Earlier this month, the House of Representatives passed the 21st Century Cures Act in a rare bi-partisan effort. The bill is meant to speed the development of lifesaving treatments, but critics warn it may also allow ineffective or even harmful drugs onto the market.
More than half the detainees at the U.S. military prison in Guantanamo are on a hunger strike. Their lawyers as well as military officials say the protest reflects the level of despair felt by the prisoners there. Set up under President George W. Bush to hold terror suspects after 9/11, the prison today incarcerates 166 men. Most of them have never been charged with a crime. Detainee advocates want President Barack Obama to make good on his promise to close the Guantanamo facility. But others argue the detainees pose a national security threat — even those who have been cleared for transfer to their home countries. A discussion of the future of Guantanamo’s detainees.
- Yochi Dreazen contributing editor for The Atlantic and writer-in-residence at the Center for a New American Security.
- Clifford May president of the Foundation for Defense of Democracies.
- Andrea Prasow senior counterterrorism counsel and advocate at Human Rights Watch.
- Charles Savage Pulitzer Prize-winning Washington correspondent for The New York Times and author of the book "Takeover: The Return of the Imperial Presidency."
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. A growing a number of Guantanamo detainees are joining a hunger strike that began three months ago. The movement reflects a sense of hopelessness among the detainees, most of whom are being held without charge. Human rights advocates want the prison closed and for many inmates to be transferred to their home countries. Others argue that they are terror suspects and a threat to national security.
MS. DIANE REHMJoining me to talk about the Guantanamo detainees: Andrea Prasow of Human Rights Watch, Yochi Dreazen of The Atlantic and Clifford May of the Foundation for Defense of Democracies. I know you'll want to join the conversation. Give us a call, 800-433-8850. Send an email to email@example.com. Follow us on Facebook, or send us a tweet. Good morning all.
MS. ANDREA PRASOWGood morning.
MR. YOCHI DREAZENGood morning.
MR. CLIFFORD MAYGood morning.
REHMGood to have you with us. First, joining us by phone is New York Times Washington correspondent Charlie Savage. Good morning to you, Charlie.
MR. CHARLES SAVAGEGood morning, Diane. Thanks for having me on.
REHMGive us the latest on the hunger strikes.
SAVAGEWell, as of this morning, the Pentagon says or, actually, the military down at Guantanamo that there are -- 100 of the 166 detainees are official deemed to be hunger striking. That's about the same number as yesterday, but it's been growing. It's more than twice what it was before arrayed a couple weeks ago that locked down the protesting prisoners into individual cells. Twenty-one of them are being force-fed, the military says, and five have been hospitalized. I should say that the numbers here are a little bit disputed.
SAVAGEFor weeks, the lawyers for the detainees have claimed that the military is undercounting the actual level of participation, but at a minimum, 100 prisoners now are refusing to eat.
REHMIs any of the prisoners in life-threatening condition?
SAVAGEWell, according to the -- some of the lawyers for the detainees, some of them have kept up with reporters over the weekend, you know, some detainees have lost quite a lot of weight, obviously, if they being force-fed by the military to keep them alive. And there's also the sort of conditions of confinement after this raid, I mentioned a couple of weeks ago, have become somewhat austere.
SAVAGEWe're told that some detainees still have now, several weeks later, not been given toothpaste and toothbrushes and are basically living in the eight by 12 cells with only a mat and, in some cases, a Quran and a blanket. Whereas, for some years before, most of them that we're talking about here who had been deemed compliant with the rules, the easiest to manage, were living communally. Their cell doors were open.
SAVAGEThey could come out into common spaces and eat together and play together and take showers whenever they wanted. And now they're, you know, being forced into individual exercise, two hours a day and, you know, showers whenever there's a shower available. The military comes and gets them. And so I think in addition to everything else, there's quite a change in the conditions of confinement for these men.
REHMDo we have any clue as to what the spark for the protest was?
SAVAGESo the detainees through their lawyers are citing a shakedown of cells on Feb. 6 in which the military went through and was looking for contraband and supposedly enforced the rules more rigorously or in some ways, handled or looked through the Quran in a way that hadn't been done before, say, the detainees are hadn't been done for some time.
SAVAGEThe military says that that is just an excuse, that there was nothing different about how they handled the Quran in that search that they did in January in every month when they search for contraband. And so there's dispute over with the spark for it, whether there's a sort of media tactic rallying point, as the media -- military says, there's something different did happen.
SAVAGEBut interestingly, both the military and the detainee and their lawyers agree on the underlying cause of the turmoil after years of sort of relatively quiet conditions at Guantanamo, corresponding with President Obama taking office in 2009 and saying he was gonna close the place and starting effort to sort of winnow down the detainee population.
SAVAGEDetainees have become aware that that process has been totally jammed up, especially since early 2011 that people are not moving off the prison anymore, including 86 who have been designated for potential transfer years and years ago. And as a result, they've -- when President Obama was re-elected and did not say anything about reviving that effort in the State of the Union or the inaugural speech, reassign the State Department ambassador whose job it was to negotiate transfers and didn't replace him which happened in late January.
