Concentration Camp Guantánamo, by Richard Moore with accompanying articles, 12/5/03

People the law forgot [Part Two]
by James Meek, The Guardian, 3 December 2003

It is almost two years since the Guantánamo prison camp opened. Its purpose is to hold people seized in the `war on terror' and defined by the Bush administration as enemy combatants -- though many appear to have been bystanders to the conflict. Images of Camp Delta's orange-jumpsuited, manacled detainees have provoked international outrage. But the real horror they face isn't physical hardship, it is the threat of infinite confinement, without trial or access to legal representation. James Meek has spent the past month talking to former inmates and some of those involved in operating the Pentagon's Kafkaesque justice system. He has built an unprecedented picture of life on the base, which we present in this special issue.

One summer's day in Cuba in 2002, a 31-year-old Pakistani teacher of English named Abdul Razaq noticed something unusual in the familiar patterns of movement among the orange-suited figures in the mesh cages on either side of him. Two or three cages along from his own, a fellow Pakistani prisoner, Shah Mohammed, was silently going about trying to hang himself from a sheet lashed to the mesh. He had the cloth around his throat and he was choking.

Other prisoners in neighbouring cells had noticed and, as they usually did when a detainee in the United States prison camp in Guantánamo Bay tried to kill himself, they raised a hue and cry in their many languages.

"First we shouted at Shah Mohammed to stop, but when he didn't, we called the guards," says Razaq, who was released from Guantánamo in July, and returned to his home town in October after three months' detention by the Pakistani authorities. "The guards came in and saved him. It was the first time he attempted this in my block, then he was taken to another place. He appeared to be unconscious."

It was one of four suicide attempts by Mohammed while he was in Guantánamo. He was released in May and lives in the Swat Valley, on the far side of the Malakand Hills from Peshawar, a few dozen miles from Razaq's home. It is a district of God-fearing, conservative, cricket-loving yeomen, who are passionate about their land and liberty, and protective of their right to bear arms; the fields of sugar cane and tobacco are well tended, and prices in the gun shops are more reasonable than their counterparts in America. In the mornings, a crocodile of small boys in black berets, walking to school, stretches for miles.

Mohammed, who is 23 and a baker by trade, is 5ft 3in and light on his feet. He has been having nightmares ever since he came back. His face peers out from behind a lustrous black beard and long hair like a child hiding between the winter coats in a wardrobe. In Kandahar and Guantánamo, he was interrogated 10 times.

His face only lights up when you ask about fishing. He has been doing a lot of it -- mostly for trout -- since his return. The other day he caught a five-pounder with his Japanese rod. "The biggest damage is to my brain. My physical and mental state isn't right. I'm a changed person," he says. "I don't laugh or enjoy myself much."

Asked why he tried to commit suicide so often, Mohammed is vague. He talks about worries over troubles at home; his mother's health, his brother's business, and "my own problems". But his attempts at self-harm at Guantánamo began after he was confined, without explanation, in a sealed punishment cell for a month -- not, it seems, because he had broken camp rules, but because the American authorities had nowhere else to put him while they were finishing new facilities.

In India Block, as the block of punishment cells is known, "there were no windows. There were four walls and a roof made of tin, a light bulb and an air conditioner. They put the air conditioning on and it was extremely cold. They would take away the blanket in the morning and bring it back in the evening. I was kept in this room for one month. We'd ask them: `Is this a sort of a punishment?' And the translator would say, `No, this is being done on orders from the general.'"

As treatment for Mohammed's suicidal state of mind, US medics injected him with an unknown drug, against his will. "I refused and they brought seven or eight people and held me and injected me," he says. "I couldn't see down, I couldn't see up. I felt paralysed for one month -- this injection, the effect, I couldn't think or do anything. They gave me tranquillising tablets. They just told me: `Your brain is not working properly.' They were forcing me to take these injections and tablets and I didn't want to do that. Some people were being injected every month."

In trying to learn what life is like at the US prison camp at Guantánamo, the few score of released detainees -- almost all Pakistanis and Afghans -- are among the scant sources available. Journalists are allowed to "visit" the facility; the Guardian has been three times, and I was offered a slot, but journalists, like family members, lawyers and human rights investigators, have no access to the detainees themselves. Like a tour of the White House, the visits offer a superficial openness about the lives of the main occupants.

Yet the testimony of those former detainees, together with rare scraps of information from censored mail, official statements and the odd comment from guards and others who have been inside, overlaps into a coherent portrait. In the almost two years since the Guantánamo prison camp opened to hold people seized by the US in what the Bush administration has designated "the war on terror", it has settled from a rough and ready, occasionally brutal place of confinement into a full-grown mongrel of international law, where all the harshness of the punitive US prison system is visited on foreigners, unmitigated by any of the legal rights US prisoners enjoy. To this is added the mentally corrosive threat, alien to the US constitution, of infinite confinement, without court or appeal, on the whim of a single man -- the president of the US. The question, "What is Guantánamo really like?", has all the appeal of the unknown. But inside it lurks a darker question, with all the implications for freedom in America and beyond that its answer contains: "What is Guantánamo?"

One of the few political statements to slip past the censors by a man still detained there is contained in a short postcard from a French prisoner, Nizar Sassi, to his family, dated August 2002. "If you want a definition of this place," he wrote, "you don't have the right to have rights."

The US executive acted quickly in the weeks following the September 11 terrorist attacks on New York and Washington. Within 26 days, Afghanistan was being attacked from the air; Kabul fell in nine weeks. Eleven weeks after the World Trade Centre was destroyed, resistance by Taliban fighters and their non-Afghan allies in northern Afghanistan was crushed.

