Guantanamo and Illegal U.S. Detentions: Time for Real Change
[On the seventh anniversary of Guantanamo Bay, 11 January]
The United States detention facilities at Guantanamo Bay, Cuba – seven years old on 11 January 2009 – have become emblematic of the gross human rights abuses perpetrated by the US Government in the name of fighting terrorism. Though the U.S. President-elect Barack Obama has pledged to close down the Guantanamo Bay, there are undoubtedly substantial challenges to closing. Every day that Guantánamo is kept open is another day in which hundreds of detainees and their families are kept in the legal shadows. Distressing to the individuals concerned and destructive of the rule of law, the example it sets – of a powerful country undermining fundamental human rights principles – is dangerous to us all. It would be no less dangerous, and no less unlawful, if the USA were simply to transfer the problem it has created at Guantánamo to another locations.
The detention facility at Guantánamo Bay isn’t the only prison where the United States is holding detainees from the ‘war on terror.’ At Bagram Air Force Base in Afghanistan, Camp Bucca and Camp Cropper in Iraq, and many more – some known and others secret – are used to detain those captured by the U.S. military. Camp Bucca alone has at times held 20,000 prisoners, most of whom live in groups of tents surrounded by wire. Most detainees are held unlawfully, without warrant or charge, and without recourse to challenge their detention. Even when Guantánamo is closed, the need to push for detainee human rights will continue.
The past one year has been more embarrassing for the USA Government: In Rasul v. Bush (2004) the U.S. Supreme Court ruled that federal courts had jurisdiction over detainees in Guantánamo, allowing detainees to file petitions seeking habeas corpus – the centuries old right to challenge the legality of one’s detention. In Hamdan v. Rumsfeld (2006) the Court found that Article 3 common to the four Geneva Conventions applied to Guantánamo detainees. In 2006, Congress passed the Military Commissions Act (MCA), which stripped federal courts of the right to hear habeas corpus cases by or on behalf of any Guantánamo detainees. But on June 12, 2008, the U.S. Supreme Court ruled in Boumediene v. Bush that detainees held at Guantánamo are entitled, under the U.S. Constitution, to habeas corpus. More than seven years after the first detainees were transferred to Guantánamo, only two people have had their cases adjudicated. One pleaded guilty in 2007 in exchange for a light sentence to be served in his native Australia. Another was convicted in August 2008 of some of the charges against him (though he was acquitted of the most serious charges) and will have completed his sentence by the start of 2009. Fewer than 25 others have even been charged. The hundreds who remain, some of whom are in their seventh year of detention, have been subjected to a wide range of interrogation tactics that constitute ill-treatment, including stress positions, sensory deprivation, prolonged isolation, the use of 20-hour interrogations, hooding during transportation and interrogation, stripping, forcible shaving, and ‘using detainees individual phobias (such as fear of dogs) to induce stress.’ The indefinite and arbitrary nature of their detention has led to a steep decline in the mental health of many incarcerated at Guantánamo. There have been numerous suicide attempts and hunger strikes. In June 2006, after the apparent suicides of three inmates, many detainees were moved to isolated cells in “supermax” facilities known as Camp 5 and Camp 6. There, they lost the ability to eat or exercise communally. They have very limited contact with anyone but their jailers and almost no access to sunlight or fresh air. A fourth detainee died of an apparent suicide in March 2007.
There must be a clear framework for an end to Guantanamo Bay. There are many calls for the some key points to be included in any strategy pursued: Closing Guantánamo or other facilities must not result in the transfer of the human rights violations elsewhere. All detainees in US custody must be treated in accordance with international human rights law and standards, and, where relevant, international humanitarian law. The responsibility for finding a solution for the detainees held in Guantánamo and elsewhere rests first and foremost with the USA. The US government has created a system of detention in which detainees have been held without charge or trial, outside the framework of international law and without the possibility of full recourse to US courts. It must redress this situation in full compliance with international law and standards. All detainees must be able to challenge the lawfulness of their detention in an independent and impartial court, so that that court may order the release of anyone whose detention is not lawful. The Military Commissions Act should be repealed or substantially amended to bring it into conformity with international law, including by fully ensuring the right to habeas corpus. Those currently held in Guantánamo should be released unless they are to be promptly charged and tried in accordance with international standards of fair trial. No detainees should be forcibly sent to their country of origin if they would face serious human rights abuses there, or to any other country where they may face such abuses or from where they may in turn be forcibly sent to a country where they are at such risk.
There is great demand of transparency pending closure. The human rights organizations have asked that the USA should invite at least the five UN experts who have sought access – the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on freedom of religion or belief, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Chairperson-Rapporteur of the Working Group on Arbitrary Detention – to visit Guantánamo without the restrictions that led them to turn down the USA’s previous invitation.
Even after seven years, the European governments are in a state of denial. Their involvement in renditions and secret detention runs in stark contrast to their claims to be responsible actors in the fight against terrorism. Many reports highlighted cases and detail the involvement of European states. These include allowing Central Intelligence Agency (CIA) flights headed for rendition circuits to use European airports and airspace to hosting secret detention facilities, or ‘black sites.’ Along with Guantanamo Bay, there are demands for ending European involvement in renditions and secret detention that calls on states to condemn such activities; initiate independent investigations into all cases implicating European agents or territory; bring the perpetrators to justice; ensure oversight of intelligence agencies; refuse to carry out or facilitate the transfer of any detainee to another state without appropriate judicial supervision; and provide reparations for victims.
Guantanamo Bay should also make other countries, who are victims of terrorism, learn that justice cannot be achieved in a rule-of law vacuum. To hold people in secret custody or indefinite, virtually incommunicado, detention without charge or trial, while labeling them as ‘terrorists’, ‘killers’ and ‘bad people’, is to jeopardize the possibility that the lawlessness and violence can be brought to an end. To undermine the prohibition against torture and other ill-treatment in the name of national security makes bringing to justice any detainee who bears the brunt of such a policy more difficult because it calls into question the admissibility of any information obtained under such conditions. And the longer this goes on, the more distant the prospect for justice becomes. In other words, a government which resorts to such tactics facilitates impunity and denies justice to the victims of crime, including terrorism.
There is no doubt that the detainees would face significant challenges in adjusting to life outside Guantánamo after years of harsh and indefinite detention. However, providing a safe place for them to live is the only way to end the human rights violations that they have endured, and finally close Guantánamo. Wherever they are accepted, the detainees require guarantees of both their physical and legal safety in order to begin rebuilding their lives in dignity. Other Governments able to offer a lawful, humane and sustainable solution to what has become an international scandal should also act immediately.