Closing Guantanamo Bay Detention Center: A Restorative Option?

Carl Stauffer, PhD., Assistant Professor of Justice & Development Studies,

Eastern Mennonite University

Hamid Arsalan, MA., Foreign Affairs, University of Virginia and Conflict Transformation,

Eastern Mennonite University

Abstract:

The Guantanamo Bay Detention Center represents a grave clash of justices. In real time, the

post-violence transitional politics of accountability, protection, vindication and healing are

untidy at best and deeply conflictual at worst. After the exposure of disturbing human rights

violations committed against the Guantanamo detainees, worldwide condemnation wracked

the standing of the United States, calling into question its self-proclaimed status as a defender

of human security and freedom. Focusing on the closure of Guantanamo prison and the

reintegration of the remaining detainees housed there, this article argues that the United States

is in need of reconstructing its integrity and that many of the current prisoners are in need of

an integrative justice. The current emphasis on extra-legal justifications and the punitive

system presently being applied will only continue to sharpen the divide of the identity

discourses between West and East, Christian and Muslim, terrorist and freedom fighter, and

what constitutes justice and injustice for the Guantanamo Bay detainees. To this end, the

authors propose a hybrid justice model that integrates trauma recovery and restorative justice

frameworks and their respective practices into the international retributive justice system

already in place.

Key words: Restorative justice, trauma, human rights, detention, torture, reintegration

   

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Table of Contents

Introduction: A Contextual Backdrop ............................................................................................. 3

Guantanamo Bay: A Heated Debate ............................................................................................... 4

What happened in Guantanamo Bay? ............................................................................................. 7

 

Case Study: Saudi Arabia Rehabilitation and Reintegration Program ........................................... 9

Subverting Hatred: Trauma Healing for Guantanamo Bay Detainees .......................................... 12

 

Making Amends: Restorative Justice for Guantanamo Bay Detainees ...................................... 127

Closure of Guantanamo Bay: Concerns and Recommendations: ................................................. 20

Conclusion: ................................................................................................................................... 24

 

Endnotes………………………………………………………………………………………….25

References………………………………………………………………………………………..28

Tables……………………………………………………………………………………………………...31

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Introduction – A Contextual Backdrop:  

Tuesday, September 11, 2001 is one of the most significant days in recent history for

both the immense tragedy that unfolded and the magnitude of events it unleashed. The image of

the New York City Twin Towers immersed in flames and eventually collapsing was broadcast on

television sets around the world. It was also impressed on the world’s mind for years to come as

the United States of America, having come under attack on its shores for the first time since

Pearl Harbor sixty years earlier, embarked on a ‘Global War on Terrorism’ in response.

The attack was not by any nation-state, but rather by a shadowy terrorist organization

known as Al-Qaeda led by Osama Bin Laden. He and his organization had found a safe haven in

the mountains of Afghanistan under the protection of the Taliban ruler Mullah Muhammad

Omar. Co-author, Hamid Arsalan, as a first-hand witness, describes his experience in

Afghanistan at that time:

I remember our emergency staff meeting at the office of Medicines Du Monde, a French medical aid organization based in Afghanistan that I worked for at the time. The head of the office, David, sent the nonessential staff home and only a few of us remained in the office. In the meeting we agreed that foreign personnel should leave the country on the next available flight. I still remember David’s exact words: “This is going to be the end of the Taliban”.

In Afghanistan people fled the country in large numbers fearing the U.S. retaliation, and those who were not able to leave the country left the cities for the villages seeking protection. One Friday afternoon in the middle of October 2001, I was in the yard of our house and I heard the sound of an airplane. I looked up to the sky and saw two big white airplanes flying parallel to one another. Initially I thought they were commercial airplanes, but then suddenly I saw a flash of light from the airplanes and massive explosions quickly followed. Glass shattered in our house, children were screaming and crying. I could hear the sound of ambulances and fire trucks rushing to the scene. The War on Terror had started.

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The Taliban were soon defeated and the Mujahedeen1 took control of the country with the help of the U.S. Special Forces. Afghans were hopeful that international security assistance forces would take over the cities rather than the same warlords who destroyed the country after the withdrawal of the Soviet Union from Afghanistan in the civil war of the 1980s. I lived through both of the regimes; the Mujahedeen were better than the Taliban, but only by a little. There were mixed feelings among the people: some were happy because they were finally liberated from a tyrannical regime while some were worried and unsure about the future.

I recall the first days of the invasion; the local people were chasing the Taliban throughout the streets. Once they were captured they would deliver them to the Mujahedeen who then handed them over to the Americans. The first few days were utter chaos as no one knew what was going to happen. There was so much hatred against the Taliban that the people were trying to take revenge on the Taliban, or any long term enemy, in any way possible.

In Afghanistan especially in tribal areas, such chaotic situations are the best opportunities to take revenge on a long term enemy, even if he is not part of the Taliban and does not enjoy the protection of a warlord. I witnessed a number of cases where innocent people were handed over to the Americans from our neighborhood for personal reasons and for the bounties they offered. Most of these people eventually found themselves in the Guantanamo Bay prison in Cuba, where they were confined illegally and many were tortured.

This article focuses on the detainees who were imprisoned at Guantanamo Bay for an

extended period of time with no legal charges. It also elaborates on U.S. President Obama’s

decision regarding the closure of the prison facility and why he failed to accomplish this within

the one-year timeframe as promised. Further, the article addresses what measures need to be

taken into account while closing Guantanamo Bay prison facility and explores how to deal with

the human rights violations and the resulting trauma needs experienced by many of the prisoners

while being detained. Finally, the authors will draw from trauma healing and restorative justice

theories and practice to outline a transformative framework for detainee reintegration.

