Is the US Guantanamo Bay detention center justified or should it be closed?
Background and context
The US Guantanamo Bay detention facility in Cuba is operated by the Joint Task Force Guantanamo of the American Armed Force with the primary purpose of acting as a detention facility for "terrorist suspects" captured in the US War on Terror, particularly in Afghanistan and Iraq.
It holds approximately 250 inmates defined under the Bush administration as "enemy combatants".
Following years of debate on the legitimacy of the detention facility and the legal rights of detainees, President Barack Obama announced on 21 January 2009 that he was suspending all ongoing military tribunals, and that the detention facility would be shut down within the year. This action has renewed debate on the pros and cons of the detention facility, and whether or not a similar detention facility and/or legal apparatus should replace the facility elsewhere.
On the one hand of the debate, supporters of the camp claim that it is a necessary evil that acts not only to deter terrorist activities, but also to disrupt the coordination of their various splinter groups. On the other hand, the camps effectiveness may not justify the numerous breaches of human rights and the violations of international law that have been claimed against it.
Questions over whether the detainees can bring forward a writ of Habeas Corpus to force a hearing on their state are also intrinsic to the debate. Additional questions include whether the detention of foreign nationals, on the basis that they are a threat to America, is sufficient justification for Guantanamo’s permanent presence. Similarly, it can be asked whether the human rights allegations are simply part of 21st Century politics or if Guantanamo truly does resemble the concentration camps the Americans condemned just 60 years before in Nuremburg.
Judicial process: Do Guantanamo courts provide adequate judicial process?
Enemy combatants receive sufficient judicial process under i-lawMorris Davis. "The Guantánamo I Know". New York Times. June 26, 2007 - "Some imply that if a defendant does not get a trial that looks like Martha Stewart’s and ends like O. J. Simpson’s, then military commissions are flawed. They are mistaken. The Constitution does not extend to alien unlawful enemy combatants. They are entitled to protections under Common Article 3 of the Geneva Conventions, which ensures they are afforded 'all the judicial guarantees which are recognized as indispensable by civilized peoples.' [...] Justice John Paul Stevens, in the Hamdan decision that rejected an earlier plan for military commissions, observed that Article 75 of the Additional Protocol to the Geneva Conventions defines the judicial guarantees recognized as indispensable. A comparison of Article 75 and the Military Commissions Act of 2006 shows military commissions provide the fundamental guarantees."
Enemy combatants can be held without trial until hostilities cease It is fair to hold someone without charge or trial, under the terms of a military order initiated in November 2001, as “enemy combatants.” This is similar to holding prisoners of war until hostilities cease, in which it is not legally necessary to provide the prisoners with recourse to judicial process. It is merely necessary to wait until hostilities cease. Under the same logic, "enemy combatants" can be held without judicial recourse until hostilities in the war on terror or the war against Al Qaeda cease.
Poor judicial process can be improved; no cause to close Guantanamo. There have been steady improvements in the judicial processes involved at Guantanamo Bay. For sure, the newness of the war on terror and the new legal concept of "enemy combatants" makes it unsurprising that difficulties in legal processes have arisen. But, these problems are being solved, and they should not give rise to calls for the closure of Guantanamo. Rather, Guantanamo should be reformed and improved.
Unlawful combatants don't have same rights as citizens or soldiers Dick Cheney said in an interview on Larry King in December of 2008: "Once you go out and capture a bunch of terrorists, as we did in Afghanistan and elsewhere, then you've got to have some place to put them. If you bring them here to the U.S. and put them in our local court system, then they are entitled to all kinds of rights that we extend only to American citizens. Remember, these are unlawful combatants."
Guantanamo violates habeas corpus, obstructs proof of innocence Prisoners have been detained at Guantanamo for long periods without a clear charges being filed and without trial. This is a violation of the international legal principle of habeas corpus. One of the primary problems is that, without clear charges and a presentation of evidence against a suspect, the suspect cannot contest the charges and prove their own innocence. And, as a matter of fact, numerous detainees have been found innocent, but only after excessively long periods with being charged or brought before a court.
