Guantánamo

  3 Command History, U.S. Naval Base, Guantánamo Bay, Cuba, 1968, U.S. Navy Library, Operation Archives, Navy History and Heritage Command, Washington Navy Yard; “81 of 150 Shoot Way Past Cuban Lines, Reach Guantánamo and Fly to Florida,” New York Times, Jan. 9, 1969, 1; and Bryan O. Walsh, “Cuban Refugee Children,” Journal of Interamerican Studies and World Affairs 13, no. 3/4 (July–October 1971): 413.

  4 See Haitian Refugee Center v. Civiletti, No. 79-2086-Civ-JLK (S.D.Fla. July 2, 1980), discussed hereafter; and Gilburt Loescher and John Scanlan, “Human Rights, U.S. Foreign Policy, and Haitian Refugees,” Journal of Interamerican Studies and World Affairs 26, no. 3 (August 1984): 337; Christopher Mitchell, “U.S. Policy Toward Haitian Boat People, 1972–93,” in Annals of the American Academy of Political and Social Science, 534, Strategies for Immigration Control: An International Comparison (July 1994): 70–71.; Alex Stepick, “Unintended Consequences: Rejecting Haitian Boat People and Destabilizing Duvalier,” in Christopher Mitchell, ed., Western Hemisphere Immigration and U.S. Foreign Policy (State College, Pa.: Penn State University Press, 1992), 133.

  5 “Haitian Refugees at Guantánamo Base Pose Problems for US,” Washington Post, Sept. 2, 1977, A17.

  6 Enclosure (6), Command History 1977, 5.

  7 Haitian Refugee Center v. Civiletti, No. 79-2086-Civ-JLK (S.D.Fla., July 2, 1980), 53–54.

  8 Ibid., 43.

  9 “97 Who Left Haiti Flown Back,” Washington Post, Sept. 7, 1977, A20.

  10 “Haitian Refugees at Guantánamo Base,” Washington Post, A17.

  11 See Case Summary, Haitian Refugee Center v. Civiletti.

  12 Ibid., 73.

  13 On the latter, see ibid., 76–80.

  14 Ibid., 77–78.

  15 Ibid., 76–77.

  16 Ibid., 81.

  17 Ibid., 8.

  18 Ibid., 9.

  19 Paul Farmer, The Uses of Haiti (Monroe, Me.: Common Courage Press, 2003), especially the chapter entitled “From Duvalierism to Duvalierism Without Duvalier,” 90–120.

  20 See Haitian Refugee Center v. Civiletti, 33–72.

  21 Ibid., 28–31, 33. For more on so-called political question doctrine, see Nada Mourtada-Sabbah and Bruce E. Cain, eds., The Political Question Doctrine and the Supreme Court of the United States (New York: Rowan and Littlefield, 2007).

  22 Farmer, The Uses of Haiti, 93.

  23 Quoted in ibid., 99.

  24 Quoted in ibid., 94.

  25 Ibid., 92.

  26 Ibid.

  27 Haitian Refugee Center v. Civiletti, 45–46.

  28 Ibid., 73.

  29 Ibid., 79.

  30 William G. O’Neill, “The Roots of Human Rights Violations in Haiti,” Georgetown Immigration Law Journal 7 (March 1993): 95–96, 117. Cf. Irwin P. Stotzky, “Haitian Refugees and the Rule of Law,” Guild Practitioner 61, no. 3 (Sept. 2004): 167; Cheryl Little, “United States Haitian Policy: A History of Discrimination,” New York Law School Journal of Human Rights 10, no. 2 (Spring 1993): 297; and Ruth Ellen Wasem, Specialist in Social Legislation, to the House Judiciary Committee, Subcommittee on International Law, Immigration, and Refugees, Nov. 15, 1991, cited in Little, “United States Haitian Policy.”

  31 Stotzky, “Haitian Refugees and the Rule of Law,” 166–67; O’Neill, “The Roots of Human Rights Violations in Haiti,” 95–96.