Guantanamo Bay - A Heated Debate:  

According to Fleur Johns (2005) Guantanamo Bay, a 45 square mile area is located in

Cuba and is occupied by the United States through a perpetual lease agreement signed in 1903.

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Based on this lease the United States maintains the right to use this area for coaling and as a

naval base. While the lease ultimately considers giving Cuba sovereignty over this space, the

United States exercises complete control over the jurisdiction. The base runs its own school,

power system and water supply. Recent studies show that there are about 6,000 residents living

on the base who are enjoying a life with American standards. This place is often referred to as

the “small-town America.” This “small-town America” also contains a prison facility that has

been problematic in recent times, especially since the September 11, 2001 attacks (Johns, 2008,

p. 616).

The Guantanamo Bay prison facility is often described as a space where lawlessness is

rampant (Johns, 2005, p. 616). Gregory (2006) believes that Guantanamo Bay retains a large

measure of colonial architectures of power that do not abide by international law. He adds that

“Guantanamo Bay depends on the mobilization of two contradictory legal geographies, one that

places the prison outside the United States which allows the indefinite detention of its captives,

and another that places the prison within the United States in order to permit their ‘coercive

interrogation’” (p. 405). Such a prison base is an ideal place to “lawfully” torture prisoners and

keep them as long as the United States wishes.

Since early 2002 about 800 prisoners have been held at Guantanamo Bay (Mendelson,

2008). Most of these prisoners were released after spending years in prison without any legal

charges and often being tortured. As of June 13, 2011, 171 prisoners remain in Guantanamo Bay

prison (New York Times, The Guantanamo Docket, 2011). President Obama on his second day

in office signed a decree ordering the closure of Guantanamo Bay. The President ordered

shutting down the prison “as soon as practicable, and no later than one year from now” (ABC

News, January 22, 2009). Furthermore the President’s Press Secretary, Robert Gibbs stated that

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“the president believes that what he did today will enhance the security of the American people

and that it lives up to our values as American people ..." (ABC News, January 22, 2009)

The detention of the detainees in Guantanamo Bay has been a heated debate in the

international arena, especially with the United States’ use of coercive interrogation techniques

like water boarding to extract information from the detainees. Hence, there have been many calls

for closure of the Guantanamo prison facility even during President Bush’s era. On March 29,

2007 Robert Gates, US Secretary of Defense, told the House Appropriations Committee that

there was a “taint” to Guantanamo and that it should be closed (Daskal, 2008, p. 32). Although a

number of prisoners were released after this public call for closure, still the prison was not shut

down.

Daskal (2008) argues that “just about everyone agrees that the indefinite detention of the

hundreds of men without charge in the United State’s backyard is a black spot on its reputation

around the world” (p. 32). She further adds that “virtually every western ally of the United States

has publically called for its closure, and the operation of this prison camp has earned the United

States round after round of condemnation by the United Nations Bodies” (p. 32).

However, the U.S. government consistently defended the Guantanamo detention facility.

The Bush administration claimed that those who were detained in the prison facility were

“enemy combatants” in the “global war” against terror and therefore they could be detained

without trial until the war was over (Daskal. 2008, p. 31). Under this definition, the Bush

administration bestowed itself with the power to virtually imprison any alleged terrorist suspect

and keep them in detention indefinitely without any charges. Thus, as has now become

increasingly clear, many innocent people who were apparently at the ‘wrong place at the wrong

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time’ have been detained in this prison facility without the protection of due process

jurisprudence required by international law (New York Times, Guantanamo Files, 2011).

The problems Guantanamo Bay has created cannot merely be solved through its

termination of operation; hence President Obama could not meet his promise to close the prison

in a one-year time period. The President faced considerable resistance from those who opposed

the closure of the prison facility, especially from certain members of Congress. Peter Margulies

(2010) elaborates that “congress took the announcement as a signal that the President did not

adequately consider,” the “efficiency, equity, and accuracy” of the issue at stake (p. 1).

Although the Guantanamo Bay prison has been a source of shame and international

condemnation on the United States, there remains elements within the President’s administration

as well as in Congress that are against the closure of the prison facility. Understandably, closure

of the prison presents a highly difficult and complex task with an extended process of time

attached to this endeavor. There are many questions at stake to address; what will happen to the

current detainees? Should they be simply released? What if their countries of origin do not want

them back for security reasons? Who is going to meet the needs of the prisoners? To answer

some of these questions, it is wise to review a few cases from the detainees and see what really

happened in Guantanamo Bay and why closure of this prison facility is so complicated.

What happened in Guantanamo Bay?

Until 2007, despite various allegations and speculations regarding the detainees being

tortured in Guantanamo Bay, there were no public reports on record or proof that any “coercive

interrogation” techniques had been used by the United States to extract information from the

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Guantanamo detainees or any other ‘black’ listed sites. The International Committee of the Red

Cross (ICRC), who had met with a number of these prisoners on numerous occasions, prepared a

report outlining the many torture accounts in these prison facilities. The report was never

intended to be published and was kept by the CIA. The ICRC report (Loane, 2007), which is one

of the most comprehensive reports with complete details of the torture accounts, was made

public by Mark Danner of the New York Review of Books in March 2009.

