COMMITTEE ON FOREIGN AFFAIRS

Subcommittee on International Organizations, Human Rights, and Oversight

Testimony of Elizabeth P. Gilson

Law Offices of Elizabeth P. Gilson

“City on the Hill or Prison on the Bay?

The Mistakes of Guantanamo and the Decline of America’s Image”

Rayburn House Office Building, Room 2172

May 6, 2008

Good afternoon, Chairman Delahunt, Ranking Member Rohrabacher, and all members of the subcommittee. Thank you for inviting me here. I am grateful for your leadership in examining the mistakes made at Guantánamo and the effects of those mistakes on America’s image. This is one of the most important issues of our time – one that implicates America’s basic values and its commitment to the rule of law.

My name is Elizabeth Gilson. I am a lawyer practicing in New Haven, Connecticut. I represent two men imprisoned by the U.S. Government at Guantánamo Bay since 2002, without any charges or a hearing. My clients are brothers, Uighur refugees from China. They are among 17 Uighurs held at Guantánamo. The Uighurs are a Turkic Muslim minority group in far-west China. Their homeland, East Turkistan, was annexed by the Chinese Communist Government in 1949 and re-named the Xinjiang Uighur Autonomous Region.

The Uighur people have been, and continue to be, brutally oppressed by the Chinese Government.[1] The oppression of the Uighur people, and the state-sponsored mass-migration of millions of ethnic Han Chinese into the Uighur homeland, has led to ethnic tensions and to a Uighur nationalist movement, much to the displeasure of the Chinese Government.[2] Chinese officials allege that Uighurs carried out “terrorist operations” by using “literary means” and “arts and literature” to “distort historical facts.” Uighurs were accused of “taking advantage of art and literature to tout the products of opposition to the people and to the masses and of advocating ethnic splittist thinking.” [3]

I. The circumstances of capture by bounty hunters

Let me tell you about one of my clients, Bahtiyar, a Uighur. Bahtiyar is from Ghulja, a city astride the Lli River in western Xinjiang, near the border with Kazakhstan. In Ghulja, he ran a small business selling clothing.[4] He left the city amid increasing political oppression of the Uighurs by the Chinese Government.[5] He did not want to “waste his youth” in such a climate, and hoped to travel to a country like the United States or Canada.[6] Bahtiyar left China with two others, heading first to Kazakhstan, then to Pakistan. In Pakistan, he learned that his life savings of $700 would not sustain him for long. He was told about a Uighur community in the mountains of Afghanistan, where he would be given food and shelter in exchange for construction work. There were no Afghans or Arabs in the village. The village itself was no more than a handful of houses bisected by dirt tracks. Bahtiyar, as well as five Uighurs who would later be determined to be non-combatants, lived at this village in October, 2001. In return for food and shelter, the Uighur men did odd construction jobs and manual labor. They helped build houses and a mosque. The Uighur community was quiet and peaceful – separated from the fighting between the Taliban and the Northern Alliance.[7]

In late 2001, the entire village was forced to flee the U.S. aerial bombardment of the surrounding area. Bahtiyar fled along with 17 others. They camped out for several days in the mountains of Afghanistan because they could not find a road in the rugged terrain. Eventually, they were able to make their way to Pakistan, thinking they would be safer there with the war raging on and their village insecure. After crossing into Pakistan, Bahtiyar and the other Uighurs were welcomed and fed by Pakistani villagers – who promptly betrayed them in return for the generous bounties that the United States offered for “helping the anti-Taliban forces.” [8]

II. The bounty payments

Following the Afghan incursion in 2001, the United States bombarded Pakistan and Afghanistan with leaflets promising large sums for turning over “murderers.” [9] An illustrative flyer makes a hard-to-resist offer:

“Get wealth and power beyond your dreams. . . You can receive millions of dollars helping the anti-Taliban forces catch al-Qaida and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people.”[10]

These leaflets and the promised rewards help explain how so many innocent prisoners ended up at Guantánamo. The payments reportedly began at a minimum of $3,000 – certainly enough to tempt poor Pakistani villagers to capture and peddle a group of Uighur foreigners to the Americans, no questions asked.[11] The Uighurs learned in Kandahar that the United States paid a $5,000 bounty for each of them.[12] Recent government data shows that only 5 percent of the prisoners at Guantánamo were captured by U.S. Forces. The rest were sold by Afghanistan and Pakistan.[13] Bahtiyar, like many, if not the majority of the prisoners in Guantánamo, was simply in the wrong place at the wrong time. Rather than being the “worst of the worst,” as Department of Defense officials repeatedly called them,[14] they are more accurately described as the “unluckiest of the unlucky.”

