Analysis Of Guantanamo Bay

Guantanamo Bay’s detention center is a United States’ operated detainment facility located on the southern tip of Cuba. It became primarily newsworthy post 9/11 when many Americans felt threatened by the uncertainty of terrorism. Guantanamo Bay has been sharply criticized by human right’s activists such as Amnesty International and the debate includes some very major political figures. Although it was brought to the United States Supreme Court recently, most major political figures have historically seemed to stray away from the subject due to its controversial nature. The major topic which I will discuss in this paper is the legal sovereignty of Guantanamo Bay and the fine line the United States government walks between national security and civil liberties. From the acquisition of Guantanamo to the current legal standing to the various positions from major political figures worldwide, basically every aspect of this issue remains debated and extremely controversial. I will attempt in my paper to present an unbiased, factual account of Guantanamo Bay and its’ current world standing.

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The United States first “acquired” Guantanamo Bay in 1898 when it intervened against Spain to assist Cuba in their independence. Ironically, the United States stepped in to assist Cuba with their fight for independence from Spain but ended up playing a role very similar to Spain’s role. Since the United States historically was not major world play it needed Cuba and the Spanish-American War to secure its own impact on Latin America and it subsequently became a major impact on every Cuban decision for the next sixty years. In 1901, the U.S government signed into law the Platt Amendment which was an amendment added to the 1901 Army Appropriations Act. This amendment outlined the conditions of future Cuban- U.S relations and gave the United States the legal rights to, among other things, Guantanamo Bay. [1] The agreement between the United States and Cuba states:

“To enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the Cuban Government will sell or lease to the United States the lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States.” [2]

Although this was signed by the President of Cuba and the President of the United States in 1903, the legality has since been called into question. The United States’ diplomatic pressure, backed by military occupation at the time was a huge impact on the agreement in question. Although the United States agreed to pay a nominal rent of 3,386.25 per year to Cuba, the agreement was largely in favor of the U.S government. In 1960, when Fidel Castro came into power he immediately refused to accept any further payment and publically bashed the United States’ occupation of Guantanamo Bay. According to Article 52 of the 1969 Vienna Law of Treaties, “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” [3] At the time Cuba agreed to lease Guantanamo Bay to the United States, the U.S had just assisted them in gaining their “independence” from Spain and was still a huge influence in their government. Cuba was not in the position to tell them no, regardless of Cuba’s preference on the matter. However, the United States has argued that according to Article 4,

“Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.” [4]

the treated is still in effect and should be honored. Since Cuba still does not have the force or military capability to make the United States leave, the United States is still occupying Guantanamo. The topic received further attention post 9/11 with President Bush’s “War on Terrorism”. At this point, no one really knew where Guantanamo Bay fell in terms of ultimate sovereignty and who’s’ rules applied to the base. Also, since the military was in charge of the use of the land, there was very little transparency about what was actually going on there. Finally in June of 2004, the United States Supreme Court ruled in Rasul v. Bush, that U.S Courts do have the jurisdiction to handle cases involving foreign nationals wrongfully held in Guantanamo Bay saying that “to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing”. After many decades, detainees, or enemy combatants as they were formerly known, had the right and access to challenge the legality of their detention. [5]

Guantanamo Bay’s detention facility is a heavy topic that spans across all levels of government. Former President Bush and the current president, Barack Obama have both been very vocal about their opinions on the subject. The Bush administration and the Justice Department carefully prepared the legal groundwork for Guantanamo Bay post 9/11. They claimed that the Republic of Cuba has “ultimate sovereignty” over Guantanamo. As a result of this, they had no obligation to uphold the United States constitution and the detainees had no legal rights in U.S courts. However, they also argued that Cuban law has no effect in Guantanamo, so the area in effect was basically lawless.

President Obama on the other hand, took a completely different position on Guantanamo Bay. Within his first weeks as President he vowed to shut down Guantanamo Bay within the year.

“In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantanamo and closure of the facility would further the national security and foreign policy interests of the United States and the interests of justice,” [6]

Although it has been over a year, the Obama administration maintains that it is still their intention to shut down the detention center. They also issued a “long awaited new rule book” for the Obama-era war court that put an end to pre-confinement detention counting toward post Guantanamo sentences(to avoid situations like Salim Hamdan which I will discuss later) [7] .

The legislative branch does not seem to play nearly as large as a role as the executive and judicial branch in this scenario. However, Attorney General Eric Holder Jr. blamed Congress for not coming to a consensus on where a replacement facility for Guantanamo should be and for not approving funding for the new detention center in a timely manner. “The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security.” [8] Although their role is not as significant, they definitely make a lot of voters question the Obama Administration and his promise to close Guantanamo Bay within one year of his presidency.