But, as US defence secretary Donald Rumsfeld told the military in a revealing slip in April 2002, "We have been successful in not eliminating al-Qaida." Having failed to find the suspected mastermind behind 9/11, Osama bin Laden, his Taliban ally, Mullah Omar, or much in the way of terrorist infrastructure, the US set about constructing, behind razor wire on a secure Caribbean island, an incarcerated model of what its "war on terror" rhetoric implies. It has gathered terrorism suspects from all over the world, imposed discipline and order on them, encouraged them to hate the US and kept them together for years. It was as if the Bush administration so wanted the Hollywood fantasy of a central terrorist campus to be true that they built it themselves.

Because the roughly 660 detainees still on Guantánamo have no voice, and because the US has never explained case by case why it locked them up, the outside world has only the accounts of their families and the catch-all US definition of "enemy combatant" to understand who they are and why they are there.

Most were arrested in Afghanistan but many were handed over to the US by other countries. "They are an extremely heterogenous group. There are some 40 different nationalities, there's 18 different languages," says Daryl Matthews, a forensic psychiatrist based in Hawaii who spent a week at the Guantánamo prison camp in May. "There's a big division between Arabic-speaking and Urdu-Pashto-speaking ones. There are some people who are extremely well educated and westernised, and some people who are not at all. There are some very young people and some very old and wise people. There are people who speak English well, people who don't speak English at all. There are some who go in with mental disorders there are some very secular, and some deeply devout."

There is Shafiq Rasul from Tipton in the West Midlands, who took his wardrobe of designer clothes with him to Pakistan, was captured with his friends Asif Iqbal and Rhuhel Ahmed by the Northern Alliance, and was handed over to the US in Shebergan in northern Afghanistan in December 2001. Jamil al-Banna and Bisher al-Rawi, two refugees living in Britain, were arrested in the Gambia in west Africa and handed over to the US by the Gambians. Moazzam Begg and Richard Belmar, two other Britons, were arrested in Pakistan and handed over to the US by the Pakistanis. David Hicks, an Australian, who had previously led a life of shark fishing and kangaroo skinning, and had fathered two children, ended up in the Shebergan prison after fighting with the KLA in Albania and the Kashmiri insurgency group Lashkar-e-Taiba. Mehdi-Muhammed Ghezali, who grew up in the Swedish town of Rebro and whose father was Algerian and mother Finnish, had a promising career as a footballer ahead of him before turning up with the Taliban in Afghanistan and being captured. Nizar Sassi and Mourad Bechnellali grew up in Venissieux, a suburb of Lyons. Their lives came to revolve around the mosque on Lenin Boulevard before they travelled east. Ibrahim Fauzee, a citizen of the Maldives, was arrested in Karachi while staying in the home of a man with suspected al-Qaida links. Tarek Dergoul, from east London, thought to have been arrested during the battle for Tora Bora in southern Afghanistan, is reported to have had an arm amputated as a result of wounds. Sami al-Haj, a Sudanese assistant cameraman with the al-Jazeera TV station, was picked out and held while leaving Afghanistan for Pakistan after the fall of Kabul with the rest of his crew. They never saw him again. Another Briton, Martin Mubanga, from north London, was handed over to the US by Zambia. Jamal Udeen, from Manchester, born into a devout Catholic home, and converted to Islam in his 20s and was seized in Afghanistan only three weeks after he left England. Airat Vakhitov, one of eight Russians on Guantánamo, thought he had been liberated when a reporter from Le Monde discovered him in a Taliban jail, where he had sat in darkness and been beaten for seven months on suspicion of spying for the KGB. But he only exchanged the Taliban prison for an American one. And there is Mish al-Hahrbi, a Saudi schoolteacher. After he tried to kill himself on Guantánamo, he suffered severe and irreversible brain damage.

The road for many detainees, including the small number who have since been released, began with, they claim, a non-combatant reason for being where they were when they were caught. Mohammed says he went to work for the Taliban as a baker; Razaq says he was a missionary. They were held by the Northern Alliance in northern Afghanistan, selected by the Alliance to receive a cursory interview from US special forces or the CIA, and flown to Kandahar, where they were held for weeks or months before being flown to Cuba.

Razaq, in his first interview with a journalist, told me he was convinced the only reason he was sent to Cuba was because he spoke English. He had been held by the Northern Alliance for a month in Shebergan prison, in crowded conditions with little food, when Alliance soldiers came and asked the group of Pakistani, Arab and Uzbek captives who among them spoke English. Razaq stepped forward.

His hands were tied and he was taken to a small room with mud walls where he was made to kneel on the ground in front of two Americans in uniform, one sitting on a mud bench projecting from the wall and the other standing. The interview took three or four minutes, and consisted of two questions: "What is your name, and why have you come to Afghanistan?" Afterwards he was taken outside. He just had time to see a group of bound men with hoods on their heads sitting in a row before he, too, was hooded. They were taken to an airfield and flown to Kandahar. No signal had passed between his interrogators and the soldiers who hooded him. In other words, on the basis that he knew English, the US had already decided to take him to Kandahar, whatever the result of this initial interview.

Another released Pakistani, Mohammed Saghir, a grey-bearded sawmill owner who is now 53, tells me that he had not even had a cursory interview at Shebergan before he was bound hand and foot, blindfolded and helicoptered to Kandahar.

Shah Mohammed was held at a prison in Mazar-i-Sharif, near Shebergan, before being sent to Kandahar. He met Hicks, the Australian, while he was there. There were early signs of the differential treatment, apparently according to national background and skin colour, that was to be one of the characteristics of the US handling of terror suspects. "I spoke to the Australian, he knew a bit of Urdu," says Mohammed. "He said he had come for Jihad. He was asked a lot of questions [by the Americans], more than us. He was taken to a navy ship and I was taken to Kandahar." Mohammed was to see Hicks again.

