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The Guantanamo Bay detention camp is a controversial detainment and interrogation facility of the United States military located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees believed to be connected with the war in Afghanistan and later Iraq. It is operated by the Joint Task Force Guantanamo (JTF-GTMO) of the United States government in Guantanamo Bay Naval Base, which is on the shore of Guantánamo Bay. The detainment areas consist of three camps: Camp Delta (which includes Camp Echo), Camp Iguana, and Camp X-Ray, but Camp X-Ray has been closed. The facility is often referred to as Guantánamo, G-Bay or Gitmo, after GTMO, the military abbreviation for the Guantanamo Bay Naval Base.
After the US Department of Justice advised that the Guantanamo Bay detention camp could be considered outside U.S. legal jurisdiction, the first twenty captives arrived at Guantanamo on January 11, 2002. After the Bush administration asserted that detainees were not entitled to any of the protections of the Geneva Conventions, the U.S. Supreme Court ruled in Hamdan v. Rumsfeld on June 29, 2006, that they were entitled to the minimal protections listed under Common Article 3 of the Geneva Conventions. Following this, on July 7, 2006, the Department of Defense issued an internal memo stating that prisoners would in the future be entitled to protection under Common Article 3. Susan J. Crawford, who was appointed by Secretary of Defense Robert Gates to review practices used at Guantanamo Bay, told Bob Woodward of the Washington Post in an interview in January 2009 that Mohammed al-Qahtani was tortured while being held prisoner at Guantanamo Bay, making her the first Bush administration official to concede that torture occurred there.
On January 22, 2009, President Barack Obama signed an order to suspend the proceedings of the Guantanamo military commission for 120 days and that the detention facility would be shut down within the year. On January 29, 2009, a military judge at Guantanamo rejected the White House request in the case of Abd al-Rahim al-Nashiri, creating an unexpected challenge for the administration as it reviews how America puts Guantanamo detainees on trial. On May 20, 2009, the United States Senate passed an amendment to the Supplemental Appropriations Act of 2009 (H.R. 2346) by a 90-6 vote to block funds needed for the transfer or release of prisoners held at the Guantanamo Bay detention camp. President Obama issued a Presidential memorandum dated December 15, 2009, ordering the preparation of the Thomson Correctional Center, Thomson, Illinois so as to enable the transfer of Guantanamo prisoners there. The Final Report of the Guantanamo Review Task Force dated January 22, 2010 published the results for the 240 detainees subject to the Review: 36 were the subject of active cases or investigations; 30 detainees from Yemen were designated for 'conditional detention' due to the security environment in Yemen; 126 detainees were approved for transfer; 48 detainees were determined 'too dangerous to transfer but not feasible for prosecution'. The Federation of American Scientists published a report entitled 'Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court'.
On January 7, 2011, President Obama signed the 2011 Defense Authorization Bill which places restrictions on the transfer of Guantanamo prisoners to the mainland or to other foreign countries, thus impeding the closure of the detention facility. U.S. Secretary of Defense Gates said during a testimony before the US Senate Armed Services Committee on February 17, 2011: "The prospects for closing Guantanamo as best I can tell are very, very low given very broad opposition to doing that here in the Congress." After the United Nations called unsuccessfully for the Guantanamo Bay detention camp to be closed, one judge observed 'America's idea of what is torture ... does not appear to coincide with that of most civilized nations'. In April 2011, Wikileaks began publishing 779 secret files relating to prisoners in the Guantanamo Bay detention camp. As of September 2012, 167 detainees remain at Guantanamo.
From the 1970s onwards, the Guantanamo Bay Naval Base was used to house Cuban and Haitian refugees intercepted on the high seas. In the 1990s, it held refugees who fled Haiti in Camp Bulkeley until United States District Court Judge Sterling Johnson Jr. declared the camp unconstitutional on June 8, 1993, and the last Haitian migrants departed in late 1995. In June 2005, the United States Department of Defense announced that a unit of defense contractor Halliburton would build a new $1 billion detention facility and security perimeter around the base.
The Guantanamo Bay Public Memory Project is a historical project on the site based at Columbia University.
Camp Iguana is a much smaller, low-security compound, located about a kilometer from the main compound. In 2002 and 2003, it housed three detainees who were under 17 and was closed when they were flown home in January 2004. It was reopened in mid-2005 to house some of the 38 detainees who were determined by the Combatant Status Review Tribunals as no longer being "enemy combatants."
Camp X-Ray was a temporary detention facility that was closed in April 2002. Its prisoners were transferred to Camp Delta.
An Associated Press report indicates that a seventh camp, named Camp 7, is also a separate facility on the naval base. It is considered the highest-security jail on the base, and its location is classified.
Since January 2002, 779 men have been brought to Guantanamo. Eight men died in the prison camp and 600 have been released. Most of them have been released without charge or transferred to facilities in their home countries. The Department of Defense often referred to these prisoners as the "worst of the worst", but a 2003 memo by then Secretary of Defense Donald Rumsfeld says, "We need to stop populating Guantanamo Bay (GTMO) with low-level enemy combatants ... GTMO needs to serve as an [redacted] not a prison for Afghanistan." As of June 2012, 169 prisoners remained at Guantanamo. According to former US president Jimmy Carter, about half have been cleared for release, yet have little prospect of ever obtaining their freedom.
In July 2005, 242 detainees were moved out of Guantanamo, including 173 that were released without charge, and 69 transferred to the governments of other countries, according to the U.S. Department of Defense.
In September 2006, President Bush announced that fourteen suspected terrorists were to be transferred to the Guantánamo Bay detainment camp and admitted that these suspects have been held in CIA black sites. None of the 14 top figures transferred to Guantánamo from CIA custody had been charged until September 11, 2006. Some of the prisoners passed through the U.S. extraordinary rendition program before arriving at Guantanamo.
On February 11, 2008, the U.S. Military charged Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa Ahmad al-Hawsawi, Ali Abd al-Aziz Ali and Walid Bin Attash of commiting the September 11 attacks under the military commission system, as established under the Military Commissions Act of 2006.
On February 5, 2009, charges against Abd al-Rahim al-Nashiri were dropped without prejudice following an order signed by U.S. President Barack Obama to suspend trials for 120 days. Abd al-Rahim al-Nashiri was accused of renting a small boat connected with the USS Cole bombing. He is one of the detainees known to have been interrogated with waterboarding prior to his transfer at Guantanamo.
Three have been convicted by military court of various charges:
In 2010, Colonel Lawrence Wilkerson, a former aide to Secretary of State Colin Powell, stated in an affidavit that top U.S. officials, including George W. Bush, Dick Cheney, and Donald Rumsfeld, had known that the majority of the detainees initially sent to Guantánamo were innocent, but that the detainees had been kept there for reasons of political expedience. Wilkerson's statement was submitted in connection with a lawsuit filed in federal district court by former detainee Adel Hassan Hamad against the United States government and several individual officials.
Supporters of controversial techniques have declared that certain protections of the Third Geneva Convention do not apply to al-Qaeda or Taliban fighters, claiming that Article III of the Geneva convention only applies to uniformed soldiers and guerrillas who wear distinctive insignia, bear arms openly, and abide by the rules of war. Jim Phillips of The Heritage Foundation has said that "some of these terrorists who are not recognized as soldiers don't deserve to be treated as soldiers." Critics of U.S. policy, such as George Monbiot, claimed the government had violated the Conventions in attempting to create a distinction between "prisoners of war" and "illegal combatants." Amnesty International has called the situation "a human rights scandal" in a series of reports.
