The Infinite Guantanamo Debacle

By: Jozefien Van Caeneghem

On 11 January 2002, the first twenty so-called “unlawful enemy combatants” arrived at Guantanamo Bay Naval Base on Cuba. The transfer was the first of many in the “global war on terror”, which President George W. Bush declared after the September 11th, 2001 terrorist attacks in the United States of America. Throughout the years, a total of 779 men from forty-eight different nations have been detained at the base. Guantanamo, associated by many with indefinite and unlawful detention, inhuman and degrading treatment, and torture, has been putting the United States in a bad light since 2002.

Over the years, both nationally and internationally, generals, scholars, and political bodies have raised significant concerns about Guantanamo and have called for the U.S. government to close the facility by releasing the men, transferring them, or charging them and giving them a fair trial before a court honouring the rule of law. Due to the complex nature of the issues surrounding closure, some might forget that the life of many detainees after Guantanamo remains troublesome. The struggle for a return to normalcy and for respect of human rights continues long after detention in Guantanamo.

Broken promises

On 22 January 2009, newly elected President Barack H. Obama followed up on the promise he made during his election campaign and ordered the closure of Guantanamo within the year. At that time, more than 525 men had already been transferred out of Guantanamo for release, further detention, or prosecution. President Obama first struggled, then failed, to reach his tight, self-imposed 22 January 2010 deadline for closure. During the summer of 2010, it became clear that – despite statements made to the contrary – closing Guantanamo faded as a priority for the Obama Administration.  Closure of the prison by the end of Obama’s first Presidential term in 2013 thereby became unlikely.

President Obama reaffirmed his intention to close Guantanamo at the beginning of his second Presidential term, but it was not until his 28 January 2014 State of the Union, that he – for the first time in almost five years – stressed the importance of closing Guantanamo as soon as possible. Now that the United States plans to withdraw from active combat in Afghanistan, there appears to be increased motivation inside the Obama Administration to close Guantanamo. While human rights advocates are cautiously optimistic about this renewed commitment and about the efforts being made, the question is whether closure is even feasible. Many complex issues remain to be solved.

Over the years of Guantanamo’s existence, nine men have died in detention, 621 men have been transferred to a total of fifty-two countries, and 149 men of twenty-two different nationalities remain detained at the prison. The current detainee population consists of three groups. Thirty-two men have or will be prosecuted by the U.S. government for any offenses, including for alleged violations of the law of war. Forty-one men are being held in indefinite preventive detention without trial. Finally, seventy-six men are cleared to leave Guantanamo by the Guantanamo Detainee Review Task Force, but remain detained because it is unsafe to return them to their home country.

European wavering

The slow progress in closing Guantanamo is due to a number of problems. One such problem is the opposition within the United States to allow Guantanamo detainees on American soil, be it for resettlement or for continued detention. The U.S. Congress repeatedly voted against proposals giving the U.S. government the competence and the money for the transfers. Second, after a long phase of little to no progress in trials at the military commissions, the current ongoing military commission must be accelerated. Third, the Obama Administration is finding it difficult to convince other states to accept Guantanamo detainees who cannot be returned to their state of origin because there are substantial grounds for believing they would be tortured, persecuted, or killed upon return. The return of these detainees to their home countries would be in violation of the non-refoulement principle contained in the United Nations Convention Against Torture.

Most transfers executed during the Bush administration were to states of origin, whereas only a limited number of transfers were made to third states. The Bush Administration’s attempts to convince third states to resettle former detainees mostly failed, largely because the Administration kept defending the existence of Guantanamo at the same time. The Obama Administration managed to resettle a considerably higher number of detainees in third states: fifty-three, as compared to eighteen during the Bush Administration. This increase is the result of the change in presidential leadership, the order to close Guantanamo, and both renewed and increased diplomatic efforts.

Despite these efforts, European states remain reluctant to resettle Guantanamo detainees for a variety of reasons. First, many believe that the United States holds primary responsibility for closing Guantanamo and for finding a solution for the remaining detainees. The fact that the U.S. Congress has blocked every effort to bring Guantanamo detainees to the United States does not help. Second, Guantanamo detainees carry a huge stigma: the U.S. government in the past referred repeatedly to these men as “the worst of the worst’’ of all U.S. enemies, even though ninety-two percent of the Guantanamo population was never determined to have committed hostile acts against the United States or its allies. Third, some European states feel they already made a significant effort by accepting third state nationals, while others would have to change their asylum policies to be legally able to allow former Guantanamo detainees onto their territory. Finally, many European states are working hard to tackle their own domestic and international threats of extremism. They also fear the political repercussions if a third state national from Guantanamo they resettled is ever linked to a terrorist attack. Such fear is not entirely unfounded, considering the arrest of a former Guantanamo detainee in Spain last June for recruiting ISIS fighters in the country.

