Posted August 2008; Updated May 2011
I. THE HISTORY OF U.S. CONTROL OF GUANTANAMO BAY, CUBA
The United States joined the Cubans in their war against their colonial ruler, Spain, in February 1898 after the U.S. warship, the U.S.S. Maine, was blown up by the Spanish in Havana harbour. In June 1898, the United States military forces captured Guantanamo Bay, located in the south-eastern corner of Cuba. In the same month, the Spanish unconditionally surrendered to the United States. The actual peace treaty, the Treaty of Paris, was signed on 10 December 1898 between Spain and the United States. This treaty gave Cuba its independence and ceded the territories of Puerto Rico and Guam to the United States.
Although the United States established a military base at Guantanamo Bay in 1898, it obtained a long-term lease on the land from Cuba in 1903. Under this lease, the United States received “complete jurisdiction and control” over the land at Guantanamo Bay for the purposes of operating coaling and naval stations. Cuba retained ultimate sovereignty over the land. A rate of rental for the land was agreed between Cuba and the United States. A further treaty was signed between these two parties in 1934. This new treaty reaffirmed the 1903 lease and made the lease permanent unless either both governments agreed to break it or the U.S. government
abandoned the property. The new treaty also increased the rent due from the 1903 treaty. Since 1959 when Fidel Castro became president, Cuba has denounced these two treaties with the United States. To date, Cuba has apparently only cashed one or two of the U.S. rent checks it has received.
The U.S. naval station at Guantanamo Bay covers a large area of approximately 45 square miles (116 square kilometres).
The annual temperatures in the Guantanamo area range from 71º to 90ºF (21º to 32ºC) with no large swings of temperature and little rainfall.
II. THE U.S. PRISON AT GUANTANAMO BAY (“GB”)
In the beginning of January 2002, following the terrorist attacks on targets in the United States on 11 September 2001 and the invasion by U.S.-led coalition forces of Afghanistan on 7 October 2001, the U.S. government began building detention facilities at Guantanamo Bay. On 11 January 2002 when the first prisoners arrived, they were temporarily housed in a former camp, Camp X-ray, which previously housed Haitian migrants. The first prisoners were reportedly men who had been captured in Afghanistan during the armed conflict with the United States. The Washington Post, in an article published 23 October 2002, quoted the Secretary of Defense, Donald Rumsfeld, as saying the prisoners being held at Guantanamo Bay were “the worst of the worst”.
Due to the lack of factual information released by the U.S. Department of Defense regarding the prison, the following two sections rely on media reports, on information given by former GB prisoners who have been released and on accounts given to lawyers by their clients who remain imprisoned at GB. Two other useful sources were the website, GlobalSecurity.org, and the Human Rights Watch (“HRW”) report released 10 June 2008, “Locked up Alone, Detention Conditions and Mental Health at Guantanamo”.
Please note that the terms “detainee” and “prisoner” are used interchangeably in this article.
A. The Facilities for Prisoners
1. An Overview
a) Camp X-ray – January 2002 to April 2002
When the first prisoners arrived at the Guantanamo Bay prison on 11 January 2002, the media reported that their cells were “separate make-shift rooms, made from chain-link fencing, measuring 6 feet by 8 feet (1.8 metres by 2.4 metres). The rooms have mattresses, concrete floors and corrugated metal roofs.” According to these reports, each prisoner was given a foam sleeping mat, two buckets (one for use as the toilet), a one-quart canteen, two orange boiler suits, a pair of flip-flops, two bath towels (one for washing and one for use as a prayer mat), a washcloth, toothpaste, soap, and shampoo.
b) Camp Delta – April 2002 (to current?)
Camp Delta, as it is known, is actually made up of 8 different detention camps including Camps 1, 2, 3, 4, 5, 6, 7 and Camp Echo. These camps were numbered in the order they were built. Camp Delta contains new, more permanent facilities. Construction on Camp Delta began in February 2002. The first facility was designed to hold 612 prisoners. At the end of April 2002, all prisoners including all those at Camp X-Ray were transferred to Camp Delta. After the transfer of its prisoners, Camp X-Ray was closed down.
c) Camp Iguana – 2002 to January 2004; 2005 to current
Camp Iguana is separate from Camp Delta being located about one kilometre from it. This camp is a lower-security detention facility that was initially dedicated to juvenile detainees aged between 13 to 15 years and brought to Guantanamo Bay. Detainees 16 years and older were housed with the other detainees in Camp Delta. It currently contains men that have been judged not to be “enemy combatants” by the U.S. government.
