The Shame of Guantanamo Bay
All branches of the US government must act to end one of the most shameful episodes in American history.
Al Jazerra & A.P.
As documents secured by the ACLU demonstrate, Guantanamo became a perverse laboratory for
brutal interrogation methods. Prisoners were subjected to beatings, sleep deprivation, stress positions, extreme temperatures and prolonged isolation. It started with two false premises: Those who were sent there were all terrorists picked up on the battlefield and that, as "unlawful enemy combatants", they had no legal rights.
In reality, a tiny percentage was captured by US forces; most were seized by Pakistani and Afghan militias, tribesmen, and officials, and then sold to the US for large bounties.
Our nation continues to pay the price for those egregious errors. Torture is the principal reason for the astonishing fact that, more than 10 years after 9/11, the alleged perpetrators of those attacks - though
in US custody for as long as nine years - have not been brought to justice.
The reputation of the US as a defender of human rights has been profoundly diminished because of Guantanamo's continued existence. Our allies have refused to share intelligence out of concern that it will be used in unfair military commissions, and will not extradite terrorism suspects if they will end up in military detention. Perhaps most critically, military officials acknowledge Guantanamo has been used for years as a recruiting tool by our enemies - creating far more terrorists than it has ever held - thereby undermining rather than enhancing our security. And torture is also why federal courts were rejected in favour of military commissions with looser evidentiary standards. Even under this imbalanced system, only
six Guantanamo prisoners have been sentenced for crimes before a military commission.
Each branch of government shares responsibility for the perpetuation of Guantanamo's legacy. Congress has chosen to score political points rather than do what's right. It has repeatedly used its power of the purse to prevent the release or resettlement of Guantanamo prisoners cleared for release, and to bar criminal trials of those against whom there is evidence for prosecution in federal court.
Guantanamo was not a problem of President Obama's making, but it is now one of his choosing. After his pledge to close Guantanamo within a year, the president failed to show the commitment necessary to build Congressional support, provide a logistical plan to release Guantánamo prisoners or bring them to trial. Like President Bush before him, Obama has also claimed the authority to detain without charge or trial terrorism suspects captured far from any theatre of war.
Finally, the courts have refused to articulate and enforce clear limits on the executive's detention authority. To be sure, the Supreme Court has on three occasions heard challenges to the Guantanamo regime, and every time has repudiated the excesses of the political branches. Those decisions held that Guantanamo prisoners could challenge their detention under habeas corpus, that the Geneva Conventions applied to the fight with Al Qaeda, and that the Executive Branch could not unilaterally create a military commission system with limited rights for the accused.
However, the court has left unanswered two critically important questions: Who is detainable, and what process are they due? It has stood by as a lower court gutted meaningful habeas review, and held that a judge has no power to enforce a decision that a Guantanamo prisoner must be released. It also let stand a ruling that people tortured in Guantanamo could not sue for damages, holding they were not "persons' before the law", and that senior government officials could not have known that torturing non-citizens abroad was banned by the Constitution.
All branches of government must rise to the task. The Supreme Court must define the scope of war-time detention. It must ensure the right to habeas corpus is a meaningful one that tests, and does not rubber stamp, the government's case. Congress must lift the unnecessary restrictions on transfer and release from Guantanamo, particularly for the 89 men whom our security services and military have unanimously determined should be released.
President Obama must also show the courage of his previously stated convictions and either prosecute the other 82 men in federal court or set them free.
Then Guantanamo must close.
Anthony D Romero, Executive Director of the American Civil Liberties Union.
Only six Guantanamo prisoners have been tried before a military commission [ACLU]
New York - This month marks the 10-year anniversary of the first prisoner arriving at Guantanamo Bay, making it the longest-standing war prison in US history. Guantanamo has been a catastrophic failure on every front. It has long been past the time for this shameful episode in American history to be brought to a close.
President Obama has failed to shutter Guantanamo, even though on his second day in office he signed an executive order to close the prison and restore "core constitutional values". In fact, the 2012 National Defence Authorization Act that Obama signed on New Year's Eve contains a sweeping provision that makes indefinite military detention, including of people captured far from any battlefield, a permanent part of American law for the first time in this country's history.
This is not just unconstitutional - it's just plain wrong.
Guantanamo was fashioned as an "island outside the law" where terrorism suspects could be held without charge and interrogated without restraint. Almost 800 men have passed through its cells. Today, 171 remain.
