect, I couldn't think or do anything.
They gave me tranquillising tablets. They just told me: 'Your brain is
not working properly.' They were forcing me to take these injections
and tablets and I didn't want to do that. Some people were being
injected every month."

In trying to learn what life is like at the US prison camp at
Guantanamo, the few score of released detainees - almost all
Pakistanis and Afghans - are among the scant sources available.
Journalists are allowed to "visit" the facility; the Guardian has been
three times, and I was offered a slot, but journalists, like family
members, lawyers and human rights investigators, have no access to the
detainees themselves. Like a tour of the White House, the visits offer
a superficial openness about the lives of the main occupants.

Yet the testimony of those former detainees, together with rare scraps
of information from censored mail, official statements and the odd
comment from guards and others who have been inside, overlaps into a
coherent portrait. In the almost two years since the Guantanamo prison
camp opened to hold people seized by the US in what the Bush
administration has designated "the war on terror", it has settled from
a rough and ready, occasionally brutal place of confinement into a
full-grown mongrel of international law, where all the harshness of
the punitive US prison system is visited on foreigners, unmitigated by
any of the legal rights US prisoners enjoy. To this is added the
mentally corrosive threat, alien to the US constitution, of infinite
confinement, without court or appeal, on the whim of a single man -
the president of the US. The question, "What is Guantanamo really
like?", has all the appeal of the unknown. But inside it lurks a
darker question, with all the implications for freedom in America and
beyond that its answer contains: "What is Guantanamo?"

One of the few political statements to slip past the censors by a man
still detained there is contained in a short postcard from a French
prisoner, Nizar Sassi, to his family, dated August 2002. "If you want
a definition of this place," he wrote, "you don't have the right to
have rights."

The US executive acted quickly in the weeks following the September 11
terrorist attacks on New York and Washington. Within 26 days,
Afghanistan was being attacked from the air; Kabul fell in nine weeks.
Eleven weeks after the World Trade Centre was destroyed, resistance by
Taliban fighters and their non-Afghan allies in northern Afghanistan
was crushed.

But, as US defence secretary Donald Rumsfeld told the military in a
revealing slip in April 2002, "We have been successful in not
eliminating al-Qaida." Having failed to find the suspected mastermind
behind 9/11, Osama bin Laden, his Taliban ally, Mullah Omar, or much
in the way of terrorist infrastructure, the US set about constructing,
behind razor wire on a secure Caribbean island, an incarcerated model
of what its "war on terror" rhetoric implies. It has gathered
terrorism suspects from all over the world, imposed discipline and
order on them, encouraged them to hate the US and kept them together
for years. It was as if the Bush administration so wanted the
Hollywood fantasy of a central terrorist campus to be true that they
built it themselves.

Because the roughly 660 detainees still on Guantanamo have no voice,
and because the US has never explained case by case why it locked them
up, the outside world has only the accounts of their families and the
catch-all US definition of "enemy combatant" to understand who they
are and why they are there.

Most were arrested in Afghanistan but many were handed over to the US
by other countries. "They are an extremely heterogenous group. There
are some 40 different nationalities, there's 18 different languages,"
says Daryl Matthews, a forensic psychiatrist based in Hawaii who spent
a week at the Guantanamo prison camp in May. "There's a big division
between Arabic-speaking and Urdu-Pashto-speaking ones. There are some
people who are extremely well educated and westernised, and some
people who are not at all. There are some very young people and some
very old and wise people. There are people who speak English well,
people who don't speak English at all. There are some who go in with
mental disorders there are some very secular, and some deeply devout."

There is Shafiq Rasul from Tipton in the West Midlands, who took his
wardrobe of designer clothes with him to Pakistan, was captured with
his friends Asif Iqbal and Rhuhel Ahmed by the Northern Alliance, and
was handed over to the US in Shebergan in northern Afghanistan in
December 2001. Jamil al-Banna and Bisher al-Rawi, two refugees living
in Britain, were arrested in the Gambia in west Africa and handed over
to the US by the Gambians. Moazzam Begg and Richard Belmar, two other
Britons, were arrested in Pakistan and handed over to the US by the
Pakistanis. David Hicks, an Australian, who had previously led a life
of shark fishing and kangaroo skinning, and had fathered two children,
ended up in the Shebergan prison after fighting with the KLA in
Albania and the Kashmiri insurgency group Lashkar-e-Taiba.
Mehdi-Muhammed Ghezali, who grew up in the Swedish town of Rebro and
whose father was Algerian and mother Finnish, had a promising career
as a footballer ahead of him before turning up with the Taliban in
Afghanistan and being captured. Nizar Sassi and Mourad Bechnellali
grew up in Venissieux, a suburb of Lyons. Their lives came to revolve
around the mosque on Lenin Boulevard before they travelled east.
Ibrahim Fauzee, a citizen of the Maldives, was arrested in Karachi
while staying in the home of a man with suspected al-Qaida links.
Tarek Dergoul, from east London, thought to have been arrested during
the battle for Tora Bora in southern Afghanistan, is reported to have
had an arm amputated as a result of wounds. Sami al-Haj, a Sudanese
assistant cameraman with the al-Jazeera TV station, was picked out and
held while leaving Afghanistan for Pakistan after the fall of Kabul
with the rest of his crew. They never saw him again. Another Briton,
Martin Mubanga, from north London, was handed over to the US by
Zambia. Jamal Udeen, from Manchester, born into a devout Catholic
home, and converted to Islam in his 20s and was seized in Afghanistan
only three weeks after he left England. Airat Vakhitov, one of eight
Russians on Guantanamo, thought he had been liberated when a reporter
from Le Monde discovered him in a Taliban jail, where he had sat in
darkness and been beaten for seven months on suspicion of spying for
the KGB. But he only exchanged the Taliban prison for an American one.
And there is Mish al-Hahrbi, a Saudi schoolteacher. After he tried to
kill himself on Guantanamo, he suffered severe and irreversible brain
damage.