SAVAGEThe detainees became desperate that the world had forgotten about them, that they were never gonna go home alive, even the ones that have long since been designated for potential transfer. And that is the sort of frustrations that's speeding this revival of turmoil.
REHMNow, given the fact that this strike began three months ago, what do we know about the health of these prisoners who said six of them are in a hospital, some are being force-fed? So what about their health?
SAVAGEWell, five are in the hospital right now being observed. The military says they don't have any life-threatening conditions. That usually means that they're refusing water as well. And so they're in the hospital for hydration. In addition to the 21 -- or the five are a part of the 21 who are currently receiving enteral feeding, as the military refers to it.
SAVAGEAnd what that involves is they are restrained, if they refuse to do it, to go along with it and then a tube is fed into their nose and down their throats and then ensure dietary supplement is poured into the tube. And so it gives them nutrition even though they are trying not to consume any nutrition. And that keeps them alive.
SAVAGEAnd so, you know, we are not allowed -- we reporters who are able to visit the base from time to time are not allowed to directly interact with detainees or talk with them or see them up close. And so to some extent, you know, you talk to the lawyers for the detainees, you talk to the military, and you take everything with a grain of salt.
REHMOK. So you weren't allowed to talk directly to them, but you did see some of them peering out of their slit cell windows.
SAVAGEThat's true. We were given -- we were allowed to visit Camp 6, which is where the prisoners used to live communally until this raid and -- which was caused apparently by the covering up of security cameras and other things. And we could see them peering out of the thin windows of their cells where they now live under individual lockdown conditions as guards were pacing up and down and peering into the windows in the common areas which previously the detainees had had free access to.
SAVAGEAnd we were also able to see, from a central control room, cameras that were looking down onto each cell. These are the security cameras that, during the protest, the detainees were covering up so the military couldn't see what was happening in there. So we could see detainees, you know, some of them were sort of sitting in the fetal position, some were sleeping, some were reading presumably the Quran, some were pacing back and forth and back and forth and back and forth. And that's how we sort of saw them. But obviously, we weren't talking to them and have no sort of direct access to them.
REHMOK. Here's what I find difficult to understand: Is it true that the Pentagon is actually considering spending $200 million for improvements and expansions clearly aimed at a permanent operation?
SAVAGEIt is true, and this is part of what's sort of interesting about this moment, separate and apart from the unruliness of the - or the greater difficulty the military is having with its mission of running this detention facility, which is that this freezing up of the process of closing Guantanamo or at least winnowing down its population and/or considering moving people into some different facility in the United States which was Obama's plan until Congress blocked it has led everything to not move for a couple of years.
SAVAGEAnd it's sort of like waiting for the conditions to change politically. But it's turning out that even the status quo in some ways is unsustainable that pressure cracks are starting to form. And part of this is, as I mentioned, the detainees' sort of psychological health and the problem the military is having keeping them under control. Another part of it is the physical infrastructure. This was meant to be a temporary facility. It was built with temporary funds, to temporary standards.
SAVAGEAnd the SOUTHCOM, which is the part of the military which oversees Latin America including Guantanamo, says it's basically falling apart. There's all kinds of different things that they want to spend money on to replace, ranging from barracks to house the guards, to a medical facility, to a new camp where the high-value detainees are held because apparently the old one is built on top of some stream beds and -- that are dry most of the time, but the foundations are all wrecked now.
SAVAGEAnd it adds up to around $200 million that they say, we don't know if this is gonna close or not. We know that that's your policy. But right now, we have all those stuff we have to take care of because it doesn't look like it's going anywhere. And so in the midst of the sequester and all these budget cuts, the military is thinking about spending $200 million to build, essentially, permanent stuff on this thing that is supposedly gonna close, except it doesn't look like it's closing.
REHMSo, Charlie, last question. Considering this hunger strike, the fact that it has now affected more than half the population there, do you expect the White House or the Congress to take any new action?
SAVAGEWell, the question is what does that action look like? This is a (unintelligible) not as hard to cut. You know, people keep thinking that Obama was gonna close it, right, but his plan for closing it, as I mentioned, was to bring everyone to a super max prison in the United States...
SAVAGE...not to release them if they can't be prosecuted. And most of them can't be prosecuted. You know, they were, apparently, you know, part of al-Qaida in some low-level way. They didn't win a habeas corpus lawsuit, but they didn't do anything specific. So even if he's succeeded in unjamming that and moving them elsewhere, this problem of what do you do with prisoners who -- now they're in there 11 years, have never been prosecuted, have no chances at a trial and come from unstable countries where you can't trust that country to keep it...
SAVAGEThe problem remains...
REHMThanks. Charlie Savage of The New York Times.
REHMAnd welcome back. In our first segment, you heard from Charles Savage of The New York Times who was recently in Guantanamo, where more than half the detainees are now hunger strike.