Guantanamo is inconsistent with American principles of justice"The President's Prison". New York Times. March 25, 2007 - "the Bush administration says no prisoner should be allowed to take torture claims to court, including the innocents who were tortured and released. The administration's argument is that how prisoners are treated is a state secret and cannot be discussed openly. If that sounds nonsensical, it is. [...] The Bush administration has so badly subverted American norms of justice in handling these cases that they would not stand up to scrutiny in a real court of law. It is a clear case of justice denied."
Too many Guantanamo detainees are falsely accused and imprisonedThomas Wilner. "We Don't Need Guantanamo Bay". Wall Street. December 22, 2008 - "We now know, however, that many Guantanamo detainees never fought against anyone; they were simply turned over by Northern Alliance and Pakistani warlords for bounties of up to $25,000. For almost seven years they have been held without a fair hearing or opportunity to demonstrate those facts. The Supreme Court ruled last June in Boumediene v. Bush that these men have the constitutional right to prompt hearings to determine if there is adequate reason for detaining them. Since that decision, lower courts have reviewed the cases of 23 detainees and have found no credible basis for detaining 22 of them."
Past Cuba-US treaties forbid the current use of Guantanamo When the United States occupied Cuba in 1903 it established a treaty that gave the United States authority to operate Guantanamo, "exclusively as coaling or naval stations, and for no other purpose." In 1934, the treaty was modified, but specified that "the stipulations of [the 1903] agreement with regard to the naval station of Guantánamo shall continue in effect." The use of Guantanamo for other purposes, the Guantanamo Bay detention facility, seems to clearly violate these exclusive purposes.
Guantanamo tribunal have been authorized by US courts. The legal definition of "enemy combatants" has been affirmed by American judges in court rulings. This created a unique category of conditions for the treatment of detainees and constraints on their habeas corpus rights. If this category and rulings are determined to be false or legally thin in some ways, than, certainly, elements of Guantanamo Bay do not make sense, and the camp should be changed. Yet, until the notion of "enemy combatants" is shown to be faulty, there is a sound legal basis for Guantanamo Bay's existence.
Dangerous Guantanamo detainees should be held as POWs Many ask, if Guantanamo is closed, what should be done with the clearly dangerous and guilty detainees? One option supported by many legal scholars is to simply hold these detainees as prisoners of war until hostilities cease in the "War on Terror". This will ensure these individuals are not released and allowed to wage terrorism, while also affording them appropriate international legal protections.
Difficulty closing Guantanamo is fault of Bush for creating it There are challenges in closing Guantanamo, for instance in dealing with detainees for which their is scant evidence of wrong-doing, or for detainees that have been tortured, but this is the fault of the Bush administration in creating Guantanamo Bay and implementing poor due process practices in the first place, not of those seeking to dismantle Guantanamo now.
Classified information: Are Guantanamo courts necessary to preserve classified information?
US trials of detainees exposes intelligence, weakens security"EDITORIAL: Obama and Gitmo". Washington Times. November 12, 2008 - "Mr. Obama suggests that trying the terrorists in open court did not damage U.S. security. He neglects to mention what took place during the prosecution of the sheik. [...] During the trial, prosecutors turned over a list of 200 unindicted conspirators to the defense - as the civilian criminal justice system required them to do. Within 10 days, the list made its way to downtown Khartoum, and Osama bin Laden knew that the U.S. government was on his trail. By giving this information to the defense in that terrorism case, the U.S. courts gave al Qaeda valuable information about which of its agents had been uncovered."
War on terror: Does Guantanamo aid America's war on terror?