III. “They weren’t dangerous and didn’t know anything of value.”

According to the admissions of American military and intelligence officials, the vast majority of men detained in Guantanamo had nothing to do with September 11^th and have no association with a terrorist organization. As the Wall Street Journal reported: “American commanders acknowledge that many prisoners shouldn’t have been locked up here in the first place because they weren’t dangerous and didn’t know anything of value. ‘Sometimes, we just didn’t get the right folks,’ says Brg. Gen. Jay Hood, Guantánamo’s [then-]current commander.” The then-deputy commander, Gen. Martin Lucenti, said that “Most of these guys weren’t fighting. They were running.”[15]

In U.S. custody, Bahtiyar denied (as did every other Uighur) having any ties to al Qaeda or the Taliban, arguing sensibly that:

“Al Qaeda’s name we heard in here [Guantánamo]. Al Qaeda is an enemy of the whole world and the United States. The whole world is against the Al Qaeda organization. . . . if we had ties with Al Qaeda, that would mean all the Uighur people would lose help from the whole world and lose our goals.”

. . . .

“We understand that Al Qaeda was established by Arab people, and we understand also that those Arab people have their own country and can live however they want in their own country. We are Uighurs and have lost our country on the west side of China. I don’t know what their goals are, they can live independently and freely in their country and I don’t understand why they’re fighting with the whole world and the Americans. I have no knowledge about why they’re fighting.” [16]

There was absolutely no link to the Taliban or al Qaida, and none has even been alleged.

IV. Communist Chinese agents interrogate the Uighurs at Guantánamo.

In December 2002, a spokesman for the Chinese Foreign Ministry demanded that any Uighurs captured in Afghanistan be returned to China “to face charges of terrorism.” [17] The Chinese claim that Uighur dissidents are members of the East Turkistan Islamic Movement (ETIM), which they say is an extremist movement, with ties to Al Qaida.[18] This label is applied by the Chinese indiscriminately to any Uighur suspected of political dissidence. Chinese authorities did not distinguish between peaceful political activists, peaceful separatists, and those advocating or using violence.[19]

Originally, the United States did not consider that ETIM was a terrorist group. On December 6, 2001 (about the time Bahtiyar and the other Uighurs came into U.S. custody), U.S. State Department Coordinator for Counter-terrorism Francis X. Taylor said, following talks in Beijing, that “the U.S. has not designated or considers the East Turkistan organization as a terrorist organization.”[20] ETIM was not on the State Department list of terrorist organizations.[21] However, in the period after 9/11, State Department officials were negotiating with China concerning legitimate U.S. needs for international cooperation in connection with terrorism.

In the run-up to the war in Iraq, it was a U.S. priority to develop consensus among major world powers, and China was crucial. The Uighurs—and specifically the Uighurs in Guantanamo—became a diplomatic chip in this high-stakes game, a quid pro quo for Chinese acquiescence in the Administration’s Iraq policy. Speaking to the press in Beijing immediately after a meeting on August 26, Undersecretary of State Richard Armitage advised that the groundwork had been laid for an October 2002 summit between President Bush and President Jiang Zemin. He acknowledged that talks had focused on Iraq.[22]

Several weeks later, the ETIM was added to the official State Department list of “terrorist organizations.” This designation was purely a political accommodation to the Chinese, granted solely to secure Chinese acquiescence in the U.S.’s Iraq war plans.[23] Moreover, not only did the U.S. agree to reverse itself and declare ETIM a “terrorist organization,” it granted the Chinese permission to interrogate the Uighurs at Guantánamo Bay. Only weeks later, in September 2002, Chinese agents interrogated the Uighur prisoners at Guantánamo.[24]

One month later, President Bush welcomed Chinese President Jiang in Crawford, Texas, for talks that focused on China’s position on a potential invasion of Iraq.[25] This astonishing episode in U.S. diplomatic history—the United States welcoming agents of a Communist government to its secure military facility at Guantánamo, granting them access to prisoners that it has strenuously denied to U.S. courts, members of Congress, the United Nations, and the Press, and branding as “terrorist” an “organization” it had previously determined not to be a terrorist organization—points up the urgency, at the time, of the Iraq issue. This was a naked political deal to help secure China’s tacit acquiescence in the Iraq invasion being planned in 2002.

