Guantanamo, Ten Years On: A Look Back

Today marks the tenth year anniversary of the United States government’s use of the prison camp at Guantánamo Bay, Cuba to hold individuals suspected of supporting or being associated with al Qaeda or other groups – some, but not all, of which were designated terrorist groups by the U.S. government. See Mark Denbeaux et al., Report on the Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data (2006).  On January 11, 2002, the first twenty prisoners  – then labeled ‘enemy combatants’ – were brought to the facility, in an attempt to deny those detained in the ‘war on terror’ access to U.S. courts and limit their enforceable rights.  See legal timeline here.

Who Are the Detainees?

Over the years, a total of 779 detainees – citizens of 48 countries – have been held at Guantanamo, most initially detained by Pakistani or Afghani forces and then handed over to U.S. custody.

[Id.; HRW]  There, they have been subjected to prolonged, indefinite detention without trial until mostly being released (approximately 600 detainees), generally without being charged with any crime. [HRW]  Credible reports of detainee mistreatment have continued to surface, despite the Bush Administration’s public insistence that it did not permit torture.  WikiLeaks’ release of classified military documents detailing the lives of Gitmo detainees only increased criticisms surrounding the lack of due process, arbitrary detentions, and mistreatment. [NYT]

A Battle between Military Commissions or Civilian Courts, Release or Prosecution

A significant number of those released have had to start anew in countries other than their own, due to the international legal principle of non-refoulement; others were sent to their home countries without regard for the likelihood of mistreatment [CCR].  Six were convicted in the widely-criticized military commissions, seven died in custody, and, today, 171 remain in limbo due to conflicting policy goals of President Obama, who vowed to close Guantanamo, and of the legislature, which has continually sought to keep the detainees out of the U.S. and otherwise restrict their transfer.  (President Obama has also been criticized for failing to seize opportunities to transfer detainees to the U.S. for trial.)  In March of 2011, President Obama authorized renewed military processing of the detainees, two years after modifying the military commissions system and pledging to pursue prosecutions in U.S. courts. [NYT; HRW]

Habeas Corpus Litigation

The habeas corpus litigation waged in U.S. federal courts on behalf of Guantanamo detainees has taken a long and complicated path, landing in a place that allows detainees the opportunity to challenge their detention in U.S. courts of law (Boumediene v. Bush), but where the struggle for release is protracted and increasingly difficult. [Washington Post; CCR] The domestic legal battle over Guantanamo, the laws that apply there, and the fate of the remaining detainees has been extensively documented and analyzed elsewhere. See, e.g., Philippe Sands, Torture Team (2008); The Torture Memos, David Cole, ed. (2009).

The International Response

But what of the role and response of regional and international human rights bodies?  A follow-up post will examine the Guantanamo detainees’ engagement with the Inter-American Commission on Human Rights, European Court of Human Rights, and United Nations special procedures.

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