This week, HLS’s ACLU Chapter held a series of events exploring the existence of Guantanamo Bay detention facilities. For three days, panelists discussed the beginnings of the Camp, the detainees held there, and the legacy Guantanamo represents for the United States and it’s self-proclaimed “War on Terror.”
But wait, you might ask; Why are we still talking about Guantanamo? That was years ago. Surely, by now we have stopped torturing detainees, we have released the innocent, and we have closed down extraterritorial prisons that don’t conform to domestic and international law. President Obama repeatedly promised to close the prison during his campaign. What’s the problem?
The fact is, many have forgotten that Guantanamo Bay Prison is not just a distant memory. Despite early campaign promises to the contrary, Guantanamo is still fully functional, and prisoners are still being detained under the suspicion that they are “enemy combatants”. While the Obama Administration may no longer use the term, the Administration has not changed their stance – many of those imprisoned under the Bush Administration are still spending their days in Guantanamo cells. While the illegal methods of torture that occurred there under the previous Administration have long since been put to an end, there is still plenty to be concerned about. But before we get there, let’s look at the history of Guantanamo, and how the United States “justified” illegal detention and enhanced interrogation methods (what most would understand as torture).
The search for a prison to hold detainees indefinitely was begun shortly after the “War on Terror” kicked off, in response to the 9/11 attacks. The Administration was looking for a place where they could interview detainees “very thoroughly” – a place were any laws that would prevent such “interviews” wouldn’t apply. Guantanamo Bay was perfect. The United States was able to circumvent international law by claiming that it did not apply extra-territorially, and was able to avoid the protections of the US Constitution for the same reason. It only took a few months after the 9/11 attacks to get Guantanamo Prison up and running. Not long afterwards, John Yoo, then Deputy Assistant U.S. Attorney General in the Office of Legal Counsel, wrote memos claiming that those labeled “enemy combatants” are not protected under the Geneva Conventions as Prisoners of War. More famously, Yoo also wrote the so-called “Torture Memos,” giving the CIA the legal justification they needed to detain and “interrogate” suspects.
Such action leads us to question – why was this instance different? Why couldn’t we treat detainees in the “War on Terror” in the same way that the international community treats prisoners of war? In the past, the United States has followed the rules in similar circumstances. German soldiers were held in US Prisons throughout WWII. When we held them, we followed the rules laid out by the Geneva Convention, and observed international norms related to treatment of POWs. Prisoners of War are meant to be treated with honor, to be fed and clothed and treated as you would treat your own soldiers. Countries may only hold enemy POWs during “hot war”- once the fighting is over, you are supposed to let them go. In our instance, there was never a war against a country – it was a war against a feeling. What we have learned from the “War on Terror” is that a war against a feeling never has an end – and it isn’t fought on a battlefield. The “hot war” standard is overtaken by covert CIA operations and drone strikes. Even after President Bush declared “mission accomplished” in 2003, detainees were still kept in Guantanamo Bay. In 2004, the world was introduced to grotesque images of inhumane and illegal methods of torture taking place in Abu Ghraib Prison, and learned about similar methods taking place at Guantanamo Bay.
After these revelations, public outrage led to investigations of CIA enhanced interrogation methods in USA detainment camps, and questions erupted regarding the legality of indefinite detention of enemy combatants. In July of 2004, The Supreme Court decided Hamdi v. Rumsfeld, ruling that detainees have the right to challenge their detainment and the charges brought against them – but the court did not go so far to say that detainees would have access to the traditional court system. Instead, the military was given the right to try detainees through Combat Status Review Tribunals, which operated in 2005, but were declared unconstitutional in Boumediene v. Bush in 2008 – entitling detainees to petition directly to federal judges in order to determine whether the government had sufficient evidence to warrant their indefinite detention without charge.
Bourmediene gave advocates for detainees hope. Federal judges started requiring more from the government than the flimsy evidence that was given in the past. Detainees started winning cases. But in 2010, the D.C. District Court began requiring judges to stop subjecting government evidence to such stringent review, and with the loosened standards, detainees stopped winning. Attorneys like Sabin Willet, Steven Oleskey, Mark Denbeaux, and Hina Shamsi (just to name a few of the panelists at this week’s events) are still fighting to get clients released from Guantanamo Bay. Many of those clients have actually been cleared for release during the Combat Status Review Tribunals and afterwards. More specifically, the Administration has cleared approximately 76 of the 171 men currently detained for release (according to the latest count by Hina Shamshi, Director of ACLU’s National Security Project).
