Law Professor Peter Jan Honigsberg has an important idea: establish a Truth Commission to gather the stories of the Guantanamo survivors:
Establishing a Truth Commission for Guantanamo
By Peter Jan Honigsberg
There has been much talk in the media lately promoting the possibility of establishing truth commissions for Guantanamo. Suggestions have predominately focused on Congressional investigations, similar to the recent Senate committee determining that the torture at Guantanamo was directed by Defense Secretary Rumsfeld and other administration officials, or the 9/11 Commission created by members of the executive branch and Congress. All the initiatives currently discussed in the media speak in terms of gathering evidence from former, high-level, Bush administration officials.
However, I am proposing another kind of truth commission – one that focuses on and gathers the stories of the survivors: the men who were imprisoned, inhumanely treated, sensory-deprived and tortured in Guantanamo. This truth commission will collect the stories of their detention and abuse. This truth commission will also interview habeas lawyers who represented the detainees, translators who worked in Guantanamo, and anyone else who elects to testify, such as guards or soldiers. The observations of the detainees and the others will reveal the human narrative of the detainment facility at Guantanamo Bay. Our goal is to collect, document and archive witness testimony to show the truth of what happened at Guantanamo.
The goals for any one truth commission are varied, depending on the event and the location. Each commission has been unique to time and place and has had its own purpose. Goals have included fact-gathering, establishing accountability, creating a historical record of human rights violations, giving voice to the survivors, developing a collective memory, healing, reconciliation, shaming the former government, educating domestic and/or international communities, and reaffirming justice and the rule of law.
Since 1974, when the first commission was set up in Uganda, there have been approximately 33 commissions. People differ on the exact number, depending on their definition of truth commission.
There are three models for truth commissions. The most common model is one sponsored by a government. Usually, government commissions are created when a new regime takes office. Such commissions have occurred in Argentina, Chile and South Africa.
The second model is a truth commission sponsored by the United Nations. For example, the parties to the civil conflict in El Salvador, from 1980 to 1992, could not agree on a government-sponsored commission, each party not trusting the other. Consequently, along with the United Nations’ brokered peace agreement, the parties invited the United Nations to create a truth commission to look into the human rights abuses of the past conflict. Truth Commissions established by the U.N. are much less frequent than those sponsored by governments. However, the U.N. has also been involved in truth commissions in Burundi, East Timor and Guatemala.
The third model, although not recognized by all scholars of truth commissions, is one sponsored by a non-governmental organization (NGO). Two such NGO-sponsored truth commissions operated in Brazil and Rwanda. Brazil was sponsored by the World Council of Churches, while Rwanda was formed by a coalition of five non-governmental human rights organizations. That coalition approached four international NGOs for financial and technical support. The Greensboro Truth and Reconciliation Commission, created in North Carolina to address a racial incident in the late 1970s, similarly invited NGOs as sponsors.
The new Obama administration will likely initiate Congressional and Executive investigations into the abuses and human rights violations of Guantanamo. Those inquiries will focus on the powerful officials who established, implemented and propagated the policies that undermined the rule of law. The administration has access to the relevant files, including all classified documents, and has the power to release those documents. It can subpoena officials and require them to testify and offer immunity to those who can point fingers and provide searing testimony implicating the top officials.
Hopefully, the new administration will go forward in these directions. However, few people expect the administration to make this its first priority, and we cannot wait for the political will.
In addition, the new administration has the resources to prosecute the perpetrators. In other nations that committed human rights violations, the new governments sometimes provided amnesty to past officials, reasoning that past deeds are best left to the past. Other nations have been forced to forgo prosecutions because many of the most powerful in the former administration and military still held positions of authority in the new government. However, while other nations may suffer from political instability or lack resources, in a democracy like the United States we can set the example for human rights law. We must support and affirm the rule of law by bringing charges and prosecuting those who obstructed justice, denied due process and thwarted the rule of law.
On a positive note, House Judiciary Committee Chairman John Conyers (D-MI) recently introduced a National Commission on Presidential War Powers and Civil Liberties, with subpoena power, and members of his staff are aware of our independent NGO-sponsored project.