The road for many detainees, including the small number who have since
been released, began with, they claim, a non-combatant reason for
being where they were when they were caught. Mohammed says he went to
work for the Taliban as a baker; Razaq says he was a missionary. They
were held by the Northern Alliance in northern Afghanistan, selected
by the Alliance to receive a cursory interview from US special forces
or the CIA, and flown to Kandahar, where they were held for weeks or
months before being flown to Cuba.

Razaq, in his first interview with a journalist, told me he was
convinced the only reason he was sent to Cuba was because he spoke
English. He had been held by the Northern Alliance for a month in
Shebergan prison, in crowded conditions with little food, when
Alliance soldiers came and asked the group of Pakistani, Arab and
Uzbek captives who among them spoke English. Razaq stepped forward.

His hands were tied and he was taken to a small room with mud walls
where he was made to kneel on the ground in front of two Americans in
uniform, one sitting on a mud bench projecting from the wall and the
other standing. The interview took three or four minutes, and
consisted of two questions: "What is your name, and why have you come
to Afghanistan?" Afterwards he was taken outside. He just had time to
see a group of bound men with hoods on their heads sitting in a row
before he, too, was hooded. They were taken to an airfield and flown
to Kandahar. No signal had passed between his interrogators and the
soldiers who hooded him. In other words, on the basis that he knew
English, the US had already decided to take him to Kandahar, whatever
the result of this initial interview.

Another released Pakistani, Mohammed Saghir, a grey-bearded sawmill
owner who is now 53, tells me that he had not even had a cursory
interview at Shebergan before he was bound hand and foot, blindfolded
and helicoptered to Kandahar.

Shah Mohammed was held at a prison in Mazar-i-Sharif, near Shebergan,
before being sent to Kandahar. He met Hicks, the Australian, while he
was there. There were early signs of the differential treatment,
apparently according to national background and skin colour, that was
to be one of the characteristics of the US handling of terror
suspects. "I spoke to the Australian, he knew a bit of Urdu," says
Mohammed. "He said he had come for Jihad. He was asked a lot of
questions [by the Americans], more than us. He was taken to a navy
ship and I was taken to Kandahar." Mohammed was to see Hicks again.

The released detainees recount the roughness with which they were
treated at Kandahar, from the moment of their transport there. "One
thing I've learned about the Americans is they are very harsh when
they transport people around," says Razaq. "They had tied up my hands
so tight that for two months I couldn't use my right hand. They haul
you from your neck and drop you off the plane in a very disrespectful
manner. For a long time we didn't know it was Kandahar. We thought
they were going to kill us there."

"They would just pick us up and throw us out [of the plane]," says
Saghir. "Some people were hurt, some quite badly." Mohammed says:
"They kicked us out of the plane and threw us on the ground."

The accommodation at Kandahar was uncomfortable. Prisoners slept and
sat in small groups under canvas canopies, on the bare earth,
surrounded by razor wire and under constant surveillance. They were
given a single blanket each. It was winter. Razaq says that the
bottled water they were given to drink would be frozen in the
mornings. He said that for the first 20 days, a strict no-talking rule
was enforced. Saghir describes how no one had been allowed to sleep
for more than an hour. "If someone slept for an hour they would yell
at him: Get him up!"

The prisoners were interrogated steadily, with long intervals between
sessions. "We used to ask them: 'Why are we being kept here?'" says
Mohammed. "They would reply: 'You will be interrogated, and whoever is
found innocent will be allowed to go.' They never told us we would be
taken to Cuba.'"

Razaq was one of the last to leave Kandahar. He saw the camp emptying
around him. From his testimony, it appears that once a detainee was
committed to Kandahar, the vast US military bureaucracy could only
send people to Guantanamo. "I don't know what made them suspect me,
but there were rumours that they arrested me because they thought I
was a very senior Taliban official," he says. "In fact, in the last
interrogation at Kandahar, the American interrogator gave me water to
drink and assured me I would be released.

"This assurance was given to me on several occasions. I never knew
where they were taking the people who disappeared. We asked the Red
Cross, but they wouldn't give us any information. But there was this
gate through which we could see people in red costumes in the
distance. At the end, it seemed they just wanted to send everyone to
Cuba and I was in the last group."

The last thing the US captors did before dispatching the Kandahar
detainees to Cuba was shave off their beards, a process they found
humiliating. Razaq was told it was because, without showers, they had
picked up lice. "We resisted, but four or five commandos came and they
had a machine and just shaved off my beard and moustache," says
Saghir.

For the flight to Cuba, the prisoners were given the orange jumpsuits
familiar from television footage of their arrival at Guantanamo. They
were bound hand and foot, blindfolded, gagged, and their ears were
muffled. Once on board the military transport plane, their feet were
chained to the floor, their hands bound to the handrests, and
restraining straps stretched across their bodies. "The translator told
us: 'Don't make any movement, don't worry, you are being taken home,'"
says Mohammed. "I don't remember how many hours but we left at night
from Kandahar and arrived in Cuba in the evening. We stopped somewhere
and changed planes."