The stories revealed in this report were shocking and brought even more international

pressure for prison facilities such as Guantanamo Bay to be closed and for the United States to

desist from using torture as a means of extracting information from the detainees held in its’

custody. The ICRC report revealed incomprehensible atrocities committed under the guise of the

political rhetoric of national security and the protection of liberty. Danner narrates as follows “a

naked man chained in a small, very cold, very white room is for several days strapped to a bed,

then for several weeks shackled to a chair, bathed unceasingly in white light, bombarded

constantly with loud sound, deprived of food; and whenever, despite cold, light, noise, hunger,

the hours and days force his eyelids down, cold water is sprayed in his face to force them up”

(Loane, 2007, p. 16). Clearly the closure of the Guantanamo facility will not bring an end to the

untold misery and suffering experienced in that, or other detention facilities that the U.S. Army

and the CIA control. One prisoner with his own words shares his story as follows:

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don't know how long I remained in the small box, I think I may have slept or maybe fainted. I was then dragged

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from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress (Loane, 2007, p. 16).

Aside from the obvious violations of human rights, such stories lend strong evidence to

the level of pain and the trauma that these prisoners have suffered while in detention. Hence,

although President Obama ordered the closing of Guantanamo Bay on his second day in office

the narrative discourse over what justice and injustice entail in this case of detention will not end

quickly. Clearly, there is need for the implementation of a transformative framework to address

the needs of the prisoners and their receiving communities in the process of reintegration back

into society. In this regard, Saudi Arabia provides a useful case study of how to address the

needs of prisoners after their release. Many of the prisoners were holding Saudi citizenship, and

following their release from Guantanamo Bay and subsequent return to Saudi Arabia, they

underwent an intensive, culturally-contextual and religiously-sensitive rehabilitation and

reintegration program.

Case Study: Saudi Arabia Rehabilitation and Reintegration Program

Saudi Arabia started a rehabilitation and reintegration program for the 117 Saudi national

detainees who were released from Guantanamo Bay in order to deal with and address the needs

of the prisoners upon their release. When the U.S. authorities decided to release some Saudi

national detainees, they contacted the Saudi authorities and sent a chartered 747 airplane secretly

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to receive these detainees. On the airplane, they finger printed all these detainees into the Saudi

criminal justice system and they were all given a full medical exam (CBS, 2009). This was a first

and urgent step in providing a ‘safe-space’ and meeting the physical needs that may have

resulted from the trauma of torture on the part of the detainees.

In order to reintegrate the released detainees back into the society, the Saudi officials met

many of the material needs of these prisoners, i.e. they gave them a car, money to get married,

and even housing, all for free, with the idea that ‘normalizing’ their life routines will assist in the

recovery of trauma (Herman, 1997) and in the social reintegration process.2 Saudi Arabia has

spent tens of millions of dollars on the detainees in order to help them reintegrate into the

society. While material resource (subsistence) is not the only fundamental human need, nor is it

the ultimate source of healing or transformation, in the Saudi Arabian context material provision

is considered an important societal value for reintegration (Max-Neef, 1989).3 This was a second

and helpful step in providing for the material needs of the detainees in order that they may

experience a season of ‘normalization’ in this life transition away from trauma.

Many experts in the Saudi case argue that the longer a man is detained in Guantanamo

Bay, the harder it becomes to treat his psycho-social needs. Many of the detainees of

Guantanamo prison were released with a deeply reinforced hatred of America. It is evident that

the extreme torture experienced by the Guantanamo detainees has increased their radicalization

of religious terrorism (Juergensmeyer, 2000).4 This cyclical spiral of ‘enemy formation’ whereby

structures of political violence produce the very ‘enemies’ required to justify the on-going

existence of state-sanctioned violent repression is well-established in the fields of conflict and

peace studies (Cavanuagh, 1998, Volkan, 1994, Ignatieff, 1998, and Mamdani, 2001).5 Hence,

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there is even more extensive need to rehabilitate these detainees from the psychological mind-set

or worldview (Docherty, 2001)6 that motivates the socio-dramaturgical performance and ritual

practice of violent revenge (Richards, 1996)7 and reintegrates them back into the society as

peaceful citizens.

The Saudi rehabilitation program which has been labeled a “soft-approach”

spends months listening to the stories of these released detainees. It provides a series of inputs

that are focused on emotions and how the prisoners understand and control anger - similar to the

popular ‘anger management’ programs currently in vogue within the criminal justice

rehabilitation systems. In addition, they have designed an art therapy component for these

detainees in order to provide the opportunity and space for them to portray and express their

feelings, especially in cases where they are not ready to verbalize the lived trauma of their torture

and imprisonment. Furthermore, they are given religious teaching and instruction that articulates

the true meaning of Jihad and communicates the message that Islam is not a violent or vengeful

religion. This stage accounts for the third and most critical step in the trauma healing process,

that of providing psycho-social support in the form of anger counseling, art therapy and religious

reorientation. The Saudi officials and other experts claim that this reintegration program has been

90% successful (CBS, 2009).

Critics of the Saudi rehabilitation program argue that this “soft approach” is unbalanced

with too much emphasis on the material alone, and because some detainees who completed the

program still joined extremist organizations such as Al-Qaeda after their release, these former

prisoners remain dangerous and are ‘potential’ terrorists inclined to harm Americans. While this

is reason for concern, it is the co-author’s opinion that the greater concern is addressing the

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trauma needs of the tortured detainees upon their release. One could argue that the Saudi’s have

successfully met most of the needs of the released detainees. However, while the Saudi program

concentrated a large amount of resources on the individual rehabilitation of the detained torture

survivors, they neglected the necessary preparation of the prisoner’s families and communities to

receive them back home. There is an abundance of literature expounding on the reintegration

needs of ex-combatants, prisoners, and other war abductees as individuals, however, there is a

dearth of research and understanding around the collective needs of the families and

communities who are required to absorb their traumatized loved ones back into midst (Maltilde,

2009).

