Guantanamo Bay detention camp
The Guantanamo Bay detention camp (Spanish: Centro de detención de la bahía de Guantánamo) is a United States military prison within the Guantanamo Bay Naval Base, also referred to as Gitmo (/ˈɡɪtmoʊ/ GIT-moh), on the coast of Guantánamo Bay in Cuba. As of April 2023, of the 779 people detained there since January 2002 when the military prison first opened after the September 11 attacks, 740 had been transferred elsewhere, 30 remained there, and nine had died while in custody.[1]
Location
Operational
30 (as of April 2023)
January 11, 2002
The camp was established by U.S. President George W. Bush's administration in 2002 during the War on Terror following the September 11, 2001 attacks. Indefinite detention without trial led the operations of this camp to be considered a major breach of human rights by Amnesty International, and a violation of the Due Process Clause of the Fifth and Fourteenth amendments of the United States Constitution by the Center for Constitutional Rights.[2][3] There are also testimonies of abuse and torture of prisoners.[4][5]
Bush's successor, U.S. President Barack Obama, promised that he would close the camp in 2010, but met strong bipartisan opposition from the U.S. Congress, which passed laws to prohibit detainees from Guantanamo being transferred to the United States for any reason, including imprisonment or medical care.[6] During the Obama administration, the number of inmates was reduced from about 250[7] to 41.[8]
In January 2018, U.S. President Donald Trump signed an executive order to keep the detention camp open indefinitely.[9] In May 2018, the Trump administration repatriated a prisoner to Saudi Arabia.[10]
In early February 2021, U.S. President Joe Biden declared his intention to close the facility before he leaves office, though the Biden administration has taken few steps in that direction.[11][12] Instead, the Department of Defense has continued several million dollars of expansions to military commissions and other Guantanamo Bay facilities, including a second courtroom.[13][14][15] The Biden administration has released 10 detainees from Guantanamo.[16][17][18][19] As of April 2023, the facility has 30 detainees.[20]
Legal issues[edit]
President Bush's military order[edit]
On 14 September 2001, Congress passed the Authorization for Use of Military Force Against Terrorists, giving the President of the United States broad powers to prosecute a War on Terror in response to the September 11 attacks.[170] Secretary of State Colin Powell and State Department Legal Advisor William Howard Taft IV advised that the President must observe the Geneva Conventions.[171] Colonel Lawrence Morris proposed holding public hearings modeled on the Nuremberg trials.[172] Major General Thomas Romig, the Judge Advocate General of the United States Army, recommended any new military tribunals be modeled on existing courts-martial.[171]
However, Assistant Attorney General for the Office of Legal Counsel Jay Bybee, relying on the unitary executive theory developed by Deputy Assistant Attorney General John Yoo, advised the President in a series of memos that he could hold enemy combatants abroad, indefinitely, without congressional oversight, and free from judicial review.[171] On 13 November 2001, President George W. Bush signed a military order titled the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, which sought to detain and try enemy combatants by military commissions under presidential authority alone.[171]
Rasul v. Bush (2004)[edit]
On 19 February 2002, Guantanamo detainees petitioned in federal court for a writ of habeas corpus to review the legality of their detention. U.S. District Judge Colleen Kollar-Kotelly denied the detainees' petitions on 30 July 2002, finding that aliens in Cuba had no access to U.S. courts.[173]
In Al Odah v. United States, a panel of the United States Court of Appeals for the District of Columbia Circuit including Judge Merrick Garland affirmed on 11 March 2003.[174]
On 28 June 2004, the Supreme Court of the United States decided against the Government in Rasul v. Bush.[175] Justice John Paul Stevens, writing for a five-justice majority, held that the detainees had a statutory right to petition federal courts for habeas review.[176]
That same day, the Supreme Court ruled against the Government in Hamdi v. Rumsfeld.[177] Justice Sandra Day O'Connor wrote the four-justice plurality opinion finding that an American citizen detained in Guantanamo had a constitutional right to petition federal courts for habeas review under the Due Process Clause.[176]
Plans for closing of camp[edit]
President Obama's attempt[edit]
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.[303]
On 22 January 2009, Obama stated that he had 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.[37] 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.[304] In May, Obama announced that the prosecutions would be revived.[305] On 20 May 2009, the United States Senate passed an amendment to the Supplemental Appropriations Act, 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.[36] In November 2009, Obama admitted that the "specific deadline" he had set for closure of the Guantanamo Bay camp would be "missed." He said the camp would probably be closed later in 2010, but did not set a specific deadline.[306][307]
