Celebrate the Facts!
Originally intended to be an island outside the law where the United States could detain and torture terrorist suspects, the existence of the prison and military commissions at Guantanamo Bay, also known as Gitmo, are catastrophic failures. Since the George W. Bush administration established the prison camp in 2002, almost 800 men have passed through this metaphoric Hell on earth. The end of the forever war in Afghanistan is the first step toward the end of this stain on humanity, justice, and the rule of law.
Quick Guantanamo facts:
Guantanamo has become a symbol of American hypocrisy, abuse, and disregard for decency and the rule of law. The United States Congress passed an ‘authorization for the use of military force’ in 2001 to go after whoever was responsible for those attacks, like al-Qaida and the Taliban. The law gives the president sweeping powers during wartime, and the executive branch claimed and continues to maintain that includes the ability to detain prisoners without charge or trial.
The Bush administration issued a Military Order authorizing trial by a military tribunal for non-United States citizens who were members of al Qaida, who engaged in terrorism, conspired to do such, or people who have knowingly harbored such individuals. Military commissions are how the United States then prosecutes detained individuals.
The Bush administration established the detention camp to house the most dangerous criminals, especially those who had committed war crimes. The initial US government position concerning Guantanamo was that detainees were ‘unlawful enemy combatants,’ and none of the protections contained in the Geneva conventions applied to them. In other words, torture was on the menu for the madmen who dreamt it up and their agents who implemented it.
The Bush Administration located the facility off domestic soil to allow the United States to detain, interrogate, and sometimes torture suspects, ostensibly to gather information about future terror attacks, without benefit or protection of United States constitutional protections.
Few political figures raised objections to these tactics. The United States Congress has approved funding for the camp annually since its construction. To maintain one American political party is morally clean or the other less so is fiction as there has been bipartisan support for the continued funding and so consent for its existence and operation.
The United States government tortured or otherwise abused most of those imprisoned at the Guantánamo Bay Detention Camp. The torture included waterboarding, sexual harassment and abuse, physical abuse, and sleep deprivation. The Red Cross, the United Nations, and the Center for Constitutional Rights have all confirmed that the United States government tortured people imprisoned at Guantánamo Bay. Yet, unfortunately, the United States has not prosecuted any of the officials who authorized the use of torture or implemented it. This failure serves as a tacit reassurance that the government will treat prosecuting torture and other human rights violations lightly in the future.
It is undetermined when ‘authorization for the use of military force’ expires, the parameters of that war. The United States has defended holding prisoners forever, without charges, adequate legal representation, or other redress due to the now-global ‘war on terror.’ Regardless, the United States withdrawal from Afghanistan raises complicated legal questions, such as whether a war is ongoing once fighters leave the battlefield and when to liberate prisoners following a troop withdrawal.
Legal actions attempting to resolve the opacities of the ‘authorization for the use of military force’ resulted in courts avoiding addressing whether these vast presidential war powers are specific to a particular geography, instead of referencing the war in Afghanistan as justification for holding detainees. Human rights activists and detainees' lawyers argue a war must have definitions to determine its end and the time to release the prisoners of that war.
In a consolidated cases in 2008 the Supreme Court held in a 5-4 opinion that aliens designated as enemy combatants and detained at Guantanamo have the constitutional privilege of habeas corpus. However, the Court also found that § 7 of the Military Commissions Act (MCA), which limited judicial review of administrative determinations of the petitioners' enemy combatant status, did not provide an adequate habeas substitute and therefore acted as an unconstitutional suspension of the writ of habeas. Prisoners then were technically able to challenge their situation in United States federal courts to scant outcomes.
There are now 39 prisoners remaining in Guantanamo, as a former detainee, Abdul Latif Nasser saw his family again in Morocco after United States troops turned him over to Moroccan state custody in July 2021. Mr. Nasser was a prisoner for more than 19 years.
In the most recent ‘legal actions’ at Guantanamo, the United States criminally charged two alleged Malaysian terrorists, Mohammed Nazir Lep, 45, and Mohammed Farik Amin, 46, both detained at the detention camp in Cuba since 2006, along with the alleged mastermind of the bombings, Indonesian Encep Nurjaman, also known as Hambali. The three have spent more than 14 years in Guantanamo.
Of the 39 men remaining prisoners:
Federal law bars the United States government from transferring any inmates to prisons on the United States mainland. However, Biden would face a tough challenge securing legislative changes to allow such transfer because some Democrats oppose them.
Military figures and hawkish politicians lead the opposition to the closure, claiming released detainees have committed terrorist acts without credible evidence. However, the utility of such an extra-legal institution substantially benefits intelligence agency types who relish the opportunity to interrogate suspects without legal restraint and due process legal considerations.
The Biden administration has announced it intends to close the facility, although the mechanism of completing that intent is undefined. Biden proposed a commission to examine alternatives, although this commission's specific actions and intended mandate are unclear.
Joe Biden has shown the political will to close the Forever War chapter in American history and take the heat for the consequences of his decisions. Biden is less susceptible to military arguments to continue formal military action in the Middle East hence his withdrawal decision. The overwhelming majority of United States citizens supported the recent withdrawal.
The immediate optics of the collapse of the puppet regime were quite negative, and political pundits had a field day pointing fingers. However, history undoubtedly will find a different judgment as Afghanistan devolves into a medieval nation and the United States becomes one of many occupying powers to have failed nation-building in Afghanistan.
Likely future actions by the Biden administration:
Michael Donnelly investigates societal concerns with an untribal approach - to limit the discussion to the facts derived from primary sources so the reader can make more informed decisions.