Agents of the Chinese government visited Bahtiyar and the other Uighur men in Guantánamo on several occasions.[26] Based on unclassified information gained from interviews with these men, they were interrogated, abused, and threatened by Chinese representatives.[27] More than once these agents threatened the Uighurs with imprisonment and possible torture upon their return from Guantánamo to China. The agents also ominously warned them that they knew who their families were and where they could be found.

Several Uighurs later described these incidents to the CSRT tribunals. For example, one Uighur named Abdusemet described how he was forcibly interrogated, threatened, and deprived of sleep and food by the Chinese delegation in Guantánamo.[28] He stated that an American who identified himself as a “White House representative” specifically threatened to send Abdusemet to China if he did not cooperate with interrogators.[29] A Chinese interrogator told Adel Abdul Hakim (who was later determined to be a noncombatant) that he was “lucky” to be in Guantanamo; if they took him back to a Chinese jail, he would be “finished.” Several Uighurs were told that they would be killed in China.

Despite these threats, most of the Uighurs refused to cooperate with Chinese interrogators. The coercive and abusive interrogations of the Uighurs took place while they were in the custody of the United States Government, under our complete control, and with our Government’s cooperation and complicity. Thus my clients, like all the Uighurs in Guantánamo, have a reasonable fear of persecution if returned to China. In particular, Bahtiyar fears repatriation because he is wanted by the Chinese police for attending a demonstration.

V. “Do I have to make myself guilty?”

Indeed, even at Bahtiyar’s Combat Status Review Tribunal review – initiated two years after his detention began – the Tribunal members recognized that he should not be sent to China upon release. During his CSRT review,[30] the Tribunal President asked, “If you were to be set free, you would go back to your homeland, which is China, unless you were to get asylum somewhere?” Bahtiyar, aware that return to China would mean certain persecution, responded:

“I was going to ask that. My Personal Representative told me that if I am innocent I’ll go back to my home country. If I’m guilty and come back an enemy, I will stay. I was going to ask you about this. If I go back to China they will kill me, but if I wanted to stay here do I have to make myself guilty?”

The Tribunal President offered no reassurance that a finding that Bahtiyar was not an enemy combatant could protect him, and he was warned that: “It is my understanding that if we determine you are not properly classified as an enemy combatant, you will be released to your home country.”[31]

VI. The CSRT recommends “favorable consideration for release – but not to China.”

Apparently both Bahtiyar and the Tribunal understood that he faced a Hobson’s choice: he could be designated as a “non-enemy” combatant and be sent back to China for possible torture and even death, or be classified as an enemy combatant, which would save his life at the cost of his liberty. In a bizarre twist, the Tribunal chose neither option. Instead, it adjudged Bahtiyar an enemy combatant yet simultaneously recommended “favorable consideration for release,” and urged that he “not be sent back to China.”[32] Thus, in an apparent attempt to protect him from repatriation, the Tribunal also erroneously classified Bahtiyar as an enemy combatant.

Despite his classification as an enemy combatant, Bahtiyar has been formally cleared for release. Indeed, the U.S. has for years represented to dozens of countries that the Uighurs are appropriate candidates for release and resettlement.[33] However, none of the nearly 100 countries that the U.S. apparently has approached has thus far been willing to accept the Uighurs, presumably at the risk of angering the Chinese.[34] The Uighur community in the U.S. stands ready to help with resettlement in the U.S., but the U.S. Government declines that solution.

VII. Solitary confinement and the human cost of the detention policy.

Today, Bahtiyar and the other Uighurs remain locked away in individual 8-foot by 12-foot metal boxes, unable to communicate except by shouting under the door to one another, with nothing to read, touched only by guards wearing rubber gloves, and moved outside only for two hours of “recreation” in every 24, sometimes at night, in a holding pen with no view of the horizon. The men are exhibiting classic psychological symptoms resulting from solitary confinement: depression, anxiety, difficulties with concentration and memory, hallucination and perceptual distortions, paranoia, and suicidal thoughts and behavior.

The Uighurs should be transferred immediately out of solitary confinement, into a camp where they can be detained in humane living conditions pending a final resolution of their terrible situation. While Bahtiyar and the other Uighurs plainly deserve release, the United States must not send them to a country where they will be arrested, tortured, and even killed. If these men cannot be resettled in the U.S., the Government must exert every effort, through the United Nations High Commissioner for Refugees and diplomatic channels, to find a home where the Uighurs can again be free men.