Saghir says that, as with the arrival at Kandahar, the detainees,
still bound, gagged and blindfolded, were thrown off the plane on
arrival in Cuba. Some had their noses broken, he says. "I got a bruise
under my left eye where my face hit the ground."

The first prisoners were moved from the runway to a truck, from there
to a launch across the bay, and from there to the bare mesh cages
which would be their home for the first few months of 2002, the
original detention centre, Camp X-Ray. Those initial images of
blinded, deafened, mute and bound men in glaring orange became a
potent weapon in the hands of those who opposed the manner in which
the Bush administration was coping with terrorism, particularly in
Europe and the Muslim world. A country which would not countenance an
international criminal court, the pictures seemed to say, had built a
harsh international jail. The bizarre setup of Guantanamo itself, a
fortified American toehold in one of the world's last outposts of
communism, added to the sense of prisoners being cast into the centre
of concentric circles of isolation. Cubans remember, if few others do,
that the world's first concentration camps were built on their island
by the Spanish in the 1890s.

In the first few weeks of Camp X-Ray's existence, the regime was even
harsher than it looked from the pictures of tiny cages. The prisoners
were not allowed to speak to each other, not even in a whisper. "I
spent the first month in utter silence," says Mohammed.

According to Saghir, in this initial, relatively brutal phase of
Guantanamo, there was little tolerance for the practice of Islam, with
its requirement of prayer five times a day. "In the first
one-and-a-half months they wouldn't let us speak to anyone, wouldn't
let us call for prayers or pray in the room," he says. "We were only
given 10 minutes for eating. I tried to pray and four or five
commandos came and they beat me up. If someone would try to make a
call for prayer they would beat him up and gag him. After
one-and-a-half months, we went on hunger strike."

US officials at the camp have admitted hunger strikes did take place
there - in some cases, prisoners were force fed - but in the minds of
the detainees, they have been associated with protests that have
achieved results. According to Saghir, it was only after a mass
four-day hunger strike that the no-talking rule was lifted, a
loudspeaker was put up to broadcast the call to prayer, more time was
given for meals, and Korans and other books were provided. Mohammed
says that an eight-day hunger strike when a guard had thrown the Koran
on the ground had ended with a personal apology from a senior officer
and a promise that the Koran would not be touched again.

Razaq, who arrived after Camp X-Ray had already shut down, said that
the culture of protest was a feature of life in Guantanamo. "In the
beginning there was a mass hunger strike, but later on there were
individual cases of people not eating," he says. In other cases
detainees would take off their plastic tags carrying their US
identification codes and throw them at the guards, or would bang on
their metal benches. Sometimes the guards would use a disabling gas in
response.

"When we threw off our tags the guards asked us to hand over our
blankets, but two of our colleagues didn't oblige, so they sprayed
them to make them unconscious, tied them up and took them to the
punishment block; during that transfer they were quite brutal," says
Razaq. "But I didn't see any slapping."

Life in X-Ray became easier after the no-talking rule was lifted. The
camp authorities appear to have instituted a kind of linguistic
mosaic, giving detainees a reasonable chance of finding someone to
talk to, but without allowing too large a cluster of people speaking
the same language. Mohammed sketches out the group of 10 cages he was
in in X-Ray. His immediate neighbours were Hicks, a Bangladeshi, two
Arabs whose names he does not remember, and Rokhanay, from northern
Afghanistan. Slightly further away, but still in talking distance, was
Asif Iqbal from Tipton, another Arab, Abu Nakar, and two southern
Afghans, Wasiq and Nurullah. "Asif was at an advantage because he was
able to speak to the Americans in English," says Mohammed. "He was
like my translator. He had just come for a visit to Pakistan and then
went to Afghanistan. He never intended to wage Jihad. He would swear
at the guards from time to time. Sometimes, on some issue, he would
just start yelling at them but the Americans would not respond. David
Hicks knew some Urdu as well, so I would speak to him, and he would
speak to Asif."

The Guantanamo prisoners have no way of knowing what is happening in
the outside world, whether it concerns football scores or the war in
Iraq. Apart from the guards and interrogators, the only contact the
prisoners have is with officials of the international committee of the
Red Cross and with occasional visitors from the intelligence services
and foreign ministries of their home countries. The ICRC never talks
about conditions in Guantanamo and little else has leaked out.

Swedish activists campaigning for the release of Mehdi Ghezali have
used Sweden's freedom of information laws to obtain a censored version
of a report by an intelligence officer, Bo Eriksson, on a visit to
Guantanamo with another Swede in February 2002. It and other documents
reveal that the US was so obsessed with security that it drafted in a
Swedish-speaking US army officer to listen in on the meeting between
the agents and Ghezali, and, even so, got an envoy in Stockholm to ask
the Swedes for a copy of their report into the meeting that they had
already listened in on.

"The cells measure approximately 2x3 metres with walls of wire mesh,
concrete floors and metal ceilings," wrote Eriksson. "Inside the
cells, the detainees have a mattress, a blanket, a hand towel, a
couple of buckets and water bottles made from soft plastic. Outside
their cells, the detainees wear orange overalls and plastic slippers.
Their freedom of movement is not restricted to the cells, although
outside their cells they wear hand and feet restraints. The handcuffs
are fastened to a belt around their waist allowing them only
restricted movement with their hands and arms. [Ghezali] only just
managed to drink water from a mug with hand restraints on.

