Cover Page The handle http://hdl.handle.net/1887/22937 holds various files of this Leiden University dissertation Author: Duffy, H. Title: The ‘war on terror' and international law Issue Date: 2013-12-18 8 Case study I – Guantanamo Bay detentions under international human rights and humanitarian law ‘The degree of civilization in a society can be judged by entering its prisons.’1 Fyodor Dostoyevsky ‘To deny violent extremists one of their most potent recruitment tools, we will close the prison at Guantanamo Bay’. US National Security Strategy 20102 A defining feature of practice since 2001 has been the large scale detention of persons ‘for reasons related to the conflict’ that the US purports to be waging against al-Qaeda and associated groups. While people have been detained in many centres across the world, by the US or by proxy, a major repository for detainees, and symbol of the ‘war on terror’, has been the United States Naval Base in Guantanamo Bay, Cuba. Since early January 2002, an estimated total of nearly 800 people, including nationals of at least forty states, have at some point been transferred to and held in detention facilities at Guantanamo.3 The location of the detention centre on Guantanamo Bay, which the United States authorities claimed was beyond US sovereign territory, was an acknow- ledged attempt to circumvent the application of human rights protections in the United States constitution and access to United States courts.4 The detainees were labelled ‘enemy combatants’, in support of the view that normal criminal and human rights law do not apply, though the epithet was simul- taneously relied upon to justify the non-application of the protective aspects 1 Fedor Mikhailovich Dostoyevesky (1821-1881) in Respectfully Quoted: A Dictionary of Quota- tions Requested from the Congressional Research Service, ed. Suzy Platt (1989), available at http:/ /www.bartleby.com/73/1527.html. 2 U.S. National Security Strategy, 2010, p. 2, available at: http://www.whitehouse.gov/sites/ default/files/rss_viewer/national_security_strategy.pdf. 3 One year after 9/11 Bush referred to 550 detainees held at Guantanamo, and at its peak it was 800. As of early 2013, 166 detainees remain in Guantanamo. See breakdown in Human Rights First, ‘Guantanamo by the Numbers’, 3 October 2012, available at: http:// www.humanrightsfirst.org/wp-content/uploads/pdf/USLS-Fact-Sheet-Gitmo-Numbers.pdf. 4 See, e.g., legal arguments made in Al Odah et al.v.United States, 321 F.3d 1134 (DC Cir.-2003) hereinafter ‘Al Odah’); John Yoo Interview, PBS, 19 July 2005, available at: http:// www.pbs.org/wgbh/pages/frontline/torture/interviews/yoo.html. 596 Chapter 8 of international humanitarian law. They came to be held in what has cor- respondingly been described as a ‘legal black hole’5 or ‘legal limbo.’6 Guantanamo Bay promptly came to symbolise the war on terror and it’s ‘flouting of the rule of law’.7 International condemnation was slow but gathered momentum over time, culminating in perhaps unprecedented levels of state and international criticism of US policy.8 Superlatives abound, with the Guantanamo regime having been condemned variously as a ‘shocking affront to democracy’,9 a ‘stain’10 or ‘horrendous blot’11 on the US reputation, and ‘the gulag of our times’.12 Within the US itself, over time reflections have emerged on the implications of the camp, including that it has ‘shaken the belief the world had in America’s justice system.’13 The administration has repeatedly acknowledged that it threatens national security by constituting a ‘potent recruitment tool’ for terrorists14 and an obstacles to international cooperation.15 5 See Lord J. Steyn, ‘Guantánamo Bay: The Legal Black Hole’ (2004) 53 International and Comparative Law Quarterly 1. See likewise, the English Court of Appeal R (Abbasi and another) v. Secretary of State for Foreign and Commonwealth Affairs, (2002) EWCA Civ. 159 (hereinafter ‘Abbasi’), para. 64. 6 L. Dembart, ‘Old Laws Hard to Apply to Modern Terrorism: For Afghans in Cuba, Untested Legal Limbo’, International Herald Tribune, 25 January 2002, available at: http:// www.nytimes.com/2002/01/25/news/25iht-legal_ed3_.html. On the development of the right to habeas and its effect over time, see below. 7 ‘GTMO has become a symbol around the world for an America that flouts the rule of law.’ B. Obama, speech at National Defense University, 23 May 2013, transcript available at: http:/ /www.nytimes.com/2013/05/24/us/politics/transcript-of-obamas-speech-on-drone- policy.html. 8 Chapter 8C on responding to Guantanamo. 