Guantanamo Bay was leased to the US by Cuba on February 23, 1903, as part of the Cuban-American Treaty. Although the US maintained a military presence at Guantanamo Bay since the Spanish-American War, the perpetual lease allowed the US military to construct a permanent naval base on the site. The base has been in regular use since the early twentieth century and has been a source of consistent tension between the American and Cuban governments. The facilities at Guantanamo Bay have taken on a special significance since 9/11. The base houses detention facilities used to incarcerate individuals captured by the US military during the War on Terror. The first prisoner arrived at Guantanamo Bay a decade ago, on January 11, 2002.
Engendering both domestic and international concern, the detention center has caused deep controversy since its opening. The legal status of the detainees is hotly contested as is the prisoners' lack of access to US legal rights such as habeas corpus, due process and a speedy trial. Allegations of mistreatment and torture by US military officials have surfaced as well. Even the fate of the prisoners remains uncertain as attempts to close the facilities, transfer the detainees abroad, or bring the detainees to trial on US soil have been unsuccessful.
Proponents of the detention facilities at Guantanamo Bay argue that its existence serves the necessary purpose of allowing the US to adequately fight terrorism abroad by providing a secure location for interrogating and imprisoning suspected terrorists. However, critics accuse the US of both violating international law and traditional prisoners' rights.
Detainee Legal Status
On October 7, 2001, following the beginning of the War on Terror, the US military began detaining hundreds of suspected terrorists. Many of those captured were designated "enemy combatants" a label coined by the administration of President George W. Bush to denote their legal status as unlawful combatants without Geneva Convention protections. With major combat zones in Afghanistan and Iraq, the number of persons captured with alleged terrorist links, particularly to al-Qaeda, increased dramatically after the facility opened in January 2002.
Initially, the Department of Defense (DOD) sought to try detainees as war criminals using military commissions, as opposed to courts-martial provided under the Uniform Code of Military Justice (UCMJ). Consequently, detainees began challenging their detention and designation as "enemy combatants," arguing the military commissions lacked jurisdiction and violated the Geneva Conventions. In August 2005, Commission Order No. 1 [PDF] revised and delineated commission procedures, and later that year Congress passed the Detainee Treatment Act of 2005, imposing jurisdictional limitations on the federal courts in reviewing the military commissions. In June 2006, however, the US Supreme Court ruled in Hamdan v. Rumsfeld that the government lacked the authority to establish the commissions because they failed to comply with Article 36 of the UMCJ by unjustifiably deviating from the rules for courts-martial. The court also found that the commissions failed to comply with Article 3 of the Geneva Conventions.
According to JURIST Special Guest Columnist Jonathan Hafetz, Hamdan also reveals the tension between maintaining standards of conduct and expanding executive power: "By striking down the President's unprecedented system for trying terrorist suspects, the Supreme Court exposed the military commissions for what they are: the appearance, but not the reality, of a lawful process. Just as the executive cannot disregard the nation's Constitution and laws in trying alleged terrorists, it cannot cast aside those legal protections by detaining them indefinitely with even fewer safeguards to prove their innocence."
Congress responded to the court's decision in Hamdan by quickly passing the Military Commissions Act of 2006 (MCA), which established the current commissions system and removed jurisdiction from every "court, justice, or judge ... to hear or consider an application for writ of habeas corpus filed by ... an alien ... detained as an enemy combatant." However, in Boumediene v. Bush, the US Supreme Court overturned MCA provisions stripping federal courts of habeas corpus jurisdiction, finding that Guantanamo detainees must have habeas corpus rights under the US Constitution. The MCA was again limited in court in October 2008, when the US District Court for the District of Columbia adopted a definition of "enemy combatant" provided in a 2004 Order Establishing Combatant Status Review Tribunal [PDF]. Under the more stringent standards, detainees would have to directly support hostilities against the US or its allies to qualify as "enemy combatants."