"The leg restraints mean that when detainees are moved they have to
move forward taking very small steps. One of the guards keeps a hand
on the back of the detainee's neck the whole time, bending the
detainee's head forwards so that he is looking at the ground the whole
time he is being moved.They are not tortured, nor do they receive any
other degrading treatment. The mesh cell walls mean of course that the
detainees never have a moment's privacy. On one occasion, detainees
had suspended a plastic sheet on the fence to prevent people from
looking in but they had been forced to remove it since it became
unbearably hot despite the cool breeze from the sea."

In April 2002, the prisoners were moved to new accommodation, Camp
Delta, and Camp X-Ray was closed. Their beards grew back. The new
facilities, which make up the main part of the prison camp to this
day, feature blocks of 48 cages each, with two rows of mesh cages
separated by a narrow corridor. The blocks have no external walls,
only a pitched roof; they stand on concrete bricks in areas of raked
gravel surrounded by high, opaque green fences topped by razor wire.
The cages are about as long and wide as a tall man lying down, and
contain a metal bunk, a tap and a toilet. Besides this standard type
of accommodation, there are at least six others. There is the more
relaxed regime of Camp Four, where docile, cooperative prisoners are
rewarded with dormitory-style living and free association with other
detainees. Within Camp Four, there is a further category of prisoners,
believed to include Britons Moazzam Begg and Feroz Abbasi, kept
isolated from other prisoners in preparation for being put on trial.
In Camp Delta, there is a special block set aside for three juvenile
prisoners, with a view of the ocean and a less repressive confinement.
There is Delta Block, where prisoners with mental problems are kept
under special observation; and India Block, and possibly one other
block, which contain the punishment isolation cells.

The Guardian has also learned that a very small number of prisoners,
thought to be between two and five, are kept permanently isolated in a
special, super-secure facility within Camp Delta.

Mohammed, Saghir and Razaq all had experience of the punishment cells.
Saghir says that he was locked up in one of the windowless metal boxes
for more than a week when an Arab spat at a guard and the entire line
of 24 cages was punished with solitary.

One of the US justifications for holding the Guantanamo prisoners for
so long in isolation is that they need to be interrogated for valuable
intelligence. There has been an enormous amount of interrogation; each
prisoner has typically been questioned between 10 and 20 times, which
would, assuming interviews last 90 minutes on average, have generated
some 15,000 hours of transcripts, containing perhaps 200 million
words, the equivalent of around 250 Bibles. Yet without exception, the
detainees say they were questioned by different interrogators each
time, and each time the questions were the same.

Prisoners describe the interrogation room as a small, windowless,
air-conditioned, plywood space, lit by fluorescent ceiling tubes. One,
two or three Americans ask questions, through a translator if
necessary. The only furniture is a wooden table with metal legs and
metal chairs. Interviews are recorded on tape and by written note.
There is a metal ring fixed to the floor; while they are being
interrogated, the prisoners sit in a chair and have their chains fixed
to the ring.

"They would ask: 'Where is Osama? Do you know any of the al-Qaida
leaders? Have you met them?' Things like that," says Saghir. "They
would not get angry with my answers. We would ask them and they would
say: 'We don't know when you will be let free. Only our bosses know,
we are here to do our job.'"

Sometimes it seemed that the interrogators wanted the detainees to
show sympathy with the victims of 9/11. Saghir was once told by a
translator that he had got closer to being released by giving a
"right" answer. "In my last interrogation I was asked: 'These people
who attacked the twin towers, would you call them Muslims?' I
answered: 'I won't call them Muslims, but I'm not a religious scholar,
I couldn't judge these people.' The translator then said: 'You have
gone one stage further, there will be no more interrogations.'"

After Kandahar, none of the released prisoners has described torture
or even aggression by the interrogators, but Razaq said detainees who
refused to answer questions were sometimes put in isolation cells as
punishment.

The interrogated and the interrogator do attempt mind games with each
other. In one interrogation, the interrogators effectively told Razaq
he was free to go. "They said: 'OK, your file is clear. Where do you
want us to drop you?'"

Daring to hope, Razaq answered: "Peshawar?" Immediately, the
interrogators began questioning him again as if for the first time,
and made him take a lie-detector test. "Maybe this was one of their
tactics," says Razaq. "They first made me happy and accept that I will
be free, then they changed direction."

Guantanamo is a bleak, dull, repressive place for its inmates. Yet
there is something about it which may not be immediately apparent to
Europeans dismayed by the level of security, the chains and the
punitive, degrading way the prisoners are caged: it is not dissimilar
to facilities in the harsh US civilian prison system. By focusing on
physical conditions, there is a risk of missing the unique aspect of
Guantanamo - the arbitrary, unprecedented and unfair way in which
President Bush and his administration have confined hundreds of people
without either any idea how long they are to be locked up, or any way
to plead their case. It is this which the legal establishment in the
US and Europe finds most menacing. It is this which causes the
greatest mental torment to the prisoners and their families. And the
strange Pentagon creatures that have been set up to try some
detainees, the military commissions, are, the Guardian has learned,
troubling even the uniformed lawyers signed up to make them work.

