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  • Kyra Freeman

Guantánamo Bay: Justice’s Blind Spot

Demonstrators dressed as Guantanamo Bay detainees protested in front of the White House in January 2015.

Content warning: discussions of torture, Islamaphobia, and sexual assault

No history classes will ever skip over the September 11th attacks, but perhaps more focus should be placed on what policy decisions were allowed to result in the aftermath. Caught in a moment of shock many people did not think critically about the implications of the “War on Terror” allowing some of the more questionable national security decisions to fly under the radar. One of these was the creation of the Guantánamo Bay detention center in the U.S. Naval Base in Cuba where almost 800 Muslim men and boys have been held and where 35 still remain.

America came into control of Guantánamo Bay through the Platt Amendment, a stipulation of the end of America’s occupation of Cuba. Among other agreements to American intervention in Cuban affairs it also gave the United States sole right to use Cuban land for military bases, leading to the U.S.’s lease for Guantánamo Bay. Because of the fact that the detention camp is not on American soil, it has been considered outside America’s legal jurisdiction, or have some have described it, the legal equivalent of outer space. The Bush Administration maintained that because they were not held in America they were not required to instill constitutional protections, and declared them “enemy combatants,” not prisoners of war, so that they had no rights under the Geneva Convention. This meant that detainees were not given the constitutional protection of habeas corpus which prevents unlawful and indefinite detention, allowing enemy combatants to be held without charges, trial or evidence. They were also not awarded the Geneva Conventions protections for prisoners of war which including unfair trials, torture and cruel or degrading treatment.

The set the stage for first detainees arriving on the 11th of January 2002 after an 8,000 mile plane trip in which they were chained to their seats, hooded and barred from using the bathroom. In August a memorandum from the Department of Justice advised use of “enhanced interrogation techniques” that could not amount to torture and would not be illegal in the United States or violate international agreements. Shortly after US Secretary of Defense Donald Rumsfeld approved multiple interrogation techniques including forcing uncomfortable positions, isolation, 28 hour long interrogations, sensory deprivation, use of individual phobias against prisoners, forced nudity, shaving Muslim men’s hair and beards, and removal of religious items. A 2008 Senate report showed Rumsfeld approved these despite disapproval from military lawyers and FBI counterterrorism experts who stated these techniques might violate international law, would lead to ineffective interrogations, and would only reinforce the enemy’s hatred toward America. Both of the latter points proved to be true as there are several examples of ISIS and Al Qaeda using the unlawful detentions and torture at Guantánamo as a call to arms, and a 2014 senate report on the CIA’s use of torture concluded that was overall ineffective at gaining useful intelligence. There are also several reports of far worse treatment at Guantánamo including forced enemas, shackling in stress positions for several hours, sleep deprivation, use of loud repetitive music, and sexual assault.

The Bush Administration eventually created military tribunals as a way to try the Guantánamo prisoners outside the federal court system and the accompanied protections for defendants. Among the most controversial differences is that there is evidence that can be presented to the tribunal which the defendant can neither see nor refute, they are also allowed to consider evidence obtained through coercive interrogation methods. In 2004 the Department of Defense established the Combatant Status Review Tribunals (CSRT) which reviewed all detainees to see if they met criteria to be designated “enemy combatants.” Although almost 40 prisoners were determined to be non-enemy combatants and returned to their home countries, the CSRT’s were just another way the U.S. worked outside the federal court system, and many of the issues with the military tribunals existed here too. The Supreme Court ruled in 2006 that the military tribunals were illegal and violated the Geneva Convention and in 2008 they ruled that the CSRT’s were also illegal. Over five years the Bush Administration released 532 detainees. Obama early in his campaign promised to permanently close Guantánamo, and on his second day in office passed an executive order to close the prison within the year. He continued the use of military tribunals after enacting reforms although human rights organizations criticized this because it still denied defendants constitutional protections. Through an executive order, Obama created the Periodic Review Board, a system similar to the CSRT, which was used to determine if the continuation of detention is justified without trial. In their efforts to close Guantánamo the Obama Administration faced conservative pushback and administrative difficulties including a 2015 bill passed by Congress that blocks Guantánamo detainees from being transferred to U.S. soil even for prosecution. Obama ultimately left office with only 41 inmates remaining. Donald Trump reversed Obama’s executive order and called for the prison to remain permanently open. And while he also vowed to send even more prisoners, no new prisoners were admitted and only one prisoner was released due to a deal arranged four years earlier. Joe Biden, Obama’s former vice president, has stated his effort to complete Obama’s goal to shut down Guantánamo. He has continued the use of the Military Tribunals and the Periodic Review Board, has since far only released five detainees while 20 are eligible for release.

Guantánamo Bay has now been open for over 20 years, and while attention may have faded since 2001, the issue is still the same. There are 35 men who have been held without charge for over a decade and will never see the inside of a federal courtroom, which makes it fair to say they are not prisoners but people we have simply abducted. America cannot right the wrongs of our past, but we can do what is within our power to correct what is wrong today. It is time for Guantánamo to become history.


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