2. Specific Camps
The camps that make up the Guantanamo Bay prison are described below beginning with the camps with the least restrictive conditions of confinement to those with the most restrictive conditions. In the recent months following Barak Obama’s new U.S. presidency (January 2009), the media reports are that only 3 of these detention camps are presently being used. As of August 2009, the occupied camps were reportedly, Camp Iguana, Camp 4 and Camp 7. Despite many of the original camps now being unoccupied, details of each camp are given for a fuller understanding of what detainees had to endure when the camp was run by the Bush Administration from 2002 to 2009. It should be noted here that some prisoners have been held at Guantanamo Bay for over 9 years.
i) Camp Iguana is the least restrictive of the camps and originally housed child prisoners between 13 and 15 years old, closing down after the last 3 children held there were released in January 2004. This camp sits on a half acre of land. The prisoners live in wooden huts. They are allowed increased phone calls, there are books, a laundry, and a small garden with fruit and vegetables. The prisoners sleep in twin beds and have air-conditioning. They can glimpse the sea through the perimeter fence.
It was in 2005 that the U.S. government began to use Camp Iguana for two different types of prisoners. While some of those moved to this camp were suffering from mental problems, the majority of them were men no longer considered to be “enemy combatants” by the U.S. government. Although these prisoners were cleared to be released, they continued to be imprisoned because, reportedly, the U.S. government worried that they would be tortured and abused by their home countries if they were sent home. For some reason, other prisoners who had also been cleared of being “enemy combatants” remained in the more restrictive Camp Delta. As of August 2009, the current prisoners in Camp Iguana included the remaining Chinese Uighurs and the young prisoner, Mohammed Jawad.
(ii) Camp 4 (in Camp Delta) opened for prisoners on 28 February 2003. This camp was designed like a prisoner-of-war facility to allow certain prisoners the opportunity to interact with other prisoners. In the past, prisoners were admitted to this camp on the basis of good behaviour and cooperation with the interrogation process. Camp 4 has several 10-cot bunkhouses, communal showers and toilets, a soccer field, basketball and volleyball courts and a small common outdoor area to eat, pray and play games together. Each detainee has a bed with a mattress, a locker for his belongings, writing material and books. Detainees serve themselves food and are given additional food items such as figs, yellow cheese, honey, and pound cake. There are also electric fans and ice water available. Apparently, art classes, English classes, and television are provided for the prisoners. In May 2006, most of the privileges were taken away after rioting of prisoners in Camp 4 took place. This camp, which had space for some 175 prisoners, was emptied following the rioting. According to media reports in May 2009, all of the GB prison population now reside in Camp 4 with the exception of those prisoners in Camp Iguana and in Camp 7.
(iii) Camp Echo is composed of some 12 single-storey concrete buildings which originally housed those prisoners who were scheduled for Military Commission hearings. According to HRW, it was home to those prisoners judged to be unsuitable for the communal living of Camp 4. It offered some degree of freedom as prisoners were allowed to move freely between their cell, the shower area and a small interrogation room. This camp has bars on certain doors which allow in natural light.
(iv) Camp 1 was built in 2002. The cells here (and in Camp 3) have walls that are part metal mesh, allowing in fresh air and filtered light, with a steel roof. The cells are 8 feet long, 6 feet 8 inches wide and 8 feet high (2.44 metres long, 2.03 metres wide and 2.44 metres high), slightly larger than those in Camp X-Ray. They contain a flush toilet and a sink. Global Security reported that the lights were on in this camp 24 hours a day. Further, no air-conditioning was provided although exhaust fans gave some relief. Unlike Camp 3, prisoners were able to communicate with each other to some extent because the cells are adjacent to each other.
(v) Camp 3 has a similar construction to Camp 1. The recent HRW report said there was a continuous noise apparently coming from a generator which prevented communication between prisoners. While in this camp, prisoners were kept in their cells some 22 hours a day and generally given exercise alone.