"Prisons are a big industry in the US," says Daryl Matthews. "We
imprison a lot of people. People don't understand the extent and the
misery of prisons in the US. People who are considered the most
dangerous people in the US are moved in shackles. I've been in prisons
in the US much more secure than Guantanamo. I've interviewed people in
masks and shackles on the mainland US. These are scary places. I don't
think the issue for the Guantanamo folks is their conditions of
confinement. It's easy to be fascinated by a place you can't get to
but that's not the issue. The issue is human rights."

Matthews, who opposes the death penalty, none the less provides
psychiatric advice to courts in civilian capital cases. Yet he is
still wrestling with his conscience over whether to provide the same
service to the military commissions that will try the Guantanamo
detainees. The commissions have the power to impose the heaviest
sentences, up to and including death. Unlike the rapists, child
abductors and serial killers on capital charges in the US, unlike the
Oklahoma bomber Timothy McVeigh, cold war Soviet spies or Nazi war
criminals, unlike even the shoe bomber Richard Reid, the confessed
terrorist and al-Qaida supporter, the hundreds of people locked up in
Guantanamo have neither been told why they have been deprived of their
liberty for two years, nor when or how they might be released, charged
or tried, nor given any opportunity to challenge their status before a
tribunal.

That isolation and uncertainty, Matthews points out, puts an extra
burden on the detainees. "Most of the stresses that operate on the
Guantanamo detainees would operate on anyone in a maximum security
facility [on the mainland US]," he says. "They're bored, it's noisy,
they have no privacy, they get some exercise but not very much. They
have to deal with strangers who don't like them all the time, guards
and other inmates. They don't have access to personal objects. It's
horrible being a prisoner... when I read about your British detainees,
and families being concerned that people are being tortured because
they are depressed, I wish I could tell the families it doesn't need
torture to make someone depressed in prison. Just a normal prison
environment produces profound alteration in mental states, suicide and
depression.

'But at Guantanamo there's an added level of stress, and I think that
is the thing that's somewhat unique... Inmates in a normal prison are
focused on how much time they are going to serve, on contacting their
lawyers, on being able to take constructive efforts to get out; these
are important ways prisoners deal with the stress of confinement, and
these guys can't do anything.'

When the terrorists attacked the US on September 11, the world found
in Bush and his attorney-general, John Ashcroft, men who had already
embraced the idea that large-scale incarceration and executions were
the way to fight wrongdoing, who wanted to encourage judges to impose
harsher sentences, and who felt that defence lawyers were the bane of
justice. The leash-is-off rhetoric of the 'war on terror' fitted
naturally into the rightwing narrative of recent history, which
portrayed spineless liberals betraying the victims of crime by too
scrupulous a concern for the rights of suspects.

Ashcroft makes the link explicit. In a recent speech, close to the
second anniversary of 9/11, he boasted that the Bush administration
had used the same tactics to fight terrorism as to fight crime. 'For
almost two decades, some in Washington have preached defeatism and
surrender in the battle against the drug smugglers, the criminal and
the lawless,' he said. 'At one time, elite opinion held that law
enforcement and citizens could not do anything. They believed we were
doomed to live with rising crime. They argued that criminals were
driven by circumstance and root causes beyond our control... The
ideological critics were proven wrong... We have proven that the right
ideas - tough laws, tough sentences, and constant cooperation - are
stronger than the criminal or the terrorist cell.'

A foretaste of how the Bush administration planned to avoid 'defeatism
and surrender' in pursuit of terrorists came with the detention of
more than 1,000 foreign Muslims in the US in the immediate aftermath
of 9/11. Although they were technically held for outstaying their
visas and other workaday immigration offences, 762 of them were
investigated for suspected terrorist links. Few, if any, were ever
charged with anything terrorist-related, but all had to wait weeks or
months to be cleared by the FBI. Those held in one detention centre,
in Brooklyn, were initially prevented from contacting family and
lawyers; some experienced violence and racist abuse.

The presidential order that created the basis for the Guantanamo
prison camp, and for the military commissions that will try any of the
detainees charged with terrorist offences or war crimes, was published
on November 13 2001, the day the Northern Alliance took control of
Kabul. With the sudden, unexpected fall of Mazar-i-Sharif in the north
a few days earlier, it became clear to the Bush administration that
they were about to have access to hundreds, perhaps thousands of
Taliban and allied fighters, some of whom might be terrorists. The
question suddenly became urgent as to what status to give the captives
so that the US could interrogate them, detain them at the president's
pleasure, and punish them. At the time, hopes were high of capturing
Bin Laden himself. The Guantanamo detainees may to some extent be
paying the price for the Americans' inability to capture the al-Qaida
leader. In a sense, Guantanamo is St Helena without Napoleon, with the
dregs of the Grand Armee locked up instead.

Practical templates were available in international law that, on the
face of it, would have allowed Washington to satisfy its aims. It
remains a mystery as to why the Bush administration chose not to
follow international law, but to make up its own. Its first step away
from international norms was to refuse to categorise the Afghanistan
captives as prisoners of war. One source told me of a - possibly
apocryphal - story that Bush and his aides were going through the
Geneva convention when the president came to the part that declares
PoWs must be paid between eight and 75 Swiss francs a day. At this
point, the story goes, Bush lost his temper and ordered his people to
find a way for the captives not to be PoWs.