  32 Little, “United States Haitian Policy,” 296–99; Haitian Centers Council v. Sale, June 8, 1993, U.S. District Court for the Eastern District of New York, 823 F. Supp. 1028; 1993 U.S. Dist. Lexis 8215, 7.

  33 Farmer, The Uses of Haiti, 100–107.

  34 Ibid., 106–107.

  35 Ibid., 109–10.

  36 Michael Massing, “Haiti: The New Violence,” New York Review of Books 34, no. 19 (Dec. 3, 1987): 45.

  37 Quoted in Farmer, The Uses of Haiti, 121.

  38 Ibid., 135–36.

  39 Ibid., 144–48.

  40 Ibid., 159–61. The evidence of U.S. deception and malfeasance here is overwhelming. See, among others, Tom Barry, “Interview with Haiti Expert Robert Maguire: Aristide’s Fall: The Undemocratic U.S. Policy in Haiti,” Americas Program (Silver City, N.M.: Interhemispheric Resource Center, Feb. 27, 2004); Irwin P. Stotsky, Silencing the Guns in Haiti: The Promise of Deliberative Democracy (Chicago: University of Chicago Press, 1997), chap. 1; Irwin P. Stotsky, “On the Promise and Peril of Democracy in Haiti,” University of Miami, Inter-American Law Review 29, no. 1/2 (1997); Alex Dupuy, The Prophet and Power: Jean-Bertrand Aristide, the International Community, and Haiti (New York: Rowman and Littlefield, 2007), chap. 4; Robert Fatton Jr., Haiti’s Predatory Republic: The Unending Transition to Democracy (Boulder, Colo.: Lynne Rienner Publishing, 2002), chap. 4; Anne-christine D’Adesky, “Père Lebrun in Context,” in Deidre McFadyen, ed., Haiti: Dangerous Crossroads (Boston: South End Press, 1995), 175–80; John Canham-Clyne, “Human Rights à la USAID,” The Progressive 58, no. 9 (Sept. 1994): 25–26; James Ridgeway, ed., The Haiti Files: Decoding the Crisis (Washington, D.C.: Essential Books, 1994), esp. part 3; Allan Nairn, “Haiti Under the Gun: How U.S. Intelligence Has Been Exercising Crowd Control,” The Nation, January 8, 1996, 11–15; Graham Hancock, The Lords of Poverty: The Power, Prestige, and Corruption of the International Aid Business (Boston: Atlantic Monthly Press, 1994); Peter Hallward, Damming the Flood: Haiti, Aristide, and the Politics of Containment (New York: Verso: 2008), introduction and chap. 1; and Andrew Reding, “Haiti: An Agenda for Democracy,” World Policy Institute, Feb. 1996.

  41 Brandt Goldstein, Storming the Court: How a Band of Law Students Fought the President—and Won (New York: Scribner, 2005), 98.

  42 Farmer, Uses of Haiti, 223–24.

  43 Ibid., 159, 221.

  44 William R. McClintock, Operation GTMO, 1 October 1991–1 July 1993 (USA-COM, 1998), 9, 184.

  45 Quoted in Farmer, Uses of Haiti, 223–24.

  46 Ibid., 9, 185.

  47 See Haitian Refugee Center Inc. v. Baker, Dec. 19, 1991, 950 F.2nd 685; Little, “United States Haitian Policy,” 298–99; O’Neill, “The Roots of Human Rights Violations in Haiti,” 114–15; McClintock, Operation GTMO, 13–14, 185–87.

  48 McClintock, Operation GTMO, 24–25. Thanks to Gerald L. Neuman, several copies of the paper are in the author’s possession.

  49 Witness quoted in Goldstein, Storming the Court, 73–74.

  50 Nicholas E. Reynolds, A Skillful Show of Strength: United States Marines in the Caribbean, 1991–1996 (Washington, D.C.: History and Museums Division, Headquarters, U.S. Marine Corps, 1993), 14.