Guantanamo Bay and the threat of detention helps deter terrorists. This coupled with the lack of a trial adds to the fear of the place and thus denounces terrorism. What is a deterrent and why is it necessary? A deterrent is something which persuades someone not to act in a certain way. Similar to the accumulation of nuclear missiles actually deterring a war between large nations, a deterrent can be created around something deemed morally wrong (a prison which may/may not breech human rights) and yet help the greatest number of people and is, thus, justifiable. The whole basis of terrorism is formed upon an ideology and stems from indoctrination. If there is a seed of doubt then it is likely that the person in question will not commit so called "acts of terror". This is supported by President Bush's quote below.
Guantanamo Bay helps disrupt terrorist groups. Putting an important section in that group in prison obviously stops the coordination and the indoctrination of younger members. This makes it harder for terrorist groups to operate effectively. The presumption is that during that time the USA will have gathered adequate intelligence and information upon which to destroy the group and the war on terror is that little bit nearer to ending.
If released, many Guantanamo detainees will return to terrorism Many of the terrorists that have been released from Guantanamo have returned to terrorism. The Washington Post reported in 2005 that at least 10 of the 202 detainees released from Guantanamo were later captured or killed while fighting U.S. and coalition forces in Afghanistan and Pakistan. This is a relatively high number, given the fact that only a small percentage of those that returned to terrorism would later be caught or killed. Clearly, there is a reason why these terrorists are being held; to protect the world from their aggression.
The militant, Said Ali al-Shihri, is suspected of involvement in a deadly bombing of the United States Embassy in Yemen’s capital, Sana, in September. He was released to Saudi Arabia in 2007 and passed through a Saudi rehabilitation program for former jihadists before resurfacing with Al Qaeda in Yemen."
Guantanamo bay's existence fuels terrorist causes The existence of Guantanamo Bay is cited by terrorists as a tool of "the great Satan" and is seen by Muslims in general as a demonstration of US disregard for their dignity. It is, in turn, an effective tool used by terrorists and Jihadists to bring recruits on-board.
Closing Guantanamo renews US moral authority against terrorists President Obama said following his inauguration in January 2009, "the message we are sending around the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism, and we are going to do so vigilantly; we are going to do so effectively; and we are going to do so in a manner that is consistent with our values and our ideals. We think that it is precisely our ideals that give us the strength and the moral high ground to be able to effectively deal with the unthinking violence that we see emanating from terrorist organizations around the world. We intend to win this fight. We're going to win it on our terms."
"Deterrent effect" of Guantanamo on terrorists cannot be confirmed. This is mainly due to the fact that terrorists' feelings or fears in regards to the Guantanamo Bay prison cannot be statistically gathered. Similarly, the terrorists posing a threat to the safety of Western Nations are typically so ideologically fanatical and assured that their path is the righteous one, that there is nothing that would persuade them otherwise, including the risk of imprisonment at Guantanamo. A case study to show the lack of effectiveness of detaining prisoners can be seen in Northern Ireland. There the detainment of "unsavory characters" during the crisis coincided with an increase in the number of IRA members and attacks. The detainment without trial adopted by the government at the time seemed to fuel the fire of fanatics.
Guantanamo undermines the security of US troops against torture. Human Rights First issued a statement on behalf of the retired military officers in mid January 2009: "It is vital to the safety of our men and women in uniform that the United States never sanction the use of interrogation methods that we would find unacceptable if inflicted by an enemy against captured Americans."
Any released detainees would be a drop in the bucket for terrorism. There are tens of thousands of anti-American terrorists around the world. Releasing a handful of the 250 detainees that are actually terrorists but that can't be tried in the US (let's say 20 - it will be very few), would be a drop in the bucket for terrorism and the war on terror.
Intelligence: Is Guantanamo important to information gathering in War on Terror?
Terrorist interrogations must be performed, why not at Guantanamo? Many terrorists need to be interrogated in order to obtain information that can help save lives. Interrogations cannot and shouldn't occur at ordinary prisons, where the purpose of imprisonment is very different. Therefore, a special detention facility does need to exist to allow for these interrogations to take place. Why shouldn't it remain Guantanamo, even if certain modifications to the facility and practices there need to be made.
