Human Rights Violations at Guantánamo Bay: How the United States Has Avoided Enforcement of International Norms

• Publication year: 2015

SEATTLE UNIVERSITY LAW REVIEW Volume 38, No. 3, SPRING 2015

Human Rights Violations at Guantánamo Bay: How the United States Has Avoided Enforcement of International Norms

Samantha Pearlman(fn*)

Guantánamo Bay has become a symbol of the United States' approach to the War on Terror. The detention center is globally known for the human rights violations committed there; yet, the international community has failed to take actions to successfully close the facility through either the use of pressure on the U.S. government or by utilizing enforcement mechanisms against the United States as it would any other nation committing proportional human rights violations. The United States' actions at Guantánamo Bay violate its obligations under the Third Geneva Convention, the International Covenant for Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and customary international law.(fn1) Violations of international law at Guantánamo include illegal and indefinite detention, torture, inhumane conditions, unfair trials (military commissions), and many more.(fn2) These human rights violations, however, remain unpunished or remedied.(fn3)

Part I of this Note discusses the background behind the detention facility at Guantánamo, its role in the War on Terror, and the facility's current state. Part II outlines the international laws by which the United States must abide, with descriptions of the treaties and covenants to which the nation is a party, and what the United States argues its human rights obligations are under international law. Part III describes the alleged human rights violations that occurred at the facility and how the U.S. government construes these violations. Part IV discusses the issues the international community has faced in attempting to enforce human rights norms at Guantánamo, including how the international community has responded to the violations, and how successful these responses were in creating change. Finally, Part V proposes how the international community should proceed with the enforcement of human rights norms at Guantánamo. It is clear to the international community that there were, and continue to be, violations of human rights norms at Guantánamo Bay, but there has been little success in provoking change because of the lack of enforcement mechanisms in international human rights law.

I. GUANTÁNAMO'S HISTORY AND THE WAR ON TERROR

After the terrorist attacks on the World Trade Center on September 11, 2001, Guantánamo Bay became renowned as the place where the U.S. military sent captured suspected terrorists. The Bush Administration declared a War on Terror and promised the country that the terrorists associated with the attack would be eradicated.(fn4) The targeted terrorist group that claimed responsibility for the attack was al Qaeda, and the initial U.S. military response in Afghanistan resulted in the capture of suspected terrorists, including those presumably involved in the September 11 attacks.(fn5)

Guantánamo Bay's history is a complicated one. The facility, located in Cuba, was opened for its current purpose in 2001-shortly after the United States began its military operation in Afghanistan.(fn6) The first detainees were brought to the facility on January 11, 2002, and were classified as enemy combatants.(fn7) Guantánamo Bay detainees are mainly nationals of countries involved in the War on Terror, or nations thought to be harboring terrorists-most of which are Middle Eastern countries.(fn8) These detainees were captured on foreign soil, not charged with any particular crime, brought to Guantánamo, detained indefinitely without trial, and denied access to counsel.(fn9) On November 13, 2001, President Bush issued a military order officially permitting these actions; the order "author[ized] the detention and trial by military commission of any current or former member of the al-Qaeda organization, as well as anyone who aids or abets its work or harbors its members."(fn10) The War on Terror has no scheduled end date; thus, this "ongoing threat" is virtually indefinite, even after the United States withdraws completely from Iraq and Afghanistan.(fn11)

The total number of detainees incarcerated at Guantánamo since 2001 is approximately 780 people.(fn12) In fact,over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo either by returning them to their home country or by releasing or transferring them to a third country.(fn13)

As of January 2015, there are still 127 detainees at the Guantánamo facility,(fn14) and there were 242 detainees at the beginning of the Obama Presidency.(fn15) As recently as October 7, 2013, there were 164 detainees held at the facility-of those who remain, eighty-four were cleared for transfer over four years ago when the Obama Administration conducted a review of each case.(fn16)

A. The Bush Administration

When the War on Terror began, the nation and Congress were generally supportive; therefore, the Bush Administration and the Executive Branch were given great latitude to proceed in any manner desired. Although President Bush acknowledged that Taliban detainees are "covered by" the Geneva Conventions, his Administration denied that detainees are entitled to prisoner of war status; instead, they are considered enemy combatants and are entitled to fewer rights than prisoners of war.(fn17) In addition, the Administration denied that American officials had obligations under the Geneva Conventions when operating abroad and later used this reasoning to justify its policy on interrogation techniques.(fn18)

The interrogation of Guantánamo detainees began on January 23, 2002.(fn19) Although the interrogations were conducted in a manner that was later determined to be in violation of international standards and norms, interrogations continued long after the improper conduct was revealed.(fn20) In addition, the U.S. military and the Bush Administration admitted to the use of interrogation techniques that international bodies had condemned as torture or cruel and inhumane treatment.(fn21) As more information about the conditions at Guantánamo Bay became public, both the U.S. public and the international community grew increasingly concerned about the policies governing the facility.(fn22) Guantánamo diminished the United States' reputation as an advocate for human rights and became a target for criticism from allies and enemies alike.(fn23) In the years since, further allegations of human rights violations have come to the forefront, and there have been calls to close the facility by allies, human rights organizations, the United Nations, and even President Obama during his 2008 presidential campaign.(fn24)

On February 7, 2002, President Bush signed a memorandum written by then-White House Counsel Alberto Gonzales that asserted the Geneva Conventions would not be applicable to either al Qaeda or Taliban detainees because "the relevant conflicts are international in scope and Common Article 3 applies only to 'armed conflict not of an international character.'"(fn25) This memorandum became the basis for institutionalizing torture as an interrogation method against detainees of the War on Terror.(fn26) In fact, another memorandum from the Justice Department to Alberto Gonzales on August 1, 2002 concluded, "[T]o constitute torture[,] . . . the intensity of the pain inflicted 'must rise to . . . the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions.'"(fn27) Thus, the Justice Department essentially informed the White House how it might avoid prosecution, rather than advising how to comply with domestic and international law.

Despite memorandums that showed otherwise, President Bush declared in an interview with Matt Lauer that the United States does not torture detainees, stating, "Whatever we have done is legal. That's what I am saying. It's in the law. We had lawyers look at it and say, 'Mr. President, this is lawful.' That's all I can tell you."(fn28) Similarly, members of the Bush Administration, who testified before Congress during their confirmation hearings, refused to characterize the enhanced interrogation techniques (including waterboarding and forced nudity) as torture, claiming the tactics were consistent with U.S. obligations under international law.(fn29) Waterboarding is a technique in which water is poured over a restrained prisoner's mouth and nose to simulate drowning,(fn30) and it has been the subject of intense criticism at home and abroad.(fn31) According to Central Intelligence Agency (C.I.A.) officials, waterboarding was used on only three suspects and has not been used since 2003.(fn32) Yet in 2006, at the urging of the Bush Administration, Congress continued to allow the C.I.A. to use other interrogation methods, although for the most part the exact methods remain classified.(fn33)

In 2008, President Bush vetoed part of the Intelligence Authorization Bill, which would have limited U.S. interrogation techniques to those methods listed in the Army Field Manual(fn34) and would have prohibited the C.I.A. from using enhanced interrogation methods, including waterboarding.(fn35) Throughout the...