A "New Paradigm": The Stunning History of Human Rights Violations at Guantánamo Bay

by Samuel B. Parker

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On January 11th, 2002, twenty inmates arrived at the Guantánamo Bay detention camp, becoming the first individuals to be incarcerated inside the notorious military installation. Twenty years later, almost 800 men have been confined at Guantánamo Bay, and at least 39 remain behind bars awaiting eventual prosecution or release.

"Gitmo" has long been the subject of intense political and ethical controversy both at home and abroad, and for good reason. The duplicitous tactics employed to install the facility as well as the treatment of the detainees inside have revealed the harrowing consequences of unrestrained state power and have shed light on the attitudes and actions of the darkest elements of the U.S. government. From its inception outside the boundaries of U.S. and international law, to demonstrable accounts of abuse and torture, to its present use as an extrajudicial holding site, Guantánamo Bay persists among the darkest stains in American history and is an ominous warning sign of what might follow.

Background

Guantánamo Bay, situated on the south coast of Cuba, has been under U.S. jurisdiction since 1898, when the United States defeated Spain in the Spanish-American War. The Spanish empire had captured, colonized, and ruled Cuba since the late 15th century; however, following Spanish surrender to the United States at the end of the 19th century, the United States assumed control of and occupied the island for over three years.

In 1901, the United States agreed to withdraw from Cuba and recognize Cuban independence only under very specific conditions, ensuring that provisos that favored U.S. interests were codified into the new Constitution of Cuba. One of these stipulations was the Platt Amendment, which, among other things, delineated the details of a permanent contract that would ultimately grant Guantánamo Bay to the U.S. government, thus assuring the survival of the U.S. military base that had operated there since 1898. Under the coercive threat of continued U.S. imperialist abuse and colonialist exploitation, the fledgling revolutionary government of Cuba was essentially forced to ratify the Platt Amendment, and thus to eventually cede territory to the United States under a lease that only the U.S. government was empowered to terminate.

In 1934, the U.S. and Cuban governments abrogated the Platt Amendment and repealed the provisions therein. The two parties mutually extended the lease for an indeterminate period of time and under renegotiated terms that specified that U.S. tenure of Guantánamo Bay could be canceled only if both the United States and Cuba consented to its annulment. But these changes were merely symbolic and had no practical impact on the nature of U.S. presence in Guantánamo Bay. Although Cuba was ostensibly afforded equal influence over the lease agreement, the United States was still not required to abandon the region until and unless the U.S. government independently elected to do so. As a result, the Cuban government is still not capable of expelling a foreign power and exercising autonomous authority over its own lands.

The truly impotent nature of the Cuban state in these affairs became evident in 2015, when the U.S. government refused Cuban demands for the unconditional return of Guantánamo Bay. To this day, the United States maintains a naval base in the area over the direct objections of the Cuban government and people: a protraction of the radical imperialism that has defined U.S. foreign policy for several centuries.

Establishment of Guantánamo Bay Detention Camp

In the aftermath of the September 11th attacks and the subsequent launch of the War on Terror in 2001, the U.S. government faced a significant problem. A coalition that included U.S. forces was tearing across the nation of Afghanistan in an effort to topple the Taliban, which had assumed de facto control of Afghanistan in 1996 and had lent significant aid and protections to al Qaeda as the terrorist operatives plotted and coordinated the events of 9/11. As the Taliban retreated before a successful allied invasion, the U.S. military began taking captives, many of whom were suspected of participating in terrorist activities.

But U.S. government officials wanted to minimize the extent of activities in Afghanistan, and they realized that the construction of massive prison complexes would divert vital resources, human effort, and public attention from ongoing military operations. At the same time, they feared that interning captured Afghans in prisons located on U.S. soil would automatically confer the inmates legal rights under the U.S. Constitution.

Their solution to this dilemma was Guantánamo Bay.

Because the terms of the U.S. lease ensure “complete jurisdiction” of the United States over Guantánamo Bay, the U.S. government would be able transfer captives to Cuba without obtaining permission from the Cuban government. And, perhaps more sinister, because Guantánamo Bay is firmly controlled by the United States but does not lie within its national borders, advocates for the proposed detention camp argued that the privileges and immunities guaranteed by the U.S. Constitution did not apply to any captives held on the island.

