Leaving Guantanamo: Detainees' Right to Medical Treatment
By Nathan Lewis
Every year for the past five years, the Senate has included in its version of the annual defense spending bill, the National Defense Authorization Act (NDAA), a provision that would allow the temporary transport of Guantanamo detainees to the United States for emergency medical treatment. However, this provision has never made it into the final version of the NDAA negotiated between the Senate and the House armed services committees.
The temporary medical transfers provision, section 1025 of the Senate’s NDAA for the fiscal year 2019, would permit the Department of Defense to transfer a Guantanamo detainee to the United States for treatment under the following conditions: the detainee’s treatment must be adequately urgent (required to prevent death or “serious” injury), and his medical condition must be untreatable at Guantanamo Bay. The provision also requires the Department of Defense to arrange appropriate security measures for the custody of the detainee while in the United States. Additionally, the provision states that detainee will not be granted any more rights while on American soil than those he possessed at Guantanamo.
This provision would enable the United States’ ability to comply with its legal obligations. Under Common Article 3 of the Geneva Conventions, the United States must provide proper medical care for detainees. The ban on transferring them to the United States for any reason, including for emergency medical care, could prevent the United States from fulfilling this obligation.
The well-being of the detainees is not the only factor at play. In the fall of 2017, a team of medical specialists and their equipment were flown to Guantanamo to perform a spine operation on detainee Abd al Hadi al Iraqi, more than eight months after doctors advised the Department of Defense that he needed surgery. The team arrived just as Hurricane Irma approached Guantanamo, with the ill-timed visit necessitated by the detainee’s sudden complete loss of bladder control and high risk of permanent paralysis. The affair could have been avoided entirely had he been given medical care in the United States.
There is no reason to think that this incident will be isolated. As the Guantanamo detainees age, their need for more specialized healthcare will increase. Allowing them to be moved temporarily for necessary medical treatment provides a rational, safe, and comparatively resource-light solution to a growing problem. Members of Congress should finally retain this provision in this year’s NDAA.