“In a major rebuke to President Barack Obama, the Senate voted overwhelmingly on Wednesday to block the transfer of Guantanamo detainees to the United States and denied the administration the millions it sought to close the prison. The 90-6 Senate vote-paired with similar House action last week-was a clear sign to Obama that he faces a tough fight getting the Democratic-controlled Congress to agree with his plans to shut down the detention center and move the 240 detainees.” [9]

The main problem they face is that forty-eight detainees left still need to be held “indefinitely” and they have nowhere to put them if they leave Cuba. “We have to have an option, and that will require congressional support for the funding request we have made,” Holder said. [10]

The judicial branch, as seen in Rasul v. Bush, has chosen to hear a few Guantanamo Bay cases although, historically most cases were heard by military courts. Although Rasul v. Bush was a huge landmark case, there were a few other decisions decided around this time period that gave rights to the prisoners in Guantanamo as well. Hamdi v. Rumsfeld, which was actually decided on the same day, June 28, 2004 (although argued a week after) as Rasul v. Bush, ruled on the legality of holding a United States’ citizen indefinitely as an “enemy combatant”. The Supreme Court ruled that although Hamdi’s detention was authorized, the Fifth Amendment’s due process gives all citizens the right to challenge their detention. This cased differed from many of the Guantanamo Bay cases because Hamdi was actually a U.S citizen instead of a foreign national. Bourmediene v. Bush was another landmark case for Guantanamo Bay’s detainees and was decided recently in 2008. The Supreme Court decided in Bourmediene v. Bush that ALL detainees at Guantanamo Bay should have a right to challenge their detention through U.S Federal Courts. [11]

Navi Pillay who is the United Nations High Commissioner for Human Rights was extremely happy about Obama’s decision to close Guantanamo Bay. “The fact that President [Barack] Obama has placed such a high priority on closing Guantanamo and set in motion a system to safeguard the fundamental rights of the detainees there is extremely encouraging,” she stated. The High Commission for Human Rights also wants the United States to change its’ approach on tactics used to detain individuals abroad. Pillay even went far enough to “raise the issue of compensation for those judged to be innocent and called for a thorough investigation into allegations of torture at the Guantanamo centre.” [12] Although the United Nations does not have any physical way to enforce their recommendations, they are an extremely influential organization and hold a lot of weight internationally. They are expected to be unbiased with their recommendations and are portrayed as an international law and human right’s peace keeper to facilitate achieving world peace.

The last major players in this controversial situation are human rights interest groups such as Amnesty International. Amnesty International has been a huge, non-governmental player in the debate and was notably quoted for calling Guantanamo Bay “a human rights scandal”. They actually have an entire section on their website dedicated to Guantanamo Bay and quotes from various officials and organizations describing the torture and speaking out about the legality of Guantanamo.

“The “war on terror” does not justify violations of international human rights law. The Counter Terror with Justice campaign works to stop torture; close Guantanamo; end illegal U.S. detentions; stop extraordinary rendition; restore fair trials and habeas corpus; and hold accountable all those who authorized and implemented these human rights abuses.” [13]

Even though Amnesty International is only a non-governmental organization, they have an incredible standing worldwide and they are consistently setting the standard for other human rights organizations. [14] They also have a huge following internationally and receive a lot of volunteer and monetary support. Although they have had a lot of success and received the Nobel Peace Prize for their “campaign against torture”, they have also been criticized by many political figures and even religious organizations such as the Catholic Church. They have also lately been mixed up with alleged ties to a former Guantanamo Bay detainee and his “pro-jihad” group which forced a senior Amnesty International official to resign her position because of her “disappointment in the organization”. [15]

Rumsfeld, while still the U.S Secretary of Defense, was quoted by saying the prisoners in Guantanamo Bay were the “most dangerous, best-trained, vicious killers on the face of the earth.” Although this is clearly biased because the Bush administration was very pro-keeping Guantanamo Bay open, Rumsfeld does make a valid point. While doing my research, I noticed a time line that the Washington Post published on Guantanamo Bay. Salim Hamdan, who was allegedly Osama bin Laden’s driver and very active in the planning of various terrorist activities, was released to Yemen from Guantanamo in November of 2008 and was to be tried for his crimes by the Yemen courts. He ended up getting only five and a half years confinement and a little over five years was credited because of his previous imprisonment in Guantanamo and various U.S custody locations. He was actually released a little over a month after his transfer to Yemen and was free to do whatever he wanted. I also read a lot on Yemen and their position on the War on Terrorism. When the United States offered to return prisoners to Yemen last year, Yemen officials demanded money for a rehabilitation center. “The Yemeni government uses terrorism and fighting terrorism as a tool to get political and financial benefit,” said Khaled Alansi. “They did not have anything to market themselves to the world, especially the United States, except fighting terrorism.” [16]