REHMHere in the studio: Andrea Prasow, she is senior counterterrorism counsel and advocate for Human Rights Watch, Yochi Dreazen, a contributing editor for The Atlantic and writer-in-residence at the Center for a New American Security and Clifford May, president of the Foundation for Defense of Democracy. Yochi Dreazen, Guantanamo seems to be out of sight, out of mind for the American public. Is this hunger strike going to bring it back to the forefront?
DREAZENI think the hunger strike, in and of itself, probably won't. I think the hunger strike leads to deaths. And there have been suicides at Guantanamo. There have been suicide attempts at Guantanamo. I think if you start seeing actual hunger strikers die, then maybe. It's interesting, flash and back, as Charlie indicated, to when President Obama was campaigning and then when he first took office, Guantanamo was a huge issue. It was a huge issue legally, and it was a huge issue politically.
DREAZENIt was something that people got worked up about on both sides. Legally, it still remains, you know, there's still a lot of uncertainty. There's still some cases decided, some that haven't been. Politically, it's largely disappeared. And the issue that's replaced it, to a degree that anything has replaced it, having to do with counter terror is drones. So the drone debate, even among Republicans, is now beginning to be the place where you see passion. It is not Guantanamo.
DREAZENBut I think that if these 100 or 105 hunger strikers, if 3, 4, 5, 10, 15 start to die, it becomes an issue not just here, but from our overseas allies who've already been worried about this for quite some time.
REHMGo back and give us a little history about how Guantanamo was set up.
DREAZENIt was set up initially as a somewhat temporary, as Charlie indicated, facility. The idea was that people who were being captured initially in Afghanistan where there had to be interrogations, they had to be brought to a place that wasn't on U.S. soil, I mean, very deliberately not on U.S. soil, but a place where they could be held, interrogated, people where it wasn't clear if they were convictable or under what charges, but there was a feeling they could not be put back on the battlefield.
DREAZENI've been out to Guantanamo also. The military is very proud of the facilities it has now built. They they'll take you on a tour. It's a little bit strange and sort of macabre, but they'll show you, 'cause you're peering in, it's not two-way glass. You'll see people watching television, playing video games. They point out that among the biggest causes of entry prior to this was obesity from all the food or ankle injuries in people playing soccer. The facilities are permanent.
DREAZENI mean, they don't look in any way, shape or form temporary. They look and operate like permanent facilities and have for quite some time. There's been no indication that this is being winnowed down, no indication it's being shut down. They already look like a permanent base.
REHMAndrea Prasow, what's your reaction to the hunger strikes per se?
PRASOWI do think the hunger strike is drawing some attention, some much needed attention to Guantanamo, and I think it's just a sign of the lost hope that the detainees have, that a lot of Americans have. When President Obama promised to close Guantanamo within one year of taking office, I think most of us took him at his word. And the fact that hasn't is incredibly disappointing. But I think it's important to remember as well that he still can. It is entirely feasible to close Guantanamo and end indefinite detention.
REHMIs it all within his control? Or does the Congress have to give its OK?
PRASOWCongress plays a role, definitely. But the president currently has the authority to transfer most, if not, all of the 86 detainees who were already cleared for release. That's something that the president can do. Now, Congress has made it quite difficult. Congress imposed restrictions on his ability to do so, but it permitted -- there's a certification process that the secretary of defense needs to engage in.
PRASOWAnd if that certification is too onerous, Congress wrote in a special national security waiver. So the secretary of defense can today sign certifications and send at least some of these men home.
REHMI don't understand. When you say 86 were cleared for release, to where and why not?
PRASOWWell, most of them were cleared for release to their home counties. And at the time, it was about two dozen. Now, it's a somewhat smaller number of detainees were identified for resettlement. They couldn't go back to their home countries either because of political instability or they might face torture in their home countries. The best example of that is the Chinese Muslims, the Weegers. But one of the biggest problems is that 56 of those 86 men are from Yemen.
PRASOWAnd following the Christmas Day bombing attempt by Abdulmutallab in December 2009, the Obama administration imposed a moratorium on transfers to Yemen. But there's been an incredibly important development from Congress. Just last week, Sen. Dianne Feinstein, who's the chair of the intelligence committee, wrote a letter to Obama's chief of staff saying that she wants to help facilitate these transfers.
PRASOWAnd in particular, she as chair of the intelligence committee, who has access to the same intelligence that the president does, she asked him to consider lifting this moratorium and moving forward with transferring detainees back to Yemen.
REHMClifford May, your thoughts on the hunger strike, on the ongoing debate over Guantanamo.
MAYSure, Diane. I think Charlie Savage is exactly right when he said it's a Gordian Knot, and I think President Obama has found out what Gordian Knot it is and how difficult it is to cut it. Let me just run the numbers for you so it gives you a little background that I think is important. President Bush brought 799 detainees to Guantanamo. By the time President Obama took office, that number was down quite a bit by two-thirds, to 240 detainees. President Obama has let a lot of people out of Guantanamo since then.
