By Marjorie Cohn

From Portside

Travelers to Cuba and music lovers are familiar with
the song "Guantanamera"-- literally, the girl from
Guantanamo. With lyrics by Jose Marti, the father of
Cuban independence, Guantanamera is probably the most
widely known Cuban song.  But Guantanamo is even more
famous now for its U.S. military prison.  Where
"Guantanamera" is a powerful expression of the beauty
of Cuba, "Gitmo" has become a powerful symbol of human
rights violations--so much so that Amnesty International
described it as "the gulag of our times."

That description can be traced to January 2002, when
the base received its first 20 prisoners in shackles.
General Richard B. Myers, chairman of the Joint Chiefs
of Staff, warned they were "very dangerous people who
would gnaw hydraulic lines in the back of a C-17 to
bring it down."  We now know that a large portion of
the 750 plus men and boys held there posed no threat to
the United States. In fact, only five percent were
captured by the United States; most were picked up by
the Northern Alliance, Pakistani intelligence officers,
or tribal warlords, and many were sold for cash
bounties.

The Guantanamo story starts in 1903, when the U.S. Army
occupied Cuba after its war of independence against
Spain.  The Platt Amendment, which granted the United
States the right to intervene in Cuba, was included in
the Cuban Constitution as a prerequisite for the
withdrawal of U.S. troops from the rest of Cuba.  That
provision provided the basis for the 1903 Agreement on
Coaling and Naval Stations, which gave the United
States the right to use Guantanamo Bay "exclusively as
coaling or naval stations, and for no other purpose."

In 1934, President Franklin D. Roosevelt signed a new
treaty with Cuba that allows the United States to
remain in Guantanamo Bay until the U.S. abandons it or
until both Cuba and the United States agree to modify
their arrangement.  According to that treaty, "the
stipulations of [the 1903] agreement with regard to the
naval station of Guantanamo shall continue in effect."
That means Guantanamo Bay can be used only for coaling
or naval stations.  Additionally, article III of the
1934 treaty provides that the Republic of Cuba leases
Guantanamo Bay to the United States "for coaling and
naval stations."  Nowhere in either treaty did Cuba
give the U.S. the right to utilize Guantanamo Bay as a
prison camp.

It is no accident that President George W. Bush chose
Guantanamo Bay as the site for his illegal prison camp.
His administration maintained that Guantanamo Bay is
not a U.S. territory, and thus, U.S. courts are not
available to the prisoners there.  But, as the Supreme
Court later affirmed, the United States, not Cuba,
exercises exclusive jurisdiction over Guantanamo Bay.
Amanda Williamson, a spokeswoman in the Red Cross'
Washington office, noted that prisoners at Guantanamo
"have been placed in a legal vacuum, a legal black
hole." Amnesty International went further, noting an
obvious gap between U.S. rhetoric and practice: "Given
the USA's criticism of the human rights record of Cuba,
it is deeply ironic that it is violating fundamental
rights on Cuban soil, and seeking to rely on the fact
that it is on Cuban soil to keep the U.S. courts from
examining its conduct."

Although the Convention Against Torture, a treaty the
United States has ratified, forbids the use of coercion
under any circumstances to obtain information,
prisoners released from Guantanamo have detailed
assaults, prolonged shackling in uncomfortable
positions, sexual abuse, and threats with dogs.
Mustafa Ait Idr, an Algerian citizen who was living in
Bosnia when he was sent to Guantanamo, charged that
U.S. military guards jumped on his head, resulting in a
stroke that paralyzed his face. They also broke several
of his fingers and nearly drowned him in a toilet.
Mohammed Sagheer, a Pakistani cleric, claimed the
wardens at Guantanamo used drugs "that made us
senseless." French citizen Mourad Benchellali, released
from Guantanamo in July 2004, said, "I cannot describe
in just a few lines the suffering and the torture; but
the worst aspect of being at the camp was the despair,
the feeling that whatever you say, it will never make a
difference."  Benchellali added, "There is unlimited
cruelty in a system that seems to be unable to free the
innocent and unable to punish the guilty."

