What Kind of Justice at Guantánamo?

And what kind of mental health?

Posted Mar 31, 2015

On March 27, Morris D. Davis, a former chief prosecutor in the Guantánamo military commissions system, contributed an opinion piece for the New York Times.  In “Guantánamo’s Charade of Justice” (http://www.nytimes.com/2015/03/28/opinion/guantanamos-charade-of-justice.html?_r=0), Davis wrote that the Guantánamo system has witnessed seven different chief prosecutors and six different heads of the system since 2003.  Davis offered a sober assessment of the system’s success: “Just six detainees have been both convicted and sentenced for war crimes in military commissions… Charges against three were later dismissed, and five who were convicted were eventually transferred from Guantánamo.”  Davis concludes: “We have a legal system where it is more advantageous to be found guilty of a war crime than never to be charged at all and remain imprisoned indefinitely.”  Since Guantánamo’s opening, 85% of the 779 men have been transferred out though “56 men cleared to leave still remain, at a cost of about $3 million a year per detainee.”  Davis cites Attorney General Eric H. Holder Jr. from November 2013: “Had the administration not given up on its plan to try the 9/11 case in federal court, Mr. Mohammed and his colleagues ‘would be on death row as we speak.’”

Davis rightly notes that the Guantánamo military commissions system has not provided detainees with expedient justice.  His insider view adds to the existing record of attorneys, psychiatrists, and psychologists who have commented on Guantánamo’s unique status in the War on Terror.  I have found his views illuminating since I could not get prosecuting attorneys to comment on record when I wrote an academic article in 2009 titled “Allowing Independent Forensic Evaluations for Guantánamo Detainees” (http://www.jaapl.org/content/37/4/533.long).  However, it is not clear at all that Guantánamo was ever intended to provide expedient justice.  In my book Mental Health in the War on Terror (http://cup.columbia.edu/book/mental-health-in-the-war-on-terror/9780231166645), I delve into Guantánamo’s history as a new site in the War on Terror.  I quote former President George Bush who wrote in his 2010 autobiography Decision Points: “While our humane treatment of Guantanamo detainees was consistent with the Geneva Conventions, Al Qaeda did not meet the qualifications for Geneva protection as a legal matter.”  Al Qaeda—as well as the Taliban and other militant groups—did not meet qualifications for Geneva protection as non-state actors, i.e. combatants who do not formally belong to any nation-state’s military.  Since the United Nations Security Council is the ultimate tribunal for all matters related to the Geneva Conventions—and the United States sits on the Security Council—it is unsurprising that Guantánamo detainees have not been brought to trial or enjoyed full legal protections under the Conventions.  The Geneva Conventions only include nation-states as official signatories, not non-state actors like militant groups.

     Nor can enemy detainees at Guantánamo access mental health protections under the Geneva Conventions or the U.S. Department of Justice Federal Bureau of Prisons.  I have no particular sympathy for proven (read: not suspected) Al Qaeda or Taliban combatants who have targeted the United States and India, my birth and ancestral countries, respectively.  Nonetheless, medicine calls its practitioners to heal, not punish, and the Military Commission Acts of 2006 and 2009 inspire little confidence in Guantánamo’s mental health system.  As I review in my book, prosecution attorneys and military judges have sought to minimize official mentions of torture among detainees and their defense attorneys.  Davis refers to Abd al-Rahim al-Nashiri, who has been accused of bombing the American destroyer U.S.S. Cole in 2000, as a high-profile case in the Guantánamo docket; in the book, I analyze an excerpt of a court transcript in which the military judge interrupts al-Nashiri who describes the enduring psychological effects of abusive treatment among security guards.  Prosecution attorneys and military judges also avoided explicit references to torture and its psychological effects in the cases of Mohammed Jawad and Ibrahim Ahmed Mahmoud al Qosi.  Davis writes: “The greatest tragedy is the pain inflicted on the friends and families of the 9/11 and Cole victims.  For them, justice has been endlessly delayed.”  Justice seems to have also been delayed for enemy combatants at Guantánamo in receiving sound mental health protections, exemplifying American founding father James Madison’s quote: “The means of defense against foreign danger have been always the instruments of tyranny at home.