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Article Excerpt
Guantanamo has become a symbol of American policy. The idea that the United States would arbitrarily hold a large number of people in a legal black hole for a period of years with no access to attorneys, no access to families, and no charges, was beyond anything that anyone could have expected.... Britain has had the IRA, Spain has had the ETA, India has had terrorism related to Kashmir, Israel has had suicide bombing.... None ... did anything that is comparable to Guantanamo in the manner that they dealt with terrorism. There were delays ... but Guantanamo exceeded what any other democratic government has done in dealing with those persons it accused of terrorism (Neier, 2005: 140).
Introduction
THIS ARTICLE OFFERS AN OVERVIEW OF GUANTANAMO BAY, CUBA, AND OF ISSUES THAT have come into the public discourse because of it, in the over five years since detention began in January 2002. The United States government has held as many as 770 men from over 45 countries in the U.S. military camp at Guantanamo Bay (Guantanamo) in a situation of indefinite and arbitrary detention. The detained persons have not been formally charged or had access to legal advice. The conditions of detention have ranged from substandard to grossly violative. Those being detained, some possibly terrorists, others titled "enemy combatants" by the U.S. government, were taken into custody outside the U.S. and kept outside the U.S. while being transported to a base in Cuba for an indeterminate stay. To accomplish this, the Bush administration has had to cut comers on the rule of law, whether with respect to detainees' rights or U.S. citizens' rights. Each day's headlines tell of another shift of balance in the U.S. tripartite system, and highlight the need for a return to observance of the rule of law. Human rights treaty obligations demand that policy and practice inhabit more strictly the boundaries of rule of law.
One of the foundational human rights principles at the core of virtually all bodies of law is the protection against torture. International human rights law is the lens through which Guantanamo and torture are discussed. This article surveys several outstanding areas of concern that have surfaced because of Guantanamo, including its legal status, the issues of human rights law raised in connection with torture, how such matters have been addressed in the context of the United Nations system, and some notable U.S. government executive and judicial actions in relation to rule of law.
Guantanamo: The Camp
Guantanamo is a U.S. Naval base in Oriente Province in southeastern Cuba. The use of the base dates back to a treaty signed in 1903 and renewed in 1934, by which Cuba leases the site consisting of 45 square miles to the U.S. for $4,085 per year. "Guantanamo is the oldest U.S. base outside the continental United States, and the only one in a country that does not enjoy an open political relationship with the United States." (1) In the last quarter of the 20th century, the Guantanamo Bay Naval Base was used to house Cuban and Haitian refugees intercepted on the high seas. In the early 1990s, it held refugees who fled Haiti after military forces overthrew democratically elected President Jean-Bertrand Aristide. The last Haitian migrants departed Guantanamo on November 1, 1995. (2) Since January 11, 2002, Guantanamo has served as a joint military prison and interrogation camp under the leadership of Joint Task Force Guantanamo (JTF-GTMO) of the United States Navy base for suspected terrorists. The population at Guantanamo consists primarily of those captured in Afghanistan by the U.S. military after the post-September 11 invasion. Individuals held by the prison are mainly those suspected of being al Qaeda and Taliban operatives; it also holds some individuals no longer considered suspects, who are pending relocation (Greenberg and Dratel, 2005; Murphy, 1953: 31). In July 2003, about 680 alleged Taliban members and suspected al Qaeda terrorists from 42 different countries were incarcerated there. Some of those held in military custody were minors (under the age of 18) when first captured, but were nevertheless housed with the adult prisoners, despite international laws and norms to the contrary. (3)
Detainees
At the end of 2006, President Bush reported that of a total of 770 detainees who had been brought to Guantanamo, approximately 315 had been released, leaving 455 detainees. Of those 455, 110 have been labeled as ready for release. Of the other 345, "more than 70" will face trial, the Pentagon says. The remaining 275 may be held indefinitely. (4) Most of the detainees still at Guantanamo are not scheduled for trial. The U.S. government claims that the people being held are not part of a regular army or militia, and that they do not have the status of regular soldiers. Very few have actually been charged. As long as the prisoners never touch U.S. soil--and U.S. courts have not considered the Cuban base to be part of the U.S.--they are also being denied the rights guaranteed to criminals under the Constitution, such as a presumption of innocence and a trial by jury.
Two reasons were given for detaining them at Guantanamo. First, the U.S. believed that if challenged legally, they could (and did) argue that the sovereignty of Guantanamo ultimately resides with Cuba and that, therefore, the U.S. courts do not have jurisdiction to hear matters relating to prisoners held in Cuba. This argument met with disapproval by U.S. courts. Second, the only judiciary fora available to the U.S. in Cuba are internal military tribunals, whose rules differ greatly from those of U.S. domestic courts.
Status of Detainees
The policy of the U.S. government is that the captives are not prisoners of war (POWs) whose internment is regulated by the Third Geneva Convention (5) and they are denied the mandatory hearings before a "competent tribunal." (6) Those being held who are suspected of fighting for the Taliban or serving as operatives for al Qaeda are considered "enemy combatants" rather than prisoners of war. The U.S. government states that it does not consider them to be subject to the Geneva Conventions, and that they can be detained indefinitely without trial--something critics condemn as a legal black hole. The standards of treatment are unfortunately "determined by discretionary executive policy, not by legal norms" (Fitzpatrick, 2003: 250).
