David C. Baluarte: Detention at Guantanamo Bay and the Creation
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63 Detention at Guantanamo Bay and the Creation of a New Brand of Statelessness David C. Baluarte1 In early 2002, U.S. authorities began to States is the only way for U.S. authorities to transport prisoners in the “war on terror” to families.begin to mitigate the irreparable harm that the military base at Guantanamo Bay, Cuba. they have already caused them and their For years, the government committed vast Overview of Detention at Guantanamo resources to obscuring the public record Bay of these individuals, and the fight over Guantanamo focused on whether U.S. courts had jurisdiction to review the basis for their confinement. Now, after the Supreme Court’s In response to the terrorist attacks of resounding affirmation of federal court 11 September 2001, the U.S. Congress jurisdiction over Guantanamo detainees and authorised the President of the United States President Barack Obama’s order to close the to use “all necessary and appropriate force facility, U.S. authorities are grappling with a against those nations, organizations, or different set of concerns. persons he determines planned, authorized,2 committed, or aided the terrorist attacks [...] One of those concerns is the fate of up to sixty or harbored such organizations or persons.” men currently detained at Guantanamo who Soon thereafter, the President ordered the pose no threat to the United States, but who U.S. military to invade Afghanistan, with cannot be released to their countries of na- the mission to quell the threat posed by tionality because of real threats of persecu- the al Qaeda terrorist organisation and put tion and torture. The specific circumstances down the Taliban regime that was known to of these men vary, but in each case, because support it. of the original allegations that led to their detention, and their subsequent branding as In November 2001, former President George theirGuantanamo interests. detainees, third countries have W. Bush signed an executive order which been very hesitant to step forward to defend authorised the Department of Defense to detain a 3broad category of non-citizens incident to efforts to combat international For all practical purposes, these men are terrorism. That order granted the President stateless. Moreover, U.S. standard release exclusive authority to determine who should procedures effectively discriminate against be detained and categorically4 denied such these men, who are detained at this point detainees the right to challenge any aspect because of their stateless status rather than a of their detention. Pursuant to that order, legitimate national security purpose. If third hundreds of individuals were captured countries are unwilling to provide a safe around the world and detained as “enemy haven for these men, release into the United combatants”. The Equal Rights Review, Vol. Three (2009) 64 11 U.S. authorities began to transport the5 first those initially identified by the government detainees to the facility at Guantanamo Bay were innocent of any wrongdoing. However, Naval Base, Cuba, in January 2002. While before courts could resolve that question, the the U.S. government selected Guantanamo U.S. Congress passed the Detainee Treatment specifically because it was consideredRasul v.beyond Bush6 Act (DTA), which purported to strip federal the reach of U.S. laws, the Supreme Court courts of jurisdiction to hear habeas petitions held in its landmark decision in filed on behalf of Guantanamo detainees, and that federal courts had statutory jurisdiction established an alternative review process, to consider the petitions for habeas corpus granting the U.S. Court of Appeals for the filed by foreign nationals detained as enemy District of Columbia12 Circuit (D.C. Circuit) combatants at Guantanamo. In the wake of exclusive jurisdiction to hear appeals from that decision, more than 200 petitions for CSRT determinations. Significantly, the DTA habeas corpus were filed on behalf of more limited the scope of the D.C. Circuit’s review, than 300 detainees. authorising it only to determine whether that Rasul v. Bush a CSRT was13 carried out in accordance with The U.S. government adopted the position the regulations issued by the Secretary of merely required a status Defense. determination, and established its own “enemy combatant” review process for In June 2006, the Supreme Court held that Guantanamo detainees called Combatant7 the jurisdiction limiting provisions of the DTA Status Review Tribunals (CSRTs), which it only applied to habeas petitions filed after intended as a substitute for habeas corpus. the statute’s effective date, leaving federal14 An implementing memorandum described court jurisdiction intact with regard to all of the CSRTs as “non-adversarial proceeding[s] the petitions filed before December 2005. to determine8 whether each detainee [...] meets But in October 2006, the U.S. Congress the criteria to be designated as an enemy responded with the Military Commissions