MAYAnybody he could, I would say. Now, when -- down to about 166. Now, what do you have left? You have 46 people who have been designated as too dangerous, right, to release or transfer. They don't know what quite to do with them. You have, as Andrea said, 86 who have been -- let me use the right phraseology here to be precise -- designated for transfer if security conditions can be met. That doesn't mean they're innocent. That doesn't' mean they're no dangerous. It means they're designated for transfer.
MAYOne problem is that of that 86, 56, as Andrea says, are from Yemen. And part of the problem there is that al-Qaida in the Arabian Peninsula is very active in Yemen. They are very active in wanting to fight Americans and fight a government in Yemen that we're trying to support. So President Obama has looked at this situation and says, I can't see transferring two Yemen al-Qaida members at this time. And I don't think he's wrong in saying that. I think that's prudent of him.
MAYNow, the other possibility, Diane, as you discussed and as Charlie discussed, is, OK, if you can't send them back to Yemen and you can't send the others back to their home countries either because their human rights would be violated if they got there, they'd be summarily executed or tortured or for other reasons, then why not transfer them back to the U.S.? And then you get back to problem again, which you mentioned, that Congress opposes transferring them here on a bipartisan basis. There was vote in the Senate -- I think it was 90-6. Yochi, correct me if I'm wrong -- maybe in 2009...
DREAZENI believe that's right.
MAY...against spending any money to set up a facility or bring them here. One other thing, Diane -- I think it's important to mention -- this hunger strike is terrible over in Guantanamo. We shouldn't believe that if were to bring these detainees to the United States and put them in some kind of super-max facility that they would suddenly be hearty eaters and happy campers. We have hunger strikes in prisons all the time in this country.
MAYAnd if detainees learn that hunger striking brings concessions, they will do this over and over again. So you need a humane way to deal with these hunger strikes here, and you don't want to incentivize them to do the same thing back in the United States.
REHMWhen you say you need a humane way to deal with them, is force-feeding a humane way?
MAYThe authorities in Guantanamo are using the same protocols as Bureau of Prisons does here in the United States. Their belief is that these detainees have the right to protest. Their belief is that these detainees do not have the right to kill themselves. So what they do is they will bring them and will administer food forcibly if necessary so that they do not lose nutrition and die. Now, what I've learned from people down there is that it really varies.
MAYThere are some of these strikers who are very militant and who really do struggle against didn't fight and they do want to die as martyrs. There were quite a few others who do not. They're pretty voluntary. They don't need to be force-fed. The force-feeding is the same as you would have if I broke my jaw, how would I get nutrition? With tubular feeding. If I were in coma, how would I get feeding? The same way. This is what they do. It is not painful. It is not comfortable.
MAYThey are doing it the way they believe is the least bad. And everything about this, we're talking about -- there are no good policies. There are less bad policies. Even Donald Rumsfeld said that Guantanamo is the least bad place to hold the detainees. We have no good answers here, only bad and worse.
REHMAndrea, why is it that the U.S. military refuses to allow reporters to speak to these prisoners?
PRASOWYou know, that's a great question. Human Rights Watch has also requested access to the detainees several times over the years, and we've been denied. And Human Rights Watch has access to some of the worst prisons in the world. I mean, I can't tell you the facilities some of my colleagues have been in. Under Gadhafi, we were allowed to go to Abu Salim prison, but we're not allowed to talk to detainees in Guantanamo or Bagram.
REHMAnd what has the reasons been given?
PRASOWThat it's a war. I mean, really, that's the military's answer. This is a war, and it's different. And I think that's really troubling because, you know, Cliff just described the forced feeding procedure, but that's not the way that the detainees describe it themselves. In fact, they describe it being conducted in a deliberately violent and painful manner.
PRASOWIt's true that enteral feeding is something that exists in a medical -- in a variety of medical context, but the way that it has been implemented against some of these men is really -- for some, it has been a form of torture, other cruel treatment, and there's a track record of this occurring over the years. You know, I think the military wants to hide what's going on. They don't want people to understand truly what's happening.
PRASOWThese men, it's true, would be as unhappy in a facility in the United States. But they're not on hunger strike because they're in Guantanamo Bay, Cuba. They're on hunger strike because they're being detained illegally.
MAYBy the way, when I can, I'd love to just suggest that there is the allegation that they're being detained illegally, but we don't all agree that that's the case. If you have a war situation, and we do -- we have an authorization of the use of military force that Congress has put in place for the president -- that means you can do two things: You can kill your enemy, you can detain your enemy. Now, if they're being held illegally, then every drone strike and every use of special forces is also got to be called illegal.
MAYActually, compared to killing, detention is a more, I think, humane alternative. So you have always detained enemy combatants during wartime. They have -- there were 400,000 enemy combatants prisoners of war during World War II on U.S. soil, actually. None of them ever saw the inside of a courtroom during the war. Afterwards, either they released or those who had violated the laws of war were put on trial. I think you can charge that they're there illegally, but that's not the way anyone in the U.S...