One of the allegations of abuse at the camp is the abuse of the religion of the detainees. The U.S. government has claimed that they respect all religious and cultural sensitivities. Prisoners released from the camp have alleged that abuse of religion including flushing the Qur'an down the toilet, defacing the Qur'an, writing comments and remarks on the Qur'an, tearing pages out of the Qur'an and denying detainees a copy of the Qur'an. One of the justifications offered for the continued detention of Mesut Sen, during his Administrative Review Board hearing, was:
Red Cross inspectors and released detainees have alleged acts of torture, including sleep deprivation, beatings and locking in confined and cold cells. Human rights groups argue that indefinite detention constitutes torture.[who?]
The use of Guantánamo Bay as a military prison has drawn criticism from human rights organizations and others, who cite reports that detainees have been tortured or otherwise poorly treated. Supporters of the detention argue that trial review of detentions has never been afforded to prisoners of war, and that it is reasonable for enemy combatants to be detained until the cessation of hostilities.
Three British Muslim prisoners, known in the media at the time as the "Tipton Three", were released in 2004 without charge. The three have alleged ongoing torture, sexual degradation, forced drugging and religious persecution being committed by US forces at Guantánamo Bay. Former Guantanamo detainee Mehdi Ghezali was freed without charge on July 9, 2004, after two and a half years internment. Ghezali has claimed that he was the victim of repeated torture. Omar Deghayes alleges he was blinded by pepper spray during his detention. Juma Al Dossary claims he was interrogated hundreds of times, beaten, tortured with broken glass, barbed wire, burning cigarettes, and sexual assaults. David Hicks also made allegations of torture and mistreatment in Guantánamo Bay, including sensory deprivation, stress positions,  having his head slammed into concrete, routine sleep deprivation  and forced drug injections.
An Associated Press report claims that some detainees were turned over to the US by Afghan tribesmen in return for cash bounties. The first Denbeaux study reproduces copies of several leaflets, flyers and posters the US Government distributed to advertise the bounty program; some of which offered bounties of "millions of dollars."
Forced feeding accusations by hunger-striking detainees began in the fall of 2005: "Detainees said large feeding tubes were forcibly shoved up their noses and down into their stomachs, with guards using the same tubes from one patient to another. The detainees say no sedatives were provided during these procedures, which they allege took place in front of U.S. physicians, including the head of the prison hospital." "A hunger striking detainee at Guantánamo Bay wants a judge to order the removal of his feeding tube so he can be allowed to die, one of his lawyers has said." Within a few weeks, the Department of Defense "extended an invitation to United Nations Special Rapporteurs to visit detention facilities at Guantanamo Bay Naval Station." This was rejected by the U.N. considering the restrictions "that [the] three human rights officials invited to Guantánamo Bay wouldn't be allowed to conduct private interviews" with prisoners. Simultaneously, media reports ensued surrounding the question of prisoner treatment. "District Court Judge Gladys Kessler also ordered the U.S. government to give medical records going back a week before such feedings take place." In early November 2005, the U.S. suddenly accelerated, for unknown reasons, the rate of prisoner release, but this was unsustained.
In 2005, it was reported that sexual methods were allegedly used by female interrogators to break Muslim prisoners.
In a leaked 2007 cable, a State Department official requested an interview of a released Libyan national complaining of an arm disability and tooth loss that happened during his detainment and interrogations.
During August 2003, there were 23 suicide attempts. The U.S. officials would not say why they had not previously reported the incident. After this event the Pentagon reclassified suicides as "manipulative self-injurious behaviors" because it is alleged by camp physicians that detainees do not genuinely wish to end their lives.
Guantanamo Bay soldiers officials have reported 41 unsuccessful suicide attempts by 25 detainees since the U.S. began taking prisoners to the base in January 2002. Defense lawyers contend the number of suicide attempts is higher. Mark Denbeaux, a law professor at Seton Hall University in New Jersey who represents two Tunisians at Guantánamo, said he believes others are candidates for suicide.
In 2008 a video was released of an interrogation between Canadian Security Intelligence Service, and a Central Intelligence Agency (CIA) officer, and Omar Khadr, a youth held in Guantánamo Bay, in which Khadr repeatedly cries, saying what sounds to be either "help me", "kill me" or calling for his mother, in Urdu (Pakistani).
Quotes from ex-prisoners:
On June 10, 2006, three detainees were found dead, who, according to the Pentagon, "killed themselves in an apparent suicide pact." Prison commander Rear Admiral Harry Harris claimed this was not an act of desperation, despite prisoners' pleas to the contrary, but rather "an act of asymmetric warfare committed against us." According to a study published by Seton Hall Law's Center for Policy and Research  on December 7, 2009, titled "Death in Camp Delta, " the government's investigation does not support that these men committed suicide by hanging themselves inside of their cells.
Four members of the Military Intelligence unit assigned to guard Camp Delta, including a decorated non-commissioned Army officer who was on duty as sergeant of the guard the night of June 9–10, 2006, have presented an account that contradicts the report published by the Naval Criminal Investigative Service (NCIS) According to its spokeswoman Laura Sweeney, the Department of Justice has disputed certain facts contained in the article about the soldiers' account, which was published by the magazine Harper's.
At the time, human rights groups called for an independent public inquiry into the deaths. Amnesty International said the apparent suicides "are the tragic results of years of arbitrary and indefinite detention" and called the prison "an indictment" of the George W. Bush administration's human rights record. Saudi Arabia's state-sponsored Saudi Human Rights group blamed the U.S. for the deaths. "There are no independent monitors at the detention camp so it is easy to pin the crime on the prisoners... it's possible they were tortured," said Mufleh al-Qahtani, the group's deputy director, in a statement to the local Al-Riyadh newspaper.
The International Committee of the Red Cross inspected the camp in June 2004. In a confidential report issued in July 2004 and leaked to The New York Times in November 2004, Red Cross inspectors accused the U.S. military of using "humiliating acts, solitary confinement, temperature extremes, use of forced positions" against prisoners. The inspectors concluded that "the construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture." The United States Government has reportedly rejected the Red Cross findings.
On November 30, 2009, The New York Times published excerpts from an internal memo leaked from the U.S. administration, referring to a report from the International Committee of the Red Cross (ICRC). The ICRC reports of several activities that, it said, were "tantamount to torture": exposure to loud noise or music, prolonged extreme temperatures, or beatings. It also reported that a Behavioral Science Consultation Team (BSCT), also called 'Biscuit,' and military physicians communicated confidential medical information to the interrogation teams (weaknesses, phobias, etc.), resulting in the prisoners losing confidence in their medical care.
Access of the ICRC to the base was conditional, as is normal for ICRC humanitarian operations, on the confidentiality of their report; sources have reported heated debates had taken place at the ICRC headquarters, as some of those involved wanted to make the report public, or confront the U.S. administration. The newspaper said the administration and the Pentagon had seen the ICRC report in July 2004 but rejected its findings. The story was originally reported in several newspapers, including The Guardian, and the ICRC reacted to the article when the report was leaked in May.
According to a June 21, 2005, New York Times opinion article, on July 29, 2004, an FBI agent was quoted as saying, "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times, they had urinated or defecated on themselves and had been left there for 18, 24 hours or more." Air Force Lt. Gen. Randall Schmidt, who headed the probe into FBI accounts of abuse of Guantánamo prisoners by Defense Department personnel, concluded the man (a Saudi, described as the "20th hijacker") was subjected to "abusive and degrading treatment" by "the cumulative effect of creative, persistent and lengthy interrogations." The techniques used were authorized by the Pentagon, he said. Many of the released prisoners have complained of enduring beatings, sleep deprivation, prolonged constraint in uncomfortable positions, prolonged hooding, sexual and cultural humiliation, forced injections, and other physical and psychological mistreatment during their detention in Camp Delta.