So why are they still there? The frustrating answer is one common in our nation’s narrative: politics. Congress has prohibited the transfer of detainees to the United States, and the Obama Administration has been dragging its feet to find other countries that will accept them. There is no government-led attempt to draw public attention to the continuing detention of those who are cleared for release. To the contrary, holding detainees in Guantanamo was a political decision to keep public opinion swayed against closing Guantanamo. By keeping prisoners outside of the United States, it was easier to demonize them – no one can see them, no one sees their humanity, and what’s worse: no one cares. As Sabin Willet, Partner at Bingham McCutchen and pro bono counsel for seven Uighur detainees in Guantanamo, stated on Tuesday; “It’s bizarre that these ‘pathetic souls’…and that’s what they really are [at this point]…at Guantanamo are still terrifying to us. All in part because they were demonized from the start.”
The American public has been complacent with Government actions that would have been appalling to us prior to 9/11. It doesn’t help that President Obama, who was elected with the understanding that he would conduct foreign policy differently than the Bush Administration, has continued detaining innocent prisoners, has ramped up illegal drone strikes, and has engaged in expansive surveillance on US citizens and foreign governments. As Hina Shamshi mentioned on Thursday, to have a both a Republican and Democratic Administration condone what is taking place in Guantanamo is a failure of our government to address these illegal actions and to make sure the problem comes to a swift and just conclusion. By choosing not to prosecute those responsible for using torture and flouting international law, the Administration implicitly condoned those actions, making it an uncontested part of our nation’s history. President Obama’s inaction gives those who believe in the closure of Guantanamo and the right to due process for detainees no Party to rely on. Many who saw President Obama as a welcome change from the policies of the past try to justify his actions – If Obama is okay with it, how bad can it be?
When asked what the legacy of Guantanamo would be going forward, answers throughout the panel were pretty grim. As Sabin Willet stated, “The legacy in Congress is 70% of the people support it. Do it again. We try to say we believe in liberty…we believe in security in this country, that is what we are committed to. [The sentiment is] ‘if someone has to spend a lifetime in prison as long as I don’t have to look at it, it’s okay with me’.” Jonathan Hansen, Harvard historian and author of Guantanamo: An American History, claimed the reaction against expertise in this country is part of the problem. “We should have educated people that it didn’t work. The fact of the matter is it shouldn’t happen against because it doesn’t work, it doesn’t make us safer. We also loose all credibility when other countries are doing bad things…they can just say ‘look at Guantanamo’.”
So what now? Advocacy and litigation groups have called for the closure of Guantanamo Bay. But the panelists on Thursday made it clear that this isn’t enough to solve the issue of US treatment of detainees. Simply closing Guantanamo allows the United States to escape blame, allowing them to say justice was met. But given Guantanamo’s troubled history, we shouldn’t accept that – because justice was not done. People charged with no crime and given no right to counsel or trial for the majority of their detention are still in a maximum security prison. That fact doesn’t change if and when Guantanamo Prison shuts down. As Mark Denbeaux noted Thursday, “If we just close the base we don’t deal with all of the horrible conditions, the torture, etc…pretending that you can do something about the past by closing [Guantanamo] is not a response.”
And when it closes, what happens to those who have endured torture, solitary confinement, and unfit living conditions under the United States Military? Col. Morris Davis, Chief Prosecutor of the Military Commissions from 2005 – 2007, made the case for more on Thursday. With all of the millions of dollars we spent on operating and maintaining Guantanamo prisons, “[I] hope we spend some time and money to help these people come home and create a life. We owe a duty to ourselves and them to help transition them back to a life outside of Guantanamo.” Whether the Administration is willing to provide such services that they cannot even adequately give to our own citizens reintegrating into society after incarceration is yet to be seen. But one can assume that it is unlikely.
So what have we gained from the operation and continued detention of prisoners in Guantanamo Bay? What have we learned from the disastrous conditions, illegal torture methods, and indefinite detention of prisoners there? From what it seems, the answer may be nothing. Even with some of the most well-organized and effective organizations joining together to influence public opinion and to release and reintegrate prisoners, it doesn’t seem like much has changed. If our society isn’t moved by the plight of these individuals, we should at least seriously consider what it means for our own rights and liberties if we allow those under United States control to languish in prisons without being charged for their crimes. Our country was built on the values of due process and just war. We have failed at realizing these values in recent years. Condoning the extremes of torture and indefinite detention at Guantanamo Bay gives our government the justifications needed to spy on our own citizens, continue policies leading to mass incarceration in our own prisons, and engage in covert operations and drone strikes to “protect” state interests throughout the world. The legacy of Guantanamo Bay will set incredibly an incredibly negative precedent for future conflicts and current domestic issues. We should do everything possible to change that legacy, and make it one of apology and action. We should own up to the heinous programs and policies the United States has imposed on prisoners of Guantanamo, and immediately act to hold people responsible, release detainees, and give them the help they will surely need to recover from the atrocities they have dealt with at Guantanamo Bay, and to reintegrate into their societies.
For more information on Guantanamo Bay from organizations who have taken the lead in fighting these issues, visit: