I run alongside an abandoned firing range and across a flat field that ends against the rise of a steep hill. A trail leads up the slope. There is no sign warning Danger: No Entry! as in so many places on Guantánamo Bay Naval Base. I take a quick look around and begin to climb at a jogging pace. As I scramble up the trail, I repeat aloud my hill-climbing mantra: “Every hill has a crest.”
The view from the top is spectacular. I can see 360 degrees around the naval base. Most of the buildings and activity are east of the bay; the west side is sparser, quieter. The Guantánamo River flows down from the distant mountains, and an inlet near its mouth leads to the smaller Mahomilla Bay, where manatees float. I long to run past the fence at the edge of the military installation and along the peaceful coastline that stretches to the far-eastern tip of Cuba.
But I am confined to the base, an attorney with an “HC” designation, for “habeas counsel.” My colleagues and I represent a prisoner who is detained here. In the wake of the terrorist attacks of 9/11, at the start of the war in Afghanistan, thousands of men were rounded up — often for bounty money — and interrogated at Bagram Airfield near Kabul. Many were subjected to torture and harsh conditions, and more than seven hundred were then shackled, blindfolded, hooded, and flown here to this prison. One hundred sixty-six remain. Some are guilty, and some are innocent. The way our country normally differentiates between the two is by due process of law, whereby the accused receives a fair trial. But the rule of law has been suspended for most of the Guantánamo detainees. For these men there are no charges, no indictments, no arraignments, and no trials. There is only indefinite incarceration, possibly until death. Guilt and innocence exist merely as abstract matters of debate, not as determinations made in court.
The entire naval base, bay and all, is a near rectangle about nine miles by five miles, almost the size of Washington, D.C., where I live. From my position atop the hill I can see a guard tower along the fence, and I wonder if a pair of binoculars there are fixed on me right now. The base dates back to 1903, and its buildings — constructed largely in the 1950s — are practical cinder-block structures without architectural embellishment. Most are now empty.
I resume my afternoon exercise on trails that are as perfect as one can find for running: firm soil with bits of shell. I pass an old ranch-style house with broken windows and a rusty swing set in the yard. This could be the set of a post-apocalyptic TV show. I get the feeling that I am not supposed to be here. Everywhere there are Humvee tracks, old trailers, and unidentifiable objects in various stages of decay.
I jog as far into this uncharted area as I can, toward the mouth of the river. A soldier emerges from some reeds, and then a dozen more. Guns are pointing at me. I have accidentally run into a squad on patrol in full gear. An officer waves me through. I lock eyes with the soldiers as I pass, wanting to salute to show my respect, but as a lawyer representing a detainee, I am not a welcome presence. I look down and quicken my pace.
I decide I’d better turn back, dashing across barren fields ready for tents to house refugees who may never arrive. Before 2001 the name Guantánamo evoked images of Americans helping those in need, mostly Haitians. Now the word has very different associations. Though the prison no longer holds detainees under the inhumane conditions that existed for many years, the endless detention — itself inhumane — continues. Detainees are allowed only one means by which to challenge their detention: the writ of habeas corpus. The writ derives from the Magna Carta, a British document of 1215 that says the monarch does not have the absolute power to detain and punish his or her subjects; instead such actions must be reviewed by an independent court. This cornerstone of British law eventually found its way into the U.S. Constitution.
In 2008 our U.S. Supreme Court found that the detainees at Guantánamo do have the constitutional right of habeas corpus, meaning they cannot be held indefinitely without a trial. At that time hundreds were released, including two of my firm’s three clients, who returned to their homes in Saudi Arabia and Tajikistan. The Saudi prisoner was guilty of nothing but charity and let go after five years of confinement under horrendous conditions. The arrest of the Tajik had been a case of mistaken identity — military authorities had simply rounded up the wrong man, and he’d spent seven years in prison for nothing.
Our remaining detainee is a Muslim from the Republic of Tatarstan in Russia, a ballet dancer by profession. “A ballet-dancing terrorist,” he jokes. He is now in his tenth year of imprisonment. He discovered Islam as an adult while in the Russian Army, which is rife with discrimination against Muslims. When the authorities would not even permit him to name his son Yusef instead of Josef, his family decided to leave. He emigrated ahead of his wife and child and made it as far as Pakistan, where in early 2002 he was arrested by Pakistani police, turned over to U.S. forces, and then shipped to Guantánamo on a military-transport plane in conditions worse than those for animals.
In 2010 there was a habeas corpus hearing for our ballet dancer. Such a hearing is not a trial and does not determine guilt or innocence. The government has one burden, and an easy one at that: it must put forth sufficient evidence to show that the detainee meets the legal definition of an “enemy combatant” — a definition the courts have made both broad and vague. Someone can be an “enemy combatant” if he or she supported in just about any way a group that can even be “associated” with Al Qaeda or the Taliban. Sometimes it seems as if just being a Muslim might be enough.
The most satisfying moment in the case was the day the hearing ended, before the decision was released. Our achievement? There had been a process. This is what elevates a nation that follows the rule of law above those that don’t: we do not round up prisoners and mistreat them and detain them indefinitely without due process.
We won the weeklong habeas corpus hearing. The district judge ruled that the government had failed to meet its burden and ordered our client released. American principles had prevailed, just as they had in about seven out of ten cases that had gone to hearing: the government had been unable to muster enough evidence to justify detention even by its own low standard.
But the government appealed, and during the appeal our client’s release was put on hold. The D.C. Circuit Court sat on the appeal for two years while reversing the lower court’s decision to release other detainees. Then the matter was sent back to the lower court to consider whether there should be a new trial based on old evidence that the government claims to have overlooked the first time: the new lower-court judge has sat on the motion for more than a year. No such motion for retrial would ever be granted in a normal proceeding, but the unspoken rule in the D.C. Circuit Court seems to be that the government always wins.
In the summer of 2013, eleven years into our client’s detention, we are still waiting to find out if our victory will be allowed to stand. If it is, he will be the only one freed out of the dozens who won their hearings in 2010. Meanwhile the D.C. Circuit Court keeps announcing new evidentiary rules that strongly favor the government, such as the rule that anything written in a government report — no matter how many layers of hearsay it contains and regardless of whether someone was tortured into revealing the so-called information — is presumed correct; the detainee’s testimony to the contrary is not enough to overcome this presumption.
We try to explain to our client that, although he won his hearing three years ago, there may yet be another hearing, but he barely listens. Is it any wonder he has lost interest in his legal case? It just goes on and on, like his imprisonment. His son, Yusef, now twelve, long ago fled Russia with his mother to Syria, then to a refugee camp in Jordan, and then back full circle to Russia. The boy longs to meet his father.
The final leg of my run is a two-mile downhill slope to the ferry landing, with a full view of the bay and, in the distance, a mountain topped by white wind turbines. The dusk light turns everything golden. These are the running moments that allow me briefly to forget all else.
Our client remains in prison, along with 165 other detainees. A few of them are guilty, to be sure, but others are innocents stuck in the Kafkaesque labyrinth of Guantánamo. Even if he is someday released, our client will always be a leper in the West. Yet somehow he remains cheerful and makes jokes. We converse on many topics: history, philosophy, sports. He has maintained his dancer’s build and enthusiasm for physical fitness, and he knows that I am a marathoner. Chained to the floor, he asks me about my running.