As they weighed the various options for a new detention camp, officials in the administration of President George W. Bush admitted that one of their primary selection criteria was the external location of a site that would allow them to deny basic constitutional rights and to evade U.S. court oversight and interference. And in ensuing court battles, they referred to Guantánamo Bay as a “legal black hole”: one that they tried to fill with practically unlimited and utterly horrifying executive purview.

But the Bush administration was not content to simply curtail the constitutional rights of prisoners at Guantánamo Bay. In a 2002 memorandum, the White House advised certain members of the presidential cabinet and the Director of the C.I.A. that it intended to accept conclusions drawn by the Department of Justice that “none of the provisions of [the] Geneva [Conventions] apply to [the] conflict with al Qaeda in Afghanistan or elsewhere throughout the world” and that “[the president] ha[s] the legal authority under the Constitution to suspend [the] Geneva [Conventions] as between the United States and Afghanistan.” Specifically, the Bush administration insisted that “Common Article 3 of [the] Geneva [Conventions] does not apply to either al Qaeda or Taliban detainees” because detained members of al Qaeda and the Taliban “do not qualify as prisoners of war under… [the] Geneva [Conventions].” In a similar 2007 memorandum, President Bush restated that “members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war,” without bothering to draw a concrete distinction between “unlawful enemy combatants” and “prisoners of war.”

The Geneva Conventions comprise four separate treaties and three protocols that collectively set an international legal standard for humanitarian conduct in wartime. They outline foundational rights and protections for war prisoners, wounded combatants, and noncombatant civilians. Common Article 3 of the Geneva Conventions concerns the humane treatment of captives; it explicitly forbids “violence to life and person [including]… mutilation, cruel treatment and torture” and “outrages upon personal diginity, in particular humiliating and degrading treatment,” and it dictates access to “judicial guarantees which are recognized as indispensable by civilized peoples.” The U.S. government was searching for a way to preclude captives from taking advantage of these assurances, and they found it in Guantánamo Bay.

By incarcerating detainees outside of the United States, the Bush administration deliberately sought to deprive them of constitutional rights. By refusing to classify captives as prisoners of war, the Bush administration deliberately sought to deprive them of fundamental human rights. They did so with almost no hesitation and seemingly few compunctions.

Nor were these decisions made covertly. The White House publicly announced its intentions to purposefully skirt legal and moral accountability on both the national and international stage. They labeled this behavior a “new paradigm”: a fresh reality wherein they chose to engage in “new thinking [about] the law of war.” The chilling Orwellian undertones of these words are impossible to miss.

Civil and Human Rights Violations at Guantánamo Bay Detention Camp

(Warning: descriptions of torture and violence)

Detention at Guantánamo Bay began on January 11th, 2002 with the arrival of 20 captives from Afghanistan. In the intervening decades, the site has witnessed some of the most appalling events of the modern age. Incriminating testimony from workers and verifiable prisoner accounts alike recount contravention of legal rights, gross negligence, and torture. In spite of the fact that U.S. court rulings in 2004 and 2006 summarily rejected claims by the Bush administration that Guantánamo Bay fell outside of U.S. judicial jurisdiction and beyond the scope of the Geneva Conventions, the “legal black hole” has enabled the U.S. government to indefinitely detain and repeatedly maltreat inmates.

Amendment VI of the U.S. Constitution expands upon the concept of “due process” found in Amendment V before it, enumerating the components of the indispensable right; together, the amendments indicate that “no person shall be… deprived of life, liberty, or property without… a speedy and public trial [emph. added]” and without being informed of “the nature and cause of the accusation” leveled against them. Essentially, the right to due process proscribes the detention of individuals for unreasonable durations and requires that detainees are made aware of the charges against them. While the term “speedy trial” is contextually ambiguous, the Speedy Trial Act of 1974 that “defin[ed] the Sixth Amendment right” mandated that “the period of delay in all federal and district courts shall not exceed 100 days,” with exceptions authorized by trial judges for special or extenuating circumstances.

Moreover, Article I, Section 9, Clause 2 of the U.S. Constitution and several federal statutes enshrine the writ of habeas corpus in U.S. law. Latin for “that you have the body,” the “Great Writ” of habeas corpus is a common law recourse that entitles prisoners to dispute the legality of their pretrial detention on several grounds, such as an absence of formal criminal charges.

