Guantanamo BayThe US Navy base at Guantanamo, Cuba was established over time, following the Spanish-American War of 1898. In 1901 the Platt Amendment granted Cuba independence. This wasfollowed in 1903 with a leasing agreement that granted US authority to establish a coalingstation in southeast Cuba.Guantanamo today is an active US Navy base that supports activities in the Caribbean andthroughout Latin America. Plans are being discussed to base a US Marine Corps reactionforce there in the future.Prior to the September 11, 2001 attack on America, Guantanamo Base had shrunk to aholding facility with approximately 3,000 personnel stationed there. After being selected as aholding facility for enemy combatants following Operation Enduring Freedom (the liberation ofAfghanistan), personnel numbers have risen to approximately 10,000.In an order signed on November 13, 2001 called "Detention, Treatment, and Trial of CertainNon-Citizens in the War Against Terrorism," President Bush outlined policy, procedures,safeguards, and legal guidance for detaining enemy combatants in the new war. Detention Facility EstablishedWhen surprisingly large numbers of enemy combatants were captured on Afghanistansbattlefields - some estimates are as many as 70,000 Taliban and al Qaeda fighters captured(of these, approximately 10,000 were screened by Coalition authorities - it was determined thata secure holding facility had to be established to house a small percentage of these men whowere considered high-intelligence-value, high-threat individuals. Of the mass of enemycombatants captured, fewer than 800 were selected to be evacuated to Guantanamo. Early Days in GuantanamoIt helps to recall that late 2001 through 2002 was a fearful period in America. Almost everyonewas braced for a follow-on attack. Meanwhile, public awareness of al Qaeda and Usama binLadens declaration of war against the US and the West had become widespread.Concomitantly, letters containing weaponized anthrax virus appeared almost randomly, killingfive people and temporarily shut down the Houses of Congress, US Postal facilities, andterrified the public.
Authorities needed to learn as quickly as possible what, if any future attacks were pending. Tothat point, agencies sent representatives to Guantanamo with the overall mission of finding outwhat future al Qaeda plans may be. It was a chaotic time in the facility. Commanders of thedetention and interrogation sections were at odds with each other, and an unorganized,competing group of agency representatives were each trying to interrogate detainees for theirown purposes.Inter-agency rivalries were brought to Guantanamo. Representatives from FBI, CIA, DIA,NYPD, Washington DC Police, DEA, and others arrived, each of them tasked to learninformation vital to that particular agency’s needs. For example, CIA needed to gatherinformation that might influence the outcome of the ongoing war. DIA wanted to gain military-related information. FBI was interested in domestic activities and in building a criminal caseagainst detainees suspected of participation in the 911 attack.All were highly parochial and did not share information. At one point, even the detainees wereput off by the process. One detainee chided the interrogators by asking “Don’t you guys talk toeach other? The other people asked me these same questions two days ago!"Ultimately the new joint command established “Tiger Teams” that were made up of jointagency representation to expedite the interrogation and information sharingprocesses. Despite these reforms, institutional rivalries persist to this day, with the CIA beingespecially parochial about its activities, and the FBI continuing to be hyper-critical of anyinterrogation procedures that deviate from their processes that are designed around handlingof domestic criminal investigations . Why Pick GuantanamoAccording to Pentagon sources, a large inter-agency effort was launched to select a site forthe detention facility. Ultimately, the Department of Justice held sway, and Guantanamo waschosen from among candidates like Diego Garcia Island, Guam, and others. Factors inselection included security of the site as a paramount necessity and proximity to the US forrelative ease of access.Geographically Guantanamo is a fairly secure location. All overland access is blocked by highfences and mine fields emplaced during the period when US-Cuban relations were tense. Airtraffic is monitored closely by US radar on the base and by the Cubans who control airspacesurrounding their nation. While the nearby Windward Passage is a busy commercial andrecreational route, approaches into Guantanamo Bay itself are closely monitored by the USCoast Guard and Navy.The American base commander – a Navy Captain, different from the JTF Commander – meetsfrequently with his Cuban counterpart. The Cuban authorities are not eager to see this part oftheir country turned into a more controversial issue. The Cuban commander has restrictedaccess to the exterior of the facility to occasional international groups who wish to demonstrateoutside of the base, and has issued assurances that any escapees will be returned to UScontrol.
