Guantánamo Bay: America’s Un-Closable Prison



Closing Guantánamo Bay?: The Triumph of Politics over Law??Since the beginning of the ‘War on Terrorism’ the United States’ use of Guantánamo Bay for the detention of suspected terrorists has been the focus of sustained and mostly critical attention. Those detained there have won some rights and procedural entitlements over the course of a long series of litigation (considered in Part II), including the right to habeas corpus review before federal courts, but nine years after the first suspected terrorist detainee arrived there, the prison remains open. Although the majority of suspected terrorist detainees are held elsewhere (such as Bagram in Afghanistan), Guantánamo Bay has been the epicentre of rights-based dissent against the ‘War on Terrorism’. The purpose of this essay is to examine President Obama’s relationship with Guantánamo Bay from his pledge, on the first day office, to close the prison as quickly as possible to his apparent acceptance—just two years later—that, in all likelihood, it will remain open for quite some time yet. The note proceeds in three parts. Part I considers the reason for the use of Guantánamo Bay for the purposes of counter-terrorist detention, focusing especially on its perceived remoteness from the federal courts and normal processes of judicial review. Part II outlines in brief the litigation that to all intents and purposes undid the assumed rationale for Guantánamo Bay and made closure of the prison seem like a prudent legal—if not political—next step. Part III then traces President Obama’s attempts to close the prison and highlights the significant and seemingly insurmountable political opposition to that plan including, especially, Congressional resistance. Overall the note attempts to highlight the story of Guantánamo Bay since 2001 as a story that demonstrates the primacy of politics over law when it comes to the detention of suspected terrorists in the ‘War on Terrorism’.Part IWhy Guantánamo Bay?That the United States would have wanted to institute a system of internment or detention without trial as part of its ‘War on Terrorism’ was unsurprising. In both conventional wars and counter-terrorist campaigns outside of the war paradigm the use of detention is widespread. In the main such detention is intended to be a troop depletion strategy, reducing the amount of human resources available to the ‘other side’. In the ‘War on Terrorism’, however, this detention was not solely directed towards this objective. It was, instead, concerned largely with preventing further attacks through gathering intelligence from detainees. For those designing the US’ counter-terrorist detention system, it was a matter of enormous importance to ensure that detainees could not ‘obstruct’ these efforts by appealing to the courts for some kind of relief through habeas corpus or an analogous writ. Thus, the US wanted to have a detention centre that was not on the ‘battlefield’ (loosely defined as that concept is in the ‘War on Terrorism’) but was also beyond the reach of the federal judiciary. They knew from the World War II case of Johnson v Eisentrager that non-US-citizens captured and detained ‘abroad’ in relation to acts done ‘abroad’ were not considered to have constitutional or statutory habeas corpus rights; thus extra-territorial detention identified itself as the logical choice for the Bush Administration. Guantánamo Bay—a small area held by the US under a perpetual lease that gave it full jurisdiction over it but which was strictly speaking outside of the territory of the United States—was thus identified as the appropriate location and detention there commenced. This rationale is an important part of the Guantánamo Bay story for it formed the main plank in the Administration’s attempts to prevent judicial scrutiny of activities there. Guantánamo Bay was not the US, they argued. It was somewhere different; somewhere that the long arm of domestic law could not reach. It was insulated from federal courts; a ‘legal black hole’. Of course, to call Guantánamo Bay a ‘legal black hole’ suggests that it was a place devoid of law. Nothing could be further from the truth, for in reality Guantánamo Bay was saturated in law and in a legal rationale. It was a space carved out of law; identified on the basis of Supreme Court precedent and then rhetorically presented as beyond law. Without this understanding that Guantánamo Bay could not be scrutinised by the federal judiciary it would not have been a sensible location for the kind of detention desired by the Bush Administration. Thus, the main priority in moving Guantánamo Bay “towards legality” would have to be dismantling this legal rationale and showing clearly that the federal courts did have jurisdiction there. That was achieved by means of three important cases: Rasul, Hamdan and Boumediene.Part IIThe US Supreme Court and the Diminishing Rationale for Guantánamo DetentionIn Rasul a number of Guantánamo detainees alleged that they had statutory and constitutional rights of access to federal courts. In the US habeas corpus has both a statutory and a constitutional form, and the decision in Johnson suggested the inaccessibility of either to non-US-citizens captured and detained abroad. Although the Supreme Court did not undo the constitutional analysis in Johnson and focussed instead on statutory considerations, the decision was significant as the Court found that Guantánamo detainees were in fact entitled to access federal courts through statutory habeas corpus. That suggested, as an initial matter, that one pillar (based on the perceived scope of statutory habeas corpus) upon which the Administration’s argument was constructed had fallen; however