The Illegality of Guantanamo Bay

author : Marco Rosaire Rossi topic : book review | Guantanamo Bay

by Marco Rosaire Rossi

In his book Against All Enemies, Richard Clarke, the former counter terrorism chief, describes how George W. Bush sought to set a new standard for human rights after September 11. In the evening after the terrorist attacks on the world trade center, George Bush had a special meeting with Donald Rumsfeld and Clarke. The president said to the two: "I want you all to understand that we are at war . . . any barriers in your way, they're gone. Any money you need, you have it . . . I don't care what the international lawyers say, we are going to kick some ass." Apparently, what "going to kick some ass" has meant is ignoring the U.S. constitution, the U.S. Supreme Court, and international law -- or at least that is what it has meant for the prisoners in Guantanamo Bay, Cuba.

The United States opened the Guantanamo Bay Detention Center shortly after the invasion of Afghanistan. The stated purpose of the detention center was to hold and question terrorists. According to the State Department, information gathered from these prisoners was critical in fighting the war on terror. It is extremely unlikely that even the majority of prisoners at Guantanamo Bay know anything about terrorism. The method used to gather up the prisoners was neither fair nor accurate. While in Afghanistan, the United States offered rewards to anyone who would give information on terrorism or who was willing to turn in a terrorist. Afghanistan is an extremely poor country where starvation is normal. Some analysts suspected that the resulting instability of the U.S. invasion would result in as many as a million people starving. Those figures turned out not to be accurate, but the plight of the Afghan is very real. Desperate Afghans turned each other in to the U.S. military. The military, which doesn't have adequate oversight and legal structures, rounded-up hundreds of men and sent them to Guantanamo Bay. Some of them were as old as a hundred and some of them as young as eleven.

At first Guantanamo Bay, Cuba may seem like a strange place to send suspected terrorists and have a secret detention center, but the move was intentional for two reasons. Guantanamo Bay it is not in Western Asia. This separates the prisoners from their families and community connections, and takes them away from an area of the world that is suspicious of U.S. actions. The next is because it is not in the United States. The United States constitution clearly states in the 14th Amendment that "No State . . . shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The "any person" phrase is what is significant. What this means is that a person does not have to be a U.S. citizen to receive such rights as legal representation, to be presumed innocent, freedom from cruel and unusual punishment, or any number of the many rights granted to a person at birth. However, by keeping the prisoners on the outskirts of U.S. land, the Bush administration has made the case that the constitution does not apply, and the administration can do with the prisoners whatever it likes.

The Bush administration has also made the claim that the prisoners are "enemy combatants." This term is also intentional. The administration is trying to make a distinction between "prisoners of war" and "enemy combatants," because the provisions in the Geneva Convention were written to cover prisoners of war. According to the provisions: "Prisoners of war must at all times be humanely treated. Any unlawful act . . . causing death or seriously endangering the health . . . is prohibited, and will be regarded as a serious breach of the present Convention." The protection of international law is what the Bush Administration is trying to avoid. On February 7, 2002, President Bush signed a memorandum that proclaimed that the provisions on prisoners of war "does not apply to either al Qaeda or Taliban detainees." Instead, the prisoners at Guantanamo Bay are "enemy combatants" -- a term that is not mentioned at all in the provisions. The term was unknown to the world of international law until the Bush Administration introduced it. It has no precedent or international consensus on its meaning or use.

Some progress has been made on behalf of the prisoners at Guantanamo despite these obstacles, but it is minimal. In 2004, the U.S. Supreme Court ruled in Rasul v. Bush that the prisoners at Guantanamo Bay are entitled to due process and adequate legal council in petitioning against their detention in accordance with the constitution. The only problem is that the Supreme Court has no power to enforce its ruling. That power is reserved for the Justice Department, which is part of the executive branch -- and thus controlled by the Bush Administration. Instead of following the Supreme Court's guidelines, the Bush administration has pulled a "trail of tears" and has ignored much of the ruling. The prisoners are not given legal council, nor has the torture stopped. Instead, each prisoner is allowed to plead his case by himself before a military tribunal with no oversight.

Naturally, these conditions have lead to protest and resistance from the prisoners. The prisoners are currently engaging in their fourth hunger strike. Unlike the previous three, this hunger strike will not end until the Bush Administration comes into compliance with international law or the prisoners starve to death. They have literally put their lives on the line in the name of respect and human dignity.

Their actions have caused some necessary uproar. Human rights groups, journalists, and lawyers are pushing even harder for access to the prisoners inside the camp. The military has not folded, but they have acknowledged the heat. Also, new legislation has been introduced into Congress by Republican Senator John McCain that would ban "cruel, inhuman and degrading" treatment of all detainees held by the United States. The legislation would essentially be symbolic. The current legal framework already prohibits everything the legislation would propose -- what is missing is citizen enforcement. Regardless, it would send a strong message to the Bush Administration, and the mere proposing of it has provoked important questions about presidential power.

Guantanamo Bay represents everything that is wrong with American policy and the culture of American politics. This struggle is significant to for two reasons. The survival of the prisoners at the detention center and preserving their dignity is the most immediate. The other reason is the precedent that the Bush Administration is trying to set in place. If they have their way, we will have all moved further away from a world where institutions protect human rights, and closer to a world where lawless nation-states rule at will.