In May 2009, Carol Rosenberg, writing in The Miami Herald, reported that the camps would not be immediately dismantled when the detainees are released or transferred, due to ongoing cases alleging abuse of detainees.[308]
In August 2009, the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, and the Standish Maximum Correctional Facility in Standish, Michigan were considered potential sites for transfers of over 220 prisoners. Kansas public officials, including both of its senators and governor, objected to transferring prisoners to the former.[309] Many in Standish, however, welcomed the move to the latter.[310]
Obama issued a presidential memorandum dated 15 December 2009, formally closing the detention center and ordering the transfer of prisoners to the Thomson Correctional Center in Thomson, Illinois (now United States Penitentiary, Thomson).[37] Attorney Marc Falkoff, who represents some of the Yemeni detainees, said that his clients might prefer to remain in Guantanamo rather than move into the more stark conditions at Thomson.[311] Illinois Senator Dick Durbin's office announced on 2 October 2012 that the Obama administration and Federal Bureau of Prisons would buy the Thomson Correctional Center from Illinois for $165 million.[312][313][314] An administration official said the deal was to address overcrowding issues, and Thomson would not be used to house any Guantánamo 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.[315] 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.[316]
The Guantanamo Review Task Force issued a final report on 22 January 2010,[238] released on 28 May 2010.[239] 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.[240] In addition, 30 Yemenis were approved for release if security conditions in their home country improve.[239]
On 7 January 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. The bill prohibits the use of funds to "modify or construct facilities in the United States to house detainees transferred from" Guantánamo Bay.[317][318] He strongly objected to the clauses and stated that he would work with Congress to oppose the measures.[39] 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."[319] Obama's order included provisions preventing the transfer of Guantánamo prisoners to other foreign countries, writing 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."[319] 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.[320][321]
On 7 March 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.[322] He also signed an executive order that requires a review of detainees' status "within a year and every four years after that to determine whether they remain a threat... [and] scheduled for a military trial or should be released."[323][324] The order required compliance with the Geneva Conventions and the international treaty banning torture and inhumane treatment.[323][324][325][326][327][328]
The delay of Guantánamo Bay's closing resulted in some controversy among the public. On 12 December 2011, The New York Times published an op-ed written by retired United States Marine Corps Generals Charles C. Krulak and Joseph P. Hoar. The two criticized how a provision of the National Defense Authorization Act for Fiscal Year 2012 (NDAA) would extend a ban on transfers from Guantánamo, "ensuring that this morally and financially expensive symbol of detainee abuse [would] remain open well into the future." Both argued the move would bolster Al Qaeda's recruiting efforts and make it "nearly impossible" to transfer 88 men (of the 171 held there) who had been cleared for release.[329]
On 31 December, after signing NDAA, 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 Guantánamo detainees into the United States for any purpose." He continued to state opposition to the provision, which he argued "intrudes upon critical executive branch authority to determine when and where to prosecute Guantánamo 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."[330] Obama closed his concerns by stating his administration would "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."[330]
In early July 2012, reports surfaced saying Guantánamo Bay was getting an estimated $40 million communications upgrade because the outdated satellite communications system was overburdened with the military court hearing the cases of war-on-terrorism suspects, as well as by the ongoing detention operations. These reports therefore indicated the US military was preparing for long-term operations at Guantánamo,[331] but they were denied by Army Lt. Col. Todd Breasseale, a spokesman for the Guantánamo military commissions. He said the communications upgrade project is meant to serve the Guantanamo naval station rather than the detention camp, which Washington still "has plans" to close. On 3 July 2012, ABC News reported setbacks in Congress, as well as a need to focus on a stagnant economy in the United States, had made the issue of closing the detention camp a lesser priority. The channel also asked Obama if he planned on ever closing Guantanamo Bay, to which he replied he did.