legislative pillars are relatively easily rebuilt through the passage of further law. That, indeed, is what happened in the light of Rasul.It would be fair to say that at least some members of the US Congress were outraged at this ‘judicial interference’ in Guantánamo Bay and ‘national security’. Within a very short period of time, the Detainee Treatment Act 2005 had been introduced, s. 1005(e) of which was clearly directed towards undoing the Rasul decision. Section 1005(e) provided for jurisdiction-stripping so that federal courts would not have any habeas corpus authority in relation to Guantánamo detainees. Such jurisdiction stripping provisions are quite standard in US domestic law and do not present any constitutional difficulty per se, but the capacity of the Detainee Treatment Act to fulfil Congress’ desired objective was frustrated by the case of Hamdan. Hamdan had lodged his petition for habeas corpus in the Supreme Court before the passage of the Detainee Treatment Act and, in spite of (sometimes quite imaginative) attempts by the State and a number of amici to convince the Supreme Court that the jurisdiction stripping provisions it contained were retrospective in their effect, the found that it had jurisdiction over the petition (applying Rasul). In fact, it was Hamdan that introduced some of the most significant procedural and rights-based changes in Guantánamo Bay because of the Court’s finding that the ‘War on Terrorism’ constituted a non-international armed conflict to which at least the minimum provisions of international humanitarian law, including Common Article 3 of the Geneva Conventions, applied. Like Rasul, however, Hamdan was a case where the Supreme Court rooted its finding of jurisdiction in statute, meaning that Congress could once again strip jurisdiction from the Court. Indeed, this was done in the Military Commissions Act 2007 that made it clear that the Supreme Court had no habeas corpus jurisdiction—retrospective, present or prospective—over Guantánamo Bay detainees. By the time the joined cases of Boumediene and Al Odah (now known simply as Boumediene) came before the Court it was clear that the Supreme Court had two options: either accept that it had no jurisdiction because it had been stripped by statute and the constitutional habeas corpus provisions did not apply or find that, to at least some extent, detainees in Guantánamo Bay were constitutional rights bearers.It was the latter course that the Court chose in Boumediene with Justice Kennedy delivering the opinion of the Court and finding that, as Guantánamo Bay is to all intends and purposes a territory of the US giving it de facto sovereignty over the base, and as habeas corpus “must not be subject to manipulation by those whose power it is designed to restrain”, at least some constitutional rights applied to those detained there. Although the exact scope of those rights was unclear, there was and is little question that constitutional habeas corpus is among them.The political system, including the President, was left with two options: constitutional habeas corpus would be suspended (an option that does not seem to have been seriously contemplated), or ways of exercising that constitutional right would have to be designed. Either way it was clear that, in the absence of a suspension, the rationale for the use of Guantánamo Bay’s continued use as a detention centre for suspected terrorists had been fatally undermined by the Supreme Court. This, perhaps, made it easier for Barack Obama to commit to closing Guantánamo Bay during the 2008 presidential campaign and, indeed, to make one of the first acts of his presidency the signing of Executive Orders directed towards closure within a year of his inauguration. Making the promise was relatively easy, but events over the past two years have demonstrated how keeping that promise proved almost insurmountably difficult.Part IIIObama’s Broken Promise or The Triumph of PoliticsAlthough President Obama’s Guantánamo Orders were positive indicators of his desire to bring counter-terrorist detention at the camp to an end, it is difficult to disagree with David Jenkins’ description of them as “principled but cautiously pragmatic”. This is especially so when one considers the open-ended and somewhat vague language used, by which the President committed to ensure “[t]o the extent practicable, the prompt and appropriate disposition of the individuals” detained there. In other words, while there was a firm commitment to close Guantánamo Bay within one year of the Orders being issued, there were no firm recommendations or decisions taken as to what would be done with those detainees who were held there. It fell to the Guantánamo Bay Task Force, made up of members of the Departments of Justice, Defence, State, and Homeland Security together with representatives of the Office of the Director of National Intelligence and the Joint Chiefs of Staff to engage in a detainee-by-detainee review through which some avenues towards closure could be identified. In this review, released in January 2010, four categories of detainees were identified from the 240 then in Guantánamo Bay. First were individuals who should be released and/or transferred of whom there were 126; second were detainees who should be prosecuted, of whom there were said to be 46; third were detainees who should be detained as a result of their dangerousness but in relation to whom prosecutions were considered infeasible, of whom there were 48; and finally there were 30 Yemeni detainees approved for ‘conditional’ transfer i.e. approved for transfer but not to Yemen given the volatile situation in the country. And so, although the Report identifies four categories of detainees, there were