The End of Guantanamo?

By Anthony Dworkin

President Bush took many people by surprise when he told an interviewer from German television on May 4 that he would like to close the detention camp at Guantanamo Bay.  “I very much would like to end Guantanamo,” the President said, “I very much would like to get people to a court.”  However, Bush added, he was waiting for a forthcoming Supreme Court ruling “to give us a decision as to whether the people need to have a fair trial in a civilian court or in a military court.”

President Bush’s comments were noteworthy because his administration has not previously taken the line that all the Guantanamo detainees would be either put on trial or otherwise removed from U.S. custody.  On the contrary, Defense Secretary Donald Rumsfeld has repeatedly suggested that some of the prisoners might be held without trial for as long as they were judged to pose a threat to the United States.  For instance, Rumsfeld said in September 2003 that he purpose of holding the detainees was “to keep them from going back and fighting again and killing people” and that the interest of the United States was not in “trying them and letting them out.”  Indeed Rumsfeld has even suggested that detainees might be acquitted of criminal charges by the military tribunals yet still be detained as enemy fighters to prevent them from conducting further attacks against Americans.

President Bush’s comments clearly reflect the influence of Secretary of State Condoleezza Rice, who has made a big effort to remedy international perceptions that the United States is disdainful of other countries’ opinions and of international law.  However they should probably not be taken as an indication that the Guantanamo Bay camp is likely to be closed down anytime soon – and in any case they don’t address the most disturbing parts of the Bush administration’s global detention and interrogation system.

Trying to Send Detainees Home

The first detainees arrived at Guantanamo in January 2002, and there are currently around 490 men being held there.  Thanks to information released by the Pentagon in response to Freedom of Information Act requests, we now know the names and countries of origin of the detainees: the biggest national groups are from Saudi Arabia, Yemen and Afghanistan.  For some time, the Pentagon has been trying to reduce the number of men being held at the base.  Some have been released to their home countries after being cleared by the Combatant Status Review Tribunals (designed to make an assessment of the initial grounds on which prisoners were judged to be enemy fighters) or Administrative Review Boards (which judge whether the prisoners continue to pose a threat or continue to have an intelligence value).  Others have been handed back for trial or detention by their domestic authorities.  Altogether, over 250 detainees have been sent home.

According to news reports, Pentagon spokesmen have indicated that they are ready to repatriate another 150 prisoners once satisfactory arrangements can be made with their countries of origin.  However -- in a turn of events that many people will find ironic, given the reports that have emerged about U.S. interrogation of detainees -- these returns have been held up by concerns about how the men would be treated by the authorities in their countries if they were handed back.  The State Department, which is leading the negotiations, has apparently demanded assurances that the men will not be tortured and some form of verification.  According to John Bellinger, the Legal Advisor at the State Department, "One reason that it has taken so long with respect to many of the transfers is not that...we want to continue to have the individuals in Guantanamo, but because we need to negotiate careful assurances from the countries that we're returning them to."

According to news reports this is complicating negotiations with Saudi Arabia in particular.  There are 128 Saudi citizens at the base.  A State Department spokesman was quoted in the New York Times last month as saying that “we hope to reach the point soon where we are comfortable with the humanitarian arrangements” regarding the treatment of returned Saudi prisoners.  On May 19, the Pentagon announced that a group of 15 Saudi detainees had been returned to Saudi Arabia.  Earlier, the Saudi Foreign Minister Prince Saud al-Faisal had said that their fate in Saudi Arabia would depend on an assessment of the case against them: "If the proof against them justifies trial, they will be put on trial.  If they are proved guilty, they will be incarcerated. If they are proved innocent, they will be let out."

Concerns about their possible treatment are also thought to be complicating the return of Yemeni prisoners – as well as concerns about the security arrangements in Yemen’s prisons, where there have been a number of escape attempts.  In Afghanistan, which has nearly 100 men still at Guantanamo, the United States is helping refurbish an old prison outside Kabul, and many Afghan detainees are likely to be transferred there when it is complete.

How Many Will Be Tried At Guantanamo?

Even if a hundred or so prisoners are repatriated in the next few months, there will remain around 300 men at Guantanamo.  How many of these are likely to stand trial?  As President Bush suggested, the answer will depend in part on the Supreme Court’s ruling in the Hamdan case, which will determine whether the military tribunals set up to try terrorist suspects at Guantanamo can go ahead.  A ruling in the case is expected by July.  Many observers expect the Court to rule against the government and, at the least, impose greater procedural requirements on the tribunals.

But however the Supreme Court rules, it seems unlikely that all the remaining detainees will be brought before the tribunals in the near future.  So far only 10 detainees have been charged, and the chief prosecuting officer Col. Morris “Moe” Davis told reporters last month that perhaps 75 men would ultimately face prosecution.  That would leave a large number of prisoners who would continue to be held without trial, despite President Bush’s professed desire to have all detainees charged or sent home.

