The first meeting between Marc Falkoff and Mohamed Mohamed Hassan Odaini occurred in a retrofitted storage container, with Odaini’s legs shackled and chained to a bolt in the floor. It was November 2004. Falkoff, who now teaches law at Northern Illinois University, says he was immediately struck by how young the 21-year-old prisoner from Taiz, Yemen, looked–skinny with elfin features and scraggly facial hair–and by how open he seemed: after almost two and a half years at Guantanamo and countless interrogations, he seemed neither wary nor mistrustful of yet another American asking him questions. “He had been waiting for a lawyer,” Falkoff says.
On subsequent visits to Guantanamo, Falkoff gave Odaini updates on the habeas petitions. The Bush administration was fighting to get them dismissed, and prisoners weren’t likely to get their day in court anytime soon.
But U.S. officials had reason early on to question such claims. The New Yorker recently reported that in the summer of 2002 (when Odaini arrived), a CIA analyst who visited the naval prison estimated that more than half of the prisoners didn’t belong there. In October 2004 the deputy commander of Guantanamo told the Financial Times, “Most of these guys weren’t fighting. They were running.”
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Nearly six years after Guantanamo opened, a chorus of voices at home and abroad is calling on the Bush administration to shut it down. The voices include the United Nations Commission on Human Rights, which issued a report last year condemning the U.S. for the “arbitrary deprivation of the right to personal liberty,” among myriad other violations of international law.
In April 2004, Amnesty International held a two-day conference in Sanaa, Yemen, that brought together human rights activists, lawyers, and the families of Guantanamo prisoners, whose identities the Bush administration had refused to reveal.
The Republican-controlled Congress did what it could to help the Bush administration stave off judicial oversight. After the Supreme Court ruled, it passed the Detainee Treatment Act of 2005, stripping Guantanamo prisoners of their access to U.S. courts. When the Supreme Court ruled that the law had no effect on already pending cases, Congress dotted that i by passing the Military Commissions Act of 2006.
But the military’s system for reviewing detainees’ cases looks nothing like an American system of justice. In the fall of 2004, the military began holding combat status review tribunals. The stated purpose of the hearings was to determine whether the prisoners had been properly classified as enemy combatants, a term so broad it includes anyone who has indirectly or unwittingly supported forces hostile to the U.S. (A government lawyer conceded to a federal judge during a hearing to dismiss the habeas petitions that “a little old lady in Switzerland” could be detained as an enemy combatant at Guantanamo for writing checks “to what she thinks is a charity that helps orphans in Afghanistan, but really is a front to finance Al Qaeda activities.”)
