Guantánamo ten years on – necessity or troublesome legacy?

In 2002, the United States of America opened a detention camp at a military base on a part of Cuba. Its name became synonymous with the aftermath of 9/11 – and with controversial means used by America, the UK and allies in the global war on terror.

Ten years on, there have been changes of leadership, wars have ended, dictators have been removed from power and, in some circumstances, killed. Countless others have died. But Guantánamo Bay Detention Camp remains.

Dr Elspeth Van Veeren, an ESRC (Economic and Social Research Council) Postdoctoral Research Fellow in International Relations at the University of Sussex, has researched Guantánamo extensively. Here, she offers expert analysis and a review of the controversial camp’s history.

Further comment is offered by University of Sussex international law expert Professor Craig Barker on the contested legitimacy of the camp and by University of Sussex Professor of International Relations Cynthia Weber, who comments on the latest developments in American policy and the implications for its own citizens (see Professor Weber’s I Am An American project online).

Q How does the Guantánamo camp of 2012 differ from the one that opened in 2002?

Dr Van Veeren: Guantánamo has evolved significantly over the years. While it started out as a series of open-air wire-mesh cages (Camp X-Ray), photographs of which continue to circulate widely, it is now a series of camps that resemble more closely state-of-the-art maximum-security prisons, but at an operating cost 30 times higher than the civilian equivalent (Guantánamo now has an annual operating cost that equates to around £500,000 per detainee per year).

Originally an ad-hoc holding facility, Guantánamo became a ‘battle lab’ for developing interrogation techniques, then a warehouse for holding men detained indefinitely in connection with the Global War on Terror. Detainees include those who have been convicted, cleared for release, determined too dangerous to release, and/or where there is fear of human rights abuses if they are repatriated to a home country.

Most of the 171 remaining detainees now occupy single cells: 75 per cent (130) in general population, and the remaining 25 per cent in solitary confinement in camps across the site, depending on their intelligence-value, compliance, mental state, and/or whether they are on hunger strike.

Despite these changes, above all, Guantánamo remains a ‘showcase’ detention facility to counter criticism and demonstrate how the US military conducts detention operations – that it can successfully capture, identify, hold, and try terrorists, and that it can do so in a ‘humane’ way. Guantánamo hosts scores of visitors each year to tour the facility, stopping in at specially designed tour cells, court rooms, and to see the abandoned Camp X-Ray, for example.

Q  On what authority are people held there?

Dr Van Veeren: The detention of terrorist suspects was initially authorised post-9/11 under President Bush’s 2001 Military Order ‘Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism’ in connection with the Authorization to Use Military Force Act (AUMF), passed by Congress, also in 2001.

The Bush administration argued that the Geneva Conventions [protecting the rights of prisoners of war and others] were ‘obsolete’ and could not respond to the needs of combating terrorism and that Taliban and Al Qaeda fighters were illegal enemy combatants and not subject to the usual protections.

Guantánamo, a US Naval Base, was used to hold terror suspects without charge, trial, or the right to challenge their detention, because it was not U.S. soil and therefore considered beyond the jurisdiction of the US courts.

In 2005, Congress passed the Detainee Treatment Act to counter mounting criticism. The Act affirmed a commitment to humane treatment but, more importantly, it was a renewed attempt to limit detainees’ rights to challenge their detention. It was removed in 2008. Most recently and controversially, the authorisation to hold detainees indefinitely has been granted under the National Defense Authorization Act 2012.

Q Who are the prisoners still held there?

Dr Van Veeren: Of the original 779 detainees, only 171 still remain at Guantánamo, of which around 90 have been cleared for release, including British resident Shaker Aamer.

These men cannot be released because their home countries or a third country are unwilling to accept them, because their home countries, such as Yemen, are considered unstable, or because of credible threats that they may be tortured in their home countries.

In all, men from 23 different countries from a variety of backgrounds and with varying degrees of connections either to the Taliban or Al Qaeda, some with no connection at all, are held at the camp.  Of this group, 46 detainees have been determined too dangerous to release, though there is insufficient evidence to convict them.

Six men have been charged and a further 36 may be charged and are awaiting trial by military commission. This latter group of detainees, whether acquitted by military commission or whether convicted and then serve out their sentence at Guantánamo, may yet be held indefinitely.   

Q  How is Guantánamo viewed in terms of international law?

Professor Barker: Guantánamo Bay has been the subject of considerable critical comment from international lawyers. The continued existence of the detention camp raises issues of both humanitarian law (which deals with the conduct of armed hostilities) and human rights law more generally.

The relevant provisions of humanitarian law are to be found in the Third Geneva Convention Relative to the Treatment of Prisoners of War 1949, which governs the treatment of military prisoners, and the 1977 Protocol Additional to the Geneva Conventions, Article 75 of which extends prisoner of war protection to civilians taking part in hostilities and captured during armed conflicts.