In Pictures: Guantanamo, a decade later
Ten years after Bush opened facility and two years after Obama called for its closure, 171 detainees remain.
- KAREN BLEIER/AFP/Getty ImagesJune 23, 2011:
- Activists dressed in orange jumpsuits and black hoods protest torture and call for the closure of the Guantanamo Bay detention facility outside the White House.
- Susan Walsh/APSeptember 14, 2001:
- US congress passes AUMF bill, giving President Bush unprecedented authorisation to use force against "nations, organisations and individuals" whom he determined were connected in any way with the 9/11 attacks or future acts of international terrorism.
- Brendan Hoffman/Getty ImagesSeptember 17, 2001:
- President George Bush signs memorandum authorising CIA to set up detention facilities outside the US containing specific information relating to the sources and methods by which the CIA was to implement the detention programme.
- AFP/Getty ImagesDecember 28, 2001:
- Justice department memorandum to Pentagon says because Guantanamo Bay is not sovereign US territory, federal courts should not be able to consider habeas corpus petitions, or right to a fair trial, from "enemy aliens" detained at the base.
- STR/REUTERSJanuary 11, 2002:
- The first detainees are transferred to Guantanamo from Afghanistan and are held in wire mesh cages in an area known as Camp X-Ray.
- AP/APAugust 01, 2002:
- Justice department memorandum to then White House Counsel Alberto Gonzales says president can authorise torture, that interrogators may cause severe pain before crossing torture threshold. Another justice department memorandum to CIA gives legal approval for the agency to use 10 interrogation techniques against Abu Zubaydah. Techniques include stress positions, sleep deprivation, confinement in a small box and "waterboarding", in which the process of drowning the detainee is begun.
- REUTERSJuly 07, 2004:
- Pentagon announces formation of Combatant Status Review Tribunals (CSRTs) – panels of three military officers who will review whether Guantanamo detainees are "properly detained" as "enemy combatants".
- Alex Wong/Getty ImagesMay 25, 2005:
- Amnesty International, the UK-based group, calls for the Guantanamo detention facility to be closed. The call is joined by UN experts, former US Presidents Carter and Clinton, heads of state from Europe and elsewhere, and other human rights and legal organisations.
- ART LIEN/AFP/Getty Images December 13, 2006:
- Federal judge dismisses Salim Ahmed Hamdan's habeas corpus petition on grounds that the Military Commissions Act (MCA), signed into law by President Bush in October of that year, strips federal courts of jurisdiction to consider such appeals.
- STR/ReutersJuly 20, 2007:
- President Bush issues an executive order authorising and endorsing secret detention so long as "conditions of confinement and interrogation practices of the programme" remain within limits set out in his order.
- /EPAMay 01, 2008:
- Sami al-Hajj, an Al Jazeera cameraman was arrested by the Pakistani army in 2001. Al-Hajj spent six years in Guantanamo and was finally released without charge.
- KEVIN LAMARQUE/REUTERSJanuary 22, 2009:
- Two days after his inauguration, President Obama signs three executive orders, one of which states the detention facility at Guantanamo "shall be closed as soon as practicable and no later than one year from the date of this order".
- KEVIN LAMARQUE/REUTERSMay 21, 2009:
- In a major speech on national security, President Obama restates his commitment to closing Guantanamo but endorses indefinite detention without criminal trial of some detainees.
- BENJAMIN MYERS/REUTERSNovember 13, 2010:
- The US attorney-general, Eric Holder, announces five Guantanamo detainees accused of involvement in the 9/11 attacks will be transferred to US and prosecuted in federal court. These same five detainees had been charged by Bush administration for trial by military commission in 2008.
- STR/REUTERSJanuary 22, 2010:
- Obama's one-year deadline for closure of the Guantanamo detention facility passes with 198 detainees still held in the base, about half of them Yemeni nationals. The Guantanamo Review Task Force issues final report, revealing that 48 detainees could neither be prosecuted nor released and had been "unanimously approved for continued detention under the AUMF".
- John Moore/Getty Images December 01, 2011:
- Almost two years after President Obama called for its closure, 171 men from more than 20 countries remain held at Guantanamo, most of them without charge or trial.
Data compiled by Amnesty International, the UK-based human-rights organisation.