After the 2001 September 11th attacks, the Bush administration needed a secure place to keep its enemies captured in the “war on terror”. The Central Intelligence Agency (CIA) had already established “black sites”, or secret detention centres, all over the world. However, the Bush administration needed a location outside of international law so they could keep detainees indefinitely while interrogating them without legal intervention. They also needed a location that would not become a target for another terrorist attack.
Guantanamo Bay was the ideal location, as it is an American Navy base that is under American control but is not under American sovereignty and is far enough from American territory that a terrorist attack would not be a concern. The first detainees, suspected Al-Qaeda or Taliban members, arrived at the Guantanamo Bay detention camp in 2002 from Afghanistan. As the war on terror continued, the number of detainees increased. CIA agents carried out much of the interrogation done at Guantanamo.
Unlike the military, the CIA is held to different standards; to the CIA, torture is subject to perception. Because of the different standards, CIA agents used torture and inhumane treatment (officially called “enhanced” interrogation methods) against the detainees to extract information. Donald Rumsfeld, the United States Secretary of Defense at the time of the 9/11 attacks, authorized several “enhanced” interrogation methods to be applied to Guantanamo detainees.
Many of these methods are aking to torture, including: isolation for 30 days, 24-hour interrogations, exploitation of individual phobias, stress positions, deprivation of the senses, etc. Rumsfeld’s authorized methods went far beyond the methods allowed in the Army Field Manual, and violated several internationally recognized human rights. … It is an understatement that the attacks on the World Trade Centre on September 11th, 2001, shocked the American public and the rest of the world.
Hours following the attack, then-President George Bush made a speech condemning the terrorists behind the attacks and declaring war on them. This speech riled up the American public, creating a want for revenge for the actions committed by the terrorists. There was great public support for self-defense and prioritization of national security, which became key justifications for the Bush administration’s detention policies in Guantanamo Bay.
Under the guise of defending American national security, the United States government found methods of interpreting international law so its national security agenda was unhindered by legality. For example, in response to the 9/11 attacks the United States created the National Security Strategy of 2002. This allowed the United States to take preemptive action to protect national security while “differently interpreting” (that is, disregarding) international law.
This method of interpreting international law differently was important in justifying the “enhanced” interrogation policies in Guantanamo Bay. Despite having signed and ratified the UN Torture Convention, which clearly underlines that torture is never justified regardless of emergency situations, the US Department of Justice argued that self-defense and national security justified the President’s powers (without checks and balances) to give permission to the officials at Guantanamo to torture enemy detainees for information.
As mentioned above, the United States kept many detainees captured in Afghanistan in Guantanamo. Because Guantanamo Bay is in Cuba and is not American territory, it is not under American sovereignty and therefore outside of United States law and constitutional protection. However, because Guantanamo Bay is under American territorial jurisdiction, it is not under Cuban sovereignty. The combination of these legal discourses allowed the Bush administration to justify its practices at Guantanamo Bay while successfully evading the laws of its own state.
Although this justification was challenged in court, it proved legally valid in one case; United States District Judge Howard Matz explicitly stated that legally Guantanamo Bay was not within American sovereignty, as territorial jurisdiction and sovereignty are not the same. Matz’s conclusion was later overturned in Rasul v. Bush in 2004, when the Court ruled that Guantanamo was protected by the United States constitution. Another key justification of the Bush administration’s detention policies is the status of the detainees.
Instead of calling the alleged Taliban and Al-Qaeda detainees “prisoners of war”, the Bush administration called them “unlawful enemy combatants”. By doing so, the Bush administration denied the detainees all rights of prisoners of war under the Geneva Conventions. If the detainees at Guantanamo had prisoner of war status, they would be protected under the Third Geneva Convention against the inhumane treatment and the forceful extraction of information they faced in the detention camp.
By interpreting the Third Geneva Convention in a literal manner, the Bush administration justified their decision to name the detainees at Guantanamo “unlawful enemy combatants”. According to the Bush administration and American lawyer John C. Yoo, because the Taliban was a “failed state”, its militia was not entitled to protection under the Conventions. In addition, because Taliban and al-Qaeda soldiers did not wear uniforms in combat they were not prisoners of war.