REHMAre you including among those 400,000 the Japanese detainees?
MAYI would say they are -- the Japanese detainees I am not including, most assertively not because I'm talking about people who were picked up on a battlefield, who were not killed by soldiers but were detained on a battlefield, arrested, apprehended and held as prisoner.
REHMHere on American soil.
MAYSure. Germans, for the most part, absolutely.
REHMAnd you're listening to "The Diane Rehm Show." I want to open the phones now because one of the defenders of 11 of the men at Gitmo is with us, Carlos Warner. Good morning to you.
MR. CARLOS WARNERGood morning, Diane. And if I may just address some of the things that Mr. May said. He'd just gotten a few facts incorrect, if I may.
WARNERWell, first of all, the 86 men that have been cleared for release, many of them by both the Bush and Obama administrations, have been declared not a danger if released. So not only have they been cleared for release, meaning that there's no evidence to hold them, but the administration also decided in this task force that was composed of the Department of Defense, the CIA, all the major intelligence agencies that they were not a danger.
WARNERSo they become political problems, and the problem is that the president here has no will, as your guests have said, to close Guantanamo, but the solutions are there for these men and for the others. The others -- you know, the Geneva Conventions do not apply to Guantanamo. That's what Dick Cheney decided. So to compare them as regular law of war, Geneva Convention protected prisoners is just incorrect.
WARNERThey are not at or near the battlefield, which the conventions require, and the conventions do not allow for indefinite detention. So Mr. May is incorrect when he says that they're being held in accordance with the law of war. They aren't. They are something different, and that difference was created by Dick Cheney. He created a black hole, and it remains a black hole because President Obama is not motivated to close Guantanamo.
REHMAll right. Cliff.
MAYIt's incorrect to say that anybody, any one of these prisoners, these detainees, has been declared not a danger. It simply has never happened. Please check it. Yochi can check it, others. That has never happened. That's not the language used. And, in fact, we've had an estimated 27 percent of those released from Guantanamo returning to the battlefield, and I would say that is a pretty conservative estimate.
MAYAnd the belief is that of those who may be released here on in, it may be higher because those were easier to release. The first batch that -- and, again, the two-thirds that President Bush released, those were the easy ones. President Obama has released others. If all -- if what the attorney is saying is true and that they're being held illegally, I guess that means they think that President Obama is a war criminal, and I don't believe that.
DREAZENA couple of things. You know, that figure -- about 27 percent, 25 percent -- is a Pentagon figure, which the Pentagon itself has repeatedly...
REHMSaying they've returned to the battlefield.
DREAZENThat they've returned to the battlefield. The Pentagon itself has repeatedly acknowledged it to be rather squarely. The numbers held consistent over several years. The evidence that they used to point to the people, specifically how -- the metrics they use to decide what constitutes returned to the battlefield changed. And the Pentagon, when you ask them, they acknowledge that this is not a hard and fast number.
REHMWhat about the Geneva Conventions not applying here?
DREAZENYou know, the phrase black hole is, I think, kind of a good one, and that was by design. I mean, this was not meant to be a place in which lawyers would have -- if you think just about the logistics -- and I've made this trip. I know Carlos had made the trip many times. Physically getting to Guantanamo is not easy. When you get to Guantanamo, the conditions, especially early on, in which lawyers were living in, were not easy.
DREAZENThe ones that journalists were living in, are living in are not easy. So this was not a place designed where defense lawyers could typically go, and there has been weird little quirks. I mean, to separate out the big questions, which Cliff and Andrea are sort of debating, there is a recent issue where the microphones first cut out, kind of an odd moment. The way it works typically is if you're there observing any of these proceedings as a journalist, you're sitting behind a glass wall.
DREAZENYou're able to see into the sort of mock courtroom that's been set up. There's a military judge. There's a military jury. You can sort of see the back of detainees as they're brought in. You could see their attorneys. You could see the prosecutors. But there's a delay. And the judge is meant to be able to cut out the sound, so that if it's classified, the reporters can't hear it. But there have been other times in which the sound has gone out where the judge himself or herself has wondered why that was and been quite upset by it.
DREAZENIt's not clear who turned it off or why it was turned off. One other point on the protest front, this is not something where they have the ability to protest. What set off the hunger strike was the military said that these people were covering up surveillance cameras. They were covering up some of the windows that looked in. That was a protest. There's no real way that covering up a window is suddenly gonna lead to the breakout of the prison.
DREAZENA couple of years ago, I did an article about how some of the detainees at Guantanamo were scribbling poetry onto Styrofoam cups and handing that as a protest. That's the sort of option available to them.
REHMYochi Dreazen, of The Atlantic. He's writer-in-residence at the Center for a New American Security. Short break. And when we come back, more of your calls, your email. Stay with us.