Clearly, the closure of the Guantanamo Bay facility is an important first step, however

addressing the trauma and justice needs of the released detainees, their families and their

communities is the next major step forward.8 Hence, an integrated healing and justice system is

required to address these challenges and needs of the prisoners and their support networks. The

theory and practice of trauma recovery threaded together with a restorative justice approach

provides a promising transformative framework that is useful in analyzing the complex and

disparate needs outlined above.

Subverting Hatred: Trauma Healing for Guantanamo Bay Detainees

At this point, it is quite clear that trauma healing work is a highly relevant issue in

dealing with the transformation of the detainees who will get released from Guantanamo Bay. It

is important to note that trauma as a physiological phenomenon is no respecter of person (Van

der Kolk, et.al, 2006)9. Trauma reactions do not fit neatly into the experiential categories of

either ‘victim/perpetrator’ or ‘victor/vanquished’, nor is trauma reserved for those claiming the

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cause of the ‘moral high ground’ in violent conflict. Yoder (2005) argues that “in casual

conversation, the word trauma is used to describe the reaction to anything from a stressful day to

a brutal murder”, and that a “traumatic reaction needs to be treated as valid, regardless of how

the event that induced it appears to anyone else” (p. 10).

In this regard after 9/11, scores of individuals and families were traumatized. Those who

lost beloved family members in the 9/11 incident and those who are still losing loved ones in

places like Afghanistan and Iraq. While every healthy mind condemns what happened on 9/11

and sympathizes with the victims of that incident, it has also paved the way for many brutalities

in its aftermath, especially toward Muslim communities both in the United States and abroad.

William Schulz (2003) offers an example of a young man from Pakistan named

Mahmood Ansar who was humiliated, tortured, and traumatized. He was arrested in the

aftermath of 9/11 and at that time his visa had expired, so he was incarcerated. In prison he was

humiliated and tortured by prison guards who told him “Do as we say or it will be the end of

you” (p.86). He was denied his basic rights as a prisoner such as having access to a lawyer or

being able to talk to his family. He was not involved in the incident of 9/11, but FBI interrogators

interrogated him multiple times and after they were done with the investigation they told him

they would release him, yet they never did.

Mahmood was fortunate that Amnesty International intervened and advocated on his

behalf. He was eventually deported from the U.S. There are many examples that mirror

Mahmood’s story. Arguably, some of the worst scenarios of this kind are those of the

Guantanamo Bay detainees. They have been imprisoned with no or highly suspect legal proof,

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and if they are released without any program of recovery from the trauma of torture, the chances

of them making future decisions out of a state of bitterness and rage increases exponentially.

It’s important to rehabilitate and transform the hatred that these detainees carry with them

from their experiences in the Guantanamo Bay prison. Even now, many questions haunt the

efforts of politicians, advocates, and peacebuilding practitioners who are working to bring

resolution to the Guantanamo dilemma. For instance, what happened to Mahmood Ansar? What

are his thoughts and feelings about the United States? Mahmood did not have a job in his own

country and he came to the U.S. for a better future. He made the decision to take the risk of

staying in the U.S. illegally in order to support his family. After he was tortured by the FBI,

humiliated, and finally deported, when he returned back to his home, was he able to find a job

with sufficient income? Was there a system in place to deal with his anger and the torture he had

experienced? Without satisfactory answers to these questions, the chances of young men like

Mahmood joining terrorist groups like Al Qaeda increase. For many young men like Mahmood,

a terrorist group would supply decent pay and would provide the opportunity to act on his

revenge after what he had gone through in U.S. prisons. Most trauma healing experts believe that

the first reaction to a traumatic experience is denial and shock, followed by the realization of

loss, followed by a deep anger provoked by the sense of victimization. If this deep anger is not

allowed an appropriate emotional outlet, it will be suppressed which can lead to a felt-need for

justice through revenge and eventually, a “justified act of aggression” is acted upon (Botchavora,

2001)10.

Viktor E. Frankl (1959) argues that those who had survived long-term imprisonment,

including brutal torture and severe forms of trauma during the Holocaust concentration camps,

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were more able to justify oppression and violence against others than those who had not. He

elaborates this paradox further that “now being free, they thought they could use their freedom

licentiously and ruthlessly.” They were liberated from their imprisonment, but “they became now

the oppressors instead of the oppressed” (p. 112).

Consequently, Frankl adds “they justified their behavior by their own terrible

experiences” (Frankl, 1959, p. 112). Without a doubt those who were imprisoned during the

Holocaust in the concentration camps were tortured and traumatized massively, thus, many

trauma experts believe that violent behavior could be a normal reaction upon release. The

tortured prisoner believes that they have been treated so cruelly that it is acceptable for them to

react towards others out of their own experiences of brutality. Carolyn Yoder narrates her

support of this idea that “the intense trauma energy of hyper-arousal can also show up as anger

or rage directed at whatever or whoever is the closest” (Yoder, 2005, p. 22).

Trauma creates multiple physical and psycho-social needs that should be addressed.

Those who have been traumatized need to know what happened to them. In other words, they

need an explanation of the traumatic incident but at the same time they need to have someone to

hear their stories too (Yoder, 2005, p. 25). The repeated ‘telling of the story’ becomes the focal

point of the healing process in that with each retelling of the story the horrific script of trauma

becomes more cohesive and eventually is imbued with enough meaning that it can be integrated

as one part in the whole life narrative of the survivor. Yoder believes that “the most urgent need

for trauma survivors is often for safety and security-physically, emotionally, and spiritually”

(Yoder, 2005, p. 25).