Even if those justifications were enough to exclude the detainees from the protection of the Third Geneva Convention, they should not have been enough to exclude them from all protection. Article 75 of the First Protocol Additional to the Geneva Conventions protects all prisoners from inhumane treatment, going in-depth with prohibiting torture. However, the United States did not ratify this Protocol. The justifications discussed above allowed the United States to continue torturing its detainees in Guantanamo, creating a regression in human rights in the twenty-first century.
However, these human rights violations did not go unnoticed. The Bush administration’s detention policies at Guantanamo met opposition and criticism almost immediately after their implementation. In 2002, the Inter-American Commission on Human Rights (IACHR) received requests from the Center for Constitutional Rights, the Human Rights Clinic, and the Center for Justice and International Law to set precautionary measures for the United States. The president of the IACHR accepted these requests and on March 12th, 2002, set the terms of the precautionary measures for the United States Secretary of State.
These precautionary measures included the responsibility for the United States to ensure the fundamental rights of the detainees, on the basis of the detainees clearly falling within the authority and control of the United States regardless of sovereignty. Another note that the IACHR made was that human rights law applied at all times, while international humanitarian law only applied in times of war. Unfortunately, the United States responded to the IACHR’s precautionary measures by raising jurisdictional objections.
They argued that there was no risk of irreparable harm to the detainees at Guantanamo because their status was that of the “unlawful enemy combatant”. Also, the United States insisted that the detainees had been treated humanely and in consistence with the Geneva Convention. In response to the United States’ objections, the IACHR rejected the objections and maintained the precautionary measures it laid out in 2002. It continued to reiterate and amplify these measures in 2003, 2004, and 2005, and continuously asked for information from the United States on the status of the detainees at Guantanamo.
However, despite reiterating and amplifying its precautionary measures for the United States multiple times, the IACHR did not achieve any tangible results. After the IACHR’s continuous amplifications of its precautionary measures came the United Nations Human Rights Commission. In 2006, the UN Human Rights Commission issued a report criticizing the Bush administration’s treatment of detainees in Guantanamo. In its report, the Commission urged the United States to close the facility “without further delay”.
This report received much media exposure and was endorsed by then-UN Secretary General Kofi Annan. Despite the exposure and endorsement of the report, the Bush administration did not close the Guantanamo detention camps. Besides the Human Rights Commission, the Human Rights Committee and the Human Rights Council are other UN branches that have criticized the Bush administration and its detention policies in Guantanamo. The Human Rights Committee had 30 “concerns” for Guantanamo and its policies.
Some of these concerns include: “the restrictive interpretation (by the US) that the International Covenant on Civil and Political Rights does not apply with respect to individuals under its jurisdiction but outside its territory, nor in time of war”, the use of enhanced interrogation techniques, treatment of Guantanamo detainees under the DTA, and the need to investigate allegations of torture, suspicious deaths, cruel/inhuman treatment inflicted by personnel, etc. Picking up after the end of the Human Rights Commission in 2006, the Human Rights Council created a position specifically dealing with torture and human rights.
Manfred Nowak held the position of Special Rapporteur for Torture on the Council, and was charged with reporting all torture allegations to the United Nations. However, when Nowak attempted to investigate the proceedings at Guantanamo, the American government allowed him to only interview personnel and not the detainees themselves. As a result he refused the invitation to go to Guantanamo, and unfortunately failed to make any tangible change as well. These human rights groups have found it difficult to hold the United States accountable for the acts committed at Guantanamo.
The reasons for this lack of progress are the methods that the Bush administration used to justify the detention policies at Guantanamo legally, and the legal nature of human rights. As this paper has previously explored, the Bush administration’s methods of legally justifying its detention policies at Guantanamo worked for many years. The reason that human rights groups have not been able to stop the human rights regression in Guantanamo is because it is difficult for international organizations to hold states accountable for human rights violations.
Supposing a country signs a treaty or protocol agreeing to uphold the standards of human rights, there is no international mechanism in place to punish the country if it violates that treaty or protocol. This is the case with the United States: although the IACHR and UN human rights groups criticized the Bush administration’s policies over many years in words, they do not have the ability to intervene and stop the human rights violations.