The released detainees recount the roughness with which they were treated at Kandahar, from the moment of their transport there. "One thing I've learned about the Americans is they are very harsh when they transport people around," says Razaq. "They had tied up my hands so tight that for two months I couldn't use my right hand. They haul you from your neck and drop you off the plane in a very disrespectful manner. For a long time we didn't know it was Kandahar. We thought they were going to kill us there."

"They would just pick us up and throw us out [of the plane]," says Saghir. "Some people were hurt, some quite badly." Mohammed says: "They kicked us out of the plane and threw us on the ground."

The accommodation at Kandahar was uncomfortable. Prisoners slept and sat in small groups under canvas canopies, on the bare earth, surrounded by razor wire and under constant surveillance. They were given a single blanket each. It was winter. Razaq says that the bottled water they were given to drink would be frozen in the mornings. He said that for the first 20 days, a strict no-talking rule was enforced. Saghir describes how no one had been allowed to sleep for more than an hour. "If someone slept for an hour they would yell at him: Get him up!"

The prisoners were interrogated steadily, with long intervals between sessions. "We used to ask them: `Why are we being kept here?'" says Mohammed. "They would reply: `You will be interrogated, and whoever is found innocent will be allowed to go.' They never told us we would be taken to Cuba.'"

Razaq was one of the last to leave Kandahar. He saw the camp emptying around him. From his testimony, it appears that once a detainee was committed to Kandahar, the vast US military bureaucracy could only send people to Guantánamo. "I don't know what made them suspect me, but there were rumours that they arrested me because they thought I was a very senior Taliban official," he says. "In fact, in the last interrogation at Kandahar, the American interrogator gave me water to drink and assured me I would be released.

"This assurance was given to me on several occasions. I never knew where they were taking the people who disappeared. We asked the Red Cross, but they wouldn't give us any information. But there was this gate through which we could see people in red costumes in the distance. At the end, it seemed they just wanted to send everyone to Cuba and I was in the last group."

The last thing the US captors did before dispatching the Kandahar detainees to Cuba was shave off their beards, a process they found humiliating. Razaq was told it was because, without showers, they had picked up lice. "We resisted, but four or five commandos came and they had a machine and just shaved off my beard and moustache," says Saghir.

For the flight to Cuba, the prisoners were given the orange jumpsuits familiar from television footage of their arrival at Guantánamo. They were bound hand and foot, blindfolded, gagged, and their ears were muffled. Once on board the military transport plane, their feet were chained to the floor, their hands bound to the handrests, and restraining straps stretched across their bodies. "The translator told us: `Don't make any movement, don't worry, you are being taken home,'" says Mohammed. "I don't remember how many hours but we left at night from Kandahar and arrived in Cuba in the evening. We stopped somewhere and changed planes."

Saghir says that, as with the arrival at Kandahar, the detainees, still bound, gagged and blindfolded, were thrown off the plane on arrival in Cuba. Some had their noses broken, he says. "I got a bruise under my left eye where my face hit the ground."

The first prisoners were moved from the runway to a truck, from there to a launch across the bay, and from there to the bare mesh cages which would be their home for the first few months of 2002, the original detention centre, Camp X-Ray. Those initial images of blinded, deafened, mute and bound men in glaring orange became a potent weapon in the hands of those who opposed the manner in which the Bush administration was coping with terrorism, particularly in Europe and the Muslim world. A country which would not countenance an international criminal court, the pictures seemed to say, had built a harsh international jail. The bizarre setup of Guantánamo itself, a fortified American toehold in one of the world's last outposts of communism, added to the sense of prisoners being cast into the centre of concentric circles of isolation. Cubans remember, if few others do, that the world's first concentration camps were built on their island by the Spanish in the 1890s.

In the first few weeks of Camp X-Ray's existence, the regime was even harsher than it looked from the pictures of tiny cages. The prisoners were not allowed to speak to each other, not even in a whisper. "I spent the first month in utter silence," says Mohammed.

According to Saghir, in this initial, relatively brutal phase of Guantánamo, there was little tolerance for the practice of Islam, with its requirement of prayer five times a day. "In the first one-and-a-half months they wouldn't let us speak to anyone, wouldn't let us call for prayers or pray in the room," he says. "We were only given 10 minutes for eating. I tried to pray and four or five commandos came and they beat me up. If someone would try to make a call for prayer they would beat him up and gag him. After one-and-a-half months, we went on hunger strike."

US officials at the camp have admitted hunger strikes did take place there -- in some cases, prisoners were force fed -- but in the minds of the detainees, they have been associated with protests that have achieved results. According to Saghir, it was only after a mass four-day hunger strike that the no-talking rule was lifted, a loudspeaker was put up to broadcast the call to prayer, more time was given for meals, and Korans and other books were provided. Mohammed says that an eight-day hunger strike when a guard had thrown the Koran on the ground had ended with a personal apology from a senior officer and a promise that the Koran would not be touched again.

Razaq, who arrived after Camp X-Ray had already shut down, said that the culture of protest was a feature of life in Guantánamo. "In the beginning there was a mass hunger strike, but later on there were individual cases of people not eating," he says. In other cases detainees would take off their plastic tags carrying their US identification codes and throw them at the guards, or would bang on their metal benches. Sometimes the guards would use a disabling gas in response.

"When we threw off our tags the guards asked us to hand over our blankets, but two of our colleagues didn't oblige, so they sprayed them to make them unconscious, tied them up and took them to the punishment block; during that transfer they were quite brutal," says Razaq. "But I didn't see any slapping."

