Today, the Guantanamo prison enters its 17th year. 41 Muslim men still languish there, trapped in an ever-present reminder of their captors’ official experiment with torture. Five of them have long been cleared for transfer, and all of them have suffered more than a decade of indefinite detention. None has reason to believe that the Trump administration will ever release him.
Against this backdrop, the men are turning again to the courts. Specifically, Tofiq Nasser Awad Al Bihani, Abdu Latif Nasser, Sharqawi Al Hajj, Sanad Al Kazimi, Suhail Sharabi, Said Nashir, Abdul Rabbani, Ahmed Rabbani, Abdul Razak, Abdul Malik, and Abu Zubaydah today filed a mass habeas petition arguing both that the 2001 Authorization for Use of Military Force (AUMF) no longer authorizes their detention, and that the Constitution now prohibits it.
There is a lot to say about the petitioners’ legal claims. But I will leave that task largely to others. Instead, I want to flesh out an issue on which the petition only touches: Guantanamo’s human cost. While that cost runs both to the remaining detainees and, in a more macro sense, to the identity and psyche of the United States itself, my focus here is the former.
Many of the men at Guantanamo are torture survivors. They are confined to a place where torture was practiced (for some, on them) but where effective treatment is not, and can never be, available. All of the men face serious medical consequences—independent of the effects of any past torture, and cumulative for survivors—associated with the agonizing uncertainty of perpetual detention.
This is not new information, but it should carry more weight—in public discourse about Guantanamo, in related policymaking, and in the courts. (Full disclosure: my organization, the Center for Victims of Torture (CVT), will soon be moving to file an amicus brief in the cases in which today’s habeas petition was filed).
The crux of the petition
Three factual assertions underlie the petitioners’ legal arguments. First, breaking sharply from the policy of individualized risk assessments and gradual releases pursued by Presidents Obama and Bush, the Trump administration has in practice imposed a blanket ban on transfers, the men claim, and done so with religious animus. Second, the men highlight the sheer length of their detention—each of the petitioners (indeed, all 41 remaining detainees) has been at Guantanamo for more than decade. Third, they claim that, as the Supreme Court foresaw in Hamdi v. Rumsfeld, the “practical circumstances” of the conflict in which the men purportedly were captured have radically changed shape, and are now “entirely unlike those of the conflicts that informed the development of the law of war.”
Under these changed circumstances, petitioners argue that the Constitution’s Due Process clause—which they maintain extends to Guantanamo—bars their continued detention. That is because an effective executive branch policy of detention for detention’s sake is by definition arbitrary (or if discriminatorily motivated then otherwise unlawful), and because substantive due process imposes a durational limit on noncriminal detention without foreseeable end, a limit the government has exceeded. With respect to the AUMF, their argument is straightforward: detention authority has “unraveled,” just as the Hamdi Court warned it might. The statute only permits petitioners’ detention to prevent their return to the battlefield associated with their capture (which no longer exists), and only so long as the conflict resembles previous conflicts out of which the laws of war arose (it no longer does). Lastly, the petitioners argue that the injustice of their situation warrants the court using its equitable common law habeas powers to order their release.
“If the detainee dies you’re doing it wrong.” Such was the advice of the CIA counterterrorism center’s chief counsel at a 2002 meeting with Guantanamo staff to discuss ways to “get ‘tougher’” with interrogations. Today, more than a decade-and-a-half removed from its founding, and in light of much more recent horrifying disclosures about the CIA’s “enhanced interrogation” program, it is easy to forget how central a role Guantanamo played in the birth of government-sanctioned torture.
By executive order in 2002, President Bush gave Guantanamo’s Joint Task Force-170 responsibility “for the worldwide management of interrogation of suspected terrorists detained in support of us [sic] military operations…” As a 2008 Senate Armed Services Committee report explains in detail, Guantanamo staff discharged that responsibility by researching, developing and implementing strategies to “break” detainees. After soliciting input from a cadre of “experts” similar to, and in some cases overlapping with, those who participated in constructing the CIA’s torture program, Guantanamo interrogators brutalized detainees in a wide variety of ways. Some men were literally treated like animals: strapped in dog collars, led around on leashes, and forced to perform tricks. One female interrogator wiped what she told a detainee was menstrual blood on his face. Men were stripped naked and otherwise sexually humiliated. They were forcibly groomed, shackled in stress positions, and subjected to extreme temperatures. They were sensory and sleep deprived. They were threatened with death.
Medical personnel helped design Guantanamo’s abusive interrogation plans, and at times participated directly in interrogations. Their role makes it all the more haunting that JTF-170’s Commander (along with other Defense Department officials) referred to Guantanamo as America’s “Battle lab.” But the label proved accurate; the torture the military first tested at Guantanamo would soon spread to Afghanistan, and then to Iraq, culminating in Abu Ghraib.