Intel from Guantanamo detainee interrogation is unreliable. Intelligence gathered over WMD in Iraq was clearly wrong. Therefore, one has to question the methods by which this information is extracted and formulated. High ranking US military officials "have gone public saying that the interrogations at Guantanamo have yielded no valuable intelligence.". Guantanamo Admiral Mike Mullen (even with his knowledge) stated to Joint Chiefs of Staff in October, “I’d like to see it shut down.” Surely this is proof that little is gained through Guantanamo.
Detainees at Guantanamo for years have no more intel value. After years of detention and separation from the battle field and terrorist networks, many Guantanamo detainees have no more value to US intelligence gathering efforts and national security.
Guantanamo detainees are not being tortured Dick Cheney said on Larry King Live in 2007: "We support the ability of certain agencies of the federal government to have the capacity to use enhanced techniques for interrogation. We have authorization that we got from the Congress to in fact do that. And they do it under very careful safeguards and very stringent safeguards. We're careful not to torture. We're not in the business of torturing people."
Detainee treatment: Are detainees treated adequately in Guantanamo Bay?
Conditions at Guantanamo are very good for detainees - Prisoner conditions at Guantanamo have actually improved substantially in President Bush's second term (04-08). This incremental change is largely due to the negative attention surrounding Guantanamo. It means that it may no longer be necessary to close down Guantanamo. In general, such opportunities for positive reform should be considered before closure.
Terrorists do not deserve luxury treatment. Many believe that due to the psychological separation between terrorists and the rest of society, whose doctrines they threaten, and evident pathological and intolerable nature of their actions they should not be treated the same as other citizens. To do so would be to justify their existence and coupling their crimes with those of robbery. Surely attempted mass murder and religious infanticide is grounds for treating detainees differently. Providing their is sufficient evidence that these inmates are terrorists and do pose an immediate threat to society then Guantanamo is not only justified but recommended.
Some human rights can be violated to preserve national security. As these human rights are what define America and set it apart from nations it condemns it would seem prudent, to say the least, to shut the camp down unless sufficient and noticeable gains are made. However if gains are made then the existence of the camp is justified as, to use an analogy, the possession of a gun for self-defense in the most extreme circumstances is justified.
The number of prisoners at Guantanamo has been reduced. 60% of the original 800 have been either freed or relocated in a slow attempt to change the status of the camp. The Bush administration is pursuing allegations of war crimes of at least 80 of the detainees which shows a positive and lawful move.
Closing Guantanamo would return detainees to abusive countries. Many of the detainees, at least 70, cannot be returned to their country of origin due to the regimes in place there. The result would be torture. Although the government is currently pushing through "memoranda of understanding" with these regimes -China, North African, this is little guarantee for their safety.
Guantanamo detainees have been subjected to human rights abuses Attorney General Lord Goldsmith, to name but one of several outspoken plutocrats, is vehemently opposed to the detention facility arguing that it is against human rights and what the American Constitution stands for. In the Canadian Foreign Affairs department review on tortuous nations specific mention was made of Guantanamo Bay, where, to drive the point home, the manual noted specific “US interrogation techniques,” including “forced nudity, isolation, and sleep deprivation.”
Conditions at Guantanamo Bay are harmful to detainee mental health"Economic, Social, and Cultural Rights. Civil and Political Rights. Situation of detainees at Guantánamo Bay". United Nations Economic and Social Council. February 15, 2006 - "Mental health 71. Reports indicate that the treatment of detainees since their arrests, and the conditions of their confinement, have had profound effects on the mental health of many of them.103 The treatment and conditions include the capture and transfer of detainees to an undisclosed overseas location, sensory deprivation and other abusive treatment during transfer; detention in cages without proper sanitation and exposure to extreme temperatures; minimal exercise and hygiene; systematic use of coercive interrogation techniques; long periods of solitary confinement; cultural and religious harassment; denial of or severely delayed communication with family; and the uncertainty generated by the indeterminate nature of confinement and denial of access to independent tribunals.104 These conditions have led in some instances to serious mental illness, over 350 acts of self-harm in 2003 alone, individual and mass suicide attempts and widespread, prolonged hunger strikes.105 The severe mental health consequences are likely to be long term in many cases, creating health burdens on detainees and their families for years to come."