Life in X-Ray became easier after the no-talking rule was lifted. The camp authorities appear to have instituted a kind of linguistic mosaic, giving detainees a reasonable chance of finding someone to talk to, but without allowing too large a cluster of people speaking the same language. Mohammed sketches out the group of 10 cages he was in in X-Ray. His immediate neighbours were Hicks, a Bangladeshi, two Arabs whose names he does not remember, and Rokhanay, from northern Afghanistan. Slightly further away, but still in talking distance, was Asif Iqbal from Tipton, another Arab, Abu Nakar, and two southern Afghans, Wasiq and Nurullah.

"Asif was at an advantage because he was able to speak to the Americans in English," says Mohammed. "He was like my translator. He had just come for a visit to Pakistan and then went to Afghanistan. He never intended to wage Jihad. He would swear at the guards from time to time. Sometimes, on some issue, he would just start yelling at them but the Americans would not respond. David Hicks knew some Urdu as well, so I would speak to him, and he would speak to Asif."

The Guantánamo prisoners have no way of knowing what is happening in the outside world, whether it concerns football scores or the war in Iraq. Apart from the guards and interrogators, the only contact the prisoners have is with officials of the international committee of the Red Cross and with occasional visitors from the intelligence services and foreign ministries of their home countries. The ICRC never talks about conditions in Guantánamo and little else has leaked out.

Swedish activists campaigning for the release of Mehdi Ghezali have used Sweden's freedom of information laws to obtain a censored version of a report by an intelligence officer, Bo Eriksson, on a visit to Guantánamo with another Swede in February 2002. It and other documents reveal that the US was so obsessed with security that it drafted in a Swedish-speaking US army officer to listen in on the meeting between the agents and Ghezali, and, even so, got an envoy in Stockholm to ask the Swedes for a copy of their report into the meeting that they had already listened in on.

"The cells measure approximately 2x3 metres with walls of wire mesh, concrete floors and metal ceilings," wrote Eriksson. "Inside the cells, the detainees have a mattress, a blanket, a hand towel, a couple of buckets and water bottles made from soft plastic. Outside their cells, the detainees wear orange overalls and plastic slippers. Their freedom of movement is not restricted to the cells, although outside their cells they wear hand and feet restraints. The handcuffs are fastened to a belt around their waist allowing them only restricted movement with their hands and arms. [Ghezali] only just managed to drink water from a mug with hand restraints on.

"The leg restraints mean that when detainees are moved they have to move forward taking very small steps. One of the guards keeps a hand on the back of the detainee's neck the whole time, bending the detainee's head forwards so that he is looking at the ground the whole time he is being moved. They are not tortured, nor do they receive any other degrading treatment. The mesh cell walls mean of course that the detainees never have a moment's privacy. On one occasion, detainees had suspended a plastic sheet on the fence to prevent people from looking in but they had been forced to remove it since it became unbearably hot despite the cool breeze from the sea."

In April 2002, the prisoners were moved to new accommodation, Camp Delta, and Camp X-Ray was closed. Their beards grew back. The new facilities, which make up the main part of the prison camp to this day, feature blocks of 48 cages each, with two rows of mesh cages separated by a narrow corridor. The blocks have no external walls, only a pitched roof; they stand on concrete bricks in areas of raked gravel surrounded by high, opaque green fences topped by razor wire. The cages are about as long and wide as a tall man lying down, and contain a metal bunk, a tap and a toilet. Besides this standard type of accommodation, there are at least six others. There is the more relaxed regime of Camp Four, where docile, cooperative prisoners are rewarded with dormitory-style living and free association with other detainees. Within Camp Four, there is a further category of prisoners, believed to include Britons Moazzam Begg and Feroz Abbasi, kept isolated from other prisoners in preparation for being put on trial. In Camp Delta, there is a special block set aside for three juvenile prisoners, with a view of the ocean and a less repressive confinement. There is Delta Block, where prisoners with mental problems are kept under special observation; and India Block, and possibly one other block, which contain the punishment isolation cells.

The Guardian has also learned that a very small number of prisoners, thought to be between two and five, are kept permanently isolated in a special, super-secure facility within Camp Delta.

Mohammed, Saghir and Razaq all had experience of the punishment cells. Saghir says that he was locked up in one of the windowless metal boxes for more than a week when an Arab spat at a guard and the entire line of 24 cages was punished with solitary.

One of the US justifications for holding the Guantánamo prisoners for so long in isolation is that they need to be interrogated for valuable intelligence. There has been an enormous amount of interrogation; each prisoner has typically been questioned between 10 and 20 times, which would, assuming interviews last 90 minutes on average, have generated some 15,000 hours of transcripts, containing perhaps 200 million words, the equivalent of around 250 Bibles. Yet without exception, the detainees say they were questioned by different interrogators each time, and each time the questions were the same.

Prisoners describe the interrogation room as a small, windowless, air-conditioned, plywood space, lit by fluorescent ceiling tubes. One, two or three Americans ask questions, through a translator if necessary. The only furniture is a wooden table with metal legs and metal chairs. Interviews are recorded on tape and by written note. There is a metal ring fixed to the floor; while they are being interrogated, the prisoners sit in a chair and have their chains fixed to the ring.

"They would ask: `Where is Osama? Do you know any of the al-Qaida leaders? Have you met them?' Things like that," says Saghir. "They would not get angry with my answers. We would ask them and they would say: `We don't know when you will be let free. Only our bosses know, we are here to do our job.'"

Sometimes it seemed that the interrogators wanted the detainees to show sympathy with the victims of 9/11. Saghir was once told by a translator that he had got closer to being released by giving a "right" answer. "In my last interrogation I was asked: `These people who attacked the twin towers, would you call them Muslims?' I answered: `I won't call them Muslims, but I'm not a religious scholar, I couldn't judge these people.' The translator then said: `You have gone one stage further, there will be no more interrogations.'"

