Guantanamo Bay detention facility and operations

Guantanamo Bay and the United States

History of Guantanamo Bay, and the U.S. Involvement with Guantanamo Bay

The Legality of the U.S. Occupation of Guantanamo Bay

Why Do the U.S. Hold Guantanamo Bay?

The Legal Position Regarding the U.S. Being in Guantanamo Bay

Recent Events at Guantanamo Bay: Camp X-Ray and Camp Delta

The Legal Position Regarding Events at U.S. Camps in Guantanamo Bay

The Geneva Convention and Guantanamo Bay

In the last two years the U.S. naval base at Guantanamo Bay in Cuba has regularly been seen in the news due to the imprisonment of hundreds of Muslims held there by the United States without trial (CSC, 2003).

It is well documented that the prisoners are held in terrible conditions and they have included minors (CSC, 2003). Cuba has surprisingly come under fire from some quarters for allowing this behaviour on their land, but it is important to explain that Cuba has no power over this area of their own soil, as for the last 100 years it has been occupied by the United States and is separated from the rest of Cuba by one of the world's most intense minefields (CSC, 2003).

This paper looks at the history of Guantanamo Bay, in terms of how the United States came to have possession of Gunatanamo Bay, and how the United States manages to continue to occupy a portion of another country; a country with which it does not hold diplomatic nor economic relations. The legality of this occupation is looked at in some detail.

The paper then moves on to looking at what the United States has done with this land it occupies, and looks in depth at the U.S. military's development of detention camps on this area of Cuba, in particular, at the development of Camp X-Ray and later, Camp Delta. The things that go on in these camps is discussed in some detail, and the legality of the United States' holding prisoners (who are often children) without charge is looked at in detail, with particular reference to the Geneva Convention.

Chapter 2: History of Guantanamo Bay, and the U.S. Involvement with Guantanamo Bay

This Chapter will look at the history of Guantanamo Bay, in particular the involvement of the United States with Guantanamo Bay; the reason for their occupation of Guantanamo Bay, and the reasons for their continued presence in this region of this country, with which the United States does not hold diplomatic nor economic relations.

The area known as Guantanamo Bay covers nearly 118 square kilometres of eastern Cuba, it contains 2 airfields and is home to around 3,000 permanently stationed U.S. military personnel, whilst a further floating population of thousands arrives and departs by air and sea each month (CSC, 2003).

The annual rent for the leasing of this land is 2,000 gold coins, equal to $4,085, so around one cent per square metre of land, however, since 1959 and the triumph of the Revolution, no cheque has ever been cashed (CSC, 2003). Since March of that year Cuba has demanded that the U.S. return the base and has regularly had resolutions passed at the Non-Aligned Movement calling for the base to be returned (CSC, 2003).

The history of Guantanamo Bay is a perfect example of U.S. policy towards Cuba since the end of the 19th century; in 1898, just as the Cuban patriots' independence army was about to achieve victory after 30 years of armed struggle against the Spanish Crown, the United States declared war on Spain after their warship, The Maine, was allegedly torpedoed by the Spanish (CSC, 2003). Later that year, rule of Cuba was transferred from Madrid to Washington at the Treaty of Paris, where no Cubans were present, after U.S. President McKinley had stated "it wouldn't be wise to recognise the independence of the Cuban Republic" (CSC, 2003).

However, the Cuban struggle for independence looked likely to begin again, this time against U.S. rule and in 1901 the U.S. introduced the Platt Amendment (CSC, 2003). This allowed the President to hand over rule of the island to the Cuban people, but only after a government and constitution could be established that set out future relations between the two countries (CSC, 2003). A major part of the constitution forced the future Cuban government to lease part of its territory for the establishment of U.S. naval stations, and the result was the 1903 Permanent Treaty, which decided that a piece of Cuban land was to be leased to the U.S.A., and 100 years ago the Guantanamo Bay Naval Base ceased to be a part of Cuban territory (CSC, 2003).