(vi) Camp 5 is a two-storey, maximum-security, multi-winged complex made of concrete and steel that opened in May 2004. It was for those prisoners “deemed to be the highest threat to themselves, other detainees or guards”. Each cell is 10 feet by 20 feet (3.1 metres by 6.1 metres) (HRW: 12 feet by 8 feet and 8 feet high) and contains a small toilet, a sink and a sleep shelf. The door of each cell has two small openings, one for meals to be slid through to the prisoner. Camp 5 is centrally air-conditioned with its lights kept on 24 hours a day. Prisoners were provided eye masks if needed for sleeping. The HRW report says that recreation time for these prisoners was up to two hours a day although it is reported by prisoners that the opportunities for exercise were often only offered at night. The Global Security site states that prisoners received only about one hour a day access to one of the outside exercise areas. The prisoners were generally alone in a recreation area about the size of their cells or may be with another prisoner in a larger area of 20 square feet (6.1 square metres).
(vii) Camp 6, like Camp 5, is a permanent structure of concrete and steel. The HRW report states it was completed in November 2006. It was intended to be used like Camp 4 as a medium-security facility with shared eating and recreation areas built on a rewards system for good behaviour. Due to the riots in Camp 4 in June 2006, the prisoners in Camp 6 were incarcerated by themselves for at least 22 hours a day in their windowless cells measuring 6 feet 8 inches by 12 feet (2.03 metres by 3.66 metres). The cells are concrete and steel with solid steel doors. As reported by HRW, the only possible communication with others was “at recreation time or by yelling through the gaps in their cell doors”.
(viii) Camp 7 is apparently for “high-value” prisoners who were previously held by the U.S. Central Intelligence Agency, generally at secret detention centres. There is little information on this camp. HRW believes that conditions at this camp are worse than at Camps 5 & 6. About 15 prisoners are thought to be held in this camp.
d) Closed Facilities – August 2009
Camp X-Ray closed in 2002. Camp 2, similar in construction to Camps 1 and 3, is not mentioned in the HRW report. As stated above, it now appears that the only camps being inhabited by the approximately 229 remaining prisoners are Camp Iguana, Camp 4 and Camp 7. .
Reportedly, the prisoners are provided with three meals a day that are culturally and/or religiously appropriate. According to one report, these meals provide 4,000 to 5,000 calories a day. Food is also used as an incentive for better behaviour as demonstrated by the different camps’ policies.
C. Prisoners’ Clothing and Other Items
In the more restrictive camps such as Camps 3 and 1, it is reported that the prisoners are denied special items such as toilet paper and paper cups. When needed, the prisoners must ask the guards for an amount of toilet paper which is necessary to their needs. Media reports indicate that detainees are given the following: two orange trousers (one long and one short), an orange shirt, a pair of flip-flops, two towels, one washcloth, a sheet, one blanket, a one-inch-thick (2½ cm) foam sleeping mattress, a copy of the Koran, a prayer cap, a ½ inch (1.3 cm) prayer mat, soap, shampoo, toothbrush, toothpaste and one-quart canteen. There may be some differences between camps but this seems to be the basic provision given to the prisoners.
D. Prison Routine
Lights in the prison are kept on 24 hours a day although there are reports that prisoners may ask for blindfolds. The camps are surrounded by barbed wire and green sheets to restrict any views, including that of the water. There is a recorded call to prayer broadcast five times a day for Muslims. Arrows pointing to Mecca are found around the camps including in each cell. The majority of prisoners are entitled to up to two hours of exercise a day. The other 22 hours are spent alone in a small cell (the smallest being equivalent in size to a king-sized mattress). The only prisoners who may be exempted from such isolation seem to be those prisoners held in Camp 4 and Camp Echo. Although no prisoner is held, technically, in solitary confinement, the barriers to communicating and mixing with other prisoners effectively result in the majority of prisoners being isolated and alone. The position of the U.S. government is that the prisoners are not isolated because they can yell at each other through the gaps beneath the cell doors. The HRW report says that even when an effort is made to by a prisoner to talk to other prisoners, the outside noise and obstruction may drown out any conversation. Overall, there is little or no natural light or fresh air for these prisoners.
One prisoner’s account of his day in GB prison is given in the recent HRW report. The account from Huzaifa Parhat, a member of the minority Muslim tribe of Uighurs in western China, was provided by his lawyer: “Wake at 4:30 or 5:00 a.m.. Pray. Go back to sleep. Walk in circles—north, south, east, west around his 6-by-12 foot cell for an hour. Go back to sleep for another two or more hours. Wake and read the Koran or look at a magazine (written in a language he does not understand). Pray. Walk in circles once more. Eat lunch. Pray. Walk in circles. Pray. Walk in circles or look at a magazine (again, in a foreign language). Go back to sleep at 10:00 p.m.