REHMAnd it's time to open the phones as we talk about the hunger strike currently going on in Guantanamo and what the impact of that could be. First to Fort Lauderdale, Fla. Good morning, Stuart.
STUARTGood morning. First time caller. I love the show.
STUARTI remember growing up and reading about a trial and watching a movie about a trial that happens in a place called Nuremberg. I just don't understand American justice anymore. It's not being performed. They need -- these people in Guantanamo need to be tried. If they're found guilty, need to be executed, if they're found innocent, need to be freed, and that's as simple as it gets.
MAYYeah. I think -- here's the thing. Right now in the battlefield, you can kill on an enemy combatant. A soldier can do so, President Bush, before, President Obama now, can order a drone strike. If you don't kill them -- and I think it's preferable that you don't from a human rights perspective. From an intelligence perspective, you can detain them. At the time you detain them, they are -- they fall -- they are a species of prisoner of war.
MAYThey are not necessarily respectable prisoners of war in a sense that they abided by all the laws of armed conflict, but they are prisoners of war in a sense. Prisoners of war normally do not get trials unless they're -- unless their war crimes were egregious. And it -- and what they -- what doesn't happen is if you don't kill somebody but you detain them instead, they suddenly become suspects in a criminal defense proceeding with all the rights inherent to that.
MAYYou cannot have your soldiers on the battlefield collecting evidence for a trial of somebody they are going to detain. They can't play CSI Kandahar. That's not their job. If they were criminal suspects, you could not kill them on the battlefield. You can't transform them suddenly into criminal suspects when you have them back. Now, you can try them if you want to, and some will be tried obviously either by military commission, or another ways, we have obviously tried people.
MAYSome, again, as we said, we would like to release. We would like to release not because we think they present no danger but we think it's OK to release them. They've gone through a habeas process. The habeas process establishes that they are there for a reason and that we have authority to hold them. There's a threat review process. If the threat can be mitigated, they can go back.
MAYBut what do you do if, as what we talked about with 56 of them, their home country is Yemen? And there's a live war in Yemen with al-Qaida fighting us and fighting the government there. Do you want to turn them over? Will they be rock stars when they get there having come out of Guantanamo?
MAYYou don't necessarily wanna put all those 56 on trial. They don't want it, and you don't want it.
REHMTo Tampa, Fla. Good morning, Michael.
MICHAELGood morning and thanks for airing my comment. Mr. May, I'm gonna have to issue with your description of tube feeding. It's not a valid medical opinion, and it probably is not based on direct observation because tube feeding stimulates the gag reflex, and people tend to move their head around. Patients have to be, in blog terms, given tropical anesthetics and/or sedation to make the procedure work without brutalizing the patient, OK? And if you're having to have four people or five people, one to hold each arm and each leg, and one person to hold the head, that amounts to brutalization.
REHMAndrea, you've been there many times. What have you seen?
PRASOWYeah. Guantanamo's an incredibly depressing place. And it's very ironic because the part of the base that most people see has a McDonald's and a Starbucks, and there's school, and there are children playing. The first time I went, there was a group of about 5-year-old girls in tutus putting on a ballet recital, and then down the road, there's this horrible, horrible prison where people are really suffering.
PRASOWSo there's a lot of cognitive dissonance when you go to Guantanamo. And years ago, one of my clients at the time was on hunger strike and seeing how ill he looked and hearing him describe the process of tube feeding was really very, very difficult thing to hear and...
REHMDescribe it for us.
PRASOWWell, at the time, the military invented this special force-feeding chair, and they would strap the detainees into this special chair. Sometimes they use anesthetic when they insert the tube. There are different sizes of tubes, and sometimes they would use a larger one than necessary which causes a great deal more pain. You can imagine the nasal cavity is only so big. And I think it's also incredibly important to remember that the international medical standards oppose force feeding prisoners.
PRASOWThese men, although they have been imprisoned illegally, some for 11 years, are still autonomous individuals, and they have the right to inform consent for medical procedures. If they haven't consented, then that really violates medical ethics and the medical professionals who are engaging in the process even though it recognize that is the U.S. military policy and they're following their employer's policy but not their medical profession's guidelines. I think that's quite troubling.
MAYDiane, this is a part of the Gordian knot because if you're not going to do this, is your decision gonna be to let them die? Is that the preferable alternative? Again, assuming we have no good policies, is it a better policy to let them die?
REHMAndrea, I'll have you answer that.
PRASOWAutonomous individuals can make that decision. I mean, that is their choice. It's a tragic choice. I think the solution isn't to just not feed them. I think the solution is to release them as the government said that it would.
REHMAll right. Let's go to Arlington, Texas. Brian, you're on the air.
BRIANGood morning. I have two quick questions. I know a lot of people haven't talked as this came up during the president's first term about possibly moving the remaining prisoners in Guantanamo Bay to a facility somewhere in the U.S. I think there was talk maybe in Illinois at one point, but there was this huge backlash against that. Is that still option? Do people with the president or members of both administrations still consider that?