Finally, in March 2009, the US Department of Justice (DOJ) dropped the term "enemy combatant" from its legal lexicon and established a new criterion for detention that did not rely on the Authorization for the Use of Military Force passed by Congress in September 2001. Instead, the new criteria [PDF] "draws on international laws of war to inform the statuary authority conferred by Congress." Although the DOD released new standards [PDF] for the commissions in April 2010, and appointed retired Navy Vice Adm. Bruce MacDonald as convening authority, controversy over the proper venue for trying detainees persists. In June 2012, the US Supreme Court had the opportunity to hear any of seven cases related to Guantanamo detainees and their continued detention. The Court denied certiorari in all seven cases, preserving the decisions of the US Court of Appeals for the District of Columbia Circuit.
It was reported in January 2011 that the Obama administration planned to increase use of the controversial system. Although the Obama administration departed from the use of the term "enemy combatant," JURIST Contributing Editor Jordan Paust has suggested that the administration could still run afoul of human rights laws by utilizing the commissions to prosecute aliens:
More significantly, any tribunal that would only prosecute aliens would necessarily violate bilateral treaties with the state of nationality of the detainees that require equality of treatment, create a "denial of justice" for aliens under customary international law, and violate human rights law (treaty-based and customary) that requires "equality before the law" and "equal protection of the law" as well as the prohibition of national origin discrimination.
Concerns have been raised regarding the efficacy of the legal processes at Guantanamo Bay. JURIST Guest Columnist J. Wells Dixon
has argued that a systematic dysfunction exists within the detention facility's bureaucracy:
The military commission system was designed to serve only one purpose: to manufacture predetermined guilty verdicts for Muslim men who have been dehumanized and rendered unworthy of the protections provided by the US Constitution and laws, including international law. After nearly a decade of false starts, the commissions are notable only for convicting a chauffeur, a child and a video propagandist, none of whom is responsible for the attacks of September 11, 2001. Who will be next, a Taliban cook, or perhaps an al Qaeda gardener? The consistent missteps and false starts at Guantánamo raise the question of what President Barack Obama is trying to achieve there at this point Guantánamo is a fiasco by any measure.
In December 2011, Navy Rear Adm. David Woods, commander of the Joint Task Force Guantanamo (JTF-GTMO) proposed a policy which would require military personnel to review all legal correspondence between detainees suspected of involvement in the 9/11 terrorist attacks. Following the proposal, Chief Defense Counsel for Guantanamo Bay war crimes tribunals, Colonel J.P. Colwell, ordered attorneys under his command to not comply with the review rule in January 2012. The rule was officially challenged by suspected 9/11 conspirator Ali Abdul Aziz Ali in February 2012, who claimed that the rule violated attorney-client privilege. Chief Judge James Pohl ruled on February 20, 2012 that the content of attorney-client mail inspected at Guantanamo Bay is confidential and may not be released. Woods also instituted a new policy of conducting a "plain-view review" of all written prisoner mail in January 2012, which did not include correspondence marked as attorney-client privileged.
Allegations of harsh interrogations and torture have been consistent in the decade since Guantanamo Bay began housing prisoners. Former detainees subsequently voiced abuse accusations, including Sami-al-Leithy, Murat Kurnaz, Mohammed El Gharani, Mubarak Hussain bin Abul Hasim and Binyam Mohamed. Detainees still being held at the facilities have made similar claims, including the suspected mastermind of the USS Cole bombing, Abd al-Rahim al-Nashiri. The alleged torture ranges from electrocution and water boarding to sleep deprivation and religious persecution. Concern over the torture and rendition of foreign nationals was amplified in September 2006 when President Bush confirmed the existence of secret prisons used to funnel high-value detainees to Guantanamo Bay including suspected 9/11 co-conspirator Khalid Sheikh Mohammed.