The next day is the same except that the detainee may leave his cell for two hours of recreation in a slightly larger pen or for a shower.”
Since the opening of the prison at Guantanamo Bay on 11 January 2002, the U.S. government has detained more than 759 men there. To-date, only 3 prisoners have been convicted of committing war crimes against the United States. On 17 March 2011 Jamil Dakwar of the American Civil Liberties Union–reported that 56 of the remaining prisoners (from a total number of over 759 prisoners) are being charged with war crimes by the U.S. government. This means that the vast majority of prisoners held at GB have never charged with any crime by the U.S. government. Most of the recurrent 172 prisoners have been imprisoned since the first half of 2002. Of these prisoners, 89 of them have been cleared for release by the U.S. government but they remain imprisoned. at Guantanamo Bay.
According to Global Security, to qualify for transfer and detention at Guantanamo Bay prisoners taken in Afghanistan had to meet one of the following criteria:
Be a foreign national, or
Received training from Al-Qaeda, or
Be in command of 300 or more personnel.
A. The Capture of Prisoners
a) Captured by U.S. Forces
From documents released by the U.S. government in 2006, the U.S. Pentagon attributes the American forces with capturing only about 5% of the total detainees sent to Guantanamo Bay prison. It reports that another 2% were captured by Coalition forces. This means that approximately 93% of the prisoners held in Guantanamo Bay were not captured by either the American or the Coalition forces.
b) Bounties Offered
The Pentagon documents show that in the cases where either the captors or the locations of the capture are identified, 68% of prisoners were handed over to the U.S. officials by the Pakistani authorities and the Northern Alliance in Afghanistan. The capture of these prisoners coincides with a widespread campaign in Afghanistan and Pakistan offering big financial bounties in exchange for anyone suspected of links to al-Qaeda and to the Taliban.
In an article published in the New Statesman in October 2006 the legal director of Reprieve, Clive Stafford Smith reported that many of his clients held at Guantanamo Bay insisted they were not captured on an Afghanistan battlefield but were seized in Pakistan and sold to the U.S. like slaves. These accounts coincide with statements made by the then-president of Pakistan, Pervez Musharraf in his memoirs, In the Line of Fire, published in September 2006. In his book Musharraf recounts, “Many members of the al-Qaeda fled Afghanistan and crossed the border into Pakistan. We have captured 689 and handed over 369 of these to the United States. We have earned bounties totalling millions of dollars.” It has been well-reported in the media that the U.S. government offered bounties starting from U.S.$5,000 for members of the Taliban and of al-Qaeda. The text of leaflets handed out in 2002 is quoted as, “Get wealth and power beyond your dreams. You can receive millions of dollars helping the anti-Taliban forces catch al-Qaeda and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life.”
c) Central Intelligence Agency’s (CIA) Control
Much has been reported about the U.S. government’s secret detention centers used by the CIA. After years of denying such secret centers existed, President George Bush publicly acknowledged them in September 2006. No numbers have been given by the U.S. government regarding how many of the prisoners in GB were originally taken by the CIA in these “extraordinary rendition” cases. As quoted in its report, the HRW was told by the U.S. government that some 15 high-value prisoners held in Camp 7 were previously in CIA custody.
B. Passage to Cuba
Different sources including those individuals released from Guantanamo Bay have recounted how the captives were flown to Cuba from different locations such as Morocco, Turkey, and Afghanistan. Many countries allowed these prisoner planes to fly over their territory. For the long-haul flights to Cuba, several prisoners told how they were given drugs in their food prior to the flight taking them to Guantanamo Bay. Reports indicate that the captive men were seated during the flight but were secured by chains around their waists that connected to cuffs around their wrists, tied in the back and to their ankles. The men had ear-muffs over their ears, painted goggles over their eyes, a black bag or mask placed over their heads and mittens on their hands.
C. Names of Prisoners
Since the arrival of the first prisoners in 2002 and until early 2006, the U.S. government refused to release any names of the hundreds of prisoners being held at Guantanamo Bay for “security reasons”. The secrecy surrounding those imprisoned at Guantanamo Bay continued until March 2006 when the District Court of Manhattan ruled against the U.S. government in a Freedom of Information case. The court ordered the U.S. government to release all of the prisoners’ names. The U.S. Department of Defense released some 5,000 pages of documents on 4 March 2006 which included the names of some 550 GB prisoners. In May 2006, it released an expanded list of all 759 prisoners ever held at GB prison.