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Karl and Evelyn Bartsch (1997), pioneers in community-based trauma healing work in

collectivized societies build their psycho-social support model around four critical stages of

trauma recovery. First, there is the need to establish security. In the case of the released

Guantanamo detainees this would require providing a ‘safe-space’ both away from direct

physical harm (relocation away from Guantanamo prison) and the assurance that they can speak

the truth without repercussions (being able to make a full survivor statement under the direct

supervision of trained mental health professionals without military or political interference).

Second, there is the need to return to normalization. For the released detainees this would

involve a process of resettlement back into civilian life (either in their countries of origin or in

another country), and restoring their regular life routines such as eating, sleeping, housing,

education, employment, leisure time, and family life. Third, there is a need to restore a sense of

empowerment. This stage builds on the individual capacity to cope with past trauma and its

effects and to accept, even embrace a new personal reality that may involve physical handicaps

and may mean living as an immigrant in a different location and cultural context. Here the

released detainee would be offered counseling, and the necessary physical and mental treatments.

Key to this empowerment process is allowing the former detainee to take ownership of his own

future life decisions such as where to live, what to study and what kind of counseling/treatment

services he feels are required. Fourth, there is a preventative need to reconnect the formerly

detained with their support networks. The released detainees need to be protected from isolation

or they will likely resort back to their former ways of thinking and behaving. It is critical to

restore the circle of community and the social, cultural and spiritual ‘anchors’ of care that were

once a part of the former detainees lives. This process would entail identifying persons who are

willing to accompany the former detainee through their transition back into society. It means

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facilitating meetings with family, community and religious leaders in order prepare them for the

process of re-absorbing their loved ones back into the fold. In the development of any

rehabilitation program for the detainees of Guantanamo Bay, it would be essential that a trauma

recovery framework (as defined above) be included in the plan. A holistic approach to

reintegration that takes into account the physical, social, emotional, and spiritual needs of the

formerly detained will be the best protection against reoffending in the future.

Making Amends - Restorative Justice for Guantanamo Bay Detainees:

Before exploring the application of a restorative justice framework to deal with the

Guantanamo Bay scenario, it would be necessary to give definition to the concept of restorative

justice. Restorative justice is a relatively young and burgeoning field of alternative justice with

an ever expanding number of scholars publishing within its topical boundaries. Many experts

believe that the practice of restorative justice will vary from context to context and is adaptable

depending on different cultural environments and worldviews. However, there are certain sets of

values that serve to guide any restorative justice practice. Barb Toews (2006) defines restorative

justice as “a way to do justice that actively includes the people impacted by crime - victims,

offenders, their families, and communities” (pp. 20-21). She further elaborates that the goals of

restorative justice are “to respect and restore each as individuals, repair broken relationships, and

contribute to the common good.”11

Based on such a definition one clearly notes that it’s not only about the detainees who are

imprisoned in Guantanamo Bay, but also about their families, and their communities. Howard

Zehr (2004), who is often considered to be one of the founding father of the modern restorative

justice movement, defines restorative justice into one core concept. He states it this way, “If I

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had to put restorative justice into one word, I would choose respect….The value of respect

underlies restorative justice principles and must guide and shape their application” (p. 19).

Restorative justice is then about attempting to ‘put things right’ or to ‘make amends’. It

involves restoring relationships and structures that are truthful and just. Restorative Justice asks

three crucial questions: What harms have been caused? What are the resultant needs from the

harms caused? Who is obligated to do what to repair the needs of those who have been harmed?

(Zehr, 1990) There are three pivotal ‘pillars’ of the practice of restorative justice which are: first,

Recognition of wrong-doing and injustice (confession), second Restoring Equity by giving voice

to human dignity, truth-telling and apology-forgiveness transactions (empowerment), and third

Addressing future intentions through commitments to behavioral change and the offering of

reparations/restitution (Claasen, 2008). In essence, restorative justice is built on the foundations

of respect and justice for the victims, the offenders, their families and their communities.

For most of the Guantanamo Bay prisoners who have been released, there has not been

any system to truly deal with their needs, their family’s needs, and from the wider perspective,

their community’s needs. No mechanism has been put in place to deal with the trauma that these

prisoners have suffered while being subjected to torture, and imprisoned far away from their

families and communities. There is a plethora of ‘unfinished business’ that needs to be addressed

in order for there to be a sense that “inter-generational justice” (Rawls, 1971)12 has been served.

Trauma that is not transformed will get transferred (transmitted) in one way or another to the

next generation and often in the form of violence. This is the cyclical legacy of unhealed trauma

and unsatisfied justice.

P a g e  |  19    

Van Ness and Strong (2002) propose a comprehensive model for restorative justice that

outlines the four justice actors: offender, victim, community and the State, the subsequent needs

arising from the harm done, and finally suggests complimentary roles of responsibility that each

actor is to play in the process of making amends. For purposes of this article, this model13 has

been adapted as follows:

[Insert Table 1]

In designing a restorative justice framework for the detainees of Guantanamo Bay, this

analysis of the actors, needs, and roles is helpful in “thickening” the intervention impact. In the

Guantanamo Bay scenario, there would be two complimentary or parallel tracks that could be

followed in the pursuit of justice. The first trajectory would be guided by the premise that the

‘victims’ of human rights violations (torture) are the detainees, the ‘offenders’ are the U.S.

government/military, the ‘community’ is the social support network that the detainees are

returning to, and the ‘state’ is the government of the country of the detainees (either the original,

or designated host country) that has taken responsibility to reintegrate the returning prisoners.