In March 2008, the American Civil Liberties Union (ACLU) filed a lawsuit to compel the US government to release unredacted transcripts of military hearings that allegedly described the torture of detainees. In response to the Freedom of Information Act request, the Central Intelligence Agency (CIA) released the requested documents in June 2009. While still redacted, the documents clearly described the physical and mental abuse of Guantanamo detainees. The revelation of this new evidence, and the actions of legal activists, have led to a number of civil suits brought by former detainees such as Rafik Alhami, Adel Hassan Hamed and Abdul Rahim Abdul Razak Al Ginco. Similarly, in July 2009 the US District Court for the District of Columbia suppressed out-of-court statements made by a Guantanamo detainee upon suspicion that it had been elicited through torture. The ACLU has filed a motion in the Guantanamo Bay military court for access to the testimony of 9/11 conspirators during their hearings and trial. In August 2012, a military commissions judge at Guantanamo announced that the court would hear oral arguments regarding the allegations of censorship of torture allegations during the 9/11 trial.
The ACLU argued that the public has a constitutional right to access information about the operation of the government, including information related to the detainee's imprisonment and interrogation. In a similar vein, Abd al-Rahim al-Nashiri's defense attorneys requested in June 2012 that his trial for the USS Cole bombing be broadcast worldwide rather than only to the Pentagon as planned. The government insists that it has the power to classify detainees' testimony. In February 2013, a military judge ordered the removal of any monitoring system that would censor the public broadcast of the 9/11 military commission hearings.
However, the true "revelation" regarding US torture of Guantanamo detainees came in April 2009 when the DOJ's Office of Legal Counsel (OLC) was forced to release four top secret memos which outlined controversial CIA interrogation techniques and their legal rationales. However, both authors of the memos were cleared in a DOJ ethics report released in January 2010. The release of the "torture memos" was followed by official reports from the OLC and the US Senate Armed Services Committee which concluded that Guantanamo detainees enjoy some constitutional protections.
The international community, specifically nongovernmental organizations (NGOs), criticized these prisoner abuse issues. Amnesty International (AI) decried US treatment of prisoners as early as October 2004. A confidential report from the International Committee of the Red Cross (ICRC) classified CIA interrogation tactics as torture in 2007, although it was not made public until March 2009. However, Martin Scheinin, the UN Special Rapporteur on human rights and counterterrorism, publicly urged the US to hasten the prosecution or release of Guantanamo detainees first in October 2007 and in October 2009. UN High Commissioner for Human Rights Navi Pillay echoed these concerns in January 2012. Additionally, the UN has cited the denial of international access to Guantanamo as an example of degrading torture standards worldwide.
Pursuant to these international concerns, French Judge Sophie Clement requested access to information regarding incarceration policies and the justification for the detention of three former detainees in January 2012. The men, Nizar Sassi, Mourad Benchellali and Khaled Ben Mustapha, claim that they were subjected to sexual abuse, beatings and sleep deprivation during their respective imprisonments between 2001 and 2005. In March 2012 the Inter-American Commission on Human Rights (IACHR) agreed to hear the case of detainee and Algerian national Djamel Ameziane. Ameziane has been held at Guantanamo Bay without any charge or trial for more than 10 years. This is the first time that the IACHR has agreed to accept jurisdiction over a Guantanamo detainee. They will investigate whether the US's failure to transfer Ameziane is in compliance with international human rights law. Just prior to his July 2012 arraignment, Khalid Sheik Mohammed revealed that he asked the UN to investigate information surrounding his interrogation. Mohammed has claimed that his confession to the 9/11 attacks came after days of sleep deprivation.
JURIST Guest Columnist Naureen Shah has argued that one of the enduring issues presented by Guantanamo is the cycle of torture facing released detainees. Free from captivity by the US military, they often find themselves victim to abuse at the hands of the country they are released to:
With secrecy and obfuscation, the U.S. once again stands alone among its peers. The UK and other allies, dealing with terrorism suspects in deportation cases, give them a day in court by providing the terms of assurances and blueprints for better monitoring, including regular, private interviews of returnees, conducted by professionals trained to detect abuse. The U.S. government should do the same: design smarter monitoring protocols, let courts and the public test claims that diplomatic assurances can prevent abuse, and resettle detainees who face too great a risk of torture. To truly end the legacy of Guantanamo, the U.S. should ensure the safety of the men too afraid to go home again.