After Kandahar, none of the released prisoners has described torture or even aggression by the interrogators, but Razaq said detainees who refused to answer questions were sometimes put in isolation cells as punishment.

The interrogated and the interrogator do attempt mind games with each other. In one interrogation, the interrogators effectively told Razaq he was free to go. "They said: `OK, your file is clear. Where do you want us to drop you?'"

Daring to hope, Razaq answered: "Peshawar?" Immediately, the interrogators began questioning him again as if for the first time, and made him take a lie-detector test. "Maybe this was one of their tactics," says Razaq. "They first made me happy and accept that I will be free, then they changed direction."

Guantánamo is a bleak, dull, repressive place for its inmates. Yet there is something about it which may not be immediately apparent to Europeans dismayed by the level of security, the chains and the punitive, degrading way the prisoners are caged: it is not dissimilar to facilities in the harsh US civilian prison system. By focusing on physical conditions, there is a risk of missing the unique aspect of Guantánamo -- the arbitrary, unprecedented and unfair way in which President Bush and his administration have confined hundreds of people without either any idea how long they are to be locked up, or any way to plead their case. It is this which the legal establishment in the US and Europe finds most menacing. It is this which causes the greatest mental torment to the prisoners and their families. And the strange Pentagon creatures that have been set up to try some detainees, the military commissions, are, the Guardian has learned, troubling even the uniformed lawyers signed up to make them work.

"Prisons are a big industry in the US," says Daryl Matthews. "We imprison a lot of people. People don't understand the extent and the misery of prisons in the US. People who are considered the most dangerous people in the US are moved in shackles. I've been in prisons in the US much more secure than Guantánamo. I've interviewed people in masks and shackles on the mainland US. These are scary places. I don't think the issue for the Guantánamo folks is their conditions of confinement. It's easy to be fascinated by a place you can't get to but that's not the issue. The issue is human rights."

Matthews, who opposes the death penalty, none the less provides psychiatric advice to courts in civilian capital cases. Yet he is still wrestling with his conscience over whether to provide the same service to the military commissions that will try the Guantánamo detainees. The commissions have the power to impose the heaviest sentences, up to and including death. Unlike the rapists, child abductors and serial killers on capital charges in the US, unlike the Oklahoma bomber Timothy McVeigh, cold war Soviet spies or Nazi war criminals, unlike even the shoe bomber Richard Reid, the confessed terrorist and al-Qaida supporter, the hundreds of people locked up in Guantánamo have neither been told why they have been deprived of their liberty for two years, nor when or how they might be released, charged or tried, nor given any opportunity to challenge their status before a tribunal.

That isolation and uncertainty, Matthews points out, puts an extra burden on the detainees. "Most of the stresses that operate on the Guantánamo detainees would operate on anyone in a maximum security facility [on the mainland US]," he says. "They're bored, it's noisy, they have no privacy, they get some exercise but not very much. They have to deal with strangers who don't like them all the time, guards and other inmates. They don't have access to personal objects. It's horrible being a prisoner . . . when I read about your British detainees, and families being concerned that people are being tortured because they are depressed, I wish I could tell the families it doesn't need torture to make someone depressed in prison. Just a normal prison environment produces profound alteration in mental states, suicide and depression.

`But at Guantánamo there's an added level of stress, and I think that is the thing that's somewhat unique . . . Inmates in a normal prison are focused on how much time they are going to serve, on contacting their lawyers, on being able to take constructive efforts to get out; these are important ways prisoners deal with the stress of confinement, and these guys can't do anything.'

When the terrorists attacked the US on September 11, the world found in Bush and his attorney-general, John Ashcroft, men who had already embraced the idea that large-scale incarceration and executions were the way to fight wrongdoing, who wanted to encourage judges to impose harsher sentences, and who felt that defence lawyers were the bane of justice. The leash-is-off rhetoric of the `war on terror' fitted naturally into the rightwing narrative of recent history, which portrayed spineless liberals betraying the victims of crime by too scrupulous a concern for the rights of suspects.

Ashcroft makes the link explicit. In a recent speech, close to the second anniversary of 9/11, he boasted that the Bush administration had used the same tactics to fight terrorism as to fight crime. `For almost two decades, some in Washington have preached defeatism and surrender in the battle against the drug smugglers, the criminal and the lawless,' he said. `At one time, elite opinion held that law enforcement and citizens could not do anything. They believed we were doomed to live with rising crime. They argued that criminals were driven by circumstance and root causes beyond our control . . . The ideological critics were proven wrong . . . We have proven that the right ideas -- tough laws, tough sentences, and constant cooperation -- are stronger than the criminal or the terrorist cell.'

A foretaste of how the Bush administration planned to avoid `defeatism and surrender' in pursuit of terrorists came with the detention of more than 1,000 foreign Muslims in the US in the immediate aftermath of 9/11. Although they were technically held for outstaying their visas and other workaday immigration offences, 762 of them were investigated for suspected terrorist links. Few, if any, were ever charged with anything terrorist-related, but all had to wait weeks or months to be cleared by the FBI. Those held in one detention centre, in Brooklyn, were initially prevented from contacting family and lawyers; some experienced violence and racist abuse. The presidential order that created the basis for the Guantánamo prison camp, and for the military commissions that will try any of the detainees charged with terrorist offences or war crimes, was published on November 13 2001 ["Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism"], the day the Northern Alliance took control of Kabul. With the sudden, unexpected fall of Mazar-i-Sharif in the north a few days earlier, it became clear to the Bush administration that they were about to have access to hundreds, perhaps thousands of Taliban and allied fighters, some of whom might be terrorists. The question suddenly became urgent as to what status to give the captives so that the US could interrogate them, detain them at the president's pleasure, and punish them. At the time, hopes were high of capturing Bin Laden himself. The Guantánamo detainees may to some extent be paying the price for the Americans' inability to capture the al-Qaida leader. In a sense, Guantánamo is St Helena without Napoleon, with the dregs of the Grand Armee locked up instead.

