Detention and Torture in Guantanamo

Article excerpt

Guantanamo has become a symbol of American policy. The idea that the United States would arbitrarily hold a large number of people in a legal black hole for a period of years with no access to attorneys, no access to families, and no charges, was beyond anything that anyone could have expected.... Britain has had the IRA, Spain has had the ETA, India has had terrorism related to Kashmir, Israel has had suicide bombing.... None ... did anything that is comparable to Guantanamo in the manner that they dealt with terrorism. There were delays ... but Guantanamo exceeded what any other democratic government has done in dealing with those persons it accused of terrorism (Neier, 2005: 140).

Introduction

THIS ARTICLE OFFERS AN OVERVIEW OF GUANTANAMO BAY, CUBA, AND OF ISSUES THAT have come into the public discourse because of it, in the over five years since detention began in January 2002. The United States government has held as many as 770 men from over 45 countries in the U.S. military camp at Guantanamo Bay (Guantanamo) in a situation of indefinite and arbitrary detention. The detained persons have not been formally charged or had access to legal advice. The conditions of detention have ranged from substandard to grossly violative. Those being detained, some possibly terrorists, others titled "enemy combatants" by the U.S. government, were taken into custody outside the U.S. and kept outside the U.S. while being transported to a base in Cuba for an indeterminate stay. To accomplish this, the Bush administration has had to cut comers on the rule of law, whether with respect to detainees' rights or U.S. citizens' rights. Each day's headlines tell of another shift of balance in the U.S. tripartite system, and highlight the need for a return to observance of the rule of law. Human rights treaty obligations demand that policy and practice inhabit more strictly the boundaries of rule of law.

One of the foundational human rights principles at the core of virtually all bodies of law is the protection against torture. International human rights law is the lens through which Guantanamo and torture are discussed. This article surveys several outstanding areas of concern that have surfaced because of Guantanamo, including its legal status, the issues of human rights law raised in connection with torture, how such matters have been addressed in the context of the United Nations system, and some notable U.S. government executive and judicial actions in relation to rule of law.

Guantanamo: The Camp

Guantanamo is a U.S. Naval base in Oriente Province in southeastern Cuba. The use of the base dates back to a treaty signed in 1903 and renewed in 1934, by which Cuba leases the site consisting of 45 square miles to the U.S. for $4,085 per year. "Guantanamo is the oldest U.S. base outside the continental United States, and the only one in a country that does not enjoy an open political relationship with the United States." (1) In the last quarter of the 20th century, the Guantanamo Bay Naval Base was used to house Cuban and Haitian refugees intercepted on the high seas. In the early 1990s, it held refugees who fled Haiti after military forces overthrew democratically elected President Jean-Bertrand Aristide. The last Haitian migrants departed Guantanamo on November 1, 1995. (2) Since January 11, 2002, Guantanamo has served as a joint military prison and interrogation camp under the leadership of Joint Task Force Guantanamo (JTF-GTMO) of the United States Navy base for suspected terrorists. The population at Guantanamo consists primarily of those captured in Afghanistan by the U.S. military after the post-September 11 invasion. Individuals held by the prison are mainly those suspected of being al Qaeda and Taliban operatives; it also holds some individuals no longer considered suspects, who are pending relocation (Greenberg and Dratel, 2005; Murphy, 1953: 31). In July 2003, about 680 alleged Taliban members and suspected al Qaeda terrorists from 42 different countries were incarcerated there. …