really three: those to be released or transferred, those to be prosecuted, and those to be detained without trial. It is useful to consider the demise of the Guantánamo closure strategy by reference to each of these groups individually.Detainees eligible for transferOne of the priorities of the Task Force was to identify those detainees who were eligible for release or transfer in a manner “consistent with the national security and foreign policy interests of the United States”. Before the Task Force began its work there were 59 individuals who had been approved for transfer or release but were still in detention, primarily because repatriation to their countries of origin was inconsistent with the United States’ policy on post-release treatment. In other words, there were concerns about their possible subjection to unlawful treatment upon return and efforts were underway to transfer them to third countries. Of the additional detainees that the Task Force considered ought to be cleared for release or transfer, they determined that 39 could not be returned to their countries of origin on the basis of the principle of non-refoulement. That, then, became the first difficulty that President Obama had to negotiate: to seek agreement from third countries to accept such individuals bearing in mind the difficulties, expense and perhaps controversy that would possibly follow such agreement in the internal politics of the third countries themselves. The United States’ concerns relating to refoulement should, however, be seen in their proper context of state practice of the United States since 2001. Both the Bush and Obama administrations have transferred individuals into the hands of other states in apparent breach of the principle of non-refoulement. This was done as a routine and central part of the extraordinary rendition progtamme, but also in situations that appeared more benign. In early 2011, for example, President Obama transferred Farhi Saeed Bin Mohammed to Algeria in spite of his claims that this placed him at risk of torture and without regard to ongoing proceeds by Mohammed attempting to restrain such a transfer. Following the transfer the Department of Justice applied for the proceedings to be struck out on the basis of mootness.A further difficulty in relation to detainees cleared for transfer or release is the substantial number of Yemenis who could not be returned to Yemen because of the volatility of the political situation there and fears that they might become involved in further and future terroristic activities. The potency of such a fear in the Task Force’s report appears at first counter-intuitive; one might assume that only individuals considered not to pose a threat would be transferred or released, but in fact that is not the case at all:“[A] decision to approve a detainee for transfer does not reflect a decision that the detainee poses no threat or no risk of recidivism. Rather, the decision reflects the best predictive judgment of senior government officials…that any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate security measures in the receiving country”The nature of the determination for release or transfer is, therefore, a somewhat curious one. On the one hand the individuals concerned are not dangerous enough to be detained without trial, have not done anything of which we are sufficiently certain (through admissible evidence) to prosecute them for, but might still be ‘dangerous’ and in need of surveillance. This is significant for it offers a particularly volatile spark to political opposition to closure as preceded by release or transfer. It adds to the voices—including that of Associate Justice Scalia—that warn of recidivism and ‘return to hostilities’ and are powerful advocates of continuing the practice of administrative detention without trial for the purposes of national security. It also adds a level of credence to legislative attempts to obstruct transfer on the basis of suspected inability of receiving states to properly or adequately survey transferred detainees in order to ensure that they do not ‘return’ to violence (if, indeed, they were ever involved in such violence in the first place). Reflecting these kinds of concerns, as well as a desire to wrest control over Guantánamo Bay policy out of the hands of the President and into the hands of the (now predominantly Republican) Congress, the National Defense Authorization Act for Fiscal Year 2011 includes restrictions on public expenditure for the transfer of detainees from Guantánamo Bay to third countries. Any such transfers are now to be subject to a certification process at least 30 days prior to the transfer. The certificate, which is to be done by the Secretary of Defense with the concurrence of the Secretary of State, should state that the country to which the individual is to be transferred is not a designated state sponsor of terrorism, maintains effective control over the detention facilities over which the individual is to be housed (if he is to be detained), does not face a threat that is likely to substantially impact upon its capacity to exercise control over the transferee, has agreed to take “effective steps” to make sure that the transferee cannot undertake activity that would threaten the US (or its allies) in the future, has taken satisfactory steps to prevent involvement in terrorist activities, and has agreed to share certain information with the US. Thus, while transfers to third countries remain possible it would be fair to say that this makes them more difficult, on top of the already delicate political and diplomatic task of convincing a state to accept former detainees.One striking feature of the recommendations for release or transfer is the