Practical templates were available in international law that, on the face of it, would have allowed Washington to satisfy its aims. It remains a mystery as to why the Bush administration chose not to follow international law, but to make up its own. Its first step away from international norms was to refuse to categorise the Afghanistan captives as prisoners of war. One source told me of a -- possibly apocryphal -- story that Bush and his aides were going through the Geneva convention when the president came to the part that declares PoWs must be paid between eight and 75 Swiss francs a day. At this point, the story goes, Bush lost his temper and ordered his people to find a way for the captives not to be PoWs.

Officially, the US hides behind the fact that the resistance in Afghanistan didn't dress like soldiers. It is true that, like CIA operatives in the field in Afghanistan and Iraq, and like many of the Northern Alliance allies of the US, the Taliban and non-Afghan fighters didn't wear uniforms, but that does not prevent them being declared prisoners of war. Article 5 of the Third Geneva Convention is clear: any captured belligerent whose status is uncertain should be considered a PoW until their status is settled by a `competent tribunal'. The US carried out hundreds of these tribunals during the 1991 Gulf war and in the recent Iraq war. In Afghanistan, it didn't. Asked why there hadn't been any tribunals for the Afghan captives, Major John Smith, a military attorney in the Pentagon department organising the forthcoming trials of Guantánamo detainees, says it is because the president decided there was no need.

`The president's decision was that there was no doubt these individuals did not qualify for PoW status and a tribunal wasn't required,' he says.

Eugene Fidell, a former military lawyer, now president of the National Institute of Military Justice in the US, said that the decision not to hold tribunals had deprived his country of the moral high ground. `Whether that policy decision was right or wrong, or wrong in part, let's say, as to al-Qaida or Taliban members, it represented a fork in the road. And the path taken has had, I think, a very poisonous effect on our standing in the world community.'

Had there been formal tribunals, the US could still have interrogated, charged and tried the PoWs. They might also have screened out some of their more pathetic captives before they had to endure Guantánamo, such as Mohammed Hagi Fiz, a toothless, fragile old Afghan in his 70s, released in October 2002, or Abdul Razeq, an Afghan suffering from schizophrenia, released in May 2002 with a six-month supply of medication.

The strangeness of the US position is that although it does not consider the Guantánamo captives prisoners of war in the formal, Geneva Convention sense, it considers them prisoners of war in one very specific sense -- that they can be held until the war is over. It calls them `enemy combatants', a term not recognised in international law. To the question `What war?', the Bush administration responds: `The war on terror.' In other words, the captives can be held for as long as the US president likes; until forever, in fact, since, unlike normal wars, where a particular territory and a particular military entity is involved, this one exists only as a concept. The `war' was going on before September 11 2001 -- it is hard to think of a year in recent decades in which US citizens or US interests have not come under terrorist attack -- and it is difficult to see how any US leader could ever take the political risk of declaring a `war on terror' to have finished. The US persists in claiming that the `war' can and will be won.

`Detention as an enemy combatant is not criminal, it's to take them off the battlefield,' says Smith. `We are at war with al-Qaida. It's not a metaphorical war, it's a real war.' At one point in our conversation he compares the US in 2003 to Britain in 1941. `I believe we will be able to defeat al-Qaida. It's a political situation, and it's a tough decision, but I think at some point we will be able to say that al-Qaida is no longer a threat to the US . . . at some point, al-Qaida and terrorism will be defeated.'

Yet enemy combatant status, combined with the lack of Article 5 tribunals, means that the Guantánamo detainees are kept captive until the end of a potentially endless `war', without the opportunity to plead before a court that they had nothing to do with that `war.' The US does not consider itself obliged to put them on trial, so has no obligation to give them lawyers; even if they are put on trial, and are acquitted, under its own rules, the US might simply lock them up again.

`It seems to me that our government's talking out of both sides of its mouth,' says James Harrington, a lawyer from upstate New York who represents a US citizen, not in Guantánamo, awaiting sentencing on terrorism charges. `We say they're not PoWs and won't be treated as PoWs but at the same time we say we are at war. It either should be one or the other. If we are trying to say to the rest of the world we have due process and best practice in our country . . . we shouldn't be treating other people in ways that are unfair. These guys get picked up, shipped to somebody else's country, held there so they aren't in the US so they don't get the same rights as in the US, and then get treated by rules made up by the government to suit the government's interests.'

Louise Christian, a British lawyer representing three of the Britons held in Guantánamo, said the US today looked more like Britain in the 1970s than in the 1940s. `It's the same thing that happened in this country when we had mainland bomb attacks from the IRA, that the tremendous panic and fear just replaced everything else. There was no understanding in this country of how we were viewed outside,' she says. `We locked people up arbitrarily. We ignored the fact that people were being coerced into making confessions. But I think also the daily experience of internment, seeing your best friends and neighbours locked up without cause, led to great bitterness, and the continuing of the conflict in Northern Ireland, because of feelings of injustice. Obviously there were people who did do terrible things. But if the government response is to criminalise a whole category of people, all we do is increase support for people who are guilty.'

