Human Rights First | Us Law & Security | Torture: Detention Facilities, Guantanamo Bay

Guantanamo Bay

Since January 2002, the United States has held close to 800 people, from more than 40 countries, in military custody at the U.S. Naval Base at Guantanamo Bay, Cuba. Some of those detained at Guantanamo were taken into custody during the war in Afghanistan. Others were captured in places far from any battlefield, including Bosnia, Gambia and Thailand. As of August 2007, the Pentagon said that approximately 355 detainees remain at Guantanamo. Many of these 355 detainees have been held for five years, without charge, and with no independent judicial review of their detention. Human Rights First has called for the closure of the prison at Guantanamo and the sections below describe the major legal and policy issues it raises.

In Rare Move, Supreme Court Reverses Self, Agrees to Hear Appeal of Guantanamo Detainees

HRF Statement

HRF Blogs on the Latest Military Commission Proceedings

Read "Is This the End of the Military Commissions?"

(07/12/07)

The Case for Closing the Detention Center at Guantanamo

The policy of indefinite detention of individuals at Guantanamo has been a failure in key respects. First, it has failed as a legal matter. Second, the policies of torture and cruel treatment fueled terrorist recruitment, did immense damage to the honor and reputation of the United States, and undermined its historic position as a leader in the development of human rights and the laws of war. Third, military commissions at Guantanamo do not meet U.S. and international fair trial standards and have failed to hold suspected terrorists accountable for what the government has described as the most serious crimes. Finally, the policy of treating terrorism suspects as “combatants” in a “war” against the United States, and at the same time rejecting the application of the laws of war, has had the effect of degrading the international framework of the laws of war and sets a dangerous worldwide precedent. The United States’ definition of “unlawful enemy combatants” blurs the vital distinction between combatants (who can be attacked and killed) and civilians (who are generally protected, though may be criminally prosecuted if they take part in hostilities) that the laws of war draw. Under this definition, people who are civilians, including U.S. permanent residents, captured far from any battlefield, can be picked up and held in military custody and subjected to military trial.

The United States should close Guantanamo and either bring the detainees to the United States for prosecution or release them to their home or a third country in accordance with the United States’ obligations under international human rights law and the laws of war. This is a necessary first step in repairing the United States’ image and credibility around the world and within the United States.

What the U.S. Must Do to Get Its House in Order

Read HRF Congressional testimony and recommendations on closing Guantanamo

Guantanamo and U.S. Courts

Legal challenges to the government’s policies at Guantanamo began soon after the transfer of the first detainees in January 2002. In June 2004, the Supreme Court, in Rasul v Bush, held that foreign nationals detained at Guantanamo must be permitted access to U.S. courts to contest the legality of their detentions. Two years later, the Supreme Court held in Hamdan v Rumsfeld that detainees at Guantanamo were protected by the basic treatment and trial requirements of Common Article 3 of the Geneva Conventions. However, in two statutes, the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), Congress sought to deny detainees at Guantanamo access to U.S. courts to challenge the basis of their detention by stripping them of the right to habeas corpus.

Lawyers for detainees at Guantanamo are challenging the DTA’s and MCA’s habeas stripping provisions, together with other provisions that are not consistent with full and fair trial rights under U.S. and international law.

Military Commissions

In a June 2006 decision, Hamdan v. Rumsfeld, the Supreme Court struck down the military commissions authorized by President Bush in November 2001 to try so-called “enemy combatants,” finding that the commissions violated U.S. and international law. On October 17, 2006, President Bush signed into law the Military Commissions Act of 2006 (MCA), which among other things, establishes a new system of military commissions for trials of non-U.S. citizen individuals who have been determined to be “unlawful enemy combatants.” Human Rights First criticized both the original military commissions system and the new one because each system does not meet fundamental fair trial standards under U.S. and international law. Some of the flaws of the new MCA system include that it: permits evidence obtained through coercion; prevents the defendant from gaining access to evidence that could show his innocence; subjects individuals, including civilians, to military trial for acts that were not war crimes at the time they were committed.

Interrogations at Guantanamo

For a period of time between 2002 and 2003, then Secretary of Defense Donald Rumsfeld authorized interrogation methods for use at Guantanamo that violated U.S. and international law, including: forced stress positions, hooding, denial of religious items, forced stripping of prisoners, and the exploitation of detainees’ phobias such as through the use of dogs. Government documents that have since been released confirmed the use of such techniques on the detainees, and released detainees have provided first person accounts of being subjected to this treatment by U.S. interrogators.

At the end of 2005, President Bush signed into law legislation that banned torture and cruel, inhuman or degrading treatment of detainees and established the rules contained in an Army Field Manual on interrogation as the standard for all military interrogations. The Pentagon issued a revised Army Field Manual in September 2006, which specifically repudiated many of the most common abuses to which detainees were subjected. The Army Field Manual applies to interrogations by the CIA in military detention facilities but does not apply to CIA interrogations in non-military facilities. As of April 2007, it is unclear what interrogation techniques have been approved for use by the CIA.

CSRTs and ARBs at Guantanamo

Pursuant to two June 2004 decisions, Rasul v Bush and Hamdi v Rumsfeld, the Supreme Court has said that Guantanamo detainees may challenge the basis for their detention and must also have a meaningful opportunity, before a neutral arbiter, to contest the allegations against them. In response, the administration created Combatant Status Review Tribunals (CSRTs), which are a one-time review process to determine whether a detainee is an “enemy combatant.” These hearings are a novel set of proceedings created by the Pentagon and are governed by a July 7, 2004 Order and procedural rules issued on July 14, 2006. Human Rights First has identified numerous flaws in the CSRTs, including that they: are not a neutral process; permit evidence obtained under torture; do not allow the detainee access to the evidence against him; do not provide the detainee a full and fair opportunity to rebut allegations of wrongdoing; deny the detainee the assistance of counsel.

In May 2004, the Defense Department announced the creation of the Administrative Review Boards (ARBs). The ARBs are an annual process under which the U.S. military assesses whether a particular detainee continues to be a threat to the United States. The rules governing ARBs have even fewer procedural safeguards than those for CSRTs.