The second trajectory would be guided by the premise that the ‘victims’ would be the

surviving families and relatives of victims of the 9/11 attack, the ‘offenders’ would be the

detainees themselves, the ‘community’ would be the social support networks of both the

surviving families of those killed in the 9/11 attack and the families of the detainees, and the

‘state’ would be represented by the U.S. government and its concern for security against terrorist

attacks. Both of these trajectories would provide the screens overlaying each of the remaining

Guantanamo detainee’s cases awaiting trial. Depending on the outcome of the criminal justice

proceedings and the subsequent establishment of guilt or innocence, one or the other trajectory

P a g e  |  20    

would be followed. The components of restorative justice practice and values outlined in Table 1

above serve as a guiding framework and direction for the programmatic/structural

recommendations that follow.

Closure of Guantanamo Bay: Concerns and Recommendations

In consultation with experts on human rights and restorative justice while writing this

piece, a number of concerns were raised about what will happen to the detainees once they are

released. There are speculations that some of these detainees will join terrorist networks like Al-

Qaeda upon their release. Professor Michael Joseph Smith, who teaches in the Woodrow Wilson

Department of Politics at the University of Virginia, was asked about what measures he thinks

should be taken into account to minimize this risk.

According to Professor Smith, “in all honesty, I am not certain that we can definitively

‘prevent’ this [detainees return to extremist groups upon release], though we can minimize this

possibility through reporting agreements and by taking care in the release process itself.”14

Referring to the risk detainees may pose and the likelihood that they will join violent extremist

groups upon their release, he further added that “frankly, I believe this problem to be

exaggerated.”15 However, if there is not a reintegration or rehabilitation mechanism in place to

deal with the needs of the detainees upon release, then it is quite likely that a number of these

detainees who get released in the future will join extremist groups to meet their need for ‘justice

through revenge’. The application of a rehabilitation and reintegration program with a trauma

recovery and restorative justice approach would be the best option for minimizing such risks.

In order to make the release process as safe as possible several measures needs be taken

into account. The following recommendations are proposed:

P a g e  |  21    

First, these prisoners have been tortured; hence, they carry a large amount of trauma

within themselves. If their trauma is not addressed and transformed there will be more victims of

violence at the end of the day because they will transfer their traumas to others in one way or

another. Therefore, the right opportunity and environment must be created for these prisoners to

share their stories. The example from the Saudi Arabia rehabilitation program where a ‘safe-

space’ was developed for the released detainees to share their emotions and personal trauma

stories through writing stories, drawing and art and counseling services16 demonstrates one way

to address this problem.

As previously mentioned, using storytelling to transform the trauma is a crucial

component to the healing process. Some of these prisoners have already told their stories in

various forms. For example, three British prisoners who were dubbed the “Tipton Three” told

their story through a drama-documentary film entitled, The Road to Guantanamo, which was

released in 2006. The film documents their experiences while detained at the prison. Another

example comes from former Taliban Ambassador to Islamabad, Pakistan, Mullah Abdul Salam

Zaeef, who told his story through writing the book A Picture of Guantanamo in the Pashto

language, which is an account of Mullah Zaeef’s experience being imprisoned at Guantanamo.

While all the prisoners will not have the capability and resources to portray their stories in the

form of a book or a film, these personal and public histories of torture and violation need to be

documented so as not to be repeated again.

To this end, it is recommended that a special international Justice and Reintegration

Commission (JRC) be formed. This unique body would consist of equal representatives from

both the international legal fraternity and the fields of trauma recovery and restorative justice and

P a g e  |  22    

would be mandated to conduct hearings for all the accused detainees and ensure the proper

reintegration of all prisoners who have been held without charge and who have been tortured. In

this structure, each of the remaining 171 detainees still confined at Guantanamo Bay would be

assigned legal counsel and a restorative justice counselor to jointly work on a tailor-made

restorative reintegration plan. The role and function of the legal counsel and the restorative

justice counselor would be delineated as follows:

[Insert Table 2]

Second, the United States damaged its reputation internationally by torturing the

prisoners of war in clear violation of the Geneva Convention against Torture and undermining

international law and human rights treaties. In order to restore a positive image in the world the

U.S. government has taken a few steps in the right direction by announcing and working on the

closure of the prison. The proposed Justice and Reintegration Commission (JRC) would meet

with any and all of the “high value” prisoners that the U.S. classifies as a legitimate threat to the

safety of the nation and they would be taken through the same rigorous restorative justice

process as outlined in Table 2 above. As previously mentioned, the JRC would provide each

detainee with a lawyer and a restorative justice counselor to address their case in a public court,

and if there is not enough evidence they would be released. In Article 9 of the Universal

Declaration of Human Rights it clearly indicates that “No one shall be subjected to arbitrary

arrest, detention or exile.” These internationally recognized principles should be valued and

practiced.