  51 Ibid., 15.

  52 Little, “United States Haitian Policy,” 300–301.

  53 Quoted in O’Neill, “The Roots of Human Rights Violations in Haiti,” 105.

  54 McClintock, Operation GTMO, 94. Zette’s fate is described in Goldstein, Storming the Court, 99–101, 106–107.

  55 Human Rights Watch, “Half the Story: The Skewed U.S. Monitoring of Repatriated Haitian Refugees,” Americas 4, no. 4 (June 30, 1992): 3–4.

  56 Reynolds, “A Skillful Show of Strength,” 17; Goldstein, Storming the Court, 118, 126.

  57 Cf. Farmer, Uses of Haiti, 226.

  58 Haitian Centers Council (HCC) v. Sale, June 8, 1993, 823 F. Supp. 1028; 1993 U.S. Dist. Lexis 8215, 8.

  59 Ibid., 8–9; Goldstein, Storming the Court, 98–99.

  60 Goldstein, Storming the Court, 287; Jean quoted in Farmer, Uses of Haiti, 218.

  61 Goldstein, Storming the Court, 77.

  62 Johnson and Valentine quoted in ibid., 77–78.

  63 Goldstein, Storming the Court, 107.

  64 Ibid., 111.

  65 Ibid., 114–45.

  66 Quoted in ibid., 119.

  67 McClintock, Operation GTMO, 195.

  68 Goldstein, Storming the Court, 127–29.

  69 Ibid.

  70 Ibid., 138.

  71 Haitian Centers Council v. McNary, June 5, 1992, U.S. Dist. Lexis 8452, 3–4; Goldstein, Storming the Court, 139, 148.

  72 McClintock, Operati
on GTMO, 51, 202–203.

  73 Human Rights Watch, “Half the Story,” 4.

  74 McClintock, Operation GTMO, 32, 203; Goldstein, Storming the Court, 140–41.

  75 Farmer, Uses of Haiti, 229.

  76 McClintock, Operation GTMO, 32.

  77 Ingrid Arnesen, “HIV Prisoners,” The Nation, January 4/11, 1993, 4–5.

  78 Goldstein, Storming the Court, 273–75.

  79 McClintock, Operation GTMO, 32.

  80 Goldstein, Storming the Court, 269.

  81 Ibid., 232–33.

  82 Ibid., 234. Cf. Arnesen, “HIV Prisoners,” 4–5.

  83 Goldstein, Storming the Court, 143.

  84 Ibid., 143, 148–49, 157–58.

  85 McClintock, Operation GTMO, 208–209.

  86 Ibid., 211–12.

  87 Sale v. Haitian Centers Council, March 2, 1993, 509 U.S. 155; 113 S. Ct. 2549.

  88 Goldstein, Storming the Court, 230–38; Sale v. Haitian Centers Council, 27.

  89 Judge Sterling Johnson quoted in Goldstein, Storming the Court, 275–76.

  90 Ibid., 268.

  91 Johnson quoted in ibid., 287.

  92 Haitian Centers Council v. Sale, 11.

  93 Ibid., 13.

  94 Ibid., 14.

  95 Ibid., 14–15.

  96 Ibid., 18.

  97 Sale v. Haitian Centers Council, 10.

  98 Ibid., 27–28.

  99 Ibid., 37.

  100 Clinton quoted in Harold Hongju Koh, “Reflections on Refoulement and Haitian Centers Council,” Harvard International Law Journal 35, no. 1 (Winter 1994): 2n6.

  101 Ibid., 5, 17–18.

  9 THE CHOSEN

  1 Telephone interview with Norman A. Rogers, Nov. 8, 2010. Rogers asked that I not use his real name.

  2 Ibid.

  3 Author interview, Commander Jeffrey Johnston, U.S. Navy, Guantánamo Bay, Cuba, Oct. 28, 2008; follow-up telephone interview, Oct. 8, 2010.