The families of detainees who have died at Guantanamo filed multiple wrongful death claims filed against the US government. Two of the lawsuits originated from three June 2006 suicides which left Mani Shaman Turki al-Habardi Al-Utaybi, Yasser Talal Al-Zahrani and Ali Abdullah Ahmed dead. Initially, the US District Court for the Columbia District dismissed the lawsuits in February 2010, the Center for Constitutional Rights (CCR) appealled the dismissal in June 2011. The US Court of Appeals for the District of Columbia Circuit also dismissed the CCR appeal in February 2012 on the basis that the court lacked subject matter jurisdiction over the claims under the Military Commissions Act of 2006 [PDF].
Despite widespread allegations of abuse and torture connected to Guantanamo Bay, obtaining persuasive evidence and bringing allegations to light has proved arduous. The case of detainee Majid Khan underscores that difficulty. Khan was arrested by US forces in Pakistan in March 2003 and held at a secret CIA prison prior to his transfer to Guantanamo Bay in September 2006. During his initial incarceration, he claimed that he was subjected to repeated, systematic torture. Khan's allegations of state-sanctioned torture provoked action from the US Court of Appeals for the District of Columbia in December 2007. However, Khan reached a plea agreement with military prosecutors in February 2012 that grants him a greatly reduced sentence in exchange for his testimony against other detainees. He pleaded guilty to five counts of terrorism, including conspiracy, attempted murder and murder, the same month. JURIST Guest Columnist Andrea Prasow claims that this plea agreement will prevent other allegations of torture from being brought to light:
If Khan testifies in person, it is less likely that the government will need to rely on statements from other witnesses obtained in coercive circumstances (despite improvements to the military commission rules it is still possible for coerced evidence to be admitted). The more people who testify in person against KSM and others, the less likely it is that the public will learn more about his torture. And Khan's guilty plea means he will not present evidence of his ill-treatment to explain why he may have made any confessions. Instead, with the ink fresh on a plea deal, his years in secret detention will likely only be used at his sentencing in a plea for leniency.
More recently, in a Freedom of Information Act (FOIA) lawsuit, Judge John Bates of the US District Court for the District of Columbia issued an opinion ordering the Department of Defense (DOD) to turn over three videotapes depicting Guantanamo detainees being forcibly removed from their cells. The DOD had argued that the videotapes should not be released because it would violate the guards' privacy, but Judge Bates nonetheless ordered the DOD to produce the videos for in camera review by June 11, 2012.
Attempted Closure & Reform
D uring his 2008 presidential campaign, President Barack Obama began advocating the closure of the Guantanamo Bay detention facility and holding civilian trials for detainees. Soon after his November 2008 election, reports revealed that Obama's advisers had already begun working on a legal strategy to try large numbers of Guantanamo Bay detainees in federal courts. During the first week of his term in January 2009, Obama took steps to close the detention facility and directed military prosecutors to pursue a 120-day continuance in military commission proceedings against five alleged 9/11 co-conspirators, including Khalid Sheikh Mohammad. Later that week, Obama issued an executive order that called for the closure of the Guantanamo Bay detention facilities by January 22, 2010. The orders also instructed Defense Secretary Robert Gates to immediately halt military commission proceedings pending a comprehensive review of all Guantanamo detentions under the supervision of the Attorney General.