Australian lawyer Richard Bourke, who has represented
many of the men incarcerated at Guantanamo, charged
that prisoners have been subjected to "good
old-fashioned torture, as people would have understood
it in the Dark Ages." According to Bourke, "One of the
detainees had described being taken out and tied to a
post and having rubber bullets fired at them. They were
being made to kneel cruciform in the sun until they
collapsed." Abdul Rahim Muslimdost, an Afghan who was
released from Guantanamo in April 2005, said he
suffered "indescribable torture" there.

U.S. and international bodies have verified reports of
torture and abuse.  Physicians for Human Rights found
that "the United States has been engaged in systematic
psychological torture of Guantanamo detainees" at least
since 2002. FBI agents saw female interrogators
forcibly squeeze male prisoners' genitals and witnessed
detainees stripped and shackled low to the floor for
many hours. In February 2006, the United Nations Human
Rights Commission reported that the violent
force-feeding of detainees by the U.S. military at
Guantanamo amounts to torture.

The very existence of the Guantanamo prison camp harms
America's international reputation.  A January 2005
editorial in Le Monde concluded, "The simple truth is
that America's leaders have constructed at Guantanamo
Bay a legal monster." Moreover, it has created more
enemies of the United States.  Writing for the New York
Times, Somini Sengupta maintained that Guantanamo Bay
has been a setback in the war on terror insofar as it
has "emerged as a symbol of American hypocrisy."

The list of Guantanamo critics is a long one.
Archbishop Desmond Tutu dubbed it a stain on the
character of the United States.  Former U.N. Secretary
General Kofi Annan said the United States must close
the camp as soon as possible. The Economist called for
the facility to be dismantled, described the treatment
of the prisoners there as "unworthy of a nation which
has cherished the rule of law since its very birth,"
and claimed it "has alienated many other governments at
a time when the effort to defeat terrorism requires
more international co-operation in law enforcement than
ever before."  The National Lawyers Guild, Association
of American Jurists, Inter-American Commission on Human
Rights, and Amnesty International have all called for
closing the prison camp and releasing or charging
prisoners with criminal offenses in accordance with
international legal norms.

In addition to legal and political problems with
Guantanamo, there are enormous human costs to consider.
Attorney Joseph Margulies has been to death row in six
states and watched his client be executed.  But as he
noted, "I have never been to a more disturbing place
than the military prison at Guantanamo Bay.  It is a
place of indescribable sadness, where the abstract
enormity of 'forever' becomes concrete: this windowless
cell; that metal cot; those steel shackles."

Indeed, Army Col. Terry Carrico, the first warden at
Guantanamo, complained that when he was there, the men
were held in "basically outdoor cages," adding, "It's
what you would normally find in a veterinarian's
facilities to hold animals." Carrico said "very few" of
the men imprisoned during his tenure had useful
intelligence. He favors closing Guantanamo, but doubts
that will ever happen.

President Barack Obama said a year ago that he was
committed to closing Guantanamo because it was a symbol
that was "probably the No. 1 recruiting tool" on
terrorist websites.  But Obama signed the National
Defense Authorization Act (NDAA), which bars any
transfer of detainees to U.S. prisons, even for trial.
The act also restricts the President's authority to
transfer detainees to other countries. Of the 171 men
remaining at Guantanamo, 89 have been cleared for
release by a review conducted by the CIA, FBI,
military, and Department of Homeland Security. But
those men will likely die at Guantanamo because Obama
refused to put the brakes on Congress's use of the
issue as a political football in the NDAA.

In a recent op-ed in The New York Times, Harvard
lecturer Jonathan M. Hansen wrote, "It is past time to
return this imperialist enclave to Cuba," adding, "It
has served to remind the world of America's long
history of interventionist militarism."

Obama should heed Hansen's words. For the abiding
presence of the Guantanamo gulag is not simply illegal
and immoral. It also continues to be a symbol of U.S.
hypocrisy, and makes us a target for more terrorist
attacks.

Marjorie Cohn is a professor at Thomas Jefferson School
of Law and past president of the National Lawyers
Guild. Her most recent book is The United States and
Torture: Interrogation, Incarceration, and Abuse. See
her blog.