Third, in the process of truth-telling and story-telling the needs and obligations of all the

stakeholders are allowed the space to surface. The JRC would meet with each of these prisoners

P a g e  |  23    

individually, including the “high value detainees”, and ask for their needs. Most of these

prisoners have spent multiple years of their life without being charged for any crime. They have

been tortured, humiliated, and harassed. While some of these prisoners may express the need for

some sort of an explanation, money, or a safe place to return to, others may demand a formal

apology from the government and/or military of the United States. Where detainees are found to

be guilty in the process of planning and implementation of the 9/11 attack, opportunity for them

to meet, dialogue and apologize with the surviving family of the victims of 9/11 could be

arranged as deemed appropriate and ‘safe’. Whatever the case, these detainees who have been

imprisoned and tortured unjustly deserve a safe place to live. If their own countries are not

willing to take them back and if the U.S. refuses to give them refuge, then the JRC would find a

third party country that would be willing to receive them. Ireland, for example, recently indicated

willingness to accept a dozen of these prisoners and encouraged other European countries to

match their number, while Venezuela indicated willingness to take all the prisoners.

Finally, if the proposed JRC is found successful in addressing the Guantanamo Bay cases

the same process can applied further in other American policies that were implemented

following the September 11 attacks, such as the detention of the Arab-Americans or Muslim

Americans, the use of surveillance without warrants, and the policy of “preventive detention

of enemy combatants”, extraordinary rendition, and “black sites” for detention in other parts of

the world.

U.S. President Obama’s order to close Guantanamo Bay is a profound first step; however,

the process must be conducted justly and fairly with an emphasis on the needs of the detainees. A

restorative justice model with a focus on trauma healing would be ideal as it is most likely to

P a g e  |  24    

ensure the rights and needs of not only the prisoners who have been detained for so many years,

it will also be most ideal for all other stakeholders – families, communities and the victims of

9/11. If the U.S. would consider the needs of the prisoners and offer a means for them to share

their story and find healing, the closure of Guantanamo Bay could be a transformative

experience not only for all the stakeholders involved in justice, but also for the increased geo-

political integrity of the United States as a self-proclaimed defender of human rights globally.

Conclusion: The opening of the Guantanamo Bay detention camp was an attempt by the U.S.

government under the Bush Administration to ‘protect’ America. The subsequent torture and

violations of human rights and international law that followed originated from the reality that the

U.S. had experienced an enormous trauma, and this was a response to this unhealed trauma that

shifted the U.S. from the role of ‘victim’ to ‘offender’. Despite the fact that s few of the

detainees at Guantanamo Bay are, in fact, dangerous and do represent a threat to America’s

national security, the vast majority were arrested and brought to the camp without charge and

have remained in limbo for years.

While closing down the detention center is a necessary step, it alone is not enough to

solve the problem of Guantanamo Bay. Ensuring the released detainees are placed in a safe

place, either their own countries of origin or another, and the proper after-care are critical.

Addressing the needs of the detainees, recognizing their trauma and working towards healing,

and simply offering them the opportunity to voice their story are all necessary steps to just and

successful reintegration.

Although there is no guarantee that those who are released will not join an extremist

group and act violently again, providing proper care and meeting the needs of these detainees

P a g e  |  25    

will offer positive alternatives and give them a chance to find restoration and healing.

Implementing the principles and practices of restorative justice and trauma healing can create a

holistic approach to transforming the traumas and providing a just, dignifying experience for

those detainees who have been wronged. If the U.S. government is truly concerned with the

mitigation of the violence by global terror, then it would behoove them to consider the

preventative options outlined above. The safety and security of the world’s geo-political

community depends on a restorative justice that promotes this kind of interdependence and

interconnectivity in order to survive in the future generations.

Endnotes:

                                                                                                                         1 The Mujahedeen refer to the ‘freedom fighters’ that fought against the Soviet Union with the help of the United

States during 1980s.

2 Dr. Judith Herman argues that trauma is primarily bound up in relationship and that the twin tragedies of

‘disconnectedness’ and ‘disempowerment’ that result from severe violence are key to understanding the impacts of

trauma on human life. Moving away from the strictly individualistic models of psycho-therapy, Herman is one of the

original voices to articulate a healing process that is embedded in the restoration of the web of human relationships;

a complex community-based self-help program that relies on networks of social capital for trauma recovery.

3 Manfred Max-Neef, a Chilean Economist identified what he termed nine fundamental human needs, these are:

identity, freedom, subsistence, protection, affection, understanding, participation, creation, and idleness (leisure).

While these needs are universal, the means of satisfying them is not. Max-Neef coined the idea of “pseudo-

satisfiers” to explain why the developmental need and its corollary solution are often mismatched. Some critics of

the Saudi reintegration program would cast a skeptical eye on the Saudi governments’ use of money as a “pseudo-

satisfier” in the case of the returning Guantanamo Bay detainees.

4 Juergensmeyer makes the point that extremist religious violence emerges from the lethal combination of

personalized victim identities and a deep sense of persecution coupled with internalized religious meta-narratives of

P a g e  |  26    

                                                                                                                                                                                                                                                                                                                                                                                                       apocalyptic proportions that are utilized to explain reality. The U.S. military’s violent torture of Muslim religious

fundamentalists in Guantanamo prison only serves to accentuate and exacerbate this explosive equation.

5 Cavanaugh propagates a compelling case for ‘enemy creation’ unfolding under the oppressive rule of Chilean

dictator Augustine Pinochet in the 1970s. Cavanaugh argues that at the time of Pinochet’ assent to power he was

neither popular, nor hated. Realizing that in this state of political impotence he would soon lose power he undertook

a brutal campaign of civilian abduction and torture that quickly produced a violent opposition which in turn gave

him the needed justification to declare a state of emergency and stay in power by repressive force. Cavanaugh, a

devout Catholic, proposes a strong argument that both the act of torture and the act of Eucharist function as public

rituals that socially construct reality or either ill or good. Torture produces violence and its accompanying exclusions

of the ‘other-as-enemy’, and the Eucharist produces community and its accompanying inclusions of the ‘other-as-

friend’.