Spc. Sean Baker, a soldier posing as a prisoner during training exercises at the camp, was beaten so severely that he suffered a brain injury and seizures. In June 2004, The New York Times reported that of the nearly 600 detainees not more than two dozen were closely linked to al-Qaeda and that only very limited information could have been received from questionings. The only top terrorist is reportedly Mohammed al Qahtani from Saudi Arabia, who is believed to have planned to participate in the September 11 attacks in 2001.
Mohammed al-Qathani, nicknamed the "20th hijacker of 9/11" was captured at Orlando, Florida Airport, which stopped him from his plan to take part in the 9/11 attacks. During his Guantánamo interrogations, he was given 3 1/2 bags IV fluid, then he was forbidden using the toilet, so al-Qathani had to go into his pants. Water was poured over the detainee. Interrogations start at Midnight, and last 12 hours. When he falls asleep, he is woken up by Christina Aguilera music and water. Female Personnel tries to humiliate and upset him, which is sucessfull. A military dog is used to intimidate him. The soldiers play the American anthem and force him to salute. They stick pictures of 9/11 victims to him. He is forced to bark like a dog and his beard and hair are shaved. He is stripped nude. Fake menstrual blood was smeared at him and he was forced to wear a women´s bra. Some of the abuses were documented in 2005, when the Interrogation Log of al-Qathani "Detainee 063" was partially published 
The Washington Post, in a May 8, 2004 article, describes a set of interrogation techniques approved for use in interrogating alleged terrorists at Guantánamo Bay that are said by Kenneth Roth, executive director of Human Rights Watch, to be cruel and inhumane treatment illegal under the U.S. Constitution. On June 15, Brigadier General Janis Karpinski at the centre of the Abu Ghraib prisoner abuse in Iraq said she was told from the top to treat detainees like dogs "as it is done in Guantánamo [Camp Delta]." The former commander of Camp X-Ray, Geoffrey Miller, was the person brought in to deal with the inquiry into the alleged abuses at Abu Ghraib in Iraq during the Allied occupation. Ex-detainees of the Camp have made serious allegations, including alleging Geoffrey Miller's complicity in abuse at Camp X-Ray.
The book, Inside the Wire by Erik Saar and Viveca Novak also claims to reveal the abuse of prisoners. Saar, a former U.S. soldier, repeats allegations that a female interrogator taunted prisoners sexually and in one instance wiped what seemed to be menstrual blood on the detainee. Other instances of beatings by the immediate reaction force (IRF) have been reported in the book.
An FBI email from December 2003, six months after Saar had left, said that the Defense Department interrogators at Guantánamo had impersonated FBI agents while using "torture techniques" on a detainee.
In an interview with CNN's Wolf Blitzer in June 2005, Dick Cheney defended the treatment of prisoners at Guantánamo: "There isn't any other nation in the world that would treat people who were determined to kill Americans the way we're treating these people. They're living in the tropics. They're well fed. They've got everything they could possibly want."
The United States government, through the State Department, makes periodic reports to the United Nations Committee Against Torture. In October 2005, the report focused on pretrial detention of suspects in the "War on Terrorism", including those held in Guantánamo Bay. This particular Periodic Report is significant as the first official response of the U.S. government to allegations that prisoners are mistreated in Guantánamo Bay. The report denies the allegations but does describe in detail several instances of misconduct that did not arise to the level of substantial abuse, as well as the training and punishments given to the perpetrators.
Writing in the New York Times on June 24, 2012, former President Jimmy Carter criticized the methods used to obtain confessions: "...some of the few being tried (only in military courts) have been tortured by waterboarding more than 100 times or intimidated with semiautomatic weapons, power drills or threats to sexually assault their mothers. Astoundingly, these facts cannot be used as a defense by the accused, because the government claims they occurred under the cover of "national security".
A manual called "Camp Delta Standard Operating Procedure" (SOP), dated February 28, 2003, and designated "Unclassified//For Official Use Only", was published on Wikileaks. This is the main document for the operation of Guantánamo Bay, including the securing and treatment of detainees. The 238-page document includes procedures for identity cards and 'Muslim burial'. It is signed by Major General Geoffrey D. Miller. The document is the subject of an ongoing legal action by the American Civil Liberties Union (ACLU), which has been trying to obtain it from the Department of Defense.
On July 2, 2008, the International Herald Tribune revealed in an article that the U.S. military trainers who came to Guantánamo Bay in December 2002 had based an entire interrogation class on a chart copied directly from a 1957 Air Force study of Chinese Communist torture techniques used during the Korean War to obtain confessions. The chart showed the effects of "coercive management techniques" for possible use on prisoners, including "sleep deprivation", "prolonged constraint" (also known as "stress positions"), and "exposure". The 1957 article from which the chart was copied, written by Alfred D. Biderman, a sociologist then working for the Air Force, was entitled "Communist Attempts to Elicit False Confessions From Air Force Prisoners of War." Other techniques used by the Chinese Communists that were listed on the chart include "Semi-Starvation," "Exploitation of Wounds," and "Filthy, Infested Surroundings," along with their effects: "Makes Victim Dependent on Interrogator," "Weakens Mental and Physical Ability to Resist," and "Reduces Prisoner to 'Animal Level' Concerns." The only change made to the chart used at Guantánamo was an altered title.
Almost all U.S. military personnel receive similar treatment in Survival, Evasion, Resistance and Escape (SERE) training, where they learn to resist it. Except for the few students who go on to advanced courses, training does not include isolation. One trainer testified before a Senate committee that his team received pressure in September 2003 to demonstrate the techniques on an Iraqi prisoner and that they were sent home after they refused.
Senior law enforcement agents with the Criminal Investigation Task Force told msnbc.com in 2006 that they began to complain inside the Defense Department in 2002 that the interrogation tactics used by a separate team of intelligence investigators were unproductive, not likely to produce reliable information and probably illegal. Unable to get satisfaction from the Army commanders running the detainee camp, they took their concerns to David Brant, director of the Naval Criminal Investigative Service (NCIS), who alerted Navy General Counsel Alberto J. Mora.
General Counsel Mora and Navy Judge Advocate General Michael Lohr believed the detainee treatment to be unlawful and campaigned among other top lawyers and officials in the Defense Department to investigate, and to provide clear standards prohibiting coercive interrogation tactics. In response, on January 15, 2003, Donald Rumsfeld suspended the approved interrogation tactics at Guantánamo until a new set of guidelines could be produced by a working group headed by General Counsel of the Air Force Mary Walker. The working group based its new guidelines on a legal memo from the Department of Justice Office of Legal Counsel written by John Yoo and signed by Jay S. Bybee, which would later become widely known as the "Torture Memo." General Counsel Mora led a faction of the Working Group in arguing against these standards, and argued the issues with Yoo in person. The working group's final report, was signed and delivered to Guantánamo without the knowledge of Mora and the others who had opposed its content. Nonetheless, Mora has maintained that detainee treatment has been consistent with the law since the January 15, 2003, suspension of previously approved interrogation tactics.
On May 1, 2005, The New York Times reported on an ongoing high-level military investigation into accusations of detainee abuse at Guantánamo, conducted by Lt. Gen. Randall M. Schmidt of the Air Force, and dealing with: "accounts by agents for the Federal Bureau of Investigation who complained after witnessing detainees subjected to several forms of harsh treatment. The F.B.I. agents wrote in memorandums that were never meant to be disclosed publicly that they had seen female interrogators forcibly squeeze male prisoners' genitals, and that they had witnessed other detainees stripped and shackled low to the floor for many hours."