In international law, the Geneva Conventions do not apply to "unlawful combatants." Effectively, unlawful combatants act under the orders of a leader who does not represent a duly recognized or authorized government. Thus, for example, U.S. soldiers are not unlawful combatants in Iraq because they act at the behest of the federal government of the United States of America--a duly recognized government. Mercenaries, however, are unlawful combatants if they do not act at the behest of a recognized government. The Bush administration argued that the Third Geneva Convention does not apply to al Qaeda or Taliban fighters, since the Geneva Conventions only apply to uniformed soldiers of recognized governments.
Critics of U.S. policy say the government has violated the Geneva Conventions in attempting to create a distinction between "prisoners of war" and "illegal combatants" (Monbiot, 2003). A U.S. district court partially agreed with the Bush administration, finding that the Geneva Conventions apply to Taliban fighters, but not to Al Qaeda terrorists. (7)
Conditions at the Camp
Prisoners are held in small mesh-sided cells with little privacy, and lights are kept on day and night. Detainees have rations similar to those of U.S. forces, with consideration for Muslim dietary needs. They are kept in isolation most of the day, are blindfolded when moving from place to place within the camp, and are forbidden to talk in groups of more than three. In dealing with prisoners of war, the U.S. government operates on the principle, developed after World War II, that isolation and silence are effective means for breaking down the will to resist interrogation. (8) Guantanamo Commander Major General Miller's report noted: "teams, comprised of operational behavioral psychologists and psychiatrists, are essential in developed integrated interrogation strategies ..." (in McCoy, 2006: 134). In a June 21, 2005, New York Times article about Guantanamo, Anthony Lewis quoted an FBI agent: "29 July 2004: On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more."
Legal Opinions
Office of Legal Counsel: Legal opinions have differed on which country holds ultimate sovereignty in Guantanamo Bay in Cuba. Is it rightly the U.S. or is it Cuba? The Bush administration requested a legal opinion from the U.S. Department of Justice, Office of Legal Counsel, whose staff of 30 includes several deputy attorneys general (Luban, 2007: 37). One deputy attorney general from 2001 to 2003 was John Yoo, a professor of law at Boalt Hall School of Law, the University of California at Berkeley. Yoo was on leave of absence from Boalt in the summer of 2001, prior to September 11, to take up a position in the Office of Legal Counsel. His memo of December 28, 2001, discussed several court cases on this question, from 1950, cited executive branch positions, and offered the opinion that "the United States has consistently taken the position that GBC [Guantanamo Bay, Cuba] remains foreign territory, not subject to U.S. sovereignty" (Greenberg and Dratel, 2005: 33).
Professor Joan Fitzpatrick: On human rights, Fitzpatrick wrote presciently in 2003, shortly before her untimely demise, (9) about thin spots in the cloth of human rights protection. Guantanamo was an example of the "serious challenge to the human rights regime, illuminating substantive ambiguities and institutional deficiencies" (Fitzpatrick, 2003: 243). Abuses at Guantanamo and Abu Ghraib were cloaked in legalisms designed to take advantage of individuals' rights, rather than enhance them. The administration came to handle existing human rights protections as troublesome obstacles best gotten around or out of the way through skillful and depersonalized readings of the law that would favor the government's hard-line on treatment of detainees. Fitzpatrick (Ibid.: 241) warned that:
reconceptualization of counter-terrorism as a new species of international armed conflict may displace human rights law and international criminal law, and substitute new rules that are less detailed than those that apply to conventional armed conflicts.
She continued, "derogation principles may be refined, especially in relation to ... non-derogability of the prohibition on arbitrary detention and of fair trial rights" (Ibid.: 246). Further, Fitzpatrick warned, Cassandra-like, after the September 11 attacks, the ensuing "war against terrorism" would surely "test the limits of the legalist approach. Human rights constrain state responses to terrorism more directly than they govern the conduct of terrorists" (Ibid.: 241).
Harold Hungju Koh: Koh is currently dean of the Yale Law School. Several years earlier, as Assistant Secretary of State for Democracy, Human Rights, and Labor, he served as the head of the State Department delegation to the Committee Against Torture, which presented the First U.S. Report Under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the Torture Treaty). Koh and John Bellinger, legal counsel and current head of the State Department delegation to the Committee Against Torture, were interviewed on The NewsHour with Jim Lehrer (Public Broadcasting System, May 19, 2006), after Bellinger's return from the Geneva meetings.
Koh was asked: "Does Guantanamo rise to torture?" Instead of answering directly, Koh replied: "It should be closed.... Never means never." The U.S. government, Koh indicated, should not be taking actions to skirt prohibitions. Koh went on to say that there is no ambiguity--torture is forbidden. "Never means never." That includes waterboarding, the use of dogs, and sexual humiliation. Koh indicated that there seems to be a rhetorical commitment on the part of the administration, but it lacks real fulfillment. The U.S. does not seem to be trying to act according to Torture Treaty obligations. Despite government assurances of "no exceptions," it then claims that the U.S. is not necessarily subject to that interpretation and that it is happening outside the U.S. For the sixth time in 10 minutes, Koh ended the interview by stressing: "Never means never!"
The Command at Guantanamo
Brigadier General Janis Karpinski, who gained notoriety at the time of the exposure of Iraq's Abu Ghraib prisoner abuse in spring of that year, said on June 15, 2004, that she had been instructed by her superiors that detainees "were to be treated like dogs, following the model in Camp Delta in Guantanamo" (McCoy, 2006: 134, 138). The Pentagon praised Major General Geoffrey D. Miller, the commander of the detention camp in Guantanamo in 2002, for "improving the flow of intelligence from terrorist suspects.... The methods ... included depriving detainees of sleep; leaving them in excessively cold,...
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