The Uighurs are illustrative of the enormous human tragedy resulting from the United States’ dragnet global detention system. The assertion of boundless executive power to hold a virtually-limitless class of people has resulted in the prolonged detention of people the government itself acknowledges are blameless. The unpardonable treatment of the men in Guantánamo prison has brought lasting damage to the image of the United States, its Constitution, and the rule of law. Guantánamo prison has become a potent symbol that focuses worldwide hostility against the United States, and it has become a rallying cry for America’s enemies.

VIII. Congress must act now.

The Guantánamo population is being reduced to a core of men who present no danger to America, but who cannot be returned to their homelands. No court has held a hearing to consider the plight of these men. Rather than defend its brutal detention policies in a court of law, the United States Government has stonewalled by seeking stay after stay, year after year. The outrage presented by continued detention of the Uighurs and the other stateless refugees will not be fixed until America and its allies agree to take them in, and that will not happen unless the United States accepts some of them first. Congress and its Committees must act now by directing our government to grant asylum to the Uighurs and the other innocent men among the Guantánamo population, to shut down the Guantánamo prison, and then to make sure that the United States never again establishes an off-shore penal colony beyond the reach of the American law.

Thank you.

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[1] See U.S. Dep’t of State, Country Reports on Human Rights Practices – 2004 (Feb. 28, 2005) and 2007 (March 11, 2008), at http://www.state.gov/g/drl/rls/hrrpt/2004/41640.htm and http://www.state.gov/g/drl/rls/hrrpt/2007/.

[2] See Joshua Kurlantzik, “Unnecessary Evil: China’s Muslims aren’t terrorists. So why did the Bush administration give Beijing the green light to oppress them?” Washington Monthly (Dec. 1, 2002) (“More than 3,000 Uighurs reportedly have been secretly jailed since 9/11, and many have been executed for no given reason. Xinjiang province . . . remains the only place in China where people are routinely put to death for purely political disagreement.”).

[3] See Human Rights Watch Report, Devastating Blows, Religious Suppression of Uighurs in Xinjiang: II, available at http://hrw.org/reports/2005/china0405/4.htm.

[4] See Summary of Admin. Rev. Board’s Proceedings for ISN 277, 20303, 20312, available at http://www.dod.mil/pubs/foi/detainees/csrt/ARB_Transcript_Set_6_20255-20496.pdf.

[5] Id. at 20311.

[6] Id.

[7] Id.

[8] See footnote 10, page 2.

[9] Leaflets were “dropping like snowflakes in December in Chicago,” according to Secretary of Defense Rumsfeld. Remarks at a Department of Defense News Briefing, Nov. 19, 2001, available at http://www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/ rumsfeldtext_111901.html.

[10] A copy of this flyer is attached. This and other flyers are posted on the on the Department of Defense website, http://www.psywarrior.com/afghanleaf40.html.

[11] See, e.g., FOIA CSRT 01236. The FOIA documents were produced by the military under a Freedom of Information Act request from the AP. The documents were all posted at the DOD FOIA website:

http://www.dod.mil/pubs/foi/detainees/csrt/index.html.

[12] See generally FOIA CSRT 001220.

[13] General Pervez Musharraf wrote in his 2006 book that “millions” were delivered to Pakistan as bounty payments for turning over prisoners. See also Mark Denbeaux et al., The Guantanamo Detainees: the Government’s Story at 2-3 (2006), available at http://law.shu.edu/news/guantanamo_report_final_2_08_06.pdf (up to 86% of Guantanamo detainees may have been handed over to the United States in return for a bounty).

[14] See, e.g., DoD News Briefing—Gen. Richard B. Myers, Chairman, Joint Chiefs of Staff (Jan. 11, 2002), available at http://www.defenselink.mil/transcripts/2002/t01282002_t0128asd.html (prisoners are “the worst of the worst”)

[15] Wall Street Journal, January, 2005, October, 2004.

[16] See Decl. of Joseph Imburgia, Mahnut v. Bush, no. 05-1704 (filed Dec. 30, 2005) (Docket No. 17).

[17] Human Rights Watch, Afghanistan: Return of Foreign Fighters and Torture Concerns, HRW Backgrounder (Dec. 2001), available at http://www.hrw.org/backgrounder/asia/afghanistan/ afforeign1220.htm.