D. Number of Prisoners
The first group of 20 prisoners arrived at Camp X-Ray on 11 January 2002. Prisoners continued to arrive until a peak of some 680 prisoners was reached around May 2003. Various public reports state that only about 20 new prisoners have arrived at the prison since 2004. In May 2008, the figures obtained by HRW from the U.S. Department of Defense indicated that there were approximately 270 prisoners in the GB prison. As of 17 January 2009, about 249 men remained. Reports show that between 1 May 2008 and 17 January 2009, the Bush Administration released 34 prisoners. The number of prisoners at GB has always been approximate under the Bush Administration as it refused to divulge any hard facts about those being imprisoned including the exact number held.
Some 13 prisoners have been released since President Obama took office the end of January 2009. Those countries which have recently accepted GB detainees include the United Kingdom and France, each accepting 1 prisoner (France accepted Lakhdar Boumediene who was the subject of the 2008 U.S. Supreme Court case, Boumediene v. Bush), Bermuda who accepted 4 Chinese Uighurs, and Chad, Iraq and Saudi Arabia allowing a total of five nationals to return home. The last was the body of a Yemeni prisoner who died from his hunger strike. As of August 2009, approximately 229 men remain imprisoned in GB prison. This number probably includes the some 14 “top security” prisoners in Camp 7.
E. Ages of Prisoners
According to the official list of names released in May 2006, the prisoners have ranged in age from their teens to over 70 years of age. At the end of January 2004, the U.S. government released 3 children believed to be between 13 and 15 years old. In accordance with international law, these three children were segregated from the adults being held in GB and they were given academic classes and recreational opportunities. Other children who were between the ages of 15 to 17 when they arrived at Guantanamo Bay were not accorded this same treatment. An interrogation video of Omar Khadr, released on 15 July 2008, showed him crying during an interrogation session in late 2003 when he was 16 years old. He was captured when he was 15 and has been held in GB prison for more than five years. Clive Stafford Smith, a lawyer representing many prisoners at GB, says the total number of children held at GB was 64.
Under international law, the accepted definition of ‘children’ is anyone under the age of 18 years. Among the U.S. government’s responsibilities under international treaty law is the obligation of the U.S. government to rehabilitate former child soldiers. This responsibility arises under The Optional Protocol to the Convention on the Rights of Children which the U.S. has ratified. Under this treaty, the U.S. agrees that 18 years of age is the minimum age for recruitment or participation in an armed conflict.
All of the prisoners arriving at Guantanamo Bay prison are male.
The released documents on 16 May 2006 by the U.S. Department of Defense showed that the boys and men detained at Guantanamo Bay came from more than 40 different countries. Of the total 759 prisoners, 220 came from Afghanistan, 134 from Saudi Arabia, 94 from Yemen, and 57 from Pakistan. There have also been 20 Algerians, 17 Chinese and 7 Russians. As of May 2011, 58 of the current 172 prisoners are from Yemen.
H. Outside Communication – [the facts for this changed with the move to Camp 4 and Camp Iguana in 2009; see details above.]
The majority of prisoners at GB have no outside communication. It is only those GB prisoners now charged with war crimes by the U.S. government who may speak to their lawyers from time to time. The only exception seems to be the visits by the International Committee for the Red Cross (ICRC) which have occurred since January 2002. During its visits, the ICRC representatives interview different prisoners but the results of these interviews are not made public. The ICRC sends its reports directly to the U.S. government. Starting in about November 2006, the prisoners were allowed to make phone calls home when a loved one died. A change of policy occurred in March 2008 when the U.S. government decided that each prisoner in GB could make one phone call home a year, with a further goal of two calls home in the future for each prisoner. The HRW report says that as of June 2008, only about 40 detainees had made phone calls under this new programme. Since December 2005, the ICRC has facilitated the exchange of written messages between the GB prisoners and their families. The U.S. authorities exercise stringent censorship of each message.
I. Education and Rehabilitation [the facts for this section will have changed in 2009 with the move to Camp 4 and Camp Iguana; see details above.]
The U.S. government has not provided any general programme of education or rehabilitation for the majority of GB prisoners since the prison opened in January 2002. However, a small number of prisoners, including 3 children released from Camp Guantanamo Bay in January 2004, were given the opportunity to learn and read under an incentive programme for certain camps such as Camp 4. Of the children at GB since 2002, 3 were provided classes and recreational opportunities. In its May 2008 report, HRW said they were told by military officials at GB there were plans in the future to provide language classes for all prisoners, and expand the recreation areas to allow more group recreation.