Having hurriedly come up with the `enemy combatant' notion to deal with the hoped-for capture of Bin Laden, and having applied it to the ragbag of captives picked from Northern Alliance jails in Afghanistan, the US government has become so comfortable with it that it has begun to wield it around the world, and at home, in ways that frighten rights activists and lawyers. Now, it appears, anyone, US citizen or not, can be declared an `enemy combatant', at any time, and thus be detained indefinitely at Bush's discretion.

Enemy combatant status is leaking out of Guantánamo and into the mainland US. There are now three `enemy combatants' held in US military jails. One is a Qatari computer student living in Illinois, Ali Saleh Kahlah al-Marri. He was awaiting trial on low-grade criminal charges indirectly linked to terrorism when, immediately after the government's case against him looked to be in trouble, the Bush administration declared him an `enemy combatant' and moved him to a high-security naval prison, allowing a trial to be avoided, and the accused to be held for as long as the president likes.

Bush's November 13 order refers to `enemy combatants' being `treated humanely, without any adverse distinction based on race, colour, religion, gender, birth, wealth, or any similar criteria'. Yet it is hard to equate the starkly differing treatment of three men allegedly found fighting alongside the Taliban with this creed. The only white American in that category, John Walker Lindh, was given a criminal trial, the full panoply of legal rights, and swiftly sentenced. Another American citizen, but of Saudi descent, Yasser Hamdi, was moved from Guantánamo to a naval prison on the mainland US, and is still held there incommunicado as an `enemy combatant'. Compare that to Mohamed Tariq, an ordinary Pakistani from Shah Mohammed's village, not yet released. There is no reason to think he did anything that Lindh or Hamdi did not do. But he remains on Guantánamo. Speculation that a mass release of European prisoners is imminent, welcome as it is, only highlights the arbitrary nature of the detentions. Nothing illustrates the US government's new power over suspects, and the unfairness of its treatment of the Guantánamo detainees, better than the case of the Lackawanna Six -- a group of Yemeni-Americans from a suburb of Buffalo, who were accused of aiding al-Qaida. In the end, all pleaded guilty -- but only after prosecutors had dropped heavy hints that they would be declared `enemy combatants' if they didn't.

`Basically, what was related to us was that if the case was not resolved by a plea, the government was going to consider any options that it had,' says Harrington, attorney for one of the men, Sahim Alwan. `They didn't say they were going to do it [declare them `enemy combatants'], they just were going to consider it.

`Even as vague a definition as `enemy combatant' is, it didn't seem it would apply in this particular case, but given the way that the government has used their authority, obviously it was something that was a concern for us. It was a factor my client took into account. He was worried about it. I think it's an improper use of the procedure first of all. It's pretty heavy-handed.' In the end, the group were allowed to remain within the civilian justice system, in their home country, the US. They had access to legal counsel. The Bush administration was happy to use its `enemy combatant' device against them if things did not seem to be going the prosecution's way, but equally happy to let them go through the normal civilian courts. Those Guantánamo detainees who are to face trial have no such option. They are to face a different kind of court entirely -- military commissions -- a system that has been condemned internationally, by the US legal establishment and, the Guardian has learned, is regarded with dismay even by some of the uniformed lawyers whose job it is to make it work.

The government has had to dig back into two arcane cases involving Nazi agents six decades ago, before the Geneva Conventions were even written, to find precedents for military commissions, and, as with the skipping of PoW tribunals for the Guantánamo detainees, it is a mystery why they did so. They had at least two other options: the civilian criminal courts, as used to try past terrorist cases, such as the 1993 World Trade Centre bombing, and court martials in the US military courts, as used to try the deposed leader of Panama, General Manuel Noriega. The Bush administration defends the choice of military commissions on the grounds that the alleged, presumably terrorist, offences for which some Guantánamo prisoners will be tried are `war crimes'; and on the grounds that the commissions will help safeguard classified information that would leak out from normal trials or courts martial. Critics say that neither argument stands up, and that the real reason military commissions are being used is that they give the accused little chance of a fair hearing, and stack the deck in favour of convictions.

The two facets of the commissions that have drawn the most fire are that the government assumes the right to listen in to any conversations between defence lawyers and their clients, and that, once convicted, the accused have no possibility of having their case reviewed by an independent appeal body. But there is more in the detail of how the commissions are supposed to work that reads like pages from Franz Kafka's workbook.

The first thing that strikes the lay student of military commissions is the enormous power vested in the US deputy secretary of defence, Paul Wolfowitz, who is the commissions' `appointing authority'. The judges -- seven in a capital case -- are appointed by Wolfowitz. Any judge can be substituted up to the moment of verdict, by Wolfowitz. The military prosecutors are chosen by Wolfowitz. The suspects they charge, and the charges they make, are determined by Wolfowitz. All defendants are entitled to a military defence lawyer, from a pool chosen by Wolfowitz. The defendants are entitled to hire a civilian lawyer, but they have to pay out of their own funds, and by revealing where the funds are, they risk having them seized on suspicion of their being used for terrorist purposes, on the order of Wolfowitz. Defendants need not lose heart completely if convicted. They can appeal, to a panel of three people, appointed by Wolfowitz. When it has made its recommendation, the panel sends it for a final decision to Wolfowitz.

`That's the system,' says Clive Stafford-Smith, a British-American lawyer known for representing death-row clients and who now represents some of the Britons on Guantánamo, although he has never been allowed to meet them. `It's a multi-headed Hydra with Paul Wolfowitz's face on every head.'

Given the obstructions in the way of civilian lawyers -- they have to be US citizens, they have to get security clearance at their own expense, they have to abandon their practices and move to Guantánamo permanently for months on end -- conscientious military defence lawyers seem to be the best hope of a fair trial for many of the detainees charged.