To be sure, Guantanamo is different now than it was in the early to mid-2000s. But for the 41 remaining detainees—torture survivors in particular—Guantanamo’s essence will never change, and as long as the men remain confined there they will never escape it.
The debilitating effects of torture, and the absence of treatment at Guantanamo
There are many torture survivors among the men remaining at Guantanamo. Some were tortured and abused at secret CIA black sites, others at the hands of allied governments in the process of being transferred to Guantanamo, and still others at Guantanamo itself. (Each of these categories is represented in today’s mass habeas filing).
The effects of torture are profound. As I described previously:
[M]any survivors remain captive to their traumatic past. They are haunted by “intrusive memories, excessive rumination and nightmares, with repeated episodes of actively re-experiencing past traumas.” They have often “lost their sense of safety” and “feel that their identity and role in society is erased.” They struggle with “sleep disorders, anxiety, chronic pain, irritability, startle responses, suicidal ideation and depression.”
It is well established that the damage torture inflicts will not simply repair with time. According to Bessel van der Kolk, one of the lead experts on the effects of trauma on the brain and body:
We have learned that trauma is not just an event that took place sometime in the past; it is also the imprint left by the experience on mind, brain and body. This imprint has ongoing consequences for how the human organism manages to survive in the present. Trauma results in a fundamental reorganization of the way mind and brain manage perceptions. It changes not only how we think and what we think about, but also our very capacity to think…. Under normal conditions people react to a threat with a temporary increase in their stress hormones. As soon as the threat is over, the hormones dissipate and the body returns to normal. The stress hormones of traumatized people, in contrast, take much longer to return to baseline and spike quickly and disproportionately in response to mildly stressful stimuli.
Effective rehabilitation is of course possible, but only under the right conditions. In CVT’s experience, there are several minimal requirements for such treatment, each of which is responsive to the nature and scope of the harm that torture inflicts. First, survivors need to have a meaningful sense of control over their own rehabilitation. This can include where and when sessions take place, who treats them, and for how long. Second, they need to feel safe, both internally through effective management of their pain and anxiety, and externally by meeting in surroundings carefully designed not to resemble a detention setting. Third, at the most fundamental level, survivors need trust rebuilt. Predictable, regular access to their treatment providers is a key component of that process. Finally, they need highly specialized, culturally sensitive, expert care. There are interconnected physical, mental and emotional components to effective torture rehabilitation, and survivors often work with a team of care providers, including doctors, nurses, psychologists, social workers, massage therapists and physical therapists.
It is perhaps axiomatic that none of these requirements can be met at Guantanamo. The military is in complete control over all aspects of detainee’s lives. They remain held captive by the government responsible (directly or indirectly) for their torture, and in a setting that will forever be synonymous with torture. Guantanamo medical personnel not only lack the specialized skills and expertise necessary to provide torture rehabilitation, but also cannot reasonably expect detainees to trust them (especially) given the role some of their predecessors played in the abuses detainees suffered.
The serious medical repercussions of prolonged indefinite detention
Regardless of a detainee’s torture and trauma history (though especially for survivors), continued indefinite detention at Guantanamo risks significant medical harm. Physicians for Human Rights (PHR), the Bellevue/NYU Program for Survivors of Torture (PSOT), and CVT explained why in a letter to Congress near the end of President Obama’s second term:
Our concerns [about Guantanamo] are based on over 30 years of experience evaluating and caring for thousands of torture survivors from all over the world. Medical knowledge and experience establish that the protracted uncertainty of indefinite detention inflicts profound psychological and physical trauma. Harmful effects include severe anxiety and dread, pathological levels of stress, dissociation, depression and suicidal thoughts, and post-traumatic stress disorder. Some individuals even manifest physical symptoms such as breathing difficulties, physical pain, and skin disorders. The mental and physical harms of indefinite detention are over and above the already substantial stressors of incarceration, and are exacerbated in individuals who have previously experienced torture and ill-treatment.
The likelihood that detainees now face a minimum of three to seven more years of detention—i.e., until President Trump leaves office—only exacerbates these concerns.
Based on what is known about the effects of torture and the repercussions of prolonged indefinite detention, it is reasonable to presume that many of the men at Guantanamo are suffering intensely, and will continue to suffer as long as they remain detained there. I hope that the judges and their clerks on the receiving end of today’s mass habeas filing will bear this mind, and meaningfully factor it in, when they begin evaluating the men’s claims.
Photo by Petty Officer 1st class Shane T. McCoy/U.S. Navy