6 Working with narrative discourse and the construction of violence scripts, Docherty carefully delineates how our

perceptions of reality cause us to talk over each other in the process of negotiating values-based or religious

conflicts. Docherty maintains that worldviews are not fixed but always evolving and therefore, durable peace in

realized when we negotiate what she terms “world-viewing” – a way of seeing the world from multiple vantage

points.

7 Richards voices a deep concern around the reductionist thinking promulgated by the media and its populists

adherents that attempts to deconstructs certain severe forms of contemporary violence as simply a backward

devolution into ancient ‘barbarism’. Instead, Richards sees the profound complexities of violence within the

frameworks of violence as practice, as performance, as narrative and as historic-political manipulation. Richards

writes of the violence perpetrated by the RUF (Revolutionary United Front) rebel movement in Sierra Leone as

“disgruntled belligerents” breaking into a conversation from which they have long been marginalized.

8 The focus of this article is on the Guantanamo Bay detainees, their experience of torture and their need for healing

and justice. This in no way insinuates that the surviving families of the US victims of 9/11 should not be afforded

the same opportunity to have their trauma and justice needs attended to, but the scope of this publication does not

allow for us to address the needs for all parties affected by the tragedy of 9/11.

P a g e  |  27    

                                                                                                                                                                                                                                                                                                                                                                                                       9 Van der Kolk, et.al, describes the physiological effect of trauma as “the body keeps score”. In other words, no one

is exempt from the effects of trauma, and untreated trauma, even if it lies dormant for years or decades will

eventually surface to disturb our realities and possibly take us back into the instinctual emotive and psychological

reactions of our violent past.

10 Botchavora, a Russian psychologist worked extensively with traumatized refugees from the Balkans. She

developed a model of trauma recovery and reconciliation that incorporated forgiveness, re-writing history, and the

need for justice. Her work has been successfully transferred to various post-war contexts in Africa also.

11 Ibid

12 The term ‘inter-generational’ (or ‘trans-generational’ justice) refers to the notion of the current generation acting

(making decisions) with in mind that which will benefit future generations. While the concept of intergenerational

justice is difficult to measure, it is becoming increasingly clear in the realm of political science that rigorous

historical analysis will reveal either a destructive or constructive legacy of a nation’s legislation, its configuration of

politico-economic institutions, and its social compacts to deal with past atrocities, passed from one generation to the

next.

13 Van Ness, D., and Strong, K. (2002). Restoring Justice. Anderson Publishers.

14 Michael Joseph Smith, personal interview, Spring 2009.

15 Ibid.

16 Aside from the traditional (individualistic) western model of psycho-therapy, there are growing numbers of

alternative treatments that are growing in credibility and popularity such as EDMR (Shapiro), TTT (Trauma

Tapping Treatment), Circles of Healing to name but a few. These alternative treatments lend themselves to easier

transfer as they do not require extensive training or professional accreditation and revolve around community and

self-help and can be scaled up to reach larger numbers of collective trauma victim-survivors in contexts where

traditional therapies are simply not accessible.

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Table 1: A Comprehensive Model of Restorative Justice

ACTORS NEEDS RESPONSIBILITY

Victim Vindication and Satisfaction To be empowered through story-telling

and to receive reparations

Offender Protection through Due Process To be held accountable through truth-

telling and to provide restitution

Community To live in Safety and Security To provide reintegration services for

Offender Rehabilitation and Victim-

survivor Healing

State To maintain justice and order through

the ‘rule of law’

To efficiently and effectively deal with

Offender Sanctions and Victim-survivor

Compensation

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                                                                                                                                                                                                                                                                                                                                                                                                       Table 2: The Mandate of the Justice and Reintegration Commission

Legal Counsel: Restorative Justice Counselor:

In conjunction with the already established

criminal/military courts, these legal counselors

would be appointed as counsel to each of the

detainees and thereby under the presiding

judge or judges would be given jurisdiction

over all matters pertaining to the particular

issues of each detainee’s legal case including

conducting hearings and trials, applying

appropriate sanctions and restitution in the case

of guilt, and acquitting all found to be

innocent.

In conjunction with and as a bona fide member

of the legal counsel team, the restorative justice

counselor would be given jurisdiction over all

psycho-social services required. Including

documenting victim statements, trauma

debriefing, family / community outreach and

preparations for reintegration, 9/11

victim/survivor outreach, conduct victim-

offender conferencing processes where

appropriate, and negotiating reparations

packages.

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                                                                                                                                                                                                                                                                                                                                                                                                       Authors’ Contact Details:

Carl Stauffer, PhD., Assistant Professor of Justice and Development Studies

Eastern Mennonite University, 1200 Park Road, Harrisonburg, Virginia 22802, USA.

Telephone: (540) 432-4462 / Cell phone: (540) 705-6217

Fax: (540) 432-4449

Email: carl.stauffer@emu.edu

Dr. Stauffer works as an academic-practitioner in the fields of restorative justice, transitional

justice, peacebuilding and post-war reconstruction. Over the past 20 years, Stauffer has worked

in Africa, Bulgaria, Israel-Palestine, Cyprus, The Philippines, and Bosnia-Herzegovina.

Hamid Arsalan, MA., Foreign Affairs and Conflict Transformation

Email: Hamid.Arsalan@gmail.com

Hamid Arsalan is a development professional with more than ten years of experience supporting

civil society organizations in the Middle East region to implement programs related to

democracy development, human rights, and social justice.