A View From Gitmo

http://www.nytimes.com/2014/06/08/opinion/sunday/a-view-from-gitmo.html

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GUANTÁNAMO BAY, Cuba — THE week’s national debate around the exchange of Sgt. Bowe Bergdahl for five Afghans imprisoned at Guantánamo Bay found me at the American base in Cuba for meetings with my clients. Here, too, the swap is the talk of the town — among prisoners, among guards and between the two groups.

Some Guantánamo prison guards voiced anger at the news of how their fellow soldier, Sergeant Bergdahl, had been liberated. In their view, he was a deserter, unworthy of the sustained media interest his release had garnered, especially compared to the dearth of attention paid to the sacrifice of those killed and wounded in the Afghan conflict.

But to the emaciated man sitting across a rickety table from me in an orange jumpsuit, chained to the floor inside a dilapidated shack, that furious reaction was baffling. My client, Moath al-Alwi, wondered aloud “why those people are not simply happy that this American soldier will soon be reunited with his family.” He reflected that the critics have probably “never tasted this sort of ordeal themselves.”

In contrast to the guards, Mr. Alwi and many of his fellow prisoners empathized with Sergeant Bergdahl and his family. After all, they only wanted the same for themselves: to see their loved ones after long years in captivity.

My students and I have been representing Guantánamo inmates for most of the last decade. Mr. Alwi was on one of the first planes to shuttle so-called enemy combatants to the prison in early 2002.

A Yemeni citizen raised in Saudi Arabia, Mr. Alwi traveled to Afghanistan in early 2001 to teach the Quran and live in a society that appeared from afar to honor Islamic ideals. He was 24 when he fled the conflict there, was seized by the authorities in Pakistan and likely sold into American captivity for a bounty.

At a 2008 hearing, having given Mr. Alwi only three weeks to review a lengthy dossier compiled by the United States government over seven years and consisting largely of uncorroborated and self-incriminating statements that we argued were extracted under coercive circumstances, a federal judge ruled his detention justified. A court of appeals found that the judge’s “haste” was “hard to understand,” but upheld the decision.

To protest the injustice of his open-ended imprisonment without fair process, Mr. Alwi has been on hunger strike since February 2013. Every day, Guantánamo personnel strap him in a chair with restraints and force-feed him, in an effort to break his will.

Mr. Alwi never fought against the United States and has not been found guilty of any crime.

The political controversy over whether the prisoner exchange was conducted legally is even less comprehensible to the inmates at Guantánamo than the guards’ anger. To their mind, before debating the finer point of whether the transfer of the five Afghans adhered to the law, the American public should ask if the detention and abuse at Guantánamo Bay of hundreds — without charge, fair process or the protections of the Geneva Conventions — were lawful in the first place.

From where Mr. Alwi sits, the talking point of legality is almost amusingly quaint. Guantánamo remains at its core a lawless place, and this release in seeming contravention of a solitary statute appears par for the course. In the absurd history of the detention camp, it is not uncommon for inmates among the handful who have been convicted by the military commissions to be the ones who are released. Questionable though their legitimacy and fairness may be, the military commissions can at least determine a finite term for internment at Guantánamo, one that the American government has chosen to honor so far.

So the release of the five Afghans, including, by some accounts, known figures in the Taliban, fits a larger pattern in which the many dozens of inmates not accused of any crime and, in fact, cleared for release by successive American administrations languish for years on end. For many, the difference between liberation and limbo has nothing to do with justice or legality, but just the luck of what nationality a prisoner happens to hold. Because no Guantánamo inmate has been repatriated to Yemen in years, Mr. Alwi said that some inmates are considering relinquishing their Yemeni citizenship in the hope that it might facilitate their resettlement elsewhere.

The furor over the Sergeant Bergdahl affair has simply reinforced a commonly held view among the inmates that the prospects for release from Guantánamo are tied far less to court decisions, threat assessments and the determinations of the military review board, and far more to the politics of the moment. “It is all political,” Mr. Alwi said. “It is all theater, it is all a game.”

Guantánamo has indeed become a sideshow of the American political spectacle, a drama in which the vast majority of the camp’s inmates are held hostage to our partisan politics. If the current upheaval around Sergeant Bergdahl’s release proves anything, it is that President Obama is capable of pushing past the congressional histrionics that, until recently, he has pointed to as cover for his failure to shutter the infamous prison.

Ending indefinite detention at Guantánamo Bay, in the face of opposition from his political adversaries and reluctance from some officials within his administration, requires fortitude of Mr. Obama. What is needed now is decisive action to resettle and repatriate as many inmates as possible and give fair trials to any that remain. Only by doing so can America end this grim farce.