The Bush Administration established the Guantanamo Bay detention camp (hereafter GITMO) at Guantanamo Bay Naval Base, Cuba in 2002 as a detainment facility for prisoners from the wars in Afghanistan and Iraq (Hotz, 2012). However, extensive use of GITMO started after 9/11 attacks, when, on September 14, 2001, President Bush declared a national emergency against international terrorism and the United States (US) Congress passed a resolution (S J Res 23 in Senate) to use force against 9/11 attackers and to deter and prevent acts of international terrorism (ThePoliticalGuide, 2013).
Currently, hundreds of detainees are being held in GITMO as “enemy combatants,” who are considered ineligible for the general legal process applicable to US prisoners and are unprotected by the prisoner of war status of the Geneva Convention by virtue of belonging to “foreign terrorist group.”
President Bush’s Military Commissions Act in 2006 authorizes the use of military tribunals instead of federal courts for the detainees, which justifies the use of physical coercion or torture during interrogations (Fetini, 2008). As a result, the prisoners are subjected to psychological, physical, medical, religious, and cultural abuse and torture along with sexual provocation, rape, and harassment (Centre for Constitutional Rights, 2006). There have also been complains of forcible cell extractions, severe dehydration, death from cold and heat, and a systematic torture resulting in frequent collapse (Williams, 2013). It has been revealed that false evidences and testimonies are forced out of prisoners under torture via assault during interrogation and mistreatment. Presently, 84 prisoners in GITMO are on a hunger strike against religious desecration by the authorities therein, with 16 receiving “enteral feedings” or “force-feeding” (Sengupta, 2013). These inhuman treatment and legal contortions have sparked international protest from the human rights organizations, United Nations, and the Cuban government, labeling GITMO as a “concentration camp” (Fetini, 2008).
According to the law, each case should be reviewed first by tribunals and then by a higher authority, following which, the appraisal review board (ARB) panel decides whether an individual should be released, detained, or transferred under conditions to their country. The ARB process is not followed by the Geneva Conventions or by any international or domestic law. It was allegedly created to ensure that detainees are not unnecessarily detained. From Government records, of 10,000 combatants in Coalition custody, 490 remained at Guantanamo and more than 267 have been released/transferred (Facts about Guantanamo Bay, 2013).
US personnel are supposed to comply with all US laws and treaty obligations in detainee treatment, including prohibition on torture and cruel, inhuman, or degrading treatment. It is very important to differentiate combatants who have renounced terrorism and those who are fanatical in their commitment to cause global instability and terror, so that justice is met.
Unfortunately, the rights of Guantánamo prisoners are being violated by holding them indefinitely without charge or a fair process to determine whether their imprisonment is lawful (Centre for Constitutional Rights, 2006). The Obama Administration has designated 46 prisoners for indefinite detention without charge or trial (Guantanamo by Numbers, 2013). Moreover, the myriad accounts of torture and degrading treatment to the prisoners during interrogation and in their daily lives at GITMO is largely being questioned, with no proper answers yet given to their justification, necessity, and efficiency.
After several lower courts prohibited constitutional right to the GITMO detainees, in June 2008, the US Supreme Court held that those rights are applicable to the detainees as well and that they can challenge their confinement in the federal courts. In this regard, Rasul v. Bush (2004), Hamdi v. Rumsfeld (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008) are landmark cases that established the role of judiciary in wartime (Barnes, 2011). These cases indicate that a president’s authority on detainees is neither unlimited nor outside the purview of judicial review (Gill & van Sliedreg, 2005).
Under Hague Regulations of 1907 and Geneva Conventions of 1949, until the tribunal is convened, an individual is granted protection and guaranteed procedural rights like (1) protection from violence, insults, intimidation, public curiosity, mutilation, cruel treatment, and coercive interrogation tactics; (2) taking of hostages; (3) outrage of personal dignity; (4) due process if subject to disciplinary or punitive sanctions; (5) communication with protective agencies; (6) medical attention; and (7) a proper trial before executions (Centre for Constitutional Rights, 2006; ThePoliticalGuide, 2013).
According to Article 5 of the Third Geneva Convention, prisoners have the right to undergo a status determination procedure, and, according to Article 75 of the First Additional Protocol, they should be treated humanely in lieu of their fundamental rights (Gill & van Sliedreg, 2005). However, detainees are not treated as per these conventions. Severe criticisms from across the world have not resulted in any significant improvements in this respect.
It has been long since President Bush signed the Detainee Treatment Act (DTA) on December 30, 2005 (Centre for Constitutional Rights, 2006) and President Obama pledged closing of the detention facility in GITMO in early 2009. Instead of delivering what was promised, the Obama Administration is considering a $200 million renovation project for construction of a new “high-value” prison building (Sengupta, 2013).
Presently, what is more crucial rather than a retrospective analysis is to perform damage control and to ensure that just rules are being implemented, because nobody is above rule, be it the offenders, the authority, the government, or the victims.
References
Barnes, R. (2011, April 10). Supreme Court declines to clarify rights of Guantanamo Bay detainees. The Washington Post. Retrieved on April 23, 2013 from http://articles.washingtonpost.com/2011-04-10/politics/35230899_1_boumediene-detainees-supreme-court
Centre for Constitutional Rights. (2006). Report on torture and cruel, inhuman, and degrading treatment of prisoners at Guantánamo Bay, Cuba. Retrieved on April 23, 2013 from http://ccrjustice.org/files/Report_ReportOnTorture.pdf
Embassy of the United States MALTA. Facts about Guantanamo Bay [Press Release]. Retrieved on April 23, 2013 from http://malta.usembassy.gov/guantanamo.html
Fetini, A. (2008, Nov 12). A Brief History of Gitmo. TIME U.S. Retrieved on April 23, 2013 from http://www.time.com/time/nation/article/0,8599,1858364,00.html#ixzz2RIw3aoif
Gill, T., & van Sliedreg, E. (2005). Guantánamo Bay: A Reflection On The Legal Status And Rights Of ‘Unlawful Enemy Combatants’. Ultrecht Law Review, 1(1). Retrieved on April 23, 2013 from http://www.utrechtlawreview.org/index.php/ulr/article/view/2
Guantanamo by Numbers (2013, April 9). Human Rights First. Retrieved on April 23, 2013 from http://www.humanrightsfirst.org/wp-content/uploads/pdf/USLS-Fact-Sheet-Gitmo-Numbers.pdf
Hotz, J. (2012, Jan 19). Innocent lives at stake: Guantanamo Bay controversy. Concordiensis. Retrieved on April 23, 2013 from http://www.concordy.com/article/opinions/january-19-2012/innocent-lives-at-stake%E2%80%88guantanamo-bay-controversy/3442/
Sengupta, K. (2013, April 21). Over half of Guantanamo Bay prisoners on hunger strike as number increases to 84. The Independent. Retrieved on April 23, 2013 from http://www.independent.co.uk/news/world/americas/over-half-of-guantanamo-bay-prisoners-on-hunger-strike-as-number-increases-to-84-8581965.html
ThePoliticalGuide. Guantanamo bay. Retrieved on April 23, 2013 from http://www.thepoliticalguide.com/Issues/Guantanamo_Bay/
Williams, M. (2013, April 14). British prisoner: ‘People are dying’ in Guantanamo Bay from systemic torture. The Raw Story. Retrieved on April 23, 2013 from http://www.rawstory.com/rs/2013/04/14/british-prisoner-describes-hunger-strikes-people-are-dying-in-guantanamo-bay/