Guantanamo abuses include the desecration of the KoranMarjorie Cohn. "Close Guantánamo Prison". TruthOut. May 23, 2005 - "The Red Cross documented 'credible information' that supports 'multiple' instances of disrespecting or mishandling the Koran there. Yesterday's Los Angeles Times reported that court records and transcripts contain 'dozens of accusations involving the Koran.' Allegations include having a guard dog carry the Koran in its mouth, guards scrawling obscenities inside Korans, kicking Korans across the floor, urinating on the Koran, ridiculing the Koran, walking on the Koran, and tearing off the cover and throwing the Koran into trash or dirty water."
Image/relations: Does Guantanamo's existence aid US international relations?
Guantanamo should not be closed to placate international opinion U.S. President George W. Bush says he pays no attention to polls and other measures of public opinion when formulating policy. This sticking to your laurels approach gains respect and even though people may disagree, at least you have faith in your convictions. Vice President Dick Cheney minimizes the impact of the Iraq war and the Guantanamo controversy on world opinion. "Does this hurt us from the standpoint of international opinion? I frankly don't think so," he said.
Closing Guantanamo and opening a new one elsewhere is a PR stuntJennifer Rubin. "Re: Obama Closes Gitmo". Commentary Magazine. January 22, 2009 - "The first question that comes to mind is: why go through all of this? Ah, but Guantamano has such a bad reputation. Yet it is largely based on misinformation about the actual treatment of detainees there. Supposedly we must put these very same people somewhere but we just don’t want to keep them at Guantanamo. At some level then we are inflating a PR problem — one which can be alleviated by creative people (rename the facility? build a new one in the parking lot?) — into a giant political and national security problem, especially for people living in the unlucky states that will play host to these very dangerous people."
American public opinion does not support closing Guantanamo. A ABC/Washington Post poll - taken December 11-14, 2008 - found that 44% percent of Americans do not support closing Guantanamo, while 40% do.
Closing Guantanamo would renew America's image and leadership A survey conducted by Pew Research Centre for People and the Press has found that American Reputation has suffered as a direct result of the war on terror and questionable policies created to combat terrorism. According to the survey, many Muslims polled view Americans as immoral. Surely this is not the image they want to be portraying when the US is trying to work with local Muslims. Of the Americans surveyed, 70 percent told Pew pollsters that they understand their country is disliked in many areas of the world. In the world and in the United States, there is a desire to see the United States change course in the war on terror, adopting perhaps a "softer" approach "winning the hearts and minds" of the Muslim world, and closing Guantanamo Bay has the potential to convey such a shift. It also can help make clear that, while the United States will continue to prosecute the war on terror, it must also preserve its principles. The world wants the United States to return to its role as a leader on human rights and democratic principles. Closing Guantanamo would provide a potent symbol of the United States' renewal in this important leadership role.
Guantanamo Bay makes it difficult for US allies to help war on terror Many of the United State's allies do not support Guantanamo Bay. It becomes difficult for them to continue their support in the war on terror when they and their people condemn Guantanamo. By closing Guantanamo Bay, the United States would make it easier for its allies to support the war on terror.
US rejections of UN calls to close Guantanamo look very bad. The US has rejected calls made by the United Nations in a 2006 report to close Guantanamo bay "immediately". Rejecting the United Nations in this way just confirms the growing international impression that the United State disregards international rules and norms.