In September 2009, a US military judge granted the government's request for a 60-day continuance in the military trial of five accused 9/11 conspirators: Khalid Sheikh Mohammed, Ramzi Bin Al Shibh, Walid Bin Attash, Ali Abdul-Aziz Ali and Mustafa Ahmed Al Hawsawi. However, it was the administration's third continuance in the case having been granted 120-day continuances in both January 2009 and May 2009. The continuances were a strategy to provide the Obama administration more time to reach a decision regarding the novel issue of to what law suspected terrorists captured in the War on Terror should be subject. Essentially, the debate between the legitimacy of the military commissions and federal courts is a disagreement over proper venue. Obama signed the Department of Homeland Security Appropriations Act of 2010 in October 2009, allowing for the transfer of Guantanamo detainees to the US for prosecution.
There was initial congressional opposition to Obama's plan to close the Guantanamo facilities. In November 2009, the US Senate voted down an amendment to the Hiring Incentives to Restore Employment Act that would have prevented Guantanamo detainees accused of involvement in 9/11 from being tried in federal courts. Obama defended his stance that detainees charged with violating US criminal law should be tried in federal courts "whenever feasible" by citing the earlier convictions of Ramzi Yousef, Ali Saleh Kahlah al-Marri, and 9/11 conspirator Zacarias Moussaoui in civilian courts.
Facing mounting pressure to meet the administration's self-assigned deadline of January 22, 2010, Attorney General Eric Holder officially announced in November 2009 that the government would pursue federal charges against Khalid Sheikh Mohammed and the four other accused 9/11 conspirators detained at Guantanamo in the US District Court for the Southern District of New York.
Following the announcement that Guantanamo would cease operation in January 2010, there was an immediate push to patriate many of the detainees to willing countries to facilitate the closure. Such efforts had been relatively unsuccessful in previous years. However, this time the move received support from the UN Special Rapporteur on torture, Manfred Nowak. Countries including Spain, France, Austria, Tunisia, Portugal, Ireland, Hungary, Germany, Italy, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Somaliland, Palau, Belgium, Afghanistan, Bermuda, Yemen, Qatar, El Salvador, Albania and Kuwait accepted released detainees. In July 2012, Kuwait requested that two Kuwaiti detainees be transferred from the facility to Kuwait. That same day, the US dropped all charges against one of the detainees, Faiz al Kandari, without explanation. In August 2012, Egypt requested that the last of its citizens held at Guantanamo, Tarek al-Sawah, be released after 11 years in detention without charges or a trial.
Not all former detainees have enjoyed freedom or full repatriation since being transferred from Guantanamo. Many have been prosecuted following their departure from the detention facilities. Algeria has been especially active in prosecuting former Guantanamo detainees given the high numbers of Algerian nationals who are detainees.
However, the Obama administration missed its January 2010 deadline for the closure of Guantanamo Bay. Following the 2010 mid-term congressional election, Congress effectively halted plans to immediately close Guantanamo Bay. Both the Senate and the House of Representatives giving final approval to a defense spending bill which blocked Guantanamo detainees from being transferred to the US. In January 2011, the closure of Guantanamo was further delayed when Obama signed the Ike Skelton National Defense Authorization Act of 2011, which barred the use of funds to transfer Guantanamo detainees into the US. In April 2011, the Obama administration abandoned its plan to try the accused 9/11 conspirators in federal courts as Holder announced that the defendants would be tried before a military commission. In June 2012, Attorney General Holder confirmed that the Obama administration had abandoned immediate plans to transfer detainees to the US. While under oath during a Senate Judiciary Committee hearing, Holder stated that the administration had abandoned a previous plan to purchase an Illinois prison facility and transfer many detainees there. A report [PDF] released in November 2012 by the Government Accountability Office asserted that US prisons could safely absorb the 166 detainees held at that time in the event that the facility closed and all detainees were brought to the US.