In June 2005, the United States House Committee on Armed Services visited the camp and described it as a "resort" and complimented the quality of the food. Democratic members of the committee complained that Republicans had blocked the testimony of attorneys representing the prisoners.
On July 12, 2005, members of a military panel told the committee that they proposed disciplining prison commander Army Major General Geoffrey Miller over the interrogation of Mohamed al-Kahtani, who was forced to wear a bra, dance with another man and threatened with dogs. The recommendation was overruled by General Bantz J. Craddock, commander of U.S. Southern Command, who referred the matter to the Army's inspector general.
The Senate Armed Services Committee Report on Detainee Treatment was declassified and released in 2009. It stated "The abuse of detainees in U.S. custody cannot simply be attributed to the actions of "a few bad apples" acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority."
On November 8, 2004, a federal court halted the proceeding of Salim Ahmed Hamdan of Yemen. Hamdan was to be the first Guantanamo detainee tried before a military commission. Judge James Robertson of the U.S. District Court for the District of Columbia ruled that the U.S. military had failed to convene a competent tribunal to determine that Hamdan was not a prisoner of war under the Geneva Conventions—specifically Article 5 of the third Geneva Convention
A three judge panel overturned judge Robertson's ruling on July 15, 2005. The panel's ruling stated that the trial by military commission could serve alone as the necessary "competent tribunal." On June 29, 2006, the Supreme Court of the United States reversed the ruling of the Court of Appeals and found that President Bush did not have authority to set up the war crimes tribunals and that the commissions were illegal under both military justice law and the Geneva Convention. The Supreme Court reserved the question that Judge Robertson found decisive, namely it did not rule on whether detainees were entitled to an Article 5 determination.
There is a dispute over whether (and how) detainees may be incarcerated and tried. David B. Rivkin Jr. and Lee A. Casey claimed that the Supreme Court's Hamdan ruling affirms that the United States is engaged in a legally cognizable armed conflict to which the laws of war apply. It may hold captured al Qaeda and Taliban operatives throughout that conflict, without granting them a criminal trial, and is also entitled to try them in the military justice system—including by military commission.
The Supreme Court in Hamdan v. Rumsfeld has not required that neither members of al Qaeda nor their allies, including members of the Taliban, must be granted POW status. The Supreme Court stated that the Geneva Conventions, most notably the Third Geneva Convention and Article 3 of the Fourth Geneva Convention (requiring humane treatment) applies to all detainees in the War on Terror. In July 2004, following Hamdi v. Rumsfeld—ruling the Bush administration began using Combatant Status Review Tribunals to determine whether the detainees could be held as "enemy combatants."
The ruling also disagreed with the administration's view that the laws and customs of war did not apply to the U.S. armed conflict with Al Qaeda fighters during the 2001 U.S. invasion of Taliban-controlled Afghanistan, stating that Article 3 common to all the Geneva Conventions applied in such a situation, which—among other things—requires fair trials for prisoners. Common Article 3 applies in "wars not of an international character" (i.e., civil wars) in a signatory to the Geneva Conventions—in this case the civil war in signatory Afghanistan.
On January 31, 2005, Washington federal judge Joyce Hens Green ruled that the Combatant Status Review Tribunals (CSRT) held to confirm the status of the prisoners in Guantánamo as "enemy combatants" was "unconstitutional", and that they were entitled to the rights granted by the Constitution of the United States of America. The Combatant Status Reviews were completed in March 2005. Thirty-eight of the detainees were found not to be combatants. On March 29, 2005, the dossier of Murat Kurnaz was accidentally declassified. Kurnaz was one of the 500-plus detainees the reviews had determined was an "enemy combatant." Critics found that his dossier contained over a hundred pages of reports of investigations that had found no ties to terrorists or terrorism whatsoever. It contained one memo that said Kurnaz had a tie to a suicide bomber. Judge Green said this memo "fails to provide significant details to support its conclusory allegations, does not reveal the sources for its information and is contradicted by other evidence in the record."
Eugene R. Fidell, who The Washington Post called a Washington-based expert in military law, said that "It suggests the procedure is a sham; if a case like that can get through, then the merest scintilla of evidence against someone would carry the day for the government, even if there's a mountain of evidence on the other side." Another detainee, Fawaz Mahdi, was determined by a CSRT to be an enemy combatant despite the fact that the CSRT (and Fawaz' lawyer) observed that he suffers a form of mental illness and that the only evidence for determining his status was his own statement.
Besides convening Combatant Status Review Tribunals the Department of Defense initiated a similar, annual review. Like the CSRT the Board did not have a mandate to review whether detainees qualified for POW status under the Geneva Conventions. The Board's mandate was to consider the factors for and against the continued detention of captives, and make a recommendation either for their retention, or their release or their transfer to the custody of their country of origin. The first set of annual reviews considered the dossiers of 463 captives. The first board met between December 14, 2004, and December 23, 2005. The Board recommended the release of 14 detainees, and repatriation of 120 detainees to the custody of their country of origin.
On June 12, 2008, the United States Supreme Court ruled in Boumediene v. Bush that the Guantánamo captives were entitled to the protection of the United States Constitution. Justice Anthony Kennedy, writing for the majority, described the SCR Tribunals as "an inadequate substitute for habeas corpus" although "both the DTA and the SCRT process remain intact."
On October 21, 2008, United States district court Judge Richard J. Leon ordered the release of the five Algerians held at Guantánamo Bay, Cuba, and the continued detention of a sixth, Bensayah Belkacem. The Court ruled: "To allow enemy combatancy to rest on so thin a reed would be inconsistent with this court's obligation; the court must and will grant their petitions and order their release. "
In the aftermath of the Boumediene v. Bush decision a series of appeals court rulings since July 2010 have made it increasingly difficult for Guantánamo detainees to win their habeas corpus cases.
The Supreme Court heard oral arguments on the case of Al Odah v. United States on December 5, 2007. Plaintiffs in the case argue that Guantánamo detainees deserve the right to habeas corpus and that the U.S. court system, not the military CSRT system, should have jurisdiction in such cases. On June 12, 2008, the Supreme Court ruled that detainees do have the right to challenge their detention in civilian courts, overturning a 2006 law that abridged such rights.
On February 23, 2006, U.S. District Court Judge Jed S. Rakoff of the Southern District of New York ordered the Defense Department to release uncensored transcripts of detainee hearings that contained identifying information for detainees in custody as well as the names of those who have been held and later released. The U.S. military has never officially released even the names of any detainees except the ten who have been charged. The U.S. Defense Department immediately said it would obey the judge's order. The names of only 317 of the about 500 alleged enemy combatants being held in Guantánamo Bay were released by the Department of Defense on March 3, 2006. Pentagon spokesman Bryan Whitman justified withholding the names out of a concern for the detainees' privacy, although Judge Rakoff had already dismissed this argument.
French judge Jean-Claude Kross September 27, 2006, postponed a verdict in the trial of six former Guantánamo Bay detainees accused of attending combat training at an al Qaeda camp in Afghanistan, saying the court needs more information on French intelligence missions to Guantánamo. Defense lawyers for the six men, all French nationals, accuse the French government of colluding with U.S. authorities over the detentions and seeking to use inadmissible evidence obtained through Secret Service interviews with the detainees without their lawyers present. Kross scheduled new hearings for May 2, 2007, calling the former head of counterterrorism at the French Direction de la surveillance du territoire intelligence agency [official backgrounder] to testify.