[18] See Human Rights Watch Report, Devastating Blows, Religious Suppression of Uighurs in Xinjiang: II, available at http://hrw.org/reports/2005/china0405/4.htm. The Chinese government initiated an active diplomatic and propaganda campaign against “East Turkistan terrorist forces.” In particular it urged that there existed a terrorist organization known as the “East Turkistan Islamic Movement” (“ETIM”), and that Uighur political dissidents were members of ETIM.

[19] Id.

[20] September 11, 2001: Attack on America: Press Conf. of Ambassador Francis X. Taylor, Beijing, China (Dec. 6, 2001), http://www.yale.edu/lawweb/avalon/sept_11/taylor_003.htm.

[21] U.S. Dept. of State 2001 Report on Foreign Terrorists, available at http://www.state.gov/s/ct/rls/rpt/fto/ 2001/5258.htm.

[22] QUESTION: Could you brief us a little bit more about what kind of talks you had on Iraq? Especially, have you touched upon the possibility of a U.S. attack on Iraq?

ARMITAGE: I discussed the fact that Iraq left untended, we felt, was a threat to us and to Iraq’s neighbors. I discussed some of our President’s comments, to the effect that he has all options before him and he’s made no decisions. I discussed, with our Chinese friends, the fact that we will consult with them as we move forward, and that no final decisions have been made now. Finally, we discussed sort of the theory of having U.N. Security Council Resolutions existent, and the specter of a nation basically thumbing their nose at the United Nations Security Council, and what this augured for the body.

The next question and answer was telling.

QUESTION: You mentioned the ETIM, and discussed putting it on the terrorist list. Does this mean that the U.S. considers the ETIM to be a terrorist organization, and would support putting it on a list of terrorist organizations?

ARMITAGE: We did.

Transcript of Deputy Secretary of State Richard Armitage Press Conference—Conclusion of China Visit (Aug. 26, 2002), available at http://lists.state.gov/SCRIPTS/WA-USIAINFO.EXE? A2=ind0208d&L=us-china&H=1&O=D&P=75.

[23] Curiously, ETIM was not designated as a “terrorist organization” for U.S. immigration purposes. Following August, 2002, the Uighurs continued to be a favored group as to applications for political asylum in the United States.

[24] Amnesty International, People’s Republic of China: Uighurs Fleeing Persecution as China Wages its “War on Terror” 33-34 (2004); see FOIA 00174 (unclassified return from Sabir Osman).

[25] Commenting immediately after the meeting, a senior administration official said, “The question is . . . was there common ground between the two Presidents on Iraq. Did the President come away thinking that he had President Jiang’s support. The two Presidents did, indeed, discuss Iraq fairly thoroughly. I think that you know our position very well and I think President Jiang Zemin has also made it very clear that Iraq should implement all previous Security Council resolutions. I’m not going to go much beyond that, but to say that I think we have common ground to work.” White House News Release, President Bush Chinese President Jiang Zemin Discuss Iraq, North Korea, (Oct. 25, 2002), (emphasis added), available at http://www.whitehouse.gov/news/releases/2002/10/20021025.html.

[26] Amnesty International, People’s Republic of China: Uighurs Fleeing Persecution as China Wages its “War on Terror” 33-34 (2004).

[27] It is alleged that during the delegation’s visit, the detainees were subjected to intimidation and threats and to stress and duress techniques such as environmental manipulation, forced sitting for many hours, and sleep deprivation.” Id.

[28] FOIA CSRT 2916.

[29] Id.

[30] See Decl. of Joseph Imburgia, Mahnut v. Bush, no. 05-1704 (filed Dec. 30, 2005) (Docket No. 17).

[31] Id.

[32] Id.

[33] In May, 2004, State Department spokesman Richard Boucher reiterated that the U.S. had no interest in continuing to detain the Uighurs. U.S. State Dep’t Daily Press Briefing (May 13, 2004), available at http://www.state.gov/r/pa/prs/dpb/2004/32455.htm; “The Uighurs are a difficult problem and we are trying to resolve all issues with respect to all detainees at Guantánamo. The Uighurs are not going back to China.” Remarks of Secretary of State Colin Powell, U.S. State Dep’t, Roundtable with Japanese Journalist (Aug. 12, 2004), available at http://www.state.gov/secretary/former/powell/remarks/37356.htm.

[34] In 2006, five Uighurs who had been captured with Bahtiyar were released from Guantánamo to Albania, where they now live as refugees. However, Albania will not agree to take more Uighurs, because of pressure from China.

Addendum