The text of the Platt Amendment states that, "The President of the U.S. is hereby authorized to 'leave the government and control of the island of Cuba to its people' so soon as a government shall have been established in said island under a constitution which, either as a part thereof or in an ordinance appended thereto, shall define the future relations of the United States with Cuba, substantially as follows:

I. That the government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreigh power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgment in or control over any portion of said island.

II. That said government shall not assume or contract any public debt, to pay the interest upon which, and to make reasonable sinking fund provision for the ultimate discharge of which the ordinary revenues of the island, after defraying the current expenses of government, shall be inadequate.

III. That the government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the Treaty of Paris on the United States, now to be assumed and undertaken by the government of Cuba.

IV. That all acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected.

V. That the government of Cuba will execute, and, as far as necessary, extend, the plans already devised or other plans to be mutually agreed upon, for the sanitation of the cities of the island, to the end that a recurrence of epidemic and infectious diseases may be prevented, thereby assuring protection to the people and commerce of Cuba, as well as to the commerce of the southern ports of the United States and the people residing therein.

VI. That the Isle of Pines shall be omitted from the proposed constitutional boundaries of Cuba, the title thereto being left to future adjustment by treaty. VII. That to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its defense, the government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations at certain specified points, to be agreed upon with the President of the United States.

VII. That to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its defense, the government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations at certain specified points, to be agreed upon with the President of the United States.

VIII. That by way of further assurance the government of Cuba will embody the foregoing provisions in a permanent treaty with the United States."

In 1901, after three years of U.S. occupation of Cuba, Congress passed the Platt Amendment which stated in Article III: "The Government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the Treaty of Paris on the United States, now to be assumed and undertaken by the Government of Cuba" (Mellen, 2004).

In order to end the occupation of Cuba, the Cuban government had to insert the Platt Amendment into its constitution (Mellen, 2004). They however did not want to as they felt, similar to how Adams felt in 1796, that it allowed the U.S. government to govern them, rather than allowing the Cuban people to govern themselves (Mellen, 2004).

Very clearly the U.S. government played a two-faced game with Cuba (Mellen, 2004). The Senate which passed the resolution which recognized Cuba's government and that Cuba "[was], and of a right ought to be, free," and the Senate which passed the Platt Amendment had not changed composition greatly in the three-year interim (Mellen, 2004).

In fact, 16 senators who had voted for the Cuban independence measure before the compromise with McKinley which eliminated recognition of the Cuban government as constituted, also voted for the Platt amendment (Mellen, 2004). An additional 16 voted for the Cuban independence measure and abstained from the Platt Amendment (Mellen, 2004). These votes from the hypocritical members of the Senate would have defeated the Platt Amendment had they not changed their position so drastically (Mellen, 2004).

The U.S. intent to use the Platt amendment as the means to legitimize control over Cuba was not a hidden agenda (Mellen, 2004). Congressman Corliss of Michigan stated: "I am construed to vote for the amendment with reference to the island of Cuba, because I believe that the adoption thereof will insure the continuance of our sovereignty. I am unalterably opposed to the surrender of the sovereignty of the United States over the island of Cuba" (Mellen, 2004). Congressman C.E. Littlefield of Maine opposed the Platt Amendment; he stated that, "The Cuban amendment, which is said to contain our ultimatum to Cuba, does not in my opinion, contemplate surrendering 'exclusive control' of Cuba to the 'inhabitants of Cuba,' for whom the territory is now 'held in trust,' 'when a stable government shall have been established by their voluntary action;' but on the contrary, it seems to me that it clearly intends to perpetuate our control over the island and its inhabitants" (Mellen, 2004).

Historian Louis A. Perez, Jr. stated the result of the Platt Amendment best, when he said that, "During the decades following the Spanish-Cuban-American War], the Platt Amendment served as the principle instrument of hegemony. Immediately through direct rule during the occupation and subsequently through indirect rule under the Platt Amendment, the United States exercised authority over Cuba not unlike sovereignty. The Platt Amendment was an organic document -- evolving and changing as circumstances dictated. It opened Cuba to the expansion of U.S. capital and held the republic to its continued defense. It was a pursuit that required increasingly deeper involvement in Cuban internal affairs, and the amendment served this purpose too. Indeed, in the end there was little in the exercise of hegemony that did not find sanction in the Platt Amendment" (Mellen, 2004).

