Ten years ago today the first twenty prisoners arrived at the US military detention facility in Guantanamo Bay. As we mark this dismal anniversary, it is instructive to take a moment to reflect on the damage Guantanamo continues to do to the global cause of human rights.
Guantanamo is much more than simply the sum of its parts, and outlined below are 10 powerful anti-human rights messages that the continued existence of the detention facility sends out to the world:
1. The whole world is a battleground in a global war in which human rights don’t apply.
Some Guantanamo inmates were first detained 1000s of miles from any active military conflict in countries as diverse as Mauritania, Georgia, Bosnia, Azerbaijan, Thailand, Kenya and Iran. Yes, you read that last country right. At least two inmates handed over to the US were initially detained by Iran. Every misstep in the past ten years starts with the decision to treat the threat posed by Al Qaeda as a military challenge.
2. Humane detainee treatment is a policy choice, not a legal requirement.
By ignoring long established standards of detainee treatment at a time of national emergency the United States has given authoritarian states around the world the political cover to do the same. In doing so the US has acted not so much as the ‘city on a shining hill’, but rather more like ‘the little shop of horrors’.
Writing last weekend in The New York Times, former detainee Murat Kurnaz described the moment he landed back home on German soil having been freed from Guantanamo after five years ill-treatment and without ever having been charged with any offense:
“When we landed, the American officers unshackled me before they handed me over to a delegation of German officials. The American officer offered to re-shackle my wrists with a fresh, plastic pair. But the commanding German officer strongly refused: ‘He has committed no crime; here, he is a free man.’
I was not a strong secondary school student in Bremen, but I remember learning that after World War II, the Americans insisted on a trial for war criminals at Nuremberg, and that event helped turn Germany into a democratic country. Strange, I thought, as I stood on the tarmac watching the Germans teach the Americans a basic lesson about the rule of law.”
3. Even detentions found unlawful by the courts can continue indefinitely.
In 2010 a US federal judge ordered the release of Guantanamo detainee Mohamedou Ould Slahi noting:
“A habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future.”
At the time of the hearing Slahi had been imprisoned in Guantanamo for eight years – he is still in prison today.
4. The right to a fair trial depends on where you come from.
In the immediate aftermath of the 9/11 attacks the US government began to craft an approach to the threat posed by Al Qaeda that drew a clear distinction between the treatment of US citizens and foreign nationals. The passage of the 2012 National Defense Authorization Act (NDAA) cemented that distinction in US law requiring that non-US persons be treated automatically as enemy combatants rather than criminal defendants while US persons were exempted from this requirement. Equality before the law is one of the most fundamental principles of justice.
5. Justice can be manipulated to ensure the government always wins.
Like the Bush administration, Team Obama has kept its thumb firmly placed on its side of the scales of justice. As Congressman Jerrold Nadler (D-NY) bluntly put it as Chair of the House Subcommittee on the Constitution in July 2009:
“Those whom we have good evidence against will get fair trials; those we have weak evidence against we’ll give less fair trials; those we have no evidence against, we’ll just keep them locked up in preventative detention without any trial at all.”
6. Execution is acceptable – even after an unfair trial.
Today 139 countries have abolished the death penalty in law or in practice. Fair trial guarantees are especially important in capital cases – to apply the death penalty in a Military Commission that fails to meet the “regularly constituted court” that “afford[s] all the judicial guarantees … recognized as indispensable by civilized peoples” standard set by Common Article 3 of the Geneva Conventions is unconscionable. More prosecutors have resigned in protest at the shortcomings of the Military Commissions process than the Commissions themselves have actually convicted.
7. Victims of human rights violations can be left without remedy.
The right to an effective remedy is recognized in all major international and regional human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which the USA ratified in 1992. Yet, like its predecessor, the Obama administration continues to block attempts by former detainees and torture victims to pursue remedy in the US courts. In stark contrast to the United States both the United Kingdom and Canada have paid millions of dollars in compensation to former detainees held by the US and its proxies in the course of the ‘Global War on Terror’.
8. Looking forward means turning a blind eye to truth and accountability.
In November 2011 President Obama restated his belief that “waterboarding is torture” after aspirant Republican presidential candidates endorsed its use in a television debate. The use of torture is a serious domestic criminal offense and a war crime. To paraphrase Sen. Lindsay Graham (R-SC) that’s rather more serious than knocking over a corner liquor store. Those most responsible for the torture of prisoners in US custody have not been held accountable. We hold foreign leaders to a higher standard than we hold our own.
9. Respect for human rights comes second to ‘local values’.
Cultural relativism has long been a convenient excuse for authoritarian regimes resisting the application of human rights law. The problem with citing ‘local values’ as one’s moral compass is that these typically tend to be poorly defined and much contested.
10. Double standards, not universal standards, apply.
In June 2003 President Bush issued a statement to mark the United Nations International Day in Support of Victims of Torture in which he described freedom from torture as “an alienable human right”, proclaimed that “torture anywhere was an affront to human dignity everywhere” and asserted that “the United States is committed to the world-wide elimination of torture and we are leading this fight by example.”
Just weeks earlier Khalid Sheikh Mohammed had been subjected to waterboarding in a program President Bush had himself authorized. Hypocrisy is toxic to reputation. Small wonder then that when three American hikers held for almost two years without trial in Iran’s notorious Evin prison complained about their treatment, their jailers replied that it was no different than that meted out to US detainees in Guantanamo.
At least 12 of the 171 men still held at Guantanamo were among the first arrivals at Guantanamo on January 11, 2002. Only one has been charged and convicted of an offense, the other 11 have been held for decade – more than twice the length of World War II – without a single charge being brought against them.
In his memoir Decision Points, President Bush recalls that by his second inauguration in January 2005 he had come to appreciate that Guantanamo had become “a propaganda tool for our enemies, and a distraction for our allies.”
That is every bit as true today as it was ten years ago today when the first prisoners arrived in Cuba.
But Guantanamo is also something even more dangerous. It is a symbol that emboldens predatory states around the world to ignore fundamental human rights. Those rights exist to protect the powerless from the powerful, and every single one of us is a little less secure as long as Guantanamo remains open.