absence of any real consideration of transferring detainees into the US itself. The Task Force’s careful statement that release or transfer does not necessarily equate to innocence or to wrongful detention has the impact of reinforcing suspicions attached to those who would be released from Guantánamo Bay, but in many ways the refusal to properly consider their transfer into the mainland United States seems nonsensical from a security perspective. Firstly any argument that these individuals would receive constitutional rights upon residence in the US (which is long established as the case) is made somewhat redundant by the fact that, following Boumediene, they already have at least some constitutional rights. Secondly, arguments of security are undermined by the fact that if these individuals were residing in the US they could be subjected to surveillance by the US’ own police and security forces, rather than relying on the security forces in other states. Thus, for example, the Yemenis who could not be returned to Yemen because of the instability in that state might be effectively surveyed within the US and, in that way, enjoy at least some liberty. It is undoubtedly the case that resettlement in the mainland US was never seriously considered because of its political impossibility. As we will see below, proposals to transfer individuals into high security prison in the US have met with reactionary political opposition; one can only imagine the consternation that would follow a suggestion that these individuals should be permitted to live freely in the United States. As well as not considering this in any serious way in the Task Force report, it is important to note that the Obama Administration has continued the Bush Administration’s legal strategy of opposing attempts to secure court orders requiring the government to transfer individuals into the mainland United States. Detainees eligible for trialThe Task Force concluded that 46 of the current detainees could be subjected to prosecution on the basis of a calculation on whether “there was any basis to conclude that prosecution in either federal court or a military commission was appropriate and potentially feasible”. The prosecution recommendation must itself be unpacked to some extent to recognise two important things. First, a recommendation for prosecution is not necessarily a recommendation for prosecution within the ‘ordinary’ criminal justice system; the use of military commissions was not foreclosed. The Task Force did recommend that, pursuant to the protocol entitled ‘Determination of Guantánamo Cases Referred for Prosecution’ there ought to be a preference for federal prosecution, but as we will consider below, that preference was later reversed at Presidential level. Secondly the assessment was not merely one of whether prosecution was possible (presumably based on whether there was sufficient evidence pointing towards commission of a recognised crime) but also whether it was feasible. On the one hand the recommendation that detainees should be prosecuted so that any further detention would be based clearly on a sentence handed down by a court was welcome and seems an integral part of any closure process. Once individuals have been prosecuted and if they are convicted of a crime then they can be detained in a regular federal prison (subject to political resistance) or, indeed, transferred to another jurisdiction to serve one’s sentence there. Prosecutions also go at least some way towards trying to restore a degree of procedural legitimacy to the legacy of Guantánamo Bay, although doubts would certainly prevail about the integrity of any prosecutorial system that follows long periods of detention, potentially involving unlawful interrogation methods resulting in tainted evidence. Even before completion of the Task Force report, the Obama Administration had shown a clear preference for prosecuting individuals in federal courts wherever possible. This was clear from the announcement in November 2009 that Khalid Sheikh Mohammed, the alleged ‘mastermind’ of the 11 September 2001 attacks, and his alleged co-conspirators were to be prosecuted in New York City. That announcement immediately ignited controversy with a substantial number of commentators arguing that this would make the city vulnerable to further attack. Speaking a week after the announcement, Attorney General Holder argued that this decision was based solely on prosecutorial rationality: “I am a prosecutor, and as a prosecutor my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case in the best forum”. So great was the political and popular outcry against trying Mohammed and his alleged co-conspirators in New York City that this prosecutorial determination could stand up to politics for only two months. In January 2010 the New York Times reported that the Obama Administration was “considering other options” following Mayor Bloomberg’s withdrawal of support for the plan, allegedly based primarily on the cost and logistical implications of providing security for the trial. Any hopes that might have been held for the swift prosecution of detainees in order to facilitate closure of Guantánamo Bay seemed to dissipate as political resistance grew. That resistance culminated in the passage of a legislative bar on transferring Guantánamo Bay detainees to the United States for any purpose, including trial. President Obama was, therefore, placed in a position where he effectively had no option but to announce, in March 2011, that the military commissions suspended at the beginning of his term of office would be recommenced, albeit with more rights-based procedures than had previously been the case. Whether those convicted by the military commissions