J. Charges and Convictions
Of the some 759 men who lived for years in the cells of Guantanamo, more than 500 of them have been released without formal criminal charges or being put on trial. From January 2002 until now (August 2009), only 3 prisoners being held at Guantanamo Bay have appeared in front of U.S. military tribunals. On 27 March 2007, David Hicks terminated his war crimes hearing after only one day of testimony by pleading guilty to charges of “material support for terrorism”. He was extradited back to Australia in May 2007 and served another 8 months in prison before being released by the Australian government on 29 December 2007.
It should be noted that the charge of “material support for terrorism” was a new charge invented by the Bush Administration. It is not a crime (nor accepted as a crime) under the international law of armed conflict, which covers international and non-international conflicts.
The second prisoner to be tried by a military tribunal for war crimes was Salim Hamdan. On 6 August 2008, the military tribunal announced a conviction of Hamdan for charges of “material support for terrorism”. He was acquitted of the charge of “conspiracy to commit terrorism”. He was sentenced to five-and one-half years in prison. Having already spent five years incarcerated at Guantanamo Bay, Hamdan only had six more months to serve. After judgement was given, the Bush Administration stated that even after Hamdan served this time he would remain at Guantanamo Bay indefinitely due to being an “enemy combatant”. Hamdan was released to the government of Yemen on 25 November 2008.
After a week-long trial, a third prisoner — Ali Hamza al Bahlul — was convicted by a U.S. military tribunal and sentenced on 3 November 2008 to life imprisonment. Al-Bahlul was convicted of the U.S.-defined war crimes of conspiracy, solicitation to commit murder, providing material support for terrorism and other charges. Al-Bahlul was a close aide to Osama bin Laden and was his media director. According to his military lawyer, Lt. Col. David Frakt, several members of the jury were ones that had already sat on David Hicks jury. At al-Bahlu’s trial, no defence was given. According to Frakt, Al-Bahlul was not allowed to act as his own lawyer despite having a statutory right of self-representation. Initially he was granted the right to represent himself by the military judge at the arraignment. This judge was soon after involuntarily retired from the Army and replaced by a judge who revoked this right. Bahlul never authorised his appointed lawyer to represent him so no defense was offered nor any question made to any witnesses that appeared.
In March 2008, U.S. military officials stated that they expect to file war crimes charges against about 80 prisoners at GB. At the time of this writing in February 2009, the U.S. government has charged some 26 prisoners (including Hicks, Hamdan and al Bahlul) at Guantanamo Bay with different war crimes including murder, conspiracy, and terrorism. Included in this group are prisoners detained in Camp 7.
It is from Camp 7 that Tanzanian Ahmed Ghailani was recently released to be tried in a New York civilian court. This was following the dropping of all war crimes charges. Ghailani was interred in Guantanamo after several years in CIA custody suspected of plotting the bombings of the U.S. embassies in Kenya and Tanzania in 1998. Ghailani has been given a court date of 13 September 2010 in the U.S. District Court for the Southern District of New York, located in Manhattan.
On 22 January 2009, President Barack Obama signed an Executive Order halting all military tribunals until a review of all aspects concerning the detainees at GB was complete. The review report was due within 180 days from the date of the Executive Order. By 15 May 2009, the Obama administration said the military tribunals would be frozen for another four months. Apparently there are some 13 prisoners, including 5 charged in conjunction with the September 11th attacks, already in the tribunal system. The government has asked for continuances to be scheduled around 17 September 2009.
In a statement issued on 15 May 2009, President Obama said that the government would continue to use military commissions as an option for prosecuting certain GB prisoners. Another option will be to try prisoners in U.S. federal courts. The Associated Press reported on 3 August 2009 that dozens of GB prisoner cases have been referred to federal prosecutors in Washington, D.C. Alexandria, Virginia, and New York City. This would be to move terrorist suspects from the war tribunals to the domestic criminal courts.
.It has been reported that the new military commissions will differ from the ones used by the Bush Administration by granting expanded legal rights to the prisoners being tried. The Bush military commissions allowed evidence in the proceedings which was obtained through abusive or coercive treatment or from third persons (including intelligence agencies) that is considered to be hearsay. Under the Military Commissions Act of October 2006, the defendant (prisoner) has to defend himself against a presumption of guilt rather than the usual presumption of innocence where the prosecutor has to prove its case.