The overriding focus of the law is on the humanitarian treatment of prisoners. The United States of America is not party to the Additional Protocol but it is accepted that Article 75 is part of customary international law and is therefore binding on all states, including the USA.

Accordingly the argument that the detainees at Guantánamo are not covered by international humanitarian law as “unlawful enemy combatants” is unacceptable.

In terms of human rights law more generally, the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 and other human rights treaties, to which the USA is party, provide for basic human rights such as the right to life, liberty and security; the right to equal protection before the law; the right not to be subject to arbitrary arrest or detention; and the right to a fair, impartial and public trial.

The Convention Against Torture 1984 specifically builds upon the prohibition of torture contained in these earlier instruments. It is clear that the USA has breached many of these provisions of human rights instruments in relation to Guantánamo Bay, not least through the use of Military Commissions, which are intended to facilitate the trial of detainees but with significant limits on the civil liberties of detainees.

Despite these obvious breaches of international law, the USA has continued to maintain that the detention camp is not illegal. There are a number of reasons for this.

First, the enforcement of human rights and humanitarian law is relatively weak.

Secondly, the international community failed to act with one voice in its condemnation of Guantánamo. Indeed, some states, such as the United Kingdom, encouraged discrimination in relation to detainees by negotiating with the USA different treatment of its nationals held there, as well as their ultimate release, while at the same time refusing to condemn the continued existence of the detention camp.

Thirdly, many states appear to accept that Guantánamo, although illegal, is a necessary response to global terrorism.

This “rush to the bottom” is particularly concerning as it can be seen as a more general shift in international law away from human rights towards more security-focused responsibilities.

Some improvements have been made at Guantánamo, partially as a result of legal pressure. However, most of this pressure has come from within the United States itself. Various legal challenges have been brought in the US courts relating to issues such as the status of the detainees; the right to fair trial, and the legality of Military Commissions.

Nevertheless, the continued existence of Guantánamo, which is now, according to the US Administration, to remain open “indefinitely” is in many international lawyers’ eyes unacceptable. Pressure should continue to be placed on the USA by individuals, NGOs and, most importantly, by other states, including the United Kingdom.  

It is unfortunate that other countries have repeatedly failed to put pressure on the USA, thereby resulting in the continued lack of enforcement of many fundamental and important rules of international law.

Q Wasn’t Barack Obama going to close it down? Why hasn’t that happened?

Dr Van Veeren: Congress. Backed by public opinion, the American legislative body – Congress – has used its power over the public purse to oppose transferring detainees to US-soil and housing them in a federal facility. To a degree, though, it is also attributable to Obama’s desire to pursue a second term in office.

The Bush administration was successful in constructing suspected terrorists as ‘the worst of the worst’ and ‘most dangerous’ and in convincing the majority of Americans that Guantánamo is the best and only way to keep Americans safe. As a result, closing Guantánamo has become a near impossibility in the short term.

Both Bush and Obama had intended to draw down the detainee population slowly through release and transfer, but now, because of the NDAA, Congress has made it significantly harder for the Obama Administration to transfer or release detainees at all.

Congress has even enshrined in law, for the first time, a role for the US military to detain – and detain indefinitely – any future terrorist subjects, whether captured abroad or, importantly, in the US, including US citizens abroad.  

Q  What is Guantánamo’s global political significance?

Dr Van Veeren: Guantánamo has been significant in several ways. There are suggestions that it has actually been counter-productive in that, like Abu Ghraib (where US soldiers abused prisoners in their care in Iraq), it has acted as a recruiting tool for Al Qaeda and those opposed to US operations. Apologists argue that Guantánamo has provided essential intelligence in the war on terror, including information leading to the capture of high-profile terrorists and killing of others, including Osama bin Laden.

Most importantly, because of the human rights violations associated with Guantánamo, including allegations of torture, its existence has had a profound impact on perceptions of the US and its values. Guantánamo was established as a high-profile ‘front-line’ of the War on Terror, where gathering intelligence was considered a cornerstone of prosecuting a successful war.

However, Guantánamo, along with rendition, Abu Ghraib, and failures in Iraq and Afghanistan, has undermined American ‘soft power’ and the general discourse of the US as a defender of human rights and justice.

Despite efforts by the US military and the Bush administration to change perceptions of the camp as a safe, humane, legal and transparent facility through extensive media relations, including numerous private tours of the facilities for dignitaries from around the world (from Members of the British House of Commons to Miss Universe), internationally it remains an embarrassment for the US government.

Q  Has the world forgotten about Guantánamo?

Dr Van Veeren:  Guantanamo continues to make headlines, but since Obama’s election, protests against the camp have diminished in size and scope. Presidential candidates, nevertheless, must still position themselves with regard to Guantánamo’s continued existence and it remains a measure of Obama’s success (or failure) as a President.