The Guardian has learned of deep unhappiness among the relatively small pool of experienced military defence lawyers that the Pentagon can call upon to do that job. There is anger both at the restrictions being placed on them, and the fact that the Bush administration has gone back to the 1940s for a court model, ignoring six decades of evolution of the sophisticated US military justice system.

The Pentagon's Office of Military Commissions has six full-time military defence attorneys working for it. The only one to have been publicly identified is the chief defence counsel, Colonel Willie Gunn. The Guardian understands that the remaining five are not the lawyers originally recruited, but that the original volunteers were dismissed after refusing to sign a paper agreeing to the restrictions they would work under.

`There was a circular that went out to military lawyers in the early spring of 2003 which said `we are looking for volunteers' for defence counsel,' says a former military lawyer. `There was a selection process, and the people they selected were the right people, they had the right credentials, they were good lawyers. The first day, when they were being briefed on the dos and don'ts, at least a couple said: `You can't impose these restrictions on us because we can't properly represent our clients.' When the group decided they weren't going to go along, they were relieved. They reported in the morning and got fired that afternoon.'

The Office of Military Commissions denies the claim. `That is not true, never happened,' says Major Smith. `The military commission is a tool of justice. I expect some of these individuals [on Guantánamo] will plead not guilty, and will be represented zealously by their lawyers.' Yet the Guardian understands from a uniformed source with intimate knowledge of the mood among the current military defence team that there is deep unhappiness about the commission set up -- a disturbing situation when the death chamber may await those found guilty.

"It's like you took military justice, gave it to a prosecutor and said: `Modify it any way you want,'" the source says. `The government would like to say we have done these commissions before. But what happened after [the Nazi cases] was that the military justice system changed . . . What we have done is stupid. It is, I would say, an insult to the military, to the evolution of the military justice system. They want to take us back to 1942.

`What sort of justice are we taking to Iraq and Afghanistan? The constitution talks about justice. Is it only for America?'

As an illustration of the slapdash way he considers the commissions have been set up, he points to how a rule has been removed that barred defence lawyers, once they had arrived in Cuba, from carrying out research outside Guantánamo. Instead of the formal issuing of a new instruction, the Pentagon simply went to the commission website and rewrote the offending paragraph.

`They went on the internet and just substituted the new passage, leaving the old date. I can't think of a better example of how these processes were created. They were going to make the rules and change them when they felt like it.'

The source points out that under the rules, whereas the head of the Pentagon's prosecution team, Colonel Frederic Borch III, could lead the government's case in court, his defence counterpart, Colonel Gunn, was not allowed to take part in commission proceedings at all.

`We could have had some people make rules that no one would complain about but they didn't. We had a bunch of like-minded people and yes-men. It's shocking how many articles I read and no one is picking up on the fact that Colonel Gunn is just a puppet. It's a farce.'

Eugene Fidell says that the military law establishment -- there are around 5,000 active duty lawyers in the US military -- have been infuriated by a comment piece in the New York Times by Alberto Gonzalez, the White House counsel, which suggests that the US military justice system and military commissions are the same thing. ["Martial Justice, Full and Fair," by Alberto R. Gonzales, New York Times, 11/30/01]

`What the Bush administration did was literally use as a model a set of rules Roosevelt signed for dealing with German saboteurs in the second world war, seven years before the Geneva Conventions. It baffles me how the government got into this position. We have an [appeals] court that's been around for 53 years and which has built up a huge body of law. To rely on this review panel instead of using that court, it's indefensible.'

And Wolfowitz's role? `It's right out of the Mikado, isn't it . . . the government has created something as close to being hermetically sealed as the human mind is capable of creating.' The supreme court is now pledged to examine the legality of what is happening on Guantánamo next year. `I think Americans are very uncomfortable with all this,' says Fidell. `I mean, prison islands in tropical regions give us a real bad feeling, whether it's Devil's Island, or Robben Island, or Norfolk Island. This is not a role that comes to us naturally.'

`One of the prosecutors told me that they think 30% of the people in Guantánamo Bay were nothing to do with anything. They were just in the wrong place at the wrong time,' says Clive Stafford-Smith. `When the prosecutor tells you 30%, I tend to think it's more like 70%. But the bottom line is we're not talking about 600 of the worst people in the world. We're talking about at least a couple of hundred who didn't do anything.

`You kidnap people who may be totally innocent, you take them all the way around the world in hoods and shackles, you hold them incommunicado for two years, you don't give them a lawyer and you don't tell them what they're charged with. It's not a matter of what's wrong with it, it's a question of what's right with it. And it achieves nothing.'

Shah Mohammed was given no apology or compensation when he was released, just a three-paragraph letter from a unit based at Bagram airport in Afghanistan, called CFTF180-Detainee Ops. It is signed by a soldier with a rank lower than corporal, Joseph P Burke. It reads: `This memorandum is to certify that Shah Mohammed Alikhel [his tribal name], ISN-US9PK-00019DP, was detained by the United States Military from January 13 2002 to Mar 22 2003.' The letter is dated May 8; in other words, Mohammed was kept prisoner two months longer than the US wanted him.

Despite interrogating him nine or 10 times, the letter goes on to say that the US has no record of Mohammed's place of birth. The letter concludes: `This individual has been determined to pose no threat to the United States military or its interests in Afghanistan or Pakistan. There are no charges pending from the United States against this individual . . . the United States government intends that this person be fully rejoined with his family.'

`If they kept me for 18 months and sent me a letter to certify I'm innocent, then why did they keep me there for 18 months?' asks Shah Mohammed. `Don't they have any duty or obligation to me?'

Even less than a duty -- a nameless grudge: despite declaring him harmless, the US military transported him home to Pakistan as it had brought him to Cuba -- in chains.