9 Lord Falconer in C. Dyer, ‘Falconer accuses US of affront to democracy’, The Guardian,13 September 2006, available at: http://www.guardian.co.uk/uk/2006/sep/13/politics.usa. 10 U.S. Colonel Morris Davis, chief prosecutor of the Guantanamo military commissions who resigned in protest: ‘Guantánamo is a stain on our reputation. The only way we can end that chapter is to close it’. E. Pilkington, ‘Guantánamo: still a part of America’s conscience, a decade on’, The Guardian, 11 January 2012, available at: http://www.guardian.co.uk/ world/2012/jan/11/guantanamo-bay-10-years-on. 11 South African Archbishop Desmond Tutu inT. Shipman, ‘Blair under pressure to condemn Guantanamo camp’, Daily Mail, 16 February 2006, available at: http://www.dailymail.co.uk/ news/article-377562/Blair-pressure-condemn-Guantanamo-camp.html. 12 I. Khan, former Secretary General of Amnesty International ‘Amnesty International Report 2005: The state of the world’s human rights’, para. 9, available at: http://www.amnesty.org/ en/library/info/POL10/001/2005/en. See a more thorough discussion of the international reaction to Guantanamo 8C2 below. 13 Former US Secretary of State Colin Powell, Meet the Press, 10 June 2007, available at: www.msnbc.msn.com/id/19092206 and Obama, 23 May speech, note 13. 14 National Security Strategy, supra note 2, p. 22. During a press conference President Obama explained that ‘the reason for wanting to close Guantanamo was because my number one priority is keeping the American people safe. One of the most powerful tools we have to keep the American people safe is not providing al Qaeda and jihadists recruiting tools for fledgling terrorists. And Guantanamo is probably the number one recruitment tool that is used by these jihadist organizations. And we see it in the websites that they put up. We Case study I 597 Around 2008, the tide seemed to be turning on Guantanamo. Ground- breaking US Supreme Court cases recognised the rights of detainees to chal- lenge the legality of their detention before a neutral arbiter.16 There were political pledges to ‘clean up the mess,’17 recognitions of the ‘failure of the entire system’18 and promises to relegate a ‘sad chapter in American history’ to the past.19 Incoming President Barack Obama issued an executive order concerning the closure of Guantanamo and has reiterated his pledge many times since then;20 as will be seen, however, deadlines have come and gone and the camp remains active, with some one hundred and sixty increasingly see it in the messages that they’re delivering.’ B. Obama, ‘News Conference by the Pres- ident’, South Court Auditorium, Eisenhower Executive Office Building, 22 December 2012, available at: http://www.whitehouse.gov/the-press-office/2010/12/22/news-conference- president. Janet Napolitano, the United States Homeland Security Chief, ‘Guantanamo became a recruiting tool for terrorism: Napolitano’, AFP News, 6 November 2009; Admiral Mike Mullen, Chairman of the Joint Chiefs that “Guantanamo … has been a symbol, and one which has been a recruiting symbol for those extremists and jihadists who would fight us,’ M. Mullen, ‘Military Chief: Gitmo “Needs to Be Closed”’, ABC News, 24 May 2009, available at: http://abcnews.go.com/blogs/politics/2009/05/military-chief/; Obama’s Director of National Intelligence told the Senate Committee on Intelligence in January 2009 that Guantanamo is ‘a rallying cry for terrorists and harmful to our international reputation, and so closing it is important for our national security’. Nomination of Admiral Dennis Blair to be Director of National Intelligence: Hearing before Senate Committee on Intellig- ence, 109th Cong. 7, 22 January 2009, available at: http://www.dni.gov/files/documents/ Newsroom/Testimonies/20090122_transcript.pdf. 15 In April 2013 Obama described Guantanamo as ‘inefficient’ and noted that ‘it hurts us in terms of our international standing, it lessens co-operation with our allies on counter- terrorism efforts, it is a recruitment tool for extremists, it needs to be closed.’ ‘Barack Obama says Guantanamo Bay Prison must close’, BBC News, available at: http://www.bbc.co.uk/ news/world-us-canada-22358351. See also, Obama speech, 23 May 2013, supra note 7. 16 See Rasul v. Bush, 542 U.S. 466 (2004) (hereinafter ‘Rasul’); Boumediene v. Bush, 128 S.Ct. 2229 (2008) (hereinafter ‘Boumediene’). 17 See, e.g., President Barack Obama, ‘Remarks by the President on National Security’, 21 May 2009, available at: http://www.whitehouse.gov/the_press_office/Remarks-by-the-President- On-National-Security-5-21-09/. 18 Retired Admiral Dennis Blair, the former Director of the US National Intelligence, noted that it was a ‘failure of the entire [political] system’ that Guantanamo remained open. ‘Ex US intelligence chief talks Guantanamo Bay, China, East Timor’, Radio Australia, 9 August 2012, available at: http://www.radioaustralia.net.au/international/radio/program/connect- asia/ex-us-intelligence-chief-talks-guantanamo-bay-china-east-timor/996384. 19 President Obama’s description of Guantanamo while campaigning in 2008. A. Spillius, ‘Barack Obama “proposes to move terrorists suspects from Guantanamo Bay”’, The Telegraph, 10 November 2008, available at: http://www.telegraph.co.uk/news/worldnews/ northamerica/usa/3417913/Barack-Obama-proposes-to-move-terrorists-suspects-from- Guantanamo-Bay.html.