JURIST Guest Columnist Jonathan Hafetz argued in April 2011 that the failure to close Guantanamo Bay is an unwelcome step in justifying arbitrary detention and torture:
The irony is that the United States is much further from closing Guantanamo now than it was after Obama's post-inaugural pledge. Congress deserves much of the blame. On top of previous legislation obstructing detainee resettlement, Congress has now barred the use of military funds to bring detainees to trial in the United States. This measure not only ensured the demise of the administration's plan to prosecute [Khalid Sheikh Mohammed (KSM)] in federal court. It also signaled the degree to which a vital tool in fighting terrorism l; criminal trials could be sacrificed on the altar of political expediency. As Attorney General Eric Holder acknowledged in announcing the KSM-reversal, both America's security and values are best served by federal prosecutions of suspected terrorists.
Obama, however, bears responsibility as well. The administration did not lay the necessary political groundwork for the federal prosecution of KSM and his co-defendants, failing, for example, to enlist the key powerbrokers in New York, where the trial was to have taken place. More generally, the president never capitalized on his post-election momentum to operationalize his promise to close Guantanamo. Instead, he created a multi-agency task force to conduct a year-long study of detainee cases. Without effective leadership from the White House, a fierce backlash filled the political vacuum. Before long, the tide had turned, and what had once been a political challenge became a political impossibility.
However, JURIST Guest Columnist Andrew Puglia Levy
, a Washington, DC attorney, who served in the Department of Homeland Security from 2006 to 2009, argued in June 2009 that there are significant risks to bringing some Guantanamo detainees to the US for trial because the Obama administration's legal options for holding them here are limited and problematic:
Although trying detainees in Article III courts is President Obama's prerogative, and although doing so may be the appropriate route for some cases, this strategy must acknowledge the real risk that alleged terrorists could be acquitted or receive short sentences. ...
It is impossible to predict with certainty the result of any trial, let alone those involving such novel circumstances. Many of the detainees at Guantanamo Bay were captured in connection with combat overseas. For those whom the Administration decides it can try, their cases therefore come with the myriad challenges associated with turning battlefield encounters into successful federal cases, including the admissibility and availability of evidence and ensuring the protection of classified sources and methods. Widespread allegations of detainee mistreatment as well as... released Justice Department memos, which set forth the legal justification for enhanced interrogation techniques, only make these cases more vulnerable. They provide traction for defense arguments that detainee statements were coerced, and they could undermine jurors' overall confidence in the government's case. ... Military commissions are one viable alternative to trials in federal court, in part because they can more easily incorporate procedural and evidentiary rules to lessen some of these challenges.
In April 2012 the Department of Defense referred the charges against Mohammed and the four other accused conspirators to a military tribunal being held at Guanatamo Bay. Their initial hearing was scheduled by Chief Gantanamo Bay Judge, Army Col. James Pohl in April 2012 and took place on May 5, 2012. The arraignment hearings stretched over 13-hours due to disruptions and actions of protest from the five suspects. Mohammed, along with Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi, face charges of conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft and terrorism. The men could face the death penalty if convicted. The trials of the accused plotters was further complicated in October 2012, when a judge for the military ruled that the detainees could elect to not attend their own trials, despite the potential disadvantages of such action.
The Guantanamo Bay detention facility remains open and still houses over 100 detainees. Groups such as the ACLU continue to urge President Obama to close the facility, though no significant actions have been taken regarding its closure. Due to the complex legal issues surrounding the status and rights of the detainees, the intense controversy regarding the appropriate venue for their prosecution, and the political controversy that pervades the issue, the Guantanamo Bay detention facility remains open.
In March 2013, detainee defense lawyers claimed that more than 30 prisoners had begun a hunger strike in protest of alleged mistreatment, and applied for emergency intervention from the US District Court for the District of Columbia, alleging that guards were depriving Yemeni prisoner Musa'ab Omar al-Madhwani of drinking water and sufficient clothing in order to undermine the hunger strike. In April 2013, the US military confirmed that over half of the detainees at Guantanamo were participating in the hunger strike.
This JURIST Feature is edited and maintained by the head of JURIST Archives Meagan McElroy. Please direct all questions and comments to her at firstname.lastname@example.org. Updated as of May 20, 2013.