BRIANAnd also, can the president then make a fight to close Guantanamo considering the fight that's that going on with immigration, gun control, the economy?
REHMAll right. Thanks for your call, Brian. I have an email from Kurt in Byron, Ill., who says, "We have an empty prison in Northwest Illinois that could've been made to house these prisoners at relatively little cost. The money would have been spent in an economically depressed area of our own country." What happened to that debate, Yochi?
DREAZENI mean, Illinois and Michigan also raised their hands and said that we are not only willing to, in some ways we would like to -- for the reason your emailer mentioned, it was blocked by Congress overwhelmingly.
DREAZENThere was demigoguing, frankly. I mean, when the first word came at the Uighur were going to be released, there was suddenly this panic attack about what is a Uighur? Are these terrorist who are gonna be released into the Virginia suburbs? And it was a very effective campaign. And, you know, Cliff is correct that it became something where both parties, I think, frankly to the shame of both parties, there was no real debate, and the vote was overwhelming to block it.
DREAZENThere is a way to bring some of them. You could put them in military brigs at Fort Leavenworth, other military prisons. The complication is that then they get legal protection they don't get in Guantanamo Bay. One quick point because it hasn't come up yet, I imagine it might as this goes on, is the efficacy question. The question is, separating aside, where do you hold them? What do you do with them while they're being held? The military commission process has been beyond controversial, beyond being questioned, it's slow.
DREAZENThere have not been many cases, many convictions. Most of the convictions that have happened that have mattered, Zacarias Moussaoui, the Blind Sheik Abdel-Rahman, these were in civilian courts. These were in not military commission tribunals. So when you had President Obama in the current case, the Boston bombing case, which is again, fascinating because the one thing that's bringing this forward again is, should he hadn't put in front of the military commission, the military tribunal, President Obama strongly said no.
DREAZENAnd I think part of this that this process has not worked in terms of convicting the people that some, you know, Cliff included, I think he's not alone in this, believed are too dangerous to be released, that they should be convicted and they have not been.
REHMWhat could President Obama do now without the approval of Congress?
DREAZENSo Andrea and Cliff have both correctly said that one option is to release -- to send them to countries where we believe -- in the case of China or Yemen -- on the case of China, we don't know how they'd be treated. We do know it'd be poorly. In the case of Yemen, we again know that in a best-case scenario they'd be treated poorly, in a worst-case scenario, they'd be tortured or killed or they would -- some small portion might join our enemies. But that's one option.
REHMBut do they want to go back, nevertheless, or are they asking not to go there?
DREAZENThe Weegers do not wanna go to China because they know that, again, the best-case scenario for them would be probably further imprisonment, very likely torture. He does have the ability to bring many of them to Fort Leavenworth, to other military brigs on U.S. soil. That is something he could do that Congress, generally speaking, could not block. He has chosen not to do it.
REHMAndrea, you're shaking your head.
PRASOWWell, Congress has blocked the transfer of any detainee into the U.S. The issue is that President Obama, when he signed the Defense Authorization Act, both last year and the year before, issued a signing statement saying that some of these provisions that Congress imposed might interfere with his authority as the commander-in-chief. So while the law says that he can't transfer people into the U.S., it may be that particularly if it were for a military facility he would do so anyway.
PRASOWBut holding people illegally inside the U.S. isn't any better than holding them illegally in Guantanamo. Anyone who comes to the U.S. should come here for a trial in our civilian courts, which work and are actually incredibly harsh against terrorism suspects.
MAYCan I make just one point? Not that these needs to be...
MAY...further complicated, but it is. President Obama, as I mentioned, has reduced the number of people as far as he is been able to from Guantanamo. He has not introduced any new detainees to Guantanamo. That doesn't mean we have only killed people in this war. We have detained people in Afghanistan. They've gone to an Afghan facility, which has fairly recently been transferred to Afghan authority.
MAYIf anyone thinks the detainees in this facility and Afghanistan are being treated better than those in Gitmo, if anybody thinks hunger strikes there are treated in a more sensitive fashion than in Gitmo, I think they're badly mistaken.
REHMAll right. To Raleigh, N.C. Good morning, Otis.
OTISGood morning, Diane. First of all, I'd like to thank you very much for a good conversation. In the 1980s, I was an active-duty military personnel and, you know, I did the wrong thing. And I went to a military brig. And seeing the Guantanamo Bay and those people who have been there, their conditions are much better than what I did or what I had to live in and endure under the military. Don't get me wrong. I feel that people should have right to live. But, you know, their conditions are better than what...
REHMTell me what you did, Otis.
OTISOh, ma'am, I did some foolish -- I was young. I was dumb and I did involve myself with, you know, just something that I shouldn't have done, you know.
REHMAnd you're telling me that you believe that the conditions you were held under are worst than those at Guantanamo. Have you ever been there, Otis?