There is no doubt that the persistence of the Guantanamo detention regime, after more than four years, is a major cause of the widespread foreign perception that the United States does not care about international law.  Last week, for the first time, a senior member of the British government called for the camp to be closed.  Lord Goldsmith, the Attorney General, said that the existence of Guantanamo Bay was “unacceptable” and that it had become a symbol to many of injustice.  He also repeated the British view that current procedures for the military tribunals are not adequate to ensure a fair trial.  The British Prime Minister Tony Blair has in the past described Guantanamo as an “anomaly” but he has never called for it to be closed down.

The roll call of Guantanamo critics also includes a number of bodies attached to the United Nations.  In February, a panel of five experts from the United Nations Commission on Human Rights issued a report calling for the detention center to be closed and for all detainees to be tried or released.  The experts’ report said that all detainees were entitled to challenge the legality of their detention before an impartial tribunal, and that the violence used in force-feeding detainees on hunger strike amounted to torture.  Following the release of the report, UN Secretary General Kofi Annan said he thought that “sooner or later there will be a need to close the Guantanamo [camp], and I think it will be up to the government to decide, and hopefully to do it as soon as is possible.” 

On Thursday May 19, the UN Committee Against Torture also issued a report calling for Guantanamo to be closed down. 

What Laws Does Guantanamo Infringe?

Although Guantanamo Bay has been routinely attacked, its critics have sometimes taken different views about what international laws they think it infringes.  For instance, the five UN experts wrote that Guantanamo violated the right to liberty in Article 9 of the International Convention on Civil and Political Rights.  The United States rejects this charge for several reasons: it denies that this treaty is applicable to the treatment of non-US citizens outside the United States, and in any case the provision on the right to liberty is derogable in time of war or national emergency.  The U.S. government claims that it is still engaged in an armed conflict in Afghanistan, and the Supreme Court in the Hamdi decision appeared to accept that ongoing fighting in Afghanistan would provide a basis for detention of enemy fighters. 

(The Supreme Court did not consider whether the conflict remains an international armed conflict, in which the United States could continue to hold enemy fighters, or whether it has now become an internal or "non-international" conflict within Afghanistan, in which case the United States should return prisoners to Afghanistan or their home countries where appropriate.)

The UN Committee Against Torture, for its part, ruled that detaning people indefinitely without charge constituted per se a form of torture and cruel and inhuman treatment, and was thus a violation of the Convention Against Torture.  State Department legal advisor John Bellinger rejected this conclusion as inaccurate, saying: "There is nothing in the Convention that says anything about holding people indefinitely. I mean, this is an issue that we know is out there, but there is nothing in this Convention that says anything about holding people. So it's outside of the scope for them to be calling for the closure of Guantanamo."

Perhaps the strongest argument that can be made against Guantanamo's existence (as opposed to the specific treatment that some detainees have been subjected to) is based on the customary international law (or jus cogens) prohibition on prolonged arbitrary detention.  The United States acknowledges this as a requirement that is binding on its treatment of any individual, anywhere in the world.  Holding people (who in many cases deny that they have been involved in hostilities at all) for a period of several years, without giving them access to an impartial tribunal to challenge the case against them or the military necessity of holding them, seems like a textbook case of prolonged arbitrary detention and therefore a violation of fundamental international law.

Not the Worst of America's Global Prisons

The international outrage that Guantanamo has attracted is not surprising, but in one sense there is something ironic about it.  Other prisoners held by the United States in less public locations are almost certainly in worse shape.   For instance, it is believed that the CIA is holding around 30-40 senior al-Qaeda operatives in secret locations, perhaps in North Africa.  Some at least of these men have almost certainly been subjected to water-boarding, a coercive interrogation technique that most people would consider to be a form of torture.  Because of the treatment they have suffered, it is doubtful that the United States will be able to try these men before any court that complies with basic standards of due process.  Yet it also seems unlikely that the current U.S. government (or indeed any likely successor) will allow them to be released.  The fate of these al-Qaeda detainees is the most disturbing unresolved question surrounding the future of the U.S. “war on terror”.

The Committee Against Torture report issued on May 19 included several recommendations that address the circumstances of these suspected secret prisoners.  It said it was concerned about the allegations that the United States had established secret prisons to which the International Committee of the Red Cross had not been given access, and said the administration's "no comment" policy on the subject was regrettable.  It recommended that any secret prisons should be closed.  The Committee also recommended that the United States take much stronger steps to make sure that no prisoners in U.S. custody were being transferred to countries where they might be tortured.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Related Links:

Military Commissions Home Page

U.S. Department of Defense

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