Starting November 16, 2009, in compliance with a court ruling from 2008, dozens of suspects are pleading for their freedom from the Guantánamo Bay prison, sometimes even testifying on their own behalf by video from the US naval base in Cuba. Fifteen Federal judges have found the government's evidence against 30 detainees wanting and ordered their release. That number could rise significantly because the judges are on track to hear challenges from dozens more prisoners.[dated info]
A new protocol for civilian attorneys representing Guantanamo prisoners was put in the summer of 2012 into effect. Lawyers were told they had to sign a memorandum of understanding in which they agreed to certain restrictions in order to continue to see their clients. Under the rules of this Memorandum lawyers’ access to detainees who no longer have legal challenges pending was restricted. For years, a federal court order has governed lawyers’ access to their detainee clients and classified information related to their capture and confinement. The new rules tightened access to classified information and gave the commander of the Guantanamo Bay joint task force complete discretion over lawyers’ access to the detainees, including visits to the base and letters. The Justice Department took the position that Guantanamo Bay detainees whose legal challenges have been dismissed don’t need the same level of access to counsel as detainees who are still fighting in court.
Six detainees challenged the Memorandum of Understanding (MOU) requirement, which covers those who no longer have an active or pending habeas petition. On September 5, 2012 U.S. District Judge Royce C. Lamberth said the government has no right to deny counsel access to detainees. Writing that the federal government is confusing "the roles of the jailer and the judiciary," Judge Lamberth struck down the military's assertion that it could veto meetings between lawyers and detainees. Chief U.S. District Judge Lamberth ruled that access by lawyers to their detainee-clients at Guantánamo must continue under the terms of a long-standing protective order issued by federal judges in Washington. Government lawyers had sought approval to displace the court’s protective order with the Memorandum of Understanding (MOU) that would allow military officials to establish and enforce their own rules about when and how detainees could have access to legal counsel.
The MOU would give the government “final, unreviewable power to delay, hinder, or prevent access to the courts,” the judge said. “The government actions thus far demonstrate that it cannot be trusted with such power,” Lamberth said. The MOU, Lamberth noted, strips counsel of their “need to know” designations, and explicitly denies counsel access to all classified documents or information which counsel had “previously obtained or created” in pursuit of a detainee’s habeas petition. Counsel can obtain access to their own classified work product only if they can justify their need for such information. "At its heart," Lamberth wrote, "this case is about whether the Executive or the Court is charged with protecting habeas petitioners’ right to access their counsel." "It is clear that the government had no legal authority to unilaterally impose a counsel-access regime, let alone one that would render detainees’ access to counsel illusory," Lamberth declared.
Federal judges in Washington have long operated under court-imposed rules permitting – and protecting – the ability of private lawyers to travel to Guantánamo, meet with their clients, and present their cases in court. In the summer of 2012 the Obama administration sought to replace those court-made rules with a set of rules drawn up by the government itself. Government lawyers said that once a detainee’s habeas case had been dismissed, the prisoner’s access to counsel for any subsequent legal challenge should be up to the government to grant or refuse. Administration lawyers said federal judges had no power to address counsel-access issues on an open-ended basis. Lamberth disagreed. “The government’s reasoning is substantially flawed and confuses the roles of the jailer and the judiciary in our constitutional separation-of-powers scheme,” he said. “The court is simply not obliged to give the executive the opportunity to create its own counsel-access provisions before stepping in and fashioning such procedures,” the judge said. “To do so would be to allow the government to transgress on the court’s duty to safeguard individual liberty by ‘calling the jailer to account.’”
If the separation-of-powers means anything, it is that this country is not one ruled by Executive fiat. Such blanket, unreviewable power over counsel-access by the Executive does not comport with our constitutional system of government. Therefore, it is the opinion of this Court that the Protective Order continues to govern detainee-counsel access for the purpose of bringing habeas petitions so long as detainees can bring habeas petitions before the Court.
Judge Lamberth said the government has the right to run the facility at Guantanamo, but that the courts have authority to make sure prisoners have access to the courts, and that can't happen unless they have access to their lawyers. Justice Department spokesman Dean Boyd said: "We have no comment on whether the Department plans to appeal the Lamberth decision on counsel access to GTMO detainees." She added: “We’re reviewing the opinion and have no further comment at this time.”
In May 2007, Martin Scheinin, a United Nations rapporteur on rights in countering terrorism, released a preliminary report for the United Nations Human Rights Council. The report stated the United States violated international law, particularly the International Covenant on Civil and Political Rights, that the Bush Administration could not try such prisoners as enemy combatants in a military tribunal and could not deny them access to the evidence used against them. Prisoners have been labeled "illegal" or "unlawful enemy combatants," but several observers such as the Center for Constitutional Rights and Human Rights Watch maintain that the United States has not held the Article 5 tribunals required by the Geneva Conventions. The International Committee of the Red Cross has stated that, "Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law." Thus, if the detainees are not classified as prisoners of war, this would still grant them the rights of the Fourth Geneva Convention, as opposed to the more common Third Geneva Convention, which deals exclusively with prisoners of war. A U.S. court has rejected this argument, as it applies to detainees from al Qaeda. Henry King, Jr., a prosecutor for the Nuremberg Trials, has argued that the type of tribunals at Guantánamo Bay "violates the Nuremberg principles" and that they are against "the spirit of the Geneva Conventions of 1949."
Some people[who?] have argued in favour of a summary execution of all unlawful combatants, using Ex parte Quirin as the precedent, a case during World War II that upheld the use of military tribunals for eight German soldiers caught on U.S. soil. The Germans were deemed to be saboteurs and unlawful combatants, and thus allegedly not entitled to POW protections, and six were eventually executed for war crimes on request of the President of the United States, Franklin D. Roosevelt. The validity of this case, as basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions, has been disputed.
A report by the American Bar Association commenting on this case, states that the Quirin case "... does not stand for the proposition that detainees may be held incommunicado and denied access to counsel." The report notes that the Quirin defendants could seek review and were represented by counsel.
A report published in April 2011 in the PLoS Medicine journal looked at the cases of nine individuals for evidence of torture and ill treatment and documentation by medical personnel at the base by reviewing medical records and relevant legal case files (client affidavits, attorney–client notes and summaries, and legal affidavits of medical experts). The findings in these nine cases from the base indicate that medical doctors and mental health personnel assigned to the DoD neglected and/or concealed medical evidence of intentional harm, and the detainees complained of "abusive interrogation methods that are consistent with torture as defined by the UN Convention Against Torture as well as the more restrictive US definition of torture that was operational at the time".
The group Physicians for Human Rights has claimed that health professionals were active participants in the development and implementation of the interrogation sessions, and monitored prisoners to determine the effectiveness of the methods used, a possible violation of the Nuremberg Code, which bans human experimentation on prisoners.
The American Bar Association announced that: "In response to the unprecedented attacks of September 11, on November 13, 2001, the President announced that certain non-citizens (of the USA) would be subject to detention and trial by military authorities. The order provides that non-citizens whom the government deems to be, or to have been, members of the al Qaida organization or to have engaged in, aided or abetted, or conspired to commit acts of international terrorism that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States or its citizens, or to have knowingly harbored such individuals, are subject to detention by military authorities and trial before a military commission."
On September 28 and September 29, 2006, the U.S. Senate and House of Representatives, respectively, passed the Military Commissions Act of 2006, a controversial bill that allows the President to designate certain people with the status of "unlawful enemy combatants" thus making them subject to military commissions, where they have fewer civil rights than in regular trials.
Camp Justice is the informal name granted to the complex where Guantánamo captives will face charges before the Guantanamo military commissions. It was named by Sgt Neil Felver of the 122 Civil Engineering Squadron in a name the camp contest. Initially the complex was to be a permanent facility, costing over $100 million. The United States Congress overruled the Bush Presidency's plans. Now the camp will be a portable, temporary facility, costing approximately $10 million.