More tragic is the way other detention facilities, such as Bagram in Afghanistan, remain relatively forgotten. In the same space of time Bagram has housed hundreds of thousands of individuals. Many of these men are similarly detained indefinitely, have been subjected to harsh interrogations and have, as yet, no legal recourse.

Q Are there any enduring implications of Guantánamo Bay, Cuba, on US citizens?

Professor Weber: When most people think about Guantánamo, they tend to think of it as a place where US citizens do things to non-US citizens – indefinitely detain them, interrogate them, torture them, strip them of their human and legal rights.  What they generally know about ‘Gitmo’ is that all of the detainees are ‘foreigners’ and Muslims and all of the staff are US citizens.  And this has been and remains true to this day.   

Indeed, until recently, it was illegal to indefinitely detain a US citizen at Gitmo or a place like Gitmo.  This is why the US military transferred Yaser Hamdi, who was detained in Afghanistan and shipped to Gitmo, out of Gitmo to a US military detention facility when they learned he was a birthright US citizen. 

This is also why US Army Muslim Chaplin James Yee, who had been serving at Gitmo giving religious counsel to Muslim staff and detainees and who was wrongly suspected of aiding the enemy, was only arrested by the US military and held at a US military facility after he left Gitmo (the charges against him were dropped and his record was cleared, but only after he had spent 76 days in solitary confinement in a US military detention facility and was threatened by military prosecutors with the death penalty).

Yet since the recent passage of the National Defence Authorization Act of 2012, it is now legal not only to hold non-US citizens indefinitely at Gitmo or places like it; it is also possible to indefinitely detain US citizens at such places.

What this means is that if Gitmo has long been about (as already noted here) making the extra-legal (appear to be) legal or making the exceptional appear to be ordinary, the US government has authorised itself to do the same for US citizens at Gitmo and beyond.

This is not to suggest that it was ever acceptable for the US government to do this to non-US citizens, or that these practices have only becomes problematic because they can now be extended to non-US citizens.  The US government has been creeping up to something like the National Defence Authorization Act since September 11, 2001.  Just think of ‘Guantánamo North’, a US prison facility which many see as virtually akin to the facilities in Guantánamo Bay, Cuba.

So it is not surprising, then, that the US government has come to the point it has with the National Defence Authorization Act, which extends power of the US executive branch so dramatically that this power now contradicts what US citizenship is supposed to stand for – having the inalienable rights to life, liberty, and the pursuit of happiness.  Certainly, liberty is no longer an inalienable right for a US citizen.

We can only hope that, as US citizens come to experience this contradiction in their own lives, they might reconsider Gitmo and its legacy of indefinite detention for not only US citizens but for all people held by the US military.

Q  Are there any other Guantánamo-style camps elsewhere in the world?

Dr Van Veeren: Guantánamo is a one and only camp in the world of its kind – it has functioned as a detention, interrogation and trial facility, but most importantly as a public spectacle of detention. It has a public profile as a military facility connected to counter-terrorism.

In practice, Guantánamo bears close resemblance to a number of detention facilities. In its Camp X-Ray incarnation it was not too dissimilar to the way that illegal immigrants are still detained at ‘Tent City’ in Arizona. In its more recent guise, Guantánamo resembles more closely modern supermax prisons within the US, including adopting many of their practices such as solitary confinement and colour-labelling detainees according to behaviour.

Bagram in Afghanistan continues to hold terrorist suspects indefinitely and without trial, and the CIA has used ‘ghost sites’ and more recently, a site in Somalia to detain and interrogate. Within the US, the federal government has created ‘Guantánamo North’ to hold mostly Mulsim individuals convicted of terrorism, so in that sense there are many Guantánamo-style camps.

Q  What is Guantánamo’s legacy?

Dr Van Veeren: In addition to having a profound and lasting legacy for the men detained there (many released detainees have been traumatised and stigmatised by their time at the site), it has facilitated a militarisation of counter-terrorism, it has altered international perceptions of the US, and it has resulted in the production of a cultural and political icon.

Where countering and responding to terrorism was once the domain of the FBI and CIA, Guantánamo has for some proved that the US military can be used to detain and prosecute terrorists – a first for the US military, and a function that goes against centuries of US law.

Paradoxically, this transformation means that President Obama may be less likely to detain terrorists and more likely to resort to targeted killing, as occurred for example with the recent assassination of US citizen Anwar al- Awlak using unmanned aerial vehicles operated by the CIA.

Guantánamo’s existence has had a profound impact on perceptions of the US and its values, undermining American ‘soft power’.

Finally. the orange-clad, hooded Guantánamo detainee is a globally recognised figure used to symbolise abuse and torture.  This image has become visual shorthand for any manner of practices and locations where abuse is alleged, and will be with us for a while.


Notes for Editors

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Last updated: Tuesday, 10 January 2012