In 1905, insurgents in Cuba were poised to begin conflict once again: the Cuban government, under Thomas Estrada Palma that the U.S. allowed to take office abused its powers and fraudulently swept all elections (Mellen, 2004). The populist military (largely of Afro-Cuban descent), which had been pushed out during the previous U.S. occupation, were ready to take control of the government by force of arms (Mellen, 2004). Although the U.S. government admitted serious problems with the Cuban government Roosevelt and his party felt that they could not allow Cuba to fall into anarchy as that would harm U.S. interests in Cuba; thus, once again the U.S. occupied Cuba with its military in 1906 (Mellen, 2004).

They stayed three years and in that time they removed Cubans from positions of municipal authority (Mellen, 2004). The U.S. never occupied Cuba again militarily, and the mere threat of that possibility was enough to scare the Cubans into compromises with one another (Mellen, 2004). When they did finally throw off the yoke of the Platt Amendment it was in 1934 and the U.S. had enough of its own problems in the depth of the Great Depression to ignore such Cuban effrontery (Mellen, 2004).

Many historians have argued that U.S. imperialism began with Cuba; others contest this citing the Mexican-American War of 1848 and the continuous exploitation of the Native Americans, particularly in the nineteenth century (Mellen, 2004).

Both are somewhat correct: Manifest Destiny is clearly imperialistic, but, the U.S. treatment of Cuba, as shown by the Platt Amendment, shows a different type of imperialism (Mellen, 2004). This new "empire" controlled areas without deluging them with U.S. citizens. It controlled countries and people through military and economic hegemony (Mellen, 2004).

The U.S. Naval base was very unpopular with the Cuban people before the U.S. Navy had even moved in, leading the Cuban government to write a letter to Washington asking for any changeover ceremony to be kept to a minimum, as there had been protests against the lease, but only nine years later, the U.S. imposed another agreement on Cuba, enlarging the size of the U.S. area to what it is now, even though this covered an access channel which had previously been agreed as a shared channel, to ensure 'free trade' (CSC, 2003).

In 1934, faced with economic hardships, the U.S. began a so-called "Good Neighbour" policy and signed a Treaty of Reciprocity, which repealed the Platt Amendment and the 1903 Permanent Treaty, but maintained all stipulations concerning Guantanamo; however, as the treaty was being signed in Washington, over 20 U.S. warships paid "friendly" visits to various points along the Cuban coast (CSC, 2003).

Chapter 3: The Legality of the U.S. Occupation of Guantanamo Bay

This Chapter looks at the legality of the U.S. occupation of Guantanamo Bay, in terms of the laws that apply to the annexation of an area of a country by another country, and the continued occupation of that country, despite the fact that, under international law, this annexation and occupation is not legal.

Despite numerous calls for the return of Guantanamo Bay, the United States still has a Naval base on Cuban soil; at the start of George Bush Senior's administration the man in charge of the base, U.S. Secretary of the Navy, James H. Webb, wrote an article for the Wall Street Journal in which he said: "It is reasonable to assume that we will lose our lease on Guantanamo Bay in 1999" (Weston, 2004). Yet as we come to the end of Bush juniors first term in charge there appears to be no end to the occupation, how is this possible and is it legal (Weston, 2004)?

In November 2003, international law expert Professor Alfred de Zayas, from the University of British Colombia, gave a lecture on the state of the detainees held at Guantanamo Bay (Weston, 2004). He began this lecture by detailing the position of the U.S. base in international law, and found that there are four main ways in which the lease and the treaty that created it can only be described as illegal (Weston, 2004).

1) The treaty was imposed by force (Weston, 2004). The 1903 Treaty that brought about the base at Guantanamo was invalid from the beginning, as it was imposed by force (Weston, 2004). After four years of military rule the United States decided against a complete annexation of Cuba, instead they wanted a system that would allow political