We outside the administration cannot bring charges and prosecute. But there is much we can do. We can lobby the administration to support Chairman Conyers’ bill and to establish other inquiry commissions to investigate former Bush officials and their reprehensible policies. The International Center for Transitional Justice is in the forefront in this regard, working to persuade the new administration to act. However, no one expects the new administration to make the effort to reach the nearly 800 people around the globe who were detained at Guantanamo and to collect their statements. Consequently, we need to move forward independently, and gather these first-person accounts before they become harder to access and people’s memories wane. Memory building will prevent denials of Guantanamo in the future and prevent the repetition of policies that condone violence.
We will attempt to reach as many former detainees as possible who have been imprisoned in Guantanamo since that fateful day of January 11, 2002, when the first planeload of men wearing earmuffs or noise-blocking headphones, blackened goggles or hoods, and diapers underneath their orange jumpsuits, were dragged off the plane like baggage and housed in cages that resembled dog kennels. Some of these men have since died, others are currently imprisoned, still others have fled the countries to which they were returned and cannot be found. But over 600 of these men may be available for interviews, and we will try to interview as many of them as we can. The more people who testify and give statements, the more the world will see and comprehend the systematic abuse that occurred. We will be collecting survivor testimony.
Our work will build on previous studies, such as the recent study by the Human Rights Center at Berkeley, that have been undertaken on the Guantanamo survivors. We will reach out to NGOs that have contacts with the former detainees. The detainees are from 46 countries. Some nations like Yemen, Saudi Arabia and Afghanistan have or had over 100 detainees in Guantanamo. Other countries, such as Canada and Australia, had only one or two detainees. It will take a monumental effort to find all these men, but we will reach out and hope to partner with international NGOs, as well as local NGOs in the detainees’ home countries, to access as many former detainees as possible. Clive Stafford Smith, the director of Reprieve in London, has expressed his strong support for this project and we are looking forward to partnering with Reprieve as well as with other NGOs that have been involved in redressing human rights violations in Guantanamo.
NGOs are necessary to facilitate our entering many of the countries. NGOs will help us hire statement-takers who are familiar with the culture and can move into and out of the countries with minimal restrictions.
Of course, there are detainees who do not want to tell their stories — they want to leave it all behind them and move on to their new lives. For them, repeating the stories may be more painful than therapeutic, and we will, of course, respect their wishes. Others will tell their stories in the hope of obtaining future reparations from the American government or possibly in assisting prosecutions. Some detainees will testify anonymously for fear of reprisals if their names are revealed, and we will respect their wishes.
We will begin with an advisory committee, composed of NGOs and others, which will assist us in selecting commission members, both domestic and international, since this is a global issue with international consequences. We will hold public commission hearings for those detainees who want to testify publicly, as well as for habeas lawyers, translators and others who wish to participate. We hope to videotape the hearings where permitted by the detainees and others, transcribe all hearings and interviews, also as permitted, and archive all voices so that they can never be silenced. We are looking to the Shoah Institute, which interviewed over 58,000 holocaust survivors, hoping that they may assist us, based on their experience in documenting historical memory and data collection.
We understand that these interviews are not only to establish an accurate historical record of America’s human rights abuses in Guantanamo. Nor is it only about our Constitution and documenting the violations of its inherent principles, or to bring accountability and shame on the Bush administration. This truth commission is about recognizing the stories and experiences of the people who were affected. Throughout, we will be mindful of the needs and wants of the detainees.
Necessarily, we will create and publish a report of our findings, accompanied by recommendations. We will also archive the interviews and all data. Hopefully, the data will be used by the new administration in its own official commissions, perhaps assisting in prosecutions and in helping the administration consider granting reparations. The research and data will also be made available to future historians and the public, to lessen the likelihood of similar atrocities being committed in the future. As of now, over $115,000 has been committed to getting this project off the ground, and more funding is on the way. Our Guantanamo Truth Commission is moving forward.
Professor Peter Jan Honigsberg can be reached at firstname.lastname@example.org. The project is currently seeking support from foundations and individuals to realize the long-term goals of establishing and supporting the efforts of the Guantanamo Truth Commission.
His book, Our Nation Unhinged: The Human Consequences of the War on Terror (University of California Press) will be published in spring 2009.
January 11th, 2009