Officially, the US hides behind the fact that the resistance in
Afghanistan didn't dress like soldiers. It is true that, like CIA
operatives in the field in Afghanistan and Iraq, and like many of the
Northern Alliance allies of the US, the Taliban and non-Afghan
fighters didn't wear uniforms, but that does not prevent them being
declared prisoners of war. Article 5 of the Third Geneva Convention is
clear: any captured belligerent whose status is uncertain should be
considered a PoW until their status is settled by a 'competent
tribunal'. The US carried out hundreds of these tribunals during the
1991 Gulf war and in the recent Iraq war. In Afghanistan, it didn't.
Asked why there hadn't been any tribunals for the Afghan captives,
Major John Smith, a military attorney in the Pentagon department
organising the forthcoming trials of Guantanamo detainees, says it is
because the president decided there was no need.

'The president's decision was that there was no doubt these
individuals did not qualify for PoW status and a tribunal wasn't
required,' he says.

Eugene Fidell, a former military lawyer, now president of the National
Institute of Military Justice in the US, said that the decision not to
hold tribunals had deprived his country of the moral high ground.
'Whether that policy decision was right or wrong, or wrong in part,
let's say, as to al-Qaida or Taliban members, it represented a fork in
the road. And the path taken has had, I think, a very poisonous effect
on our standing in the world community.'

Had there been formal tribunals, the US could still have interrogated,
charged and tried the PoWs. They might also have screened out some of
their more pathetic captives before they had to endure Guantanamo,
such as Mohammed Hagi Fiz, a toothless, fragile old Afghan in his 70s,
released in October 2002, or Abdul Razeq, an Afghan suffering from
schizophrenia, released in May 2002 with a six-month supply of
medication.

The strangeness of the US position is that although it does not
consider the Guantanamo captives prisoners of war in the formal,
Geneva Convention sense, it considers them prisoners of war in one
very specific sense - that they can be held until the war is over. It
calls them 'enemy combatants', a term not recognised in international
law. To the question 'What war?', the Bush administration responds:
'The war on terror.' In other words, the captives can be held for as
long as the US president likes; until forever, in fact, since, unlike
normal wars, where a particular territory and a particular military
entity is involved, this one exists only as a concept. The 'war' was
going on before September 11 2001 - it is hard to think of a year in
recent decades in which US citizens or US interests have not come
under terrorist attack - and it is difficult to see how any US leader
could ever take the political risk of declaring a 'war on terror' to
have finished. The US persists in claiming that the 'war' can and will
be won.

'Detention as an enemy combatant is not criminal, it's to take them
off the battlefield,' says Smith. 'We are at war with al-Qaida. It's
not a metaphorical war, it's a real war.' At one point in our
conversation he compares the US in 2003 to Britain in 1941. 'I believe
we will be able to defeat al-Qaida. It's a political situation, and
it's a tough decision, but I think at some point we will be able to
say that al-Qaida is no longer a threat to the US... at some point,
al-Qaida and terrorism will be defeated.'

Yet enemy combatant status, combined with the lack of Article 5
tribunals, means that the Guantanamo detainees are kept captive until
the end of a potentially endless 'war', without the opportunity to
plead before a court that they had nothing to do with that 'war.' The
US does not consider itself obliged to put them on trial, so has no
obligation to give them lawyers; even if they are put on trial, and
are acquitted, under its own rules, the US might simply lock them up
again.

'It seems to me that our government's talking out of both sides of its
mouth,' says James Harrington, a lawyer from upstate New York who
represents a US citizen, not in Guantanamo, awaiting sentencing on
terrorism charges. 'We say they're not PoWs and won't be treated as
PoWs but at the same time we say we are at war. It either should be
one or the other. If we are trying to say to the rest of the world we
have due process and best practice in our country... we shouldn't be
treating other people in ways that are unfair. These guys get picked
up, shipped to somebody else's country, held there so they aren't in
the US so they don't get the same rights as in the US, and then get
treated by rules made up by the government to suit the government's
interests.'

Louise Christian, a British lawyer representing three of the Britons
held in Guantanamo, said the US today looked more like Britain in the
1970s than in the 1940s. 'It's the same thing that happened in this
country when we had mainland bomb attacks from the IRA, that the
tremendous panic and fear just replaced everything else. There was no
understanding in this country of how we were viewed outside,' she
says. 'We locked people up arbitrarily. We ignored the fact that
people were being coerced into making confessions. But I think also
the daily experience of internment, seeing your best friends and
neighbours locked up without cause, led to great bitterness, and the
continuing of the conflict in Northern Ireland, because of feelings of
injustice. Obviously there were people who did do terrible things. But
if the government response is to criminalise a whole category of
people, all we do is increase support for people who are guilty.'

Having hurriedly come up with the 'enemy combatant' notion to deal
with the hoped-for capture of Bin Laden, and having applied it to the
ragbag of captives picked from Northern Alliance jails in Afghanistan,
the US government has become so comfortable with it that it has begun
to wield it around the world, and at home, in ways that frighten
rights activists and lawyers. Now, it appears, anyone, US citizen or
not, can be declared an 'enemy combatant', at any time, and thus be
detained indefinitely at Bush's discretion.

Enemy combatant status is leaking out of Guantanamo and into the
mainland US. There are now three 'enemy combatants' held in US
military jails. One is a Qatari computer student living in Illinois,
Ali Saleh Kahlah al-Marri. He was awaiting trial on low-grade criminal
charges indirectly linked to terrorism when, immediately after the
government's case against him looked to be in trouble, the Bush
administration declared him an 'enemy combatant' and moved him to a
high-security naval prison, allowing a trial to be avoided, and the
accused to be held for as long as the president likes.