Continuous struggles

The return of their own nationals, as well as the resettlement of third state nationals from Guantanamo, results in a whole range of complex political, operational and legal issues for many European states. With possible security concerns constantly in mind, European states must ensure the physical and legal protection of former Guantanamo detainees in order to enable them to rebuild their lives peacefully in the best possible conditions. As of today, eighty-six Guantanamo detainees have been transferred to twenty-one different European States. Thirty-eight of these men are nationals who returned to their country of origin. The other forty-eight men are third state nationals who have been resettled in a European state. What often goes underreported is that the struggle of some of these men for freedom and full enjoyment of their human rights continues after transfer out of Guantanamo.

There are reports of Russian Guantanamo detainees being ill treated by Russian officials upon return to Russia. Despite diplomatic assurances of humane treatment made between the U.S. and Russian governments in preparation of the transfers, there are reports of intimidation, coercion, and psychological and physical abuse, including the denial of appropriate medical treatment. Most European states question but do not detain the men arriving from Guantanamo. There are exceptions, however. In the United Kingdom, Guantanamo transfers were detained and then released without being charged, while in Belgium, France, Italy, Russia and Spain charges were filed. In certain cases, the charges were dropped (Belgium, Russia) while others led to trial (France, Italy, Russia, Spain). In France, a conviction was overturned because the evidence used was gained during Guantanamo interrogations, which is in violation with the theory of the tainted fruits of the poisonous tree. In Spain, a conviction of a former Guantanamo detainee was overturned because of a violation of the presumption of innocence.

Several European states – including Denmark, Germany, Italy, Russia, Spain, Sweden and the United Kingdom – have been or still are monitoring former detainees upon their return or resettlement, either with or without their knowledge or agreement. Spain emphasized that monitoring protects national safety while protecting the men from reprisals over possible revelations made while in Guantanamo. Both in Sweden and the United Kingdom, police had to intervene after angry citizens threatened and harassed former detainees or their families. Most former detainees enjoy freedom of movement within the territory of the European country they are transferred to. However, some of them cannot travel abroad because they had to turn in or did not receive their ID card or passport. Examples include Denmark, the United Kingdom, and Russia. In Russia, the situation is particularly urgent, since the men cannot receive medical services without their national ID card. Some men who are resettled in Europe are restricted from travelling abroad for several months to several years, depending on their status. This is the case in Albania, Ireland, Portugal, and Spain.

European complicity

Even though European states have no legal obligation to resettle third state nationals, there are several reasons why they should do so anyway. First, European states have always been very critical towards the United States for keeping Guantanamo open. Refusing to help to close Guantanamo negatively impacts their credibility. Second, there is a strong humanitarian responsibility to provide a safe haven for those who remain illegally and wrongfully detained in Guantanamo and who have nowhere else to go. Finally, European states have a moral responsibility to resettle Guantanamo detainees because of their involvement in secret detention and extraordinary rendition practices.

The latter duty should not be taken lightly. On 24 July 2014, the European Court of Human Rights (ECtHR) ruled that Poland violated its international obligations under the European Convention on Human Rights by allowing the secret detention, torture, and extraordinary rendition of a Saudi Arabian national and a stateless Palestinian, both of whom are currently still detained at Guantanamo. This judgment marks the first time the ECtHR ruled on the merits of an application brought by Guantanamo detainees. It might be just the beginning: both men currently have similar applications pending before the ECtHR, namely against Romania and against Lithuania respectively. One can only hope that this summer’s judgment of the ECtHR will encourage other current or former Guantanamo detainees to take similar steps towards finding justice.

Conclusion

 President Obama should hurry if he wants to keep his promise of closing Guantanamo in 2014, considering that the prison currently still holds 149 men whom the Administration cannot simply make magically disappear (again). Whereas the United States keeps looking towards Europe to take on more detainees, a key element that could speed up the process is found much closer to home: the removal of Congress’ restriction on transferring Guantanamo prisoners into the United States. With the United States now preoccupied with the ISIS crisis, closing Guantanamo will likely fade once again as a priority for the Obama Administration. Even if the prison were to close this year, it seems naïve to think that it marks the end of a shameful piece of American legacy. It is often overlooked that the lives of many men – and by extension the lives of their families – remain on hold until long after Guantanamo. In Europe, their Guantanamo past makes it difficult for them to return to normalcy. The first judgment of the ECtHR condemning a European country for its involvement in the whole Guantanamo fiasco can perhaps ease the pain a little for some. On the other hand, with the approaching thirteenth “anniversary” of the prison that never should have been built, it is perhaps all happening just a little too late.

Jozefien Van Caeneghem is a visiting scholar at Berkeley Law, a BAEF Hoover Foundation Brussels Fellow and a PhD candidate at Vrije Universiteit Brussel.

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