Escapes from other PrisonsOne of the prime characteristics for selection of Guantanamo as a prison was that escapewould be difficult. To date no detainee has escaped from confinement.Other international prisons have been less able to hold prisoners. Two dozen major al Qaedarelated prisoners escaped from a prison in Yemen , apparently with complicity from jailors inFebruary 2006. Between December 2001 and 2006 alone, at least 138 suspected or convictedMuslim terrorists fled from behind bars in Afghanistan, Russia, Pakistan, the Philippines, andYemen and, collectively, went on to murder at least 328 individuals and injured 518 others .Just this summer 389 Taliban militants escaped from a prison in Kandahar, Afghanistan, whensuspected members of al Qaeda used truck bombs to topple walls and motorcycles to carry offprisoners.In the Coalition maintained prison in Bagram, Afghanistan there have been several successfulescapes including one by Omar al-Faruq the instigator of the Bali bombing. NGO reportsOn November 30, 2009, The New York Times published excerpts from an internal memoleaked from the U.S. administration, referring to a report from the International Committee ofthe Red Cross (ICRC). The ICRC reports of several activities that, it said, were "tantamount totorture": exposure to loud noise or music, prolonged extreme temperatures, or beatings. It alsoreported that a Behavioral Science Consultation Team (BSCT), also called Biscuit, andmilitary physicians communicated confidential medical information to the interrogation teams(weaknesses, phobias, etc.), resulting in the prisoners losing confidence in their medical care.The newspaper said the administration and the Pentagon had seen the ICRC report in July2004 but rejected its findings.In a foreword[ to Amnesty Internationals International Report 2005, the SecretaryGeneral, Irene Khan, made a passing reference to the Guantánamo Bay prison as"the gulag of our times," breaking an internal AI policy on not comparing different human rightsabuses. The report reflected ongoing claims of prisoner abuse at Guantánamo and othermilitary prisons.A number of children are interned at Guantánamo Bay, in apparent contravention ofinternational law. Suicides and suicide attemptsBy 2008 there had been at least four suicides and hundreds of suicide attempts inGuantánamo that are in public knowledge.During August 2003, there were 23 suicide attempts. The U.S. officials would not say why theyhad not previously reported the incident. After this event the Pentagon reclassified suicides as
"manipulative self-injurious behaviors" because it is alleged by camp physicians that detaineesdo not genuinely wish to end their lives.On May 19, 2002, a UN panel said that holding detainees indefinitely at Guantánamo violatedthe worlds ban on torture and that the United States should close the detention centerIn 2008 a video was released of an interrogation between Canadian Security IntelligenceService, and a Central Intelligence Agency (CIA) officer and Omar Khadr, a youth held inGuantánamo Bay, in which Khadr repeatedly cries, saying what sounds to be either "help me","kill me" or calling for his mother, in Arabic. Prisoner complaintsThree British Muslim prisoners, now known in the media as the "Tipton Three", were releasedin 2004 without charge. The three have alleged ongoing torture, sexual degradation, forceddrugging and religious persecution being committed by U.S. forces at Guantánamo Bay.Former Guantánamo detainee Mehdi Ghezali was freed without charge on July 9, 2004, aftertwo and a half years internment. Ghezali has claimed that he was the victim of repeatedtorture. Omar Deghayes alleges he was blinded by pepper spray during his detention. Juma AlDossary claims he was interrogated hundreds of times, beaten, tortured with brokenglass, barbed wire, burning cigarettes, and sexual assaults. David Hicks also made allegationsof torture and mistreatment in Guantánamo Bay, but as part of his plea bargain Hicks withdrewthe allegations.In 2005, it was reported that sexual methods were allegedly used by female interrogators tobreak Muslim prisoners.In a leaked 2007 cable, a State Department official requested an interview of a releasedLibyan national complaining of an arm disability and tooth loss that happened during hisdetainment and interrogations. Human rights violations There are a number of legal concerns relating to the circumstances in which the detainees are held.There is uncertainty with regard to the legal basis of detention and the exact legal status of individualprisoners. The detainees have been called "enemy