The Obama administration recommended to the Senate Armed Services Committee (7 July 2009) that only those statements made voluntarily by prisoners be allowed in the military commissions. This would bar any statement obtained by cruel, inhuman or degrading treatment. It is expected that the prisoners’ legal rights will not be extended to that given to prisoners in U.S. courts. U.S. Congress is currently reviewing the military tribunal system including the Military Commissions Act passed by Congress in 2006.
K. Detainees Cleared for Release Who Remain Imprisoned
According to the HRW report, the Department of Defense reported in the Spring of 2008 that some 295 prisoners had been released from Guantanamo Bay, with another 85 prisoners cleared for release but still being held at GB. By mid-February 2009, the number of prisoners remaining at GB who were cleared for release had decreased to approximately 60. As of May 2011, 89 prisoners, of a total 172 remaining at GB, have been cleared for release. Some of these prisoners were cleared for release in 2003.
The Bush Administration cited the following reasons for prisoners remaining at GB despite having not being charged or cleared of all charges: 1) the prisoner’s home country would not accept him back, 2) there was a strong possibility that the prisoner would be tortured if he was sent back to his home country, or 3) the prisoner’s home country would not or could not monitor or control the former prisoner once he returned home. There is evidence showing that the Bush Administration made extensive efforts to find places outside the United States for these men to be relocated. At the same time, lawmakers in the United States have not been open to relocating any of these detainees in the United States. President Obama has not made the progress hoped and expected with regard to repatriating prisoners and closing GB prison. In addition to the obstacles faced by the Bush Administration, the Obama Administration has had its efforts ring-fenced by the U.S. Congress’s refusal to allocate any funds to the executive branch for the purpose of moving prisoners from GB.
See the separate article Chinese Uighurs which covers the on-going imprisonment of some 13 Chinese Uighurs in Guantanamo Bay despite all of them being cleared of being “enemy combatants”.
L. Attempted Suicides and Suicides
Although suicide is considered to be a grave sin for Muslims, there have been many suicide attempts by the prisoners, beginning shortly after the GB prison opened in 2002. By the end of September 2004, the official number of suicide attempts was 32 even though it was later reported that a mass suicide attempt by at least 29 prisoners had occurred in August 2003. This mass suicide attempt was not initially reported by the U.S. government but it was about this time that U.S. officials began to differentiate between being suicidal and having a condition they called, “manipulative self-injurious behaviour”. The official number of suicide attempts started to slow down when the two conditions were officially labelled as separate conditions. The second condition labelled, “manipulative self-injurious behaviour”, is not a recognised psychiatric condition but one solely defined and used by the U.S. government. The U.S. officials say that it applies to situations where the individual attempting suicide does not genuinely want to die but instead makes the attempt to gain attention and sympathy. Other sources have provided higher numbers of attempted suicides. On 25 January 2005, The New York Times reported there had been 350 incidents of self-harm in Guantanamo Bay in 2003. Lawyers with clients being held at GB also believe the number of attempted suicides should be much higher than the official numbers given.
There have been five successful suicide attempts at GB; all of which occurred over the past three years. On 10 June 2006, three prisoners hanged themselves in their cells. Two of the dead were Saudis and the third was a Yemeni. About a year later, a Saudi man was found dead in his cell. The U.S. officials identified the cause of death as an apparent suicide. The last death by suicide occurred on 1 June 2009 when a Yemeni man, held since February 2002, died following a long-term hunger strike. According to lawyer, David Remes, he was one of six inmates held in the prison’s psychiatric ward. All 6 have been force-fed.
M. Psychological Illness including Depression
In a January 2004 article in Vanity Fair, the chief surgeon at GB said that the most common ailment at GB was depression. At that time, more than a fifth of the prisoners were taking Prozac or other antidepressants. The HRW report, “Locked up Alone: Detention Conditions and Mental Health at Guantanamo”, published in June 2008, shows a deep concern for the mental health of the GB prisoners; many who appear to be developing severe psychological symptoms. With many of these prisoners being released in the future, HRW says that it is short-sighted for the U.S. government not to be more humane in their treatment.
IV. THE BUSH ADMINISTRATION ON GUANTANAMO BAY
On 9 January 2004, a senior U.S. State Department official announced that the administration was negotiating the release of many of the GB prisoners to their home governments over the next months. The official, Pierre-Richard Prosper, the ambassador for war crimes, stated that the prisoners had been put in three categories:
1) those prisoners evaluated to be most dangerous would go in front of military tribunals,
2) a group of prisoners that the U.S. government was seeking to return to their home governments, and
3) the prisoners in the lowest threat category that could be released.
