THE ORIGINS OF GUANTÁNAMO BAY
On 11 January 2002, the Guantánamo Bay detention facility was opened by the US government on a 45-square-mile area of land in Cuba, which had been leased by the US since the early 1900s. The facility was opened in the wake of the 9/11 attacks and George W Bush declaring America’s “war on terror”. This rhetoric – that America was in a global battle against al-Qaeda and other terrorist organisations – paved the way for various breaches of international human rights standards in the name of combating extremism.
Due to the location of the detention centre, it is outside the jurisdiction of the US and therefore shielded from judicial scrutiny. Most recently, in May 2020, the Court of Appeals for the District of Columbia ruled that due process under the US Constitution’s Fifth Amendment – that no person shall be deprived of life, liberty or property without due process of law – does not apply in Guantánamo. Senior Circuit Judge Randolph stated in its judgment that it is “well established that the protections of the Fifth Amendment’s Due Process Clause do not extend to aliens outside the territorial boundaries of the United States”.
The decision by the Bush Administration to frame their response to 9/11 as part of a global armed conflict with al-Qaeda and its affiliates meant that their actions would be governed by the “law of war” framework. The protections for individuals are weakened under this framework as the substantive protections of international human rights law, such as the right to life, are read in light of the “law of war” standards. For example, the acceptable levels of the use of force and the rules on killings are more permissible under the laws applicable to an armed conflict.
The applicability of this framework is reinforced by the Authorization for the Use of Military Force (AUMF), a broad resolution passed by the US Congress in September 2001. The AUMF grants the president the authority to detain individuals who were a part of or substantially supported al-Qaeda, the Taliban or associated forces and to continue their detention under the law of war without trial until the end of hostilities. Essentially, the use of force and detention under the AUMF is not geographically or temporally limited.
By viewing itself as being in a state of perpetual warfare, the US can avoid the recognised international human rights standards that normally apply outside warzones. As we approach the 20th anniversary since almost 3,000 people lost their lives in the 9/11 attacks, the 19 years of human rights abuses and crimes under international law committed at Guantánamo Bay should be recognised and ended.
GUANTÁNAMO BAY TODAY: AMNESTY INTERNATIONAL’S NEW REPORT
A recent report published by Amnesty International highlights the endurance of torture and ill-treatment by Guantánamo’s detainees and calls for renewed urgency, a genuine commitment to accountability and remedy, and an end to indefinite detention.
The report sets out the status of each of the 40 detainees currently held at the Guantánamo Bay facility, who range in age from 38 to 73 years old. Two of the detainees have been in Guantánamo since it first opened, and all the current detainees have been held for more than 12 years. 26 of the 40 detainees have been determined by an executive review process to be in “continued law of war detention”.
In 2010, 24 detainees were “referred for prosecution,” but in 11 years, only seven of these have reached pre-trial Military Commission proceedings. Six of the 40 detainees are “approved for transfer,” but three of these have had this status for over 10 years.
The Military Commissions, made up of a combination of lawyers and former senior members of the US military, were set up to prosecute foreign nationals without the application of normal rules of evidence of federal courts. According to Amnesty International in their report, Military Commissions are illegitimate tribunals under international law as they lack the independence required to deliver justice.
In the 20 years since 9/11, the Military Commissions have produced only one final conviction out of nearly 800 men who have been detained at Guantánamo. In comparison, in the same period, the normal criminal justice system in the US has convicted nearly 700 individuals of terrorism-related offences.
Guantánamo Bay’s oldest detainee, Saifullah Paracha, has been held at the facility since September 2004 and has not been charged in 17 years. In January 2020, his continued detention was upheld by the District Court of Columbia. The court stated that the president has “expansive legal authority” to detain those who are connected with al-Qaeda and the Taliban, even if they “have not directly participated in hostilities'' against the US. The ramifications of indefinite detention on the rule of law and due process are stark. If cases such as Saifullah Paracha’s ever reach trial, witnesses may be dead or untraceable, evidence may have been lost, and thus the possibility of a fair trial is virtually non-existent.
The treatment that detainees have faced over the last two decades is exemplified by the case of Mohamedou Ould Slahi who has been described as Guantánamo’s most tortured prisoner. He spent 14 years in Guantánamo Bay before being released without charges in October 2016. His torture involved 24-hour interrogations, freezing temperatures, starvation and force-feeding, waterboarding, sleep deprivation, beatings, and sexual abuse.
In a recent interview, Slahi acknowledged that he had links to known terrorists but did not accept that was a legitimate basis for his prolonged detention or torture:
All this suspicion is very logical, but that did not mean I was guilty and that’s why the rule of law is very important. You can suspect me of what you want, but it’s not against the law to have friends who are bad people or perceived as bad by government. That’s the difference between democracy and authoritarian regimes. In authoritarian regimes suspicion is enough to kill you, but not in a democracy.
From a human rights perspective, the most concerning aspects of Guantánamo Bay are the unjustified indefinite detentions, the detainees’ state of legal limbo, and the torture and inhuman treatment to which they have been subjected.
However, there are also wider implications that should be considered. The families of 9/11 victims have expressed their frustration at the lack of progress and closure, and have described the degradation of American values at Guantánamo Bay as a “national embarrassment”. In addition, the economic cost of the detention facility is astronomical. The US government spends over $13 million per year on each detainee.
THE ROAD TO CLOSURE FOR THE BIDEN ADMINISTRATION
As vice president in 2009, Biden stated that the Obama Administration would “uphold the rights of those we bring to justice” and “close the detention facility at Guantánamo Bay”. Although the Obama Administration did not fulfil this commitment, it negotiated the transfer of approximately 200 detainees to other countries.
The Biden Administration has recently launched a formal review of Guantánamo Bay with a view to closing the facility before he leaves office. However, President Biden will need to overcome the hurdles that the Obama Administration was unable to surmount.
In the US Congress, there remains Republican opposition to the closure of Guantánamo Bay. Defence lawyers for detainees believe that part of the problem is the aversion of some government officials, particularly those in the US Department of Defence, to admitting the wrongfulness of Guantánamo Bay in the first place and opening themselves to legal liability.
Central to the issue of closure of the facility is the security implications of releasing some detainees, particularly the five detainees accused of being behind the 9/11 attacks. There are also legal barriers restricting possible steps towards closure. The federal government of the US is barred from transferring detainees from Guantánamo to other prisons within the country, and any change to this law would require the agreement of a resistant US Congress. In addition, the fact that many, if not all, detainees have been subject to torture would be problematic in terms of the reliability of evidence used in federal courts, rather than the lower thresholds of the Military Commissions.
During the ongoing coronavirus pandemic and its aftermath, President Biden will have a lengthy list of important issues to address. However, shutting down Guantánamo Bay should be one of the Administration’s priorities. Its closure is of great significance considering the rights of the 40 detainees who are currently imprisoned there, as well as the objective of working towards some form of accountability and remedy for all of the men who have suffered severe human rights abuses at the facility.
In addition to the Amnesty International report, human rights experts at the United Nations have recently described the facility as “a place of arbitrariness and abuse” in which the rule of law is suspended and justice denied. Then, the 20th anniversary of the 9/11 atrocities should be a time of remembrance and reflection that provides an opportunity for the US to affirm its commitments to human rights and justice for all.
Nancy graduated from the University of Leeds with a degree in Law in 2018. She has been working as a paralegal in civil liberties and human rights, primarily assisting clients in relation to the Grenfell Tower Inquiry. In January 2021, she will join the organisation INQUEST as a caseworker, supporting bereaved families in inquest proceedings. Nancy is an aspiring barrister and would like to specialise in public law and human rights.