OTISMa'am, I know active and retired Marine Corps personnel who had built Guantanamo, and they know exactly where I was when I was interned in a brig. And, you know what? The conditions of the Guantanamo, as temporary as they may be, are so much better. Now, don't get me wrong. I'm a centrist. I'm not a Democrat.
REHMOK. Thanks for your call. Yochi, comment.
DREAZENI mean, this is a common complaint you hear especially on the Hill, especially on Republicans, that this is a country club prison. You had jokes about how they could see the water from their cells. I mean, jokes that, to my mind, whatever you think of the issue, are kind of in stunningly bad taste. One point I do wanna make, when you go to Guantanamo, especially as journalist, they'll take you on these tours.
DREAZENAnd one of the places that have always been a stop are the exact chairs Andrea mentioned in which they show you the force-feeding, how they do it. They don't demonstrate it, but they layout in front of you the various tubes. They're proud of it. I mean, they -- this is not something that they feel shame about. They do see this as humane, and this is something that they show reporters very proudly.
REHMAnd you're listening to "The Diane Rehm Show." To Lavenia (sp?) in Washington, D.C. Good morning. You're on the air.
LAVENIAHi. I was just wondering what your panel had to say about the U.N. declaration of human rights and if that has been implemented in Guantanamo 'cause it does say, I believe, in Article VII that everyone has a right to trial. And there are other things that I believe have been violated.
PRASOWYou know, we were talking about the Geneva Conventions earlier, and the Geneva Conventions do apply to Guantanamo. It's just a different convention than the one people are thinking off. The traditional idea of the U.S. or England holding Germans for the duration of World War II is one convention applies to a war between countries. But there's a different kind of armed conflict if there's a war at all.
PRASOWWhen we're talking about the war on terror, as it used to be called, or now it's the war against al-Qaida and associated forces, there's a different legal regime that applies. And in a non-international armed conflicts, such as the U.S. says it's engaged in with al-Qaida, you can't just hold people forever. That's just not the way the laws worked.
PRASOWAnd absolutely, people have the right to a fair trial. They have the right not to be abused and otherwise mistreated. They have the right to see their families. And these men haven't seen their families for 11 years.
MAYIf we have no right to detain these people, surely we have no right to kill them. Would you agree with that, Andrea?
PRASOWSometimes in an armed conflict, there is an authority to target, and there isn't an authority to detain indefinitely.
REHMAnd that is a...
MAYThat's exactly it.
REHM...question that many people are asking. Is the war on terror still alive? And what is the definition of the battlefield?
DREAZENAnd so that second part is the question...
DREAZEN...because right now, as we've defined it, the battlefield is any part of the world in which we say it's taking place. I just got back from a month in Mali. Mali is a battlefield. Much as the west of Africa is considered to be a battlefield. Yemen is a battlefield. Somalia is a battlefield, Pakistan, Afghanistan. It's a very broad interpretation that we have sort of declared that we can make unilaterally.
DREAZENSo there is no defined battlefield. There is no group that is so distinct towards membership, is so distinct we can say these hundred people are al-Qaida, this hundred people are something else. The groups are morphist, the borders are morphist, and we've given ourselves the right to decide who's what and where is where.
MAYYeah. It's also, in part, al-Qaida's decision where the battlefield is. They decide where they want to fight us. We don't necessarily just make that decision. So if they decide they're fighting in Afghanistan, in Mali, in Yemen or, frankly, in a U.S. soil, it's hard for us to ignore that decision on their part.
REHMLast quick question. Norman in Cleveland Heights, Ohio, quickly please.
NORMANYes. From what I understand, there are people there in Guantanamo who has done absolutely nothing, who are picked up in sweeps and are being held. And when they get released, I would imagine that they're gonna be pretty angry. It seems that we are creating more terrorists quickly that we can kill one.
PRASOWYeah, that's absolutely true. And people are being held there primarily because the U.S. government thinks they might do something one day. And if there's anything that's more un-American than that, I think it's that concept. If they have committed a crime, they should be charged with it. And if there is insufficient evidence, if evidence can't be use against them because it was obtained by torture, meaning not only was it illegally obtained but it's inherently unreliable, then they need to be set free.
MAYDiane, it is possible in the early years that some people were picked up who shouldn't have been, and it kinda always happened in war time. They kind of happen in -- the police can do that here in this country as well. I think those people were let go by Bush and by Obama a long, long time ago.
MAYNow, everybody there, pretty much at this point, is gonna claim that he was an innocent goat herder on a way to a cousin's wedding Afghanistan when he was someway pulled into the militias of the military. I don't think that's true. These are al-Qaida members or they're Taliban members or other groups like that, and that's why they're there.
REHMAnd here's a final email, not signed, it says, "I strongly believe that people who've been imprisoned without adequate proof of guilt deserved a hearing. This imprisonment is done is our name. We are better than this." Thank you to Clifford May, Yochi Dreazen, Andrea Prascow. Thanks for listening, all. I'm Diane Rehm.
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