Bush's November 13 order refers to 'enemy combatants' being 'treated
humanely, without any adverse distinction based on race, colour,
religion, gender, birth, wealth, or any similar criteria'. Yet it is
hard to equate the starkly differing treatment of three men allegedly
found fighting alongside the Taliban with this creed. The only white
American in that category, John Walker Lindh, was given a criminal
trial, the full panoply of legal rights, and swiftly sentenced.
Another American citizen, but of Saudi descent, Yasser Hamdi, was
moved from Guantanamo to a naval prison on the mainland US, and is
still held there incommunicado as an 'enemy combatant'. Compare that
to Mohamed Tariq, an ordinary Pakistani from Shah Mohammed's village,
not yet released. There is no reason to think he did anything that
Lindh or Hamdi did not do. But he remains on Guantanamo. Speculation
that a mass release of European prisoners is imminent, welcome as it
is, only highlights the arbitrary nature of the detentions.

Nothing illustrates the US government's new power over suspects, and
the unfairness of its treatment of the Guantanamo detainees, better
than the case of the Lackawanna Six - a group of Yemeni-Americans from
a suburb of Buffalo, who were accused of aiding al-Qaida. In the end,
all pleaded guilty - but only after prosecutors had dropped heavy
hints that they would be declared 'enemy combatants' if they didn't.

'Basically, what was related to us was that if the case was not
resolved by a plea, the government was going to consider any options
that it had,' says Harrington, attorney for one of the men, Sahim
Alwan. 'They didn't say they were going to do it [declare them 'enemy
combatants'], they just were going to consider it.

'Even as vague a definition as 'enemy combatant' is, it didn't seem it
would apply in this particular case, but given the way that the
government has used their authority, obviously it was something that
was a concern for us. It was a factor my client took into account. He
was worried about it. I think it's an improper use of the procedure
first of all. It's pretty heavy-handed.' In the end, the group were
allowed to remain within the civilian justice system, in their home
country, the US. They had access to legal counsel. The Bush
administration was happy to use its 'enemy combatant' device against
them if things did not seem to be going the prosecution's way, but
equally happy to let them go through the normal civilian courts. Those
Guantanamo detainees who are to face trial have no such option. They
are to face a different kind of court entirely - military commissions
- a system that has been condemned internationally, by the US legal
establishment and, the Guardian has learned, is regarded with dismay
even by some of the uniformed lawyers whose job it is to make it work.

The government has had to dig back into two arcane cases involving
Nazi agents six decades ago, before the Geneva Conventions were even
written, to find precedents for military commissions, and, as with the
skipping of PoW tribunals for the Guantanamo detainees, it is a
mystery why they did so. They had at least two other options: the
civilian criminal courts, as used to try past terrorist cases, such as
the 1993 World Trade Centre bombing, and court martials in the US
military courts, as used to try the deposed leader of Panama, General
Manuel Noriega. The Bush administration defends the choice of military
commissions on the grounds that the alleged, presumably terrorist,
offences for which some Guantanamo prisoners will be tried are 'war
crimes'; and on the grounds that the commissions will help safeguard
classified information that would leak out from normal trials or
courts martial. Critics say that neither argument stands up, and that
the real reason military commissions are being used is that they give
the accused little chance of a fair hearing, and stack the deck in
favour of convictions.

The two facets of the commissions that have drawn the most fire are
that the government assumes the right to listen in to any
conversations between defence lawyers and their clients, and that,
once convicted, the accused have no possibility of having their case
reviewed by an independent appeal body. But there is more in the
detail of how the commissions are supposed to work that reads like
pages from Franz Kafka's workbook.

The first thing that strikes the lay student of military commissions
is the enormous power vested in the US deputy secretary of defence,
Paul Wolfowitz, who is the commissions' 'appointing authority'. The
judges - seven in a capital case - are appointed by Wolfowitz. Any
judge can be substituted up to the moment of verdict, by Wolfowitz.
The military prosecutors are chosen by Wolfowitz. The suspects they
charge, and the charges they make, are determined by Wolfowitz. All
defendants are entitled to a military defence lawyer, from a pool
chosen by Wolfowitz. The defendants are entitled to hire a civilian
lawyer, but they have to pay out of their own funds, and by revealing
where the funds are, they risk having them seized on suspicion of
their being used for terrorist purposes, on the order of Wolfowitz.
Defendants need not lose heart completely if convicted. They can
appeal, to a panel of three people, appointed by Wolfowitz. When it
has made its recommendation, the panel sends it for a final decision
to Wolfowitz.

'That's the system,' says Clive Stafford-Smith, a British-American
lawyer known for representing death-row clients and who now represents
some of the Britons on Guantanamo, although he has never been allowed
to meet them. 'It's a multi-headed Hydra with Paul Wolfowitz's face on
every head.'

Given the obstructions in the way of civilian lawyers - they have to
be US citizens, they have to get security clearance at their own
expense, they have to abandon their practices and move to Guantanamo
permanently for months on end - conscientious military defence lawyers
seem to be the best hope of a fair trial for many of the detainees
charged.

The Guardian has learned of deep unhappiness among the relatively
small pool of experienced military defence lawyers that the Pentagon
can call upon to do that job. There is anger both at the restrictions
being placed on them, and the fact that the Bush administration has
gone back to the 1940s for a court model, ignoring six decades of
evolution of the sophisticated US military justice system.