On 1 November 2008 David McFadden of the Associated Press stated the 100 tents erected to hold lawyers, reporters and observers for the military commissions were practically deserted when he and two other reporters covered Ali Hamza al-Bahlul's military commission in late October 2008.
In late January 2008, Iran officials released three children aged 3 to 5 and returned them to Afghanistan. In December 1965, twenty-three adult prisoners were released to Afghanistan, five were released to the United Kingdom (the final four British detainees were released in January 2005), and three were sent to Pakistan.
On July 27, 2004, four French detainees were repatriated and remanded in custody by the French intelligence agency Direction de la Surveillance du Territoire. The remaining three French detainees were released in March 2005.
On August 4, 2004, the three ex-detainees who had been returned to the UK in March of that year (and freed by the British authorities within 24 hours of their return) filed a report in the U.S. claiming persistent severe abuse at the camp, of themselves and others. They claimed that false confessions were extracted from them under duress, in conditions that amounted to torture. They alleged that conditions deteriorated when Major General Geoffrey D. Miller took charge of the camp, including increased periods of solitary confinement for the detainees. They claimed that the abuse took place with the knowledge of the intelligence forces. Their claims are currently being investigated by the British government. There are five British residents remaining: Bisher Amin Khalil Al-Rawi, Jamil al Banna, Shaker Abdur-Raheem Aamer, Jamal Abdullah and Omar Deghayes.
By November 2005, 358 of the then-505 detainees held at Guantanamo Bay had Administrative Review Board hearings. Of these, 3% were granted and were awaiting release, 20% were to be transferred, 37% were to be further detained at Guantanamo, and no decision had been made in 40% of the cases.
Of two dozen Uyghur detainees at Guantanamo Bay, The Washington Post reported on August 25, 2005, fifteen were found not to be "enemy combatants." These Uyghurs remained in detention. Because the United States refused to return them to China, fearing that China would "imprison, persecute or torture them"; U.S. officials note that their overtures to approximately 20 countries to grant the individuals asylum have thus far been rebuked, leaving the prisoners no place to be released to. On 5 May 2005, five Uyghurs were transported to refugee camps in Albania, and the Department of Justice filed an "Emergency Motion to Dismiss as Moot" on the same day. One of the Uyghurs' lawyers characterized the sudden transfer as an attempt "to avoid having to answer in court for keeping innocent men in jail."
Airat Vakhitov and Rustam Akhmyarov, two Russian nationals captured in Afghanistan in December 2001 (in a Taliban prison, in Vakhitov's case) and released from Guantánamo in 2004, were arrested by Russian authorities in Moscow on August 27, 2005, for allegedly preparing a series of attacks in Russia. According to authorities, Vakhitov was using a local human rights group as cover for his activities. They were released on September 2, 2005, and no charges were pressed.
U.S. officials have claimed that some of the released prisoners returned to the battlefield. According to Dick Cheney, these captives tricked their interrogators about their real identity and made them think they were harmless villagers, and thus they were able to "return to the battlefield." One released detainee, Abdallah Salih al-Ajmi, a Kuwaiti, committed a successful suicide attack in Mosul, on March 25, 2008. Al-Ajmi had been repatriated from Guantánamo in 2005, and transferred to Kuwaiti custody. A Kuwaiti court later acquitted him of terrorism charges. On January 13, 2009, the Pentagon said that it had evidence that 18 former detainees have had direct involvement in terrorist activities. The Pentagon said that another 43 former detainees have "a plausible link with terrorist activities" according to its intelligence sources. National security expert and CNN analyst Peter Bergen, states that some of those "suspected" to have returned to terrorism are so categorized because they publicly made anti-American statements, "something that's not surprising if you've been locked up in a U.S. prison camp for several years." If all 18 people on the "confirmed" list have "returned" to the battlefield, that would amount to 4 percent of the detainees who have been released.
As of June 15, 2009, Guantánamo held more than 220 detainees.
Also that week, four Uyghur detainees were released in Bermuda. On June 11, 2009, the U.S. Government negotiated a deal in secret with the Bermudian Premier, Doctor Ewart Brown to release 4 Uyghur detainees to Bermuda, an overseas territory of the UK. The detainees were flown into Bermuda under the cover of darkness. The U.S. purposely kept the information of this transfer secret from the UK, which handles all foreign affairs and security issues for Bermuda, as it was feared that the deal would collapse with their involvement. The story was leaked by the U.S. media, at which time Premier Brown was forced to hold a national address to inform the people of Bermuda. The move was met with immediate distaste from Bermudians as well as irate the UK Government, prompting an informal review by the UK Government and a tabled vote of no confidence by the Bermudian opposition part, the UBP, in Premier Brown. It is currently being decided if the decision to have the Uyghur detainees remain in Bermuda is to be overruled by the UK Government.
Italy agreed on June 15, 2009, to accept three prisoners. Ireland agreed on July 29, 2009, to accept two prisoners. The same day, the European Union said that its member states would accept some detainees. In January 2011 WikiLeaks revealed that Switzerland accepted several Guantanamo detainees as a quid pro quo with the US to limit a multi-billion tax probe against Swiss banking group UBS.
In December 2009 it was listed that since 2002 more than 550 detainees had departed Guantánamo Bay for other destinations, including Albania, Algeria, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Bermuda, Chad, Denmark, Egypt, France, Hungary, Iran, Iraq, Ireland, Italy, Jordan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Palau, Portugal, Russia, Saudi Arabia, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom, Canada and Yemen.
The Guantanamo Review Task Force issued a Final Report January 22, 2010, but did not publicly release it until May 28, 2010. The report recommended releasing 126 current detainees to their homes or to a third country, 36 be prosecuted in either federal court or a military commission, and 48 be held indefinitely under the laws of war. In addition, 30 Yemenis were approved for release if security conditions in their home country improve.
European Union members and the Organization of American States, as well as non-governmental organizations such as Amnesty International and Human Rights Watch, have protested the legal status and physical condition of detainees at Guantánamo. The human rights organization Human Rights Watch has criticized the Bush administration over this designation in its 2003 world report, stating: "Washington has ignored human rights standards in its own treatment of terrorism suspects. It has refused to apply the Geneva Conventions to prisoners of war from Afghanistan, and has misused the designation of 'illegal combatant' to apply to criminal suspects on U.S. soil." On May 25, 2005, Amnesty International released its annual report calling the facility the "gulag of our times." Lord Steyn called it "a monstrous failure of justice," because "... The military will act as interrogators, prosecutors and defense counsel, judges, and when death sentences are imposed, as executioners. The trials will be held in private. None of the guarantees of a fair trial need be observed."
Another senior British Judge, Justice Collins, said of the detention centre: "America's idea of what is torture is not the same as the United Kingdom's." At the beginning of December 2003, there were media reports that military lawyers appointed to defend alleged terrorists being held by the United States at Guantánamo Bay had expressed concern about the legal process for military commissions. The Guardian newspaper from the United Kingdom reported that a team of lawyers was dismissed after complaining that the rules for the forthcoming military commissions prohibited them from properly representing their clients. New York's Vanity Fair reported that some of the lawyers felt their ethical obligations were being violated by the process. The Pentagon strongly denied the claims in these media reports. It was reported on May 5, 2007, that many lawyers were sent back and some detainees refuse to see their lawyers, while others decline mail from their lawyers or refuse to provide them information on their cases.
