By Laurel E. Fletcher and Eric Stover, University of California Press, Berkeley, 210 pages, $40 (paperback, $15)
In her foreword to “The Guantánamo Effect,” Patricia McGowan Wald, former chief judge of the U.S. Court of Appeals for the District of Columbia, writes that it “adds a new chapter to the chronicle of America’s dismal descent into the netherworld of prisoner abuse.” The book, written by Laurel E. Fletcher and Eric Stover and based on the work of a team of researchers from the University of California, lives up to this ominous appraisal. It does so with exhaustive documentation and laudable clarity of expression.
On March 4, there appeared in the Law Journal a review of “The Guantánamo Lawyers,” edited by Mark Denbeaux and Jonathan Hafetz. It consists of accounts of Guantánamo detainees’ experiences by their attorneys. The two books are not related, but “The Guantánamo Lawyers” contains the kind of raw material from which the present book was fashioned.
“The Guantánamo Effect” aims broader and deeper than the earlier book. It goes beyond the conditions of confinement at Guantánamo itself. It deals with the entire process of apprehension, imprisonment and interrogation of suspected terrorists. It includes analysis and evaluation as well as narrative. Thus in their preface the authors set out to “examine…a wide range of policies and practices aimed at breaking the bodies and minds of real and imagined enemies.”
In a first chapter entitled “The New Paradigm,” the authors give details of a series of Department of Justice memoranda justifying “enhanced interrogation techniques” that came to be considered by many as just plain torture. The lawyers involved had to get around the Third Geneva Convention, signed by 195 countries, including the United States. It forbade not only “physical or mental torture” but also “any other form of coercion to secure from [persons confined] information of any kind whatever.”
Persons detained in Afghanistan went first, for preliminary processing, to one of two locations in that country. The authors present evidence, including interviews of men held at one or the other of these camps, that a stay there was far from pleasant. One device that captives found particularly offensive was nudity, sometimes in the presence of women, a source of extreme humiliation for a Muslim man.
When it comes to Guantánamo itself, the book goes into not only what happened to those subjected to confinement and interrogation. It deals as well with the psychological and emotional impact of the treatment they received. The authors characterize the experience as “arbitrary and humiliating, punctuated at times by excruciating mental or physical pain.” As one ex-prisoner put it, the uncertainty, as to why and for how long one was being held, often in isolation and under extreme temperature and other discomfort, without knowing the reason for one’s confinement, “was really the worst time for me, mentally and physically.”
The authors stress the likelihood that many of those imprisoned at Guantánamo had no connection with terrorism. A CIA analyst who visited the camp in 2002 concluded that a third of the prisoners were innocent and “should not have been there.” The camp commandant later raised the estimate to one half. Fletcher and Stover suggest, with some support, that the payment of bounties for suspects “created an indiscriminate and unscrupulous dragnet” by tempting some persons to settle personal scores by turning in enemies falsely labeled terrorists.
A chapter entitled “The Legacy of Guantánamo” tells of what became of some of those released from imprisonment. For many, their ordeal was not over. Partly because the United States time and again emphasized that release did not amount to a finding of innocence, some ex-captives were arrested and even convicted by their home governments. Some found themselves living under a cloud of suspicion and had difficulty finding employment or renewing family life. Some found that their property had been confiscated or destroyed during their absence. For more than a few, the experience left enduring physical or emotional scars.
The authors end their book with “Conclusions and Recommendations.” Their team’s research, they write, has revealed “serious flaws in the system…for the apprehension, detention, interrogation, and release of suspected members of the Taliban and Al Qaeda taken into U.S. custody since…September 11, 2001.”
They recommend appointment of an “independent, non-partisan commission” to investigate fully and report publicly on every aspect of this phase of the war on terrorism. For each person whose rights the commission finds were violated, the commission should, they maintain, recommend “issuing an apology, providing compensation, and providing a fair means for clearing that person’s name.”
Yes, there are those who defend what happened at Guantánamo and elsewhere. They argue that terrorism, a kind of struggle never before encountered by the country, requires new tactics and the setting aside of traditional constraints. A few go so far as to contend, over strenuous contradiction, that “enhanced interrogation techniques” have produced worthwhile intelligence. “The Guantánamo Effect” is unlikely to change such persons’ opinions. It will surely, however, make their case a tougher one to prove.
Walter Barthold has retired from the practice of law in New York City. He and Judge Wald, quoted in the first paragraph, were law school classmates.