will be held in Guantánamo Bay or elsewhere is not clear, but failed attempts to acquire detention facilities for such detainees in the mainland United States—now blocked by the ban on any expenditure associated with the transfer of detainees—suggest that they will most likely be tried and detained outside of the United States.Detainees ineligible for transfer, release or trialThe third category of detainees identified by the Task Force—those ineligible for transfer, release or trial—present, perhaps, the most difficulties for the Obama Administration. They are, in the words of the Task Force report, detainees for whom “prosecution is not feasible” because they were captured in active combat zones and no formal criminal investigations were undertaken leading to a dearth of evidence against them, or because there was no evidence of involvement in a particular terrorist plot although there was evidence of membership or association with Al Qaeda more generally. Significantly the Task Force report does not identify the inadmissibility of any evidence against individual detainees as a barrier to prosecution; rather it expressly states that “the principal obstacles to prosecution…typically did not stem from…concerns that the evidence against the detainee was tainted”, although that may have been a concern in “some cases”. Thus the 48 detainees who fell into this category were considered ineligible for transfer, release or prosecution and subject to lawful detention because they “held a leadership or other specialized role within al-Qaida, the Taliban, or associated forces”, they had “more extensive training or combat experience than those approved for transfer”, they “expressly stated or otherwise exhibited an intent to reengage in extremist activity upon release”, or they had “a history of engaging in extremist activities or particularly strong ties (either directly or through family members) to extremist organizations”. It should be clear from this that ineligibility for transfer, release or prosecution is quite broadly construed, but the US has committed itself to the continued review of individual cases to consider whether the detainee might become eligible for release, transfer, or trial in the future. That notwithstanding, however, it is clear that part of Obama’s closure conundrum in relation to Guantánamo Bay continues to be where these individuals will be detained for the duration of their indefinite incarceration. President Obama had expressed a desire to acquire the high security Thompson Correctional Center in Illinois for the purpose of housing Guantánamo Bay detainees; a proposal that was met with considerable outrage from some elected representatives. In 2009 provisions were inserted into four spending bills in order to prevent the acquisition of this prison or any expenditure required to close the base. Although none of the 2009 legislative attempts were successful, as mentioned above the National Defense Authorization Act for Fiscal Year 2011 prohibits the use of any federal monies for the transfer of Guantánamo detainees into the US. That Act also prohibits the use of federal funds for the acquisition or modification of detention facilities to hold Guantánamo detainees. Before these fiscal blocking measures were successfully introduced, there had been attempts to ensure that any proposed transfer of an individual from Guantánamo Bay to the mainland United States would be subject to a 120-day clearing period during which Congress would be furnished with a report on security risks, which it would then review. The proposal was to apply even in cases where a detainee had been granted habeas corpus by a federal court. Although this did not make its way into the final version of the Defense Authorization Act for Fiscal Year 2011, the fiscal obstacles erected by that Act are sufficiently powerful to result in President Obama and his Administration admitting that closure of the Guantánamo Bay facility is highly unlikely in the near future.ConclusionGuantánamo Bay has, in many ways, been a location where the battle between law and politics that continues to play itself out in the United States’ ‘War on Terrorism’ has been in sharp relief since the first suspected terrorist detainee arrived there. During the Bush Administration a Democrat-dominated Congress attempted (and failed) to use fiscal authorisation acts to close Guantánamo Bay and now that same kind of legislation is being used to keep the prison open. Politics, in this case, has triumphed over law to at least some extent for even though, in Joan Fitzpatrick’s words, the Supreme Court has spoken ‘law to power’ by insisting that Guantánamo detainees would have some mechanism of challenging the lawfulness of their detention in federal courts, thereby removing a primary rationale for the use of Guantánamo Bay. Politics has resisted these liberalising efforts. Wrapped up in the rhetoric of ‘terrorists on our streets’, and exploiting popular and genuinely felt fear about the gravity and (un)controllability of the terrorist risk, politics is manifesting itself in both rhetoric and legislation directed towards maintaining the illogical attempt to carve out a lawless space. The great promise of Obama to close Guantánamo Bay was never going to be easy to keep but this difficulty has been exacerbated and ambition frustrated to an extent that may not be surmountable during his remaining time in the White House. Until law and politics are aligned in usable a commitment to close Guantánamo Bay, the prison will remain open, not because of the failure of law, but because of the failure of politics. Dr Fiona de LondrasLecturer, UCD School of Law ................
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