Some blamed Congress for the delay in closing the detention camp, while others blamed the president. 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 Guantánamo Bay, but the President still believes it's in our national security interest and will keep trying". In the same interview, however, senior ACLU attorney Zachary Katznelson argued Obama had "enough control and power that he [could have gotten those] men out today if he [had] the political will to do so."[332]
On 21 September 2012, the US government disclosed the names of 55 of the 86 prisoners cleared for transfer from Guantánamo Bay prison. All of the names publicized were those of prisoners that Obama's inter-agency Guantanamo Bay Review Task Force had approved for release from the prison. Previously, the government had maintained the names of prisoners cleared could not be made public because it would interfere with diplomatic efforts to repatriate or resettle prisoners in their home country or other countries.[333]
In November 2012, the Senate voted 54–41 to prevent detainees from being transferred to the US.[334] At the end of December 2013, President Obama stated he has not given up the idea of trying terror suspects housed at Guantanamo Bay in United States courts. "The executive branch must have the authority to determine when and where to prosecute Guantanamo detainees, based on the facts and circumstances of each case and our national security interests," Obama wrote in a signing statement attached to a new defense authorization bill[335] called the National Defense Authorization Act for fiscal 2014 which relaxed restrictions on transferring detainees from the U.S. prison at Guantanamo Bay, Cuba, to the custody of foreign governments.[336]
On 20 January 2015, during the 2015 State of the Union address, Obama stated Guantánamo Bay "is not who we are" and that it was "time to close Gitmo". A little less than a week later, The Huffington Post published an article by Tom Hayden arguing Guantánamo Bay would be best closed by returning the base to Cuban sovereignty, arguing it is "where [Guantánamo Bay] belongs historically."[337]
On 4 November 2015, Obama stated that he was preparing to unveil a plan to close the camp and move some prisoners to US soil. The plan proposed one or more prisons from a working list that included facilities in Kansas, Colorado and South Carolina. Two others that were on the list, in California and Washington state, didn't appear to have made the preliminary cut.[42][338]
On 23 February 2016, Obama stated that years after Congress disagreed to close the camp, it has come to a conclusion of closing the camp. The exact time frame of the camp closing was not revealed.[339] At 23 February 2016, there were 91 prisoners in Guantánamo. From these 35 were recommended for transfer if security conditions could be met. The remaining prisoners were expected to be brought to U.S. facilities in the United States.[340][341][342][343] If brought to the United States, some of those detainees would continue through military commissions; others might face trial in civilian courts.[341] 13 potential facilities in the United States that might be used to house detainees were reviewed by the Obama administration, but their names were not revealed.[341] This information was published because Congress had asked the administration to provide information about where and how the administration intended to hold existing and future detainees, if Guantanamo was closed.[344] Obama's plan was rejected by several Republicans in Congress.[345]
On 15 August 2016, 15 prisoners were transferred from the prison.[346] Twelve Yemeni nationals and 3 Afghans were transferred to the United Arab Emirates, bringing the total number of prisoners to 61 with 20 more cleared for transfer. Obama did not close the prison before leaving office but had reduced the number of prisoners to 41.[8]
President Trump's statements[edit]
President Donald Trump vowed to keep the prison open and to use it to detain terrorists, potentially including American supporters of ISIS.[347] On 30 January 2018, just before delivering his State of the Union address, Trump signed an executive order to keep the prison open indefinitely.[9]
President Biden’s review[edit]
On 11 February 2021, US President Joe Biden announced a review of plans to close the camp by the end of his term. At the time, there were 40 prisoners at the camp, most of whom had been held for nearly two decades without being charged or tried.[348] As of March 2022, one prisoner, Mohammed al-Qahtani, was expatriated to Saudi Arabia, bringing the total number of prisoners at Guantanamo Bay to 38.[349]