In sum, the prolonged and indefinite custody of uncharged detainees qualifies as unlawful imprisonment according to U.S. law. And yet, many of the inmates at Guantánamo Bay have languished for years, some since 2002, without being formally charged with a crime, undergoing a jury trial, or otherwise enjoying their right to due process. Surely, twenty years—more than a third of the average human lifespan—is anything but “speedy.” And while the prisoners at Guantánamo Bay have the technical right to challenge their detention under the writ of habeas corpus, the U.S. judiciary has abdicated its responsibility to check and balance its executive counterpart: lower courts have denied such attempts due only to the former associations and personal contacts of detainees, and the U.S. Supreme Court has routinely declined to rule on appeals. Through both calculated executive action and judicial acquiescence, the U.S. federal government has meticulously designed an indefinite detention program and, in the process, has orchestrated a systemic infringement of the civil rights that supposedly lie at the heart of the United States.

Simultaneously, reports of barbaric torture have emerged from Guantánamo Bay. In 2002, the Bush administration approved the use of “enhanced interrogation techniques” against “high value” inmates at Guantánamo Bay. The most infamous example of these techniques was waterboarding, a tactic in which “the detainee is immobilized on his back and water is poured over a cloth on his face” in order to simulate asphyxiation by drowning; waterboarding causes severe brain damage, critical lung distress, loss of consciousness, and bleeding from facial orifices. The C.I.A. also implemented lesser known “enhanced interrogation techniques.” Some detainees were “walled,” a tactic in which their heads were “encircled with a collar,… and then slamm[ed] against a wall.” Others were shackled in stress positions (upside down, arms over heads, confined in boxes, etc.), forced to stand on broken feet, anally penetrated for medically unnecessary rectal feeding, exposed to extreme temperatures while naked, shaken violently, repeatedly struck in the face, and subjected to sensory and sleep deprivation.

The euphemism “enhanced interrogation” allowed U.S. officials to plead ignorance and innocence when accused of committing war crimes by resorting to torture. But the law, both domestic and international, is clear. In the United States, 18 U.S.C. 2340A criminalizes “acts specifically intended to inflict severe physical or mental pain or suffering.” Globally, the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibits “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.” Correspondingly, Article 16 of the U.N. convention instructs all members of the international body to “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment,” even those that do“not amount to torture.”

The U.S. government was eventually confronted regarding its use of “enhanced interrogation techniques.” The defense? A playlist of the old favorites. “Enhanced interrogation techniques,” they asserted, did not breach U.S. law because, while “certain acts may be cruel, inhuman, and degrading, [they] still [do] not produce pain and suffering of [a] requisite intensity… that is difficult to endure[,]… such as organ failure, impairment of bodily function, or even death,… to fall within Section 2340A.” In other words, officials in the Bush administration contended that, by the arbitrary estimation of the perpetrators (and not the victims), “the infliction of pain” was “insufficient[ly]… severe… to amount to torture” under U.S. law. Meanwhile, they stated that “enhanced interrogation techniques” did not transgress international law because U.S. obligations to Article 16 of the U.N. convention are “limited to conduct within ‘territory under [United States] jurisdiction,’… [and enhanced] interrogations do not take place in any such areas.” As many had predicted and feared, the U.S. government pointed to the foreign soil of Guantánamo Bay in order to justify and excuse obvious war crimes.

Guantánamo Bay Today

Currently, 39 of the original 780 detainees remain at the Guantánamo Bay detention camp. Two of the last three presidents have vowed to close the facility and end one of the worst chapters in U.S. history. So far, neither has fulfilled that promise.

“Enhanced interrogation techniques” were discontinued in 2009, when President Barack Obama signed an executive order that expressly eliminated government torture. And while detainees at Guantánamo Bay are allegedly spared physical violence at the hands of their captors, their legal standing remains the same: stranded in a no man’s land intentionally crafted to prevent them from any and all means of escape.

The Guantánamo Bay detention camp has become an integral part of the national legacy, and will be inextricably linked to U.S. history at the turn of the century. It is unfortunately impossible to reverse this grave error and undo the damage that has been rendered upon the reputation, credibility, and moral integrity of the United States.

But it is not too late to close the Guantánamo Bay detention camp, offer restitution to its many casualties, enact laws that will comprehensively impede the recurrence of such deeply wicked transgressions, and restore Cuban lands to the people of Cuba. If Americans do not expect and demand leadership that is committed to these objectives, they will concede to total compromisation of supposedly American ideals.

The “new paradigm” must not continue. Otherwise, the paradigm that inevitably comes next will surely dismantle what remains of civil and human rights in the United States.