combatants", but it is unclear whether this meansthey are detained as quasi prisoners of war, war criminals, terrorists, under administrativedetention, or something else. To date, none of the detainees held at Guantanamo Bay have beenformally charged with any crime and it is still uncertain if and when the US authorities intend to do soand on what legal basis. The length of their detention is therefore at the moment indefiniteThere are also concerns over potential violations of international human rights norms and articles ofthe International Covenant on Civil and Political Rights (ICCPR); such as, Article 7 (prohibition againsttorture), Article 9 (right to liberty), Article 10 (right to humane treatment), Article 14 (right to a fairtrial) and Article 26 (equality before the law). In March 2003, 18 detainees were released and returnedto Afghanistan, in addition to three prisoners released in October 2002. The released detainees allegethat they were sometimes hooded and handcuffed, and held during their detention in "two-metre bytwo-metre cages". The ICRC has been given access, but as usual their findings are confidential. Right to habeas corpus
In the circumstances the protection of Article 9(4) of the ICCPR is crucial; that is, the writ of habeascorpus or amparo. The remedy which permits a detained individual to take proceedings before a courtto determine the lawfulness or otherwise of detention, and to order release if detention is not lawful.This is also the legal vehicle by which alleged breaches of international human rights law can be airedand tested. The US courts have so far, however, denied the remedy of habeas corpus to theGuantanamo Bay detainees. The US CourtsA handful of cases have come before the US District Courts on this issue. The leading case is that of the US Court of Appeal (District of Columbia) in the case of Odah (March 2003). In Odah the relatives of anumber of detainees brought claims relating to the lawfulness of detention. In rejecting the claims theCourt upheld a 1950 US Supreme Court ruling that the US courts do not have jurisdiction to issue writsof habeas corpus for alien nationals detained outside the "sovereign territory" of the US. The status of Guantanamo Bay in international law is unusual - although by no means unique - in that it was leasedfrom Cuba by the US in 1903. The Lease provides that Cuba keeps "sovereignty" over the territory, butthat the US has "complete jurisdiction and control". The US Courts have interpreted this to mean that they have no jurisdiction over aliens held at Guantanamo Bay because whilst the US authorities have "jurisdiction and control" under international law the territory belongs to Cuba. A technical point, maybe, but, unless there is a successful appeal to the US Supreme Court, under US Constitutional law the detainees do not have access to any US court or tribunal to review the lawfulness of their detention. International human rights law The approach of the US courts, to providing access to habeas corpus to foreign nationals under their control on foreign territory, differs from well established principles of international human rights law; in particular, the practice of the UN Human Rights Committee (HRC), the Inter-American Commission on Human Rights (IACHR), the European Commission on Human Rights (the European Commission), and the European Court of Human Rights (ECHR).On the issue of jurisdiction, Article 2(1) of ICCPR provides that each State Party "undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized" in the Covenant.With regard to the writ of habeas corpus itself, even if the US Courts found jurisdiction it is likely to be argued that the Presidents Military Order of 13 November 2001 (Military Order) has suspended the prisoners right to seek habeas corpus. In the context of international human rights law, the HRC have confirmed that the right to habeascorpus "applies to all persons deprived of their liberty by arrest or detention" (General Comment 8/16, 1982) and that this includes proceedings before a military court (Vuolanne v Finland, HRC Doc A/44/40). Individuals are entitled to this right "without delay" regardless of the reasons for their detention. But the Guantanamo Bay detainees have been held for up to 450 days without access to a court to determine the lawfulness of their detention. Thus, if the US Courts were to apply international human rights law, rather than exclusively relying on US Constitutional law, the detainees at Guantanamo Bay should have the right of access to habeas corpus, regardless of the existence of a declared state of emergency in the US.