Prior to all my research on Guantanamo Bay, I thought the idea behind the detention center was completely ridiculous. It was basically a lawless black hole where the United States government could do whatever they wanted. In addition, very few reports were issued by the government because of confidentiality and the nature of their crimes so it was very hard to tell what was really going on there. From what I read, there had been “suicides” by multiple prisoners and even reports of guards defacing the Muslim holy book, the Quran. Although my opinion is still in favor of shutting down Guantanamo, I do understand the severity of the issue at hand a little better now. I think the biggest factor that changed my opinion was the example of Hamdan(which I discussed earlier) and Yemen’s position on the matter. I am afraid that once released, many prisoners will walk free with an even deeper hatred for the United States and a greater passion for punishing us.

“Torture and abuse cost American lives…I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq…How anyone can say that torture keeps Americans safe is beyond me — unless you don’t count American soldiers as Americans.” [17]

In one sense, Guantanamo Bay is a catch 22. If we keep the prisoners locked away in Guantanamo we won’t have to worry about prisoners being releases and beginning to plan terrorist attacks again. However, if we don’t release them we are alienating so many in the Middle East that we will eventually have many new threats.

Regardless of national security, laws are in place for a reason and what we have been doing in Guantanamo seems to be highly unethical and should be illegal. Since the United States does have complete control over the territory, I believe that U.S laws should definitely apply. The United States is a country that has always prided itself on human rights and our legal system and there should not be a loophole created when the government deems it necessary.

Although the process is slow, the courts have seemed to be regulating the United States military’s full control over Guantanamo. Like I discussed previously, the Obama administration has actually pledged to shut down Guantanamo Bay anyway so the problem is not nearly severe as it was under the Bush, more conservative, administration. So much of the previous information we have on Guantanamo’s sovereignty and who has complete control seems to be lost in translation. A sensible policy for future use would be to either put Guantanamo under our constitution’s regulation or possibly draft new legislation for the area.

Also, in regards to possession of Guantanamo, I believe the United States should set a time period by which they pledge to give Guantanamo Bay back to Cuba. The grounds in which the United States was given Guantanamo Bay was shaky as it was since Cuba were still under U.S rule and it does not seem right to allow a country to make a treaty with itself. Since the primary purpose of Guantanamo post cold-war has been to detain suspected terrorist and the Obama Administration decided to no longer use it for that purpose, it is not nearly as important anymore for the U.S military. In addition, it was a perfect location in the beginning of the 1900s since we wanted to expand into South America and exert our dominance but global positioning is no longer a primary goal. Then again, during the Cold War, Guantanamo was a prime strategic location if we were to go to war with Cuba but we are no longer at the brink of nuclear war and if we felt the need to intervene in South America (I hope not) we would not necessarily need Cuba.

Although I do not plan to get involved in this situation, I believe the best way to fix an issue such as this would be through the legal system. Since I have always been extremely interested in law, I read part of “Guantanamo and the Abuse of Presidential Power” by Joseph Margulies. Margulies was the lead council in Rasul v. Bush and talked about his experiences throughout most of the book.

“Every year, the Supreme Court agrees to review only a tiny fraction of the cases clamoring for its attention. For that reason, many lawyers believe, not without reason, that the most important document in a case is the one that asks the court to accept review, call the petition for writ of certiorari. The petition in Rasul, drafted in the summer of 2003, went through more than dozen drafts, and in the final product, my colleagues and I tried to capture not simply the legal reasons for review, but the moral consequences if the Court were to remain silent. My greatest fear was that the Bush Administration would simply forget about the prisoners, in the vain hope the world would too.” [18]

Margulies describes in detail how much time and thought went into this brief. Not only was it almost impossible to get the Supreme Court to recognize the issue and the case but also it was not like a typical writ of certiorari. It was drafted more than a dozen times and contained not only the legal grounds as to why it should be heard but the ethical and moral justifications as well. This is not a law suit that anyone can get through to the Supreme Court. I think the main way I could personally get involved, a side from getting my law degree and going into international civil rights law, is spreading awareness. I could try writing to my local senator or possibly even get published in a local newspaper or magazine. The President and Congress’s main goal is to get reelected so they’ll ultimately do what is important to the voters.