  4 Clarke quoted at abcnews.go.com/International/story?id=80277&page=1.

  5 Author interviews of Rogers and Johnston, Nov. 8, 2010, and Oct. 8, 2010, respectively.

  6 Department of Defense News Briefing, Secretary Rumsfeld and General Myers, Dec. 11, 2001, available at avalon.law.yale.edu/sept11/dod_brief118.asp.

  7 Department of Defense News Briefing, Secretary Rumsfeld, Dec. 27, 2001, available at avalon.law.yale.edu/sept11/dod_brief137.asp.

  8 This was the opinion of Thomas J. Romig, judge advocate general, U.S. Army (2001–2005), for instance. In a conversation with Pentagon general counsel William J. Haynes II in early November 2001, Romig told Haynes that Guantánamo would be the perfect choice to conduct fair and efficient military tribunals in concert with short-term detention. “I was not in the least bit troubled by using Guantánamo for military commissions,” Romig told me. “Once we got the rules straight, I expected that we could try these detainees and get them out of there within a year.” Telephone interview with Thomas J. Romig, Oct. 11, 2010.

  9 Rogers interview, Nov. 8, 2010.

  10 Ibid. Here Rogers is in very good company, by no means limited to “liberals.” Cf. among legions of other career military personnel, Thomas J. Romig; telephone interview, Oct. 11, 2010.

  11 Rogers interview, Oct. 11, 2010.

  12 Yoo has many critics, none more unremitting than Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values (New York: Palgrave Macmillan, 2008), 230 and passim.

  13 Author interview, John Yoo, Oct. 18, 2010, Berkeley, Calif.

  14 Patrick Philbin, John Yoo Memorandum for William J. Haynes II, Dec. 28, 2001, 34–35, in Karen J. Greenberg and Joshua L. Dratel, eds., The Torture Papers: The Road to Abu Ghraib (Cambridge, UK: Cambridge University Press, 2005), 29–37.

  15 Ibid., 29–30.

  16 Ibid., 30.

  17 Lease of Certain Areas for Naval Coaling Stations, July 2, 1903, U.S.-Cuba, T.S. No. 426, 6 Bevans 1120. Cf. Michael John Strauss, The Leasing of Guantánamo Bay (Santa Barbara, Calif.: Praeger, 2009), 78–103.

  18 Joseph Margulies, Guantánamo and the Abuse of Presidential Power (New York: Simon & Schuster, 2006), 45–49. In making his case for the predominance of Eisentrager, Yoo understated the degree of U.S. sovereignty at Guantánamo Bay. “The fact that the United States can exercise some ‘jurisdiction’ and ‘control’ over the base is not the relevant factor for purposes of the analysis in Eisentrager,” he wrote. But Yoo’s “some” is disingenuous. U.S. control at Guantánamo is absolute, as Yoo himself undoubtedly knew at the time; see Yoo to Haynes, Dec. 28, 35.

  19 Ibid., 36.

  20 As if struggling to be heard, Yoo has written about presidential authority in wartime in three books published since 9/11: War by Other Means: An Insider’s Account of the War on Terror (New York: Atlantic, 2006), see esp. chap. 6; The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press, 2006), introduction and chap. 4; and Crisis and Command: A History of Executive Power from George Washington to George W. Bush (New York: Kaplan, 2010), esp. introduction and 401–427.

  21 voices.washingtonpost.com/44/2009/04/30/rice_defends_enhanced_interrog.html.

  22 Philbin, Yoo, Memorandum for Haynes, 37.

  23 voices.washingtonpost.com/44/2009/04/30/rice_defends_enhanced_interrog.html.

  24 Stephan Lewandowsky, Werner G. K. Stritzke, Klaus Oberauer, and Michael Morales, “Misinformation and the ‘War on Terror’: When Memory Turns Fiction into Fact,” in Stritzke, Lewandowsky, David Denemark, Joseph Clare, and Frank Morgan, eds., Terrorism and Torture: An Interdisciplinary Perspective (New York: Cambridge University Press, 2009), 179–203.