The legal black holeBut, if the US Courts are unable to act, what other court or tribunal can hear the detainees allegationsof human rights violations? The answer is, apparently, none.First, the US has not ratified the First Optional Protocol to the ICCPR, thus, the detainees have no basison which to submit a complaint to the HRC. Secondly, on 13 March 2002, the IACHR ordered the US to"take the urgent measures necessary to have the legal status of the detainees at Guantanamo Baydetermined by a competent tribunal. The US, however, rejected the IAHCRs decision, arguing that theIACHR does not have jurisdiction to make such an order.Thirdly, the relatives of some detainees have tried to bring cases in other jurisdictions to put pressureon foreign governments to use diplomatic channels to invoke their rights. For example, in the EnglishCourt of Appeal case of Abassi (Nov 2002), Feroz ali Abassi, a British national caught by US forces inAfghanistan and held at Guantanamo Bay, sought judicial review to compel the UK Secretary of Stateto make representations on his behalf to the US government. The Court of Appeal rejected Mr Abassiscase, although it was not unsympathetic to his cause, saying: "We have made clear our deep concernthat, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject toindefinite detention in territory over which the United States has exclusive control with no opportunityto challenge the legitimacy of his detention before any court or tribunal."None of these alternatives works. Thus, as one commentator has put it, the detainees at GuantanamoBay are in a "legal black hole". The CHR contextIn response to the decision of the US Court of Appeal in Odah, the Special Rapporteur on theindependence of judges and lawyers, Dato Param Cumaraswamy, said: "By such conduct, theGovernment of the United States, in this case, will be seen as systematically evading application ofdomestic and international law so as to deny these suspects their legal rights. Detention without trialoffends the first principle of the rule of law" and he added, "can set a dangerous precedent". Hefurther added: "The war on terrorism cannot possibly be won by denial of legal rights, includingfundamental principles of due process of those merely suspected of terrorism". He called on the USGovernment to comply with the General Assembly Resolution on Protection of Human Rights andFundamental Freedoms while Countering Terrorism (A/RES/57/219, 16 December 2002). A resolutionthat affirmed that states must ensure that any measure taken to combat terrorism complies with theirobligations under international human rights law.In its last report to the HRC (CCPR/C/81/Add.4, August 1994), the US stated that "the fundamentalrights and freedoms protected by the Covenant are already guaranteed as a matter of U.S. law, eitherby virtue of constitutional protections or enacted statutes, and can be effectively asserted andenforced by individuals in the judicial system". In the case of the detainees at Guantanamo Bay,however, this is clearly not the case. Filling the black hole?
In the case of the detainees at Guantanamo Bay there is a gap between the application of USConstitutional law by US Courts and the applicable international human rights law in relation to accessto habeas corpus for alien detainees under the control of the US authorities on foreign territory.This gap is unlikely to be bridged until either the US fully implements the ICCPR, by making it self-executing and therefore making its provisions directly enforceable in its domestic law, or ratifies thecomplaints mechanism contained in the First Optional Protocol.The US is by no means alone in having failed to take these two measures, but it is not unreasonable tosuggest that such steps are an integral part of good faith compliance and the protection of humanrights in accordance with the rule of law.Moreover, states that wish to hold themselves out as leaders of civil and political rights, but wish toavoid accusations of "double standards", must be prepared to consistently, and not selectively, applyinternational human rights obligations.In the meantime, several hundred prisoners - no doubt some guilty, but some innocent - remaindetained at Guantanamo Bay, and also in Afghanistan, where they have been for over one yearwithout any immediate hope of release or access to legal review. Obamas plan to close the campsPresident Barack Obamas campaign promise to close the Guantanamo Bay detention center hasswitched from In the Works to Stalled and back again (and again). All that movement reflects a simpledynamic: Obama really wants to close the center. But Congress really doesnt.The latest turn of events was the law authorizing defense spending for 2011. In addition to funding themilitary for the year, members of Congress attached several stipulations about Guantanamo. The lawsays no funds canbe used to transfer Guantanamo detainees to the United States, and no funds can beused to transfer detainees to the custody of foreign countries, unless specific conditions are met abouthow the prisoners will