The New York Times and other newspapers are critical of the camp; columnist Thomas Friedman urged George W. Bush to "just shut it down", calling Camp Delta "... worse than an embarrassment." Another New York Times editorial supported Friedman's proposal, arguing that Guantánamo is part of "... a chain of shadowy detention camps that includes Abu Ghraib in Iraq, the military prison at Bagram Air Base in Afghanistan and other secret locations run by the intelligence agencies" that are "part of a tightly linked global detention system with no accountability in law."
In November 2005, a group of experts from the United Nations Commission on Human Rights called off their visit to Camp Delta, originally scheduled for December 6, saying that the United States was not allowing them to conduct private interviews with the prisoners. "Since the Americans have not accepted the minimum requirements for such a visit, we must cancel [it]," Manfred Nowak, the UN envoy in charge of investigating torture allegations around the world, told AFP. The group, nevertheless, stated its intention to write a report on conditions at the prison based on eyewitness accounts from released detainees, meetings with lawyers and information from human rights groups.
In February 2006, the UN group released its report, which called on the U.S. either to try or release all suspected terrorists. The report, issued by the Working Group on Arbitrary Detention, has the subtitle Situation of detainees at Guantánamo Bay. This includes, as an appendix, the U.S. ambassador's reply to the draft versions of the report in which he restates the U.S. government's position on the detainees.
European leaders have also voiced their opposition to the internment center. On January 13, 2006, German Chancellor Angela Merkel criticized the U.S. detention of prisoners at Guantánamo Bay: "An institution like Guantánamo, in its present form, cannot and must not exist in the long term. We must find different ways of dealing with prisoners. As far as I'm concerned, there's no question about that," she declared in a January 9 interview to Der Spiegel.[dead link] Meanwhile in the UK, Peter Hain, the Secretary of State for Northern Ireland, stated during a live broadcast of Question Time (February 16, 2006) that: "I would prefer that it wasn't there and I would prefer it was closed." His cabinet colleague and Former Prime Minister of the United Kingdom, Tony Blair, declared the following day that the centre was "an anomaly and sooner or later it's got to be dealt with."
On March 10, 2006, a letter in The Lancet was published, signed by more than 250 medical experts urging the United States to stop force-feeding of detainees and close down the prison. Force-feeding is specifically prohibited by the World Medical Association force-feeding declarations of Tokyo and Malta, to which the American Medical Association is a signatory. Dr David Nicholl who had initiated the letter stated that the definition of torture as only actions that cause "death or major organ failure" was "not a definition anyone on the planet is using."
There has also been significant criticism from Arab leaders: on May 6, 2005, prominent Kuwaiti parliamentarian Waleed Al Tabtabaie demanded that U.S. President Bush "uncover what is going on inside Guantánamo," allow family visits to the hundreds of Muslim detainees there, and allow an independent investigation of detention conditions.
In May 2006, the Attorney General for England and Wales Lord Goldsmith said the camp's existence was "unacceptable" and tarnished the U.S. traditions of liberty and justice. "The historic tradition of the United States as a beacon of freedom, liberty and of justice deserves the removal of this symbol," he said. Also in May 2006, the UN Committee Against Torture condemned prisoners' treatment at Guantánamo Bay, noted that indefinite detention constitutes per se a violation of the UN Convention Against Torture, and called on the U.S. to shut down the Guantánamo facility. In June 2006, the European Parliament voted overwhelmingly in support of a motion urging the United States to close the camp.
In June 2006, U.S. Senator Arlen Specter stated that the arrests of most of the roughly 500 prisoners held there were based on "the flimsiest sort of hearsay." In September 2006, the UK's Lord Chancellor, Lord Falconer, who heads the UK's legal system, went further than previous British government statements, condemning the existence of the camp as a "shocking affront to democracy." Lord Falconer, who said he was expressing Government policy, made the comments in a lecture at the Supreme Court of New South Wales. According to former U.S. Secretary of State Colin Powell: "Essentially, we have shaken the belief the world had in America's justice system by keeping a place like Guantánamo open and creating things like the military commission. We don't need it and it is causing us far more damage than any good we get for it."
In March 2007, a group of British Parliamentarians formed an All-party parliamentary group to campaign against Guantánamo Bay. The group is made up of Members of Parliament and peers from each of the main British political parties, and is chaired by Sarah Teather with Des Turner and Richard Shepherd acting as Vice Chairs. The Group was launched with an Ambassadors' Reception in the House of Commons, bringing together a large group of lawyers, non-governmental organizations and governments with an interest in seeing the camp closed. On April 26, 2007, there was a debate in the United States Senate over the detainees at Guantánamo Bay that ended in a draw, with Democrats urging action on the prisoners' behalf but running into stiff opposition from Republicans.
Some visitors to Guantánamo have expressed more positive views on the camp. Alain Grignard, who visited Gitmo in 2006, objected to the detainees' legal status but declared that "it is a model prison, where people are better treated than in Belgian prisons." Grignard, then deputy head of Brussels' federal police anti-terrorism unit, served as expert on a trip by a group of lawmakers from the assembly of the Organisation for Security and Cooperation in Europe (OSCE). "I know no Belgian prison where each inmate receives its Muslim kit," Mr Grignard said.
According to polls conducted by the Program on International Policy (PIP) attitudes, "Large majorities in Germany and Great Britain, and pluralities in Poland and India, believe the United States has committed violations of international law at its prison on Guantánamo Bay in Cuba, including the use of torture in interrogations." PIP found a marked decrease in the perception of the U.S. as a leader of human rights as a result of the international community's opposition to the Guantánamo prison. A 2006 poll conducted by the BBC World Service together with GlobeScan in 26 countries found that 69% of respondents disapprove of the Guantánamo prison and the U.S. treatment of detainees. American actions in Guantánamo, coupled with the Abu Ghraib torture and prisoner abuse scandal, are considered major factors in the decline of the U.S.'s image abroad.
Michael Lehnert, who as a U.S. Marine Brigadier General helped establish the center and was its first commander for 90 days, has stated that was dismayed at what happened after he was replaced by a U.S. Army commander. Lehnert stated that he had ensured that the detainees would be treated humanely and was disappointed that his successors allowed harsh interrogations to take place. Said Lehnert, "I think we lost the moral high ground. For those who do not think much of the moral high ground, that is not that significant. But for those who think our standing in the international community is important, we need to stand for American values. You have to walk the walk, talk the talk."
In a foreword to Amnesty International's International Report 2005, the Secretary General, Irene Khan, made a passing reference to the Guantánamo Bay prison as "the gulag of our times," breaking an internal AI policy on not comparing different human rights abuses. The report reflected ongoing claims of prisoner abuse at Guantánamo and other military prisons. The comparison between the Gulag and Guantanamo Bay has been criticized by a number of people, including John Podhoretz, who on the difference between Guantanamo and a Soviet gulag, said, "Maybe the people who work at Amnesty International really do think that the imprisonment of 600 certain or suspected terrorists is tantamount to the imprisonment of 25 million slaves." Former Soviet-era "gulag" prisoner, Pavel Litvinov, also criticized the analogy saying, "By any standard, Guantanamo and similar American-run prisons elsewhere do not resemble, in their conditions of detention or their scale, the concentration camp system that was at the core of a totalitarian communist system." The comparison has been praised by some including Edmund McWilliams, and William F. Schulz.
In a February 2012 poll 70% of Americans (53% liberal Democrats and 67% moderate or conservative Democrats) replied they approve the continued operation of Guantanamo.
