Guantánamo Detention in the Time of COVID-19

• Author: Annie W. Morgan
• Position: Defense Attorney for the Military Commissions Defense Organization
• Pages: 509-536

Guanta

´namo Detention in the Time of COVID-19

Annie W. Morgan*

“It is said that no one truly knows a nation until one has been inside its jails. A

nation should not be judged by how it treats its highest citizens, but its lowest

ones.” —Nelson Mandela

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

I. PART I .............................................. 512

A. Background on Guantánamo Bay . . . . . . . . . . . . . . . . . . . . . 512

B. U.S. Government Position on Detainee Medical Care . . . . . . 515

II. PART II ............................................. 516

A. Domestic and International Obligations to Provide Adequate

Medical Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516

III. PART III............................................. 519

A. Challenges Associated with COVID-19 . . . . . . . . . . . . . . . . . 519

1. The Age and Health of Detainees Put Them at Greater

Risk for Severe Illness 519

2. The Military Prison Lacks the Necessary Equipment And

Personnel to Meet the Standard of Care Established for

COVID-19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521

3. Domestic Law Prohibits the Transfer of Detainees to the

United States for Medical Care 523

4. Even If the Virus Does Not Reach the Detainees, the

Pandemic Will Have Serious Implications for the

Detainees’ Health and Legal Rights . . . . . . . . . . . . . . . . 526

IV. PART IV............................................. 527

A. Solutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527

1. Increase Virtual Contact with Lawyers, NGOs and

Families . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529

2. Immediate Deployment of Specialists and Equipment . . . 531

3. Transport Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533

CONCLUSION 535

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* Annie W. Morgan is Defense Attorney for the Military Commissions Defense Organization. She

previously served as a Judge Advocate in the United States Air Force. The views expressed in this article

do not reflect the views of the Department of Defense, the United States Government, or any agency or

instrumentality thereof. The author thanks Professor David Koplow, CAPT Brian Mizer, and Mr.

Anthony Natale for their helpful suggestions and edits. © 2022, Annie W. Morgan.

509

INTRODUCTION

The novel coronavirus (“COVID-19”) breathed new life into decades-old calls

to close the controversial military prison in Guanta

´namo Bay as many, including

members of Congress, expressed doubts about the prison’s ability to protect

detainees in the event of a COVID-19 outbreak.

1

Letter from Elizabeth Warren, Bernard Sanders, Dianne Feinstein, Cory A. Booker, Christopher

A. Coons, Ron Wyden, Thomas R. Carper, Jack Reed, Edward J. Markey, Sherrod Brown, Tammy

Baldwin, Patrick Leahy, Jeffrey A. Merkley & Benjamin L. Cardin, Senators, U.S. Senate, to Mark T.

Esper, Sec’y of Def., Dep’t of Def. (May 27, 2020), https://perma.cc/3RWU-99YL (seeking information

about the Department of Defense efforts to limit the spread of COVID-19 among detainees) [hereinafter

Letter from Senators].

Less than two weeks after the

World Health Organization (“WHO”) declared COVID-19 a global pandemic,

2

Coronavirus Disease 2019 (COVID-19) Situation Report – 51, WORLD HEALTH ORG. (Mar. 11,

2020, 11:00 AM), https://perma.cc/LF6F-B49M.

the highly contagious and often fatal virus reached the remote military installa-

tion in southeastern Cuba that is home to the prison for alleged terrorists responsi-

ble for the attacks on September 11, 2001.

3

Rebecca Kheel, Navy Sailor at Guantánamo Test Positive for Coronavirus, HILL (Mar. 24, 2020,

11:24 AM), https://perma.cc/R6QQ-Z4UE.

The COVID-19 pandemic has

brought new attention to what many familiar with Guanta

´namo Bay have known

for years: the military prison lacks the infrastructure, expertise, and equipment to

manage and address emergent health issues, including a serious viral outbreak.

Critics worry that if COVID-19 reaches the military prison, the results will be cat-

astrophic because the medical care available to detainees is inadequate to address

the crisis-level situations that COVID-19 presents. This paper will propose three

solutions to address the inadequate medical care available to detainees, both dur-

ing the COVID-19 pandemic and afterward: (1) increased virtual contact between

detainees and their lawyers and non-governmental organization (“NGO”) repre-

sentatives; (2) more agile deployment capabilities for specialist personnel and

equipment; and ultimately, (3) the development of a transport plan.

With the advent and broad dissemination of the COVID-19 vaccine, it is

possible that the Guanta

´namo detainees will make it through the pandemic

without having to confront this inadequacy–at least publicly.

4

Reis Thebault, Lateshia Beachum, Brittany Shammas, Taylor Telford, Marisa Iati, Antonia Noori

Farzan, Erin Cunningham, Siobha

´n O’Grady & Jacqueline Dupree, U.S. Surpasses 300,000 Coronavirus

Deaths as First Vaccine Shots are Given, WASH. POST (Dec. 14, 2020), https://perma.cc/LXE8-BKT2;

see also, Julia Conley, Pentagon Secrecy Around COVID At Guantánamo Bay Is One More Reason To

Shut The Prison, SALON (Aug. 23, 2020, 2:02 PM), https://perma.cc/M725-M2TD (noting that since

mid-March, the Department of Defense has refused to disclose information related to COVID-19 at

Guantánamo Bay); Jason Hoffman, Plan To Vaccinate Guantánamo Bay Detainees Against Covid-19

Has Been Paused, CNN (Jan. 30, 2021, 4:14 PM), https://perma.cc/W4C8-ZXFS (The Pentagon has

paused plans to vaccinate detainees.).

However,

COVID-19 shined a light on a larger problem of detainee medical care: absent

intervention, the military prison is unable to meet its obligation to provide

detainees with adequate medical care required by domestic and international

law. Recognizing that the COVID-19 pandemic is–hopefully–temporary, it

provides an excellent opportunity to address systemic problems with detainee

1.

2.

3.

4.

510 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 12:509