be held.Obama didnt like those provisions and issued a statement deploring them. He said the limitation ontransferring prisoners to the U.S. is "a dangerous and unprecedented challenge to critical executivebranch authority ... ." Of the new requirements on transferring prisoners to foreign governments,Obama said it could "hinder the conduct of delicate negotiations with foreign countries and thereforethe effort to conclude detainee transfers in accord with our national security."Obama stopped short of saying he would disregard the law, something presidents sometimes do via"signing statements." President George W. Bush issued many signing statements as president that saidhe would disregard parts of laws passed by Congress that he believed infringed on his executiveauthority. During the campaign, Obama said he would not "abuse" signing statements.But nowhere did Obama say he would disregard the new restrictions. Instead, he said he would seek torepeal of the restrictions."Despite my strong objection to these provisions, which my Administration has consistently opposed, Ihave signed this Act because of the importance of authorizing appropriations for, among other things,
our military activities in 2011," Obama said in the statement. "Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future." Based on Obamas statement, he clearly still wants unfettered authority to move prisoners out of the Guantanamo Bay facility. And at a press conference at the end of the year, he said it was important to close Guantanamo because it is "probably the number one recruitment tool that is used by these jihadist organizations." "It is important for us, even as were going aggressively after the bad guys, to make sure that were also living up to our values and our ideals and our principles," Obama said at the press conference. "And thats what closing Guantanamo is about -- not because I think that the people who are running Guantanamo are doing a bad job, but rather because its become a symbol. And I think we can do just as good of a job housing them somewhere else." Obama may want to close Guantanamo, but legal impediments still stand in the way of him achieving his goal. The meter remains at Stalled. References1. Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations; February 23, 1903 as signed by the Presidents of Cuba and the United States. http://www.yale.edu/lawweb/avalon/diplomacy/cuba/cuba002.htm2. Treaty Between the United States of America and Cuba; May 29, 1934 http://www.yale.edu/lawweb/avalon/diplomacy/cuba/cuba001.htm3. 07/07/08 "U.S. Weighs Guantanamo Transformation" by Damien McElroy, The Daily Telegraph, as printed in the New York Sun (one of many, many articles covering the subject). http://www.nysun.com/national/us-weighs-guantanamo-transformation/81267/4. 03/03/05 US Department of Defense "From Mayberry to Metropolis: Guantanamo Bay Changes" by Kathleen T. Rhem, American Forces Press Service http://www.defenselink.mil/news/newsarticle.aspx?id=312905. "The Hunt for Bin Laden: Task Force Dagger," Robin Moore, New York, Random House, 2003. Also, "Jawbreaker: The Attack on bin Laden and al Qaeda," Gary Berntsen and Ralph Pezzullo, New York, Crown, 2005. Also, Anonymous, "Hunting al Qaeda," St. Paul, MN, Zenith Press, 2005.6. Undated "Guantanamo Bay - Camp X-Ray" backgrounder from globalsecurity.org http://www.globalsecurity.org/military/facility/guantanamo-bay_x-ray.htm7. 2/13/04 US Department of Defense "Briefing on Detainee Operations at Guantanamo Bay" with Paul Butler, principal deputy assistant secretary of defense for special operations and low intensity conflict, and Army Maj. Gen. Geoffrey D. Miller, commander, Joint Task Force Guantanamo. http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=20718. For more complete summary descriptions of the various camps within Guantanamo Bay please see "Detainee Living Conditions" section of the Joint Task Force Guantanamo "Mission" webpage. http://www.jtfgtmo.southcom.mil/mission.html9. 12/4/03 Amnesty International "USA: Fear of forcible return / Fear of torture / Fear of execution" urgent action alert. http://asiapacific.amnesty.org/library/index/ENGAMR511472003?open&of=ENG-USA10. 02/13/04 Department of Defense "Guantanamo Detainees" fact sheet (Acrobat PDF file). http://www.defenselink.mil/news/Apr2004/d20040406gua.pdf11. "Declaration of War against the Americans Occupying the Land of the Two Holy Places" as first published in Al Quds Al Arabi, a London-based newspaper, in August, 1996.
Presentation Political science # 6 International law Date: ,5 ,2011 Guantanamo BayPresented by: 1. Rabia tahir 2. Farah akramPresented to: Ms khushboo WORD: 3,861
KINNAIRD COLLEGE FOR WOMEN LAHORE CONTENTS Guantanamo Bay Detention Facility Established Early Days in Guantanamo Why Pick Guantanamo Escapes from other Prisons NGO reports Suicides and suicide attempts Prisoner complaints Human rights violations Right to habeas corpus The US Courts International human rights law The legal black hole The CHR context Filling the black hole? Obamas plan to close the camps References