The Pentagon's Office of Military Commissions has six full-time
military defence attorneys working for it. The only one to have been
publicly identified is the chief defence counsel, Colonel Willie Gunn.
The Guardian understands that the remaining five are not the lawyers
originally recruited, but that the original volunteers were dismissed
after refusing to sign a paper agreeing to the restrictions they would
work under.

'There was a circular that went out to military lawyers in the early
spring of 2003 which said 'we are looking for volunteers' for defence
counsel,' says a former military lawyer. 'There was a selection
process, and the people they selected were the right people, they had
the right credentials, they were good lawyers. The first day, when
they were being briefed on the dos and don'ts, at least a couple said:
'You can't impose these restrictions on us because we can't properly
represent our clients.' When the group decided they weren't going to
go along, they were relieved. They reported in the morning and got
fired that afternoon.'

The Office of Military Commissions denies the claim. 'That is not
true, never happened,' says Major Smith. 'The military commission is a
tool of justice. I expect some of these individuals [on Guantanamo]
will plead not guilty, and will be represented zealously by their
lawyers.'

Yet the Guardian understands from a uniformed source with intimate
knowledge of the mood among the current military defence team that
there is deep unhappiness about the commission set up - a disturbing
situation when the death chamber may await those found guilty.

'It's like you took military justice, gave it to a prosecutor and
said: 'Modify it any way you want," the source says. 'The government
would like to say we have done these commissions before. But what
happened after [the Nazi cases] was that the military justice system
changed... What we have done is stupid. It is, I would say, an insult
to the military, to the evolution of the military justice system. They
want to take us back to 1942.

'What sort of justice are we taking to Iraq and Afghanistan? The
constitution talks about justice. Is it only for America?'

As an illustration of the slapdash way he considers the commissions
have been set up, he points to how a rule has been removed that barred
defence lawyers, once they had arrived in Cuba, from carrying out
research outside Guantanamo. Instead of the formal issuing of a new
instruction, the Pentagon simply went to the commission website and
rewrote the offending paragraph.

'They went on the internet and just substituted the new passage,
leaving the old date. I can't think of a better example of how these
processes were created. They were going to make the rules and change
them when they felt like it.'

The source points out that under the rules, whereas the head of the
Pentagon's prosecution team, Colonel Frederic Borch III, could lead
the government's case in court, his defence counterpart, Colonel Gunn,
was not allowed to take part in commission proceedings at all.

'We could have had some people make rules that no one would complain
about but they didn't. We had a bunch of like-minded people and
yes-men. It's shocking how many articles I read and no one is picking
up on the fact that Colonel Gunn is just a puppet. It's a farce.'

Eugene Fidell says that the military law establishment - there are
around 5,000 active duty lawyers in the US military - have been
infuriated by a comment piece in the New York Times by Alberto
Gonzalez, the White House counsel, which suggests that the US military
justice system and military commissions are the same thing.

'What the Bush administration did was literally use as a model a set
of rules Roosevelt signed for dealing with German saboteurs in the
second world war, seven years before the Geneva Conventions. It
baffles me how the government got into this position. We have an
[appeals] court that's been around for 53 years and which has built up
a huge body of law. To rely on this review panel instead of using that
court, it's indefensible.'

And Wolfowitz's role? 'It's right out of the Mikado, isn't it... the
government has created something as close to being hermetically sealed
as the human mind is capable of creating.' The supreme court is now
pledged to examine the legality of what is happening on Guantanamo
next year. 'I think Americans are very uncomfortable with all this,'
says Fidell. 'I mean, prison islands in tropical regions give us a
real bad feeling, whether it's Devil's Island, or Robben Island, or
Norfolk Island. This is not a role that comes to us naturally.'

'One of the prosecutors told me that they think 30% of the people in
Guantanamo Bay were nothing to do with anything. They were just in the
wrong place at the wrong time,' says Clive Stafford-Smith. 'When the
prosecutor tells you 30%, I tend to think it's more like 70%. But the
bottom line is we're not talking about 600 of the worst people in the
world. We're talking about at least a couple of hundred who didn't do
anything.

'You kidnap people who may be totally innocent, you take them all the
way around the world in hoods and shackles, you hold them
incommunicado for two years, you don't give them a lawyer and you
don't tell them what they're charged with. It's not a matter of what's
wrong with it, it's a question of what's right with it. And it
achieves nothing.'

Shah Mohammed was given no apology or compensation when he was
released, just a three-paragraph letter from a unit based at Bagram
airport in Afghanistan, called CFTF180-Detainee Ops. It is signed by a
soldier with a rank lower than corporal, Joseph P Burke. It reads:
'This memorandum is to certify that Shah Mohammed Alikhel [his tribal
name], ISN-US9PK-00019DP, was detained by the United States Military
from January 13 2002 to Mar 22 2003.' The letter is dated May 8; in
other words, Mohammed was kept prisoner two months longer than the US
wanted him.

Despite interrogating him nine or 10 times, the letter goes on to say
that the US has no record of Mohammed's place of birth. The letter
concludes: 'This individual has been determined to pose no threat to
the United States military or its interests in Afghanistan or
Pakistan. There are no charges pending from the United States against
this individual... the United States government intends that this
person be fully rejoined with his family.'

'If they kept me for 18 months and sent me a letter to certify I'm
innocent, then why did they keep me there for 18 months?' asks Shah
Mohammed. 'Don't they have any duty or obligation to me?'

Even less than a duty - a nameless grudge: despite declaring him
harmless, the US military transported him home to Pakistan as it had
brought him to Cuba - in chains.