  25 Karen Greenberg, The Least Worst Place: Guantánamo’s First Hundred Days (New York: Oxford University Press, 2009), 3.

  26 Darius Rejali, Democracy and Torture (Princeton, N.J.: Princeton University Press, 2007), 22.

  27 Scott Shane, “Soviet-style ‘Torture’ Becomes ‘Interrogation’ in the War on Terror,” New York Times, June 3, 2007, Week in Review, 3; and Shane, “China-Inspired Interrogations at Guantánamo,” New York Times, July 2, 2008, A1, 14.

  28 U.S. Senate Armed Services Committee, “Inquiry into the Treatment of Detainees in U.S. Custody,” Nov. 20, 2008, available at www.scribd.com/doc/14539734/Inquiry-Into-the-Treatment-of-Detainees-in-US-Custody-Nov-20-2008, 179n179. Moulton’s testimony jibes with that of Lieutenant Colonel Daniel J. Baumgartner, also of JPRA, who, prodded by evidence provided by the Senate committee, remembered communicating with Richard Schiffrin of the Pentagon’s Office of the General Counsel in December about “the exploitation process and historical information on captivity and lessons learned.” Testimony of Daniel J. Baumgartner Jr., USAF (Ret.), before the U.S. Senate Armed Services Committee, June 17, 2008, available at armed-services.senate.gov/statemnt/2008/June/Baumgartner%2006-17-08.pdf.

  29 Guter quoted in Tom Lasseter, “Day 4: Easing of Laws That Led to Detainee Abuse Hatched in Secret,” June 18, 2008, Guantánamo: Beyond the Law project, McClatchy Washington Bureau, available at www.mcclatchydc.com/2008/06/18/38886/day-4-easing-of-laws-that-led.html#ixzz0nvz8fsuZ.

  30 Addington quoted in Sands, Torture Team, 32; Comey quoted in Lasseter, “Day 4.”

  31 Johnston interview, Oct. 8, 2010.

  32 Testimony of Specialist Brandon Neely, The Guantánamo Testimonials Project, Center for the Study of Human Rights in the Americas, University of California at Davis, available at humanrights.ucdavis.edu/projects/the-Guantánamo-testimonials-project/testimonies/testimonies-of-military-guards/testimony-of-brandon-neely.

  33 The camp housed detainees from January 11 to April 29. See www.globalsecurity.org/military/facility/guantánamo-bay_x-ray.htm.

  34 In many accounts of the Guantánamo detention facility, the I in IRF is mistakenly referred to as “Initial” or “Internal.” Neely compounds this mistake by changing the “Response” to “Reaction.” Neely, The Guantánamo Testimonials Project.

  35 For a description and analysis of
the IRFs, see Neely: “As far as IRFing is concerned, when I was there it went somewhat in this order: (1) The block guards would have a problem with a detainee (not listening, maybe saying something, or not following rules). The guards would then contact the duty officer for that shift. We were told ‘If you were working a block and having a problem with one of the detainees and you couldn’t handle it or get it under control, you should call the duty officer,’ who was usually a E-7 (sergeant first class) or a 0-1 or 0-2 (first and second lieutenant). They would come to the block, assess the situation, and make the decision whether to take ‘comfort items’ away or call the IRF team into play. If the latter, then (2) the duty officer would come to the block with an interpreter and tell the detainee to do whatever he was told to and, if not, the IRF team would be called upon. (3) Once the IRF team was called upon and arrived on the block there was no ‘I am sorry, I will do it’ from the detainee; the IRF team was going to enter that cage and hog-tie that detainee.” Cf. humanrights.ucdavis.edu/projects/the-Guantánamo-testimonials-project/testimonies/testimonies-of-military-guards/an-analysis-of-the-immediate-reaction-force-reports.