The current Secretary of Defense, Robert Gates, has been urging the government to close the prison at Guantanamo Bay since he took office in 2006. Following the suicides of three prisoners in June 2006, President Bush said he “would like to close Guantanamo”.
Two years later, in its decision published 12 June 2008 the U.S. Supreme Court decided against the U.S. government in Boumediene v. Bush, asserting that under the U.S. Constitution the prisoners at GB had the right to challenge the legality of their detention (i.e., the right of habeas corpus). In an interview on Fox News 3 July 2008, President Bush said, “We’re analyzing the decision and how to move forward, and there’s no decision that is imminent on Guantanamo. But we have an obligation to live under the law, so we are fully analyzing the impact of the law… We’ll get it done as quickly as possible.”
In an article appearing on 4 July 2008, The Washington Post reported that President Bush’s cabinet were considering how to disband the prison at Guantanamo Bay. The proposed plans included dividing the prisoners into three groups:
1) a group of about 80 prisoners who will remain at Guantanamo Bay to be tried before military tribunals,
2) a second group consisting of about 65 prisoners will be turned over to their home governments, and
3) a remaining group of about 125 prisoners with which the government does not know what to do.
It is reported that for this last group of some 125 prisoners, the government does not have enough evidence to convict them of anything, but it considers them too dangerous to be released. One idea discussed was to send this group to a high-maximum civilian or military prison in the United States despite not being convicted of any crime.
V. PRESIDENT BARACK OBAMA’S ADMINISTRATION
On 22 January 2009, two days after being sworn in as the new U.S. president, Barack Obama signed several Executive Orders covering the detainees at Guantanamo Bay, interrogation techniques, and CIA secret detention sites. Summaries of these executive orders, as provided by the White House, are provided below.
1. Executive Order regarding Guantanamo Bay detainees:
This Order requires closure of the Guantanamo detention center no later than one year from the date of the Order. Closure of the facility is the ultimate goal but not the first step. The Order establishes a review process with the goal of disposing of the detainees before closing the facility. The Order sets up an immediate review to determine if it is possible to transfer detainees to third countries, consistent with national security. If detainees cannot be transferred, there will be a second review to determine if a prosecution is possible and in what forum. If there are detainees who cannot be transferred or prosecuted, the review will examine the lawful options for dealing with them. The Order directs the Secretary of State to seek international cooperation aimed at achieving the transfers of detainees; directs the Secretary of Defense to halt all military tribunals until the review can be completed; and requires that the conditions of confinement at Guantanamo comply with Common Article 3 of the Geneva Conventions and all other applicable laws.
2. Executive Order regarding Detainee Policy:
This Order creates a Special Task Force to consider the policy options for apprehension, detention, trial, transfer, or release of detainees. The Special Task Force must submit its report to President Obama within 180 days of the date of the order.
3. Executive Order regarding Interrogation:
This Order revokes an earlier Executive Order (No. 13440) issued by President G.W. Bush replacing it with the requirement that all interrogations of detainees in armed conflict, by any government agency, follow the U.S. Army Field Manual interrogation guidelines. It further prohibits reliance on any Department of Justice or other legal advice concerning interrogation that was issued between September 11, 2001 and January 20, 2009.
The Order requires all departments and agencies to provide the International Committee of the Red Cross (ICRC) access to detainees in a manner consistent with the Department of Defense regulations and practice.
It also orders the CIA to close all existing detention facilities and prohibits it from operating detention facilities in the future.
Finally, this Order creates a Special Task Force to review the U.S. Army Field Manual interrogation guidelines in reference to the CIA’s methods. This Special Task Force will also look at rendition and other transfer policies to ensure the U.S. policies and practices comply with all obligations and are sufficient to ensure that individuals do not face torture and cruel treatment if transferred.
*Editor’s Note: This article was written in 2008 in an attempt to provide details about the prison at Guantanamo Bay and the prisoners being detained there by order of U.S. President George W. Bush. The prison was run by those in the Bush administration from when it first received prisoners in January 2002 to the end of Bush’s term of presidency on 20 January 2009. Barack Obama became the new U.S. president on 20 January 2009 for a four-year term. Despite many changes at Guantanamo since 2008, including the number of prisoners remaining and where they are being held, I have kept many of the original details to give the reader a clear picture, both past and present of the prison.