combatant” defined as “an individual who Act (MCA), unequivocally precluding federal was part of or supporting Taliban or al Qaeda courts from considering habeas petitions forces, or associated forces that are engaged or “any other action” filed by any detainee15 in hostilities against the United States or captured after 11 September 2001 who was its coalition partners […] include[ing] any held anywhere as an enemy combatant. person who has committed9 a belligerent act The MCA left the CSRT appeal procedure or has directly supported hostilities in aid of established16 by the DTA as the only avenue enemy armed forces.” for Guantanamo detainees to access federal courts. The initial findings of the CSRTs indicated Boumediene v. Bush,17 that many of the detainees had not committed In June 2008, in its watershed decision in hostile acts against the United States, and the Supreme Court provided evidence that the U.S. government’s10 held that the detainees at Guantanamo have a claim that it was only detaining “the worst of constitutional right to habeas review of their the worst” at Guantanamo was inaccurate. detention. In so doing, the Court recounted In federal court, those representing the some of the “myriad deficiencies” of the detainees in their habeas proceedings CSRTs, such as the limited opportunities argued that the CSRTs did not offer sufficient to present evidence, the lack of a right to process, and that many more detainees than counsel, and limitations on the access of The Equal Rights Review, Vol. Three (2009) 65 The Case of the Chinese Uyghurs detainees to evidence presented against them and their ability to confront witnesses. The Court found that CSRTs “fall well short of Chinese Uyghurs are a Turkic Muslim the procedures and adversarial mechanisms minority whose members reside largely in that would eliminate the need for habeas the Xinjiang province of far-west China and corpus review,” and as a consequence, held suffer severe discrimination and persecution that the MCA was unconstitutional to the by the Chinese government. Twenty-two 22 extent that it was intended to strip federal18 As Uyghurs were detained and transferred to courts of habeas jurisdiction and replace it Guantanamo in the wake of the U.S. invasion with the process set forth in the DTA. of Afghanistan. a result, seven years after the first habeas petitions were filed on behalf of detainees There are many similarities in the Guantan- at Guantanamo Bay, district courts began nitiesamo Uyghurs’s in Afghanistan. tales of23 how they fled China reviewing the substance of their numerous and ended up in expatriate Uyghur commu- claims of illegal detention. For example, Adel Noori was imprisoned by the Chinese prior On 22 January 2009, two days after entering to his flight to Afghanistan, and is presently office, President Obama signed an Executive wanted by the Chinese authorities for “po- 24 Order, which stipulated: (1) the closure of litical crimes” based on his participation in a political demonstration in Ghulja, China in detention facilities19 at Guantanamo; and (2) the 1990s. Similarly, Ali Mohammed who the immediate review of all Guantanamo left China to escape persecution, travelled detentions. The Order recognised that more through Kazakhstan25 where he also faced than 500 of the approximately 800 detainees persecution, and ultimately fled to Afghani- held in the facility since its establishment stan to seek asylum. Abdul Sabour also fled had been transferred to their country of China to escape persecution, travelling first nationality or a third country, and that “a to Kyrgyzstan, where the police stole most number of the20 individuals currently detained of his money, then to Pakistan, and finally to at Guantanamo are eligible for such transfer Afghanistan, where he was befriended26 by Uy- or release.” ghurs who helped him get to a Uyghur village where he could live and work. Many of these detainees who are eligible for release, however, cannot be returned to their In October 2001, U.S.27 forces bombed the area country of nationality because of threats of where these men were seeking refuge, and persecution or torture. The Chinese Uyghurs, together they fled. Initially, they escaped perhaps the detainees that have received21 to the mountains for immediate protection, the most publicity in recent months, are and then after a few days were able to representative of this category of detainees. escape to Pakistan, where they thought they The story of their struggle over the past had reached safety. However, they were seven years is emblematic of the particularly turned over to the U.S. military by Pakistani egregious injustice suffered by those men villagers at a time when U.S. forces were as Guantanamo detainees whose detention offering a substantial bounty for terrorist has never been justified, but who continue fighters. These men were subsequently in detention limbo because they cannot be sent to Guantanamo and deemed enemy returned to their countries of nationality. combatants by CSRTs based on allegations The Equal Rights Review, Vol.