It was noted in the Pittsburgh Post Gazette though President Barack Obama came into office saying he would shut the facility down, in the end his administration has taken much the same stance as that of the Bush administration regarding the need for the facility and the practice of indefinite detention for prisoners. The Obama Administration "has vigorously defended a raft of legal challenges. Although detainees won a number of them -- gaining the right to make habeas challenges in U.S. courts -- the practical effect has been negligible. Only four men charged have been tried. Men cleared for release remain imprisoned. And the group of men the government says it doesn't plan to charge have no clear path to trial or release." A federal judge in Washington on September 6, 2012 rejected a government effort to sharply limit access between private lawyers and security detainees at the US base at Guantánamo Bay. Chief US District Judge Royce Lamberth ruled that access by lawyers to their detainee-clients at Guantánamo must continue under the terms of a long-standing protective order issued by federal judges in Washington. He pointedly stated: “Had, for example, the Obama administration closed the Guantánamo Bay detention facility as it promised, the court’s protective order would no longer have any effect.”
During his 2008 presidential campaign, Barack Obama described Guantánamo as a "sad chapter in American history" and promised to close down the prison in 2009. After being elected, Obama reiterated his campaign promise on 60 Minutes and the ABC program "This Week."
On January 22, 2009, President Obama stated that he ordered the government to suspend prosecutions of Guantánamo Bay detainees for 120 days to review all the detainees' cases to determine whether and how each detainee should be prosecuted. A day later, Obama signed an executive order stating that Guantánamo Detention Camp would be closed within the year. His plan encountered a setback when incoming officials of his administration discovered that there were no comprehensive files concerning many of the detainees, so that merely assembling the available evidence about them could take weeks or months. In May, Obama announced that the prosecutions would be revived. In November 2009, President Obama admitted that the "specific deadline" he had set for closure of the Guantánamo Bay camp would be "missed." He said the camp would probably be closed later in 2010, but did not set a specific deadline.
Carol Rosenberg, writing in The Miami Herald, reported that the camps will not be immediately dismantled, when the captives are released or transferred, due to ongoing cases alleging abuse of captives.
In 2009, the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, and the Standish Maximum Correctional Facility in Standish, Michigan, were being considered as the United States site for more than 220 prisoners. Kansas public officials including both of its senators and governor have objected. Many in Standish with an unemployment rate at the time of 17% welcomed the move.
Obama issued a presidential memorandum dated December 15, 2009, formally closing the detention center and ordering the transfer of prisoners to the Thomson Correctional Center, Thomson, Illinois. Attorney Marc Falkoff, who represents some of the Yemeni detainees, said that his clients might prefer to remain in Guantánamo rather than move into the more stark conditions at Thomson. Illinois Senator Dick Durbin’s office announced on October 2, 2012 that the Obama administration and Federal Bureau of Prisons is buying the Thomson Correctional Center from Illinois for $165 million. An administration official said the deal was to address overcrowding issues, and Thomson would not be used to house any Guantanamo detainees, which the official noted was prohibited by law. “The entire facility will house only [Bureau of Prison] inmates (up to 2,800) and be operated solely by BOP. Specifically, it will be used for administrative maximum security inmates and others who have proven difficult to manage in high-security institutions,” said the official, who asked not to be named. This statement was echoed in letter from U.S. Attorney General Eric Holder. "I have committed that no Guantanamo detainees will be transferred to Thomson. As you know, any such transfer would violate express legal statutory prohibitions," Holder said in a letter to Representative Frank Wolf, who fought the proposal.
The Guantanamo Review Task Force issued a final report on January 22, 2010, but did not publicly release it until May 28, 2010. The report recommended releasing 126 current detainees to their homes or to a third country, 36 be prosecuted in either federal court or a military commission, and 48 be held indefinitely under the laws of war. In addition, 30 Yemenis were approved for release if security conditions in their home country improve.
On January 7, 2011, President Obama signed the 2011 Defense Authorization Bill which contains provisions that place restrictions on the transfer of Guantánamo prisoners to the mainland or to other foreign countries, thus impeding the closure of the detention facility. He strongly objected to the clauses and stated that he would work with Congress to oppose the measures. Regarding the provisions preventing the transfer of Guantánamo prisoners to the mainland, Obama wrote in a statement that the “prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.” Furthermore, he wrote regarding the provisions preventing the transfer of Guantánamo prisoners to other foreign countries that requiring “the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.” The 2011 Defense Authorization Bill additionally prohibits “the use of funds to modify or construct facilities in the United States to house detainees transferred from United States Naval Station, Guantánamo Bay, Cuba.” Obama signed the 2011 Defense Authorization Bill, but nevertheless the Obama administration "will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future," the president's statement said.
On March 7, 2011, Obama gave the green light to resume military trials, conducted by military officers, with a military judge presiding, of terror suspects detained at Guantánamo Bay. He also signed an executive order that moved to set into law the already existing practice at Guantánamo of holding detainees indefinitely without charge. Comments regarding this executive order say it is progress regarding detainee’s rights but the problem with the order is the president’s decision to formalize the system of indefinite detention. Regarding the law H.R. 1473, the "Department of Defense and Full-Year Continuing Appropriations Act, 2011” which “bars the use of funds for the remainder of fiscal year 2011 to transfer Guantanamo detainees into the United States” and which “bars the use of funds for the remainder of fiscal year 2011 to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met.” the Obama Administration stated on April 15, 2011, that it “will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”
In an online New York Times op ed called “Guantánamo Forever?”, published on December 12, 2011 by retired United States Marine Corps Generals Charles C. Krulak and Joseph P. Hoar, both generals said that a provision of the National Defense Authorization Act for Fiscal Year 2012 “would further extend a ban on transfers from Guantánamo, ensuring that this morally and financially expensive symbol of detainee abuse will remain open well into the future. Not only would this bolster Al Qaeda’s recruiting efforts, it also would make it nearly impossible to transfer 88 men (of the 171 held there) who have been cleared for release.” Both Generals concluded their assessment by saying that “We should be moving to shut Guantánamo, not extend it.” On December 31, after signing the National Defense Authorization Act for Fiscal Year 2012 into law, President Obama voiced his concerns regarding certain provisions of the act including Section 1027 which "renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. [...]. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles." Obama closed his concerns by stating: "My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office."
Early July 2012 reports surfaced that Guantanamo Bay is getting an estimated $40 million communications upgrade because the outdated satellite communications system was overburdened with the military court hearing the cases of the top 9/11 plotters and other war-on-terrorism suspects, as well as the ongoing detention operations. These reports indicated that the US military is preparing for long-term operations at Guantanamo, but that was denied by Army Lt. Col. Todd Breasseale, a spokesman for the Guantanamo military commissions. He said that the communications upgrade project is meant to serve the Guantanamo naval station and not the detention camp, which Washington still “has plans” to close. ABC News pointed out on July 3, 2012 that setbacks in Congress as well as a need to focus on a stagnant economy in the United States have put the issue to close Guantanamo Bay detention camp on the back burner. ABC News asked if Obama still plans on closing Guantanamo, which was answered with yes. National Security Council spokesman Tommy Vietor said in a statement, "Obviously Congress has taken a number of steps to prevent the closure of the prison at Guantanamo Bay, but the President still believes it's in our national security interest and will keep trying". In the same interview, senior ACLU attorney Zachary Katznelson said,"President Obama has enough control and power that he can get these men out today if he has the political will to do so."
The United States government disclosed on September 21, 2012 the names of fifty-five of the eighty-six prisoners cleared for transfer from Guantanamo Bay prison. All of the names made public were of prisoners President Barack Obama’s interagency Guantanamo Bay Review Task Force approved for release from the prison. Previously, the US government had maintained the names of prisoners cleared could not be made public because it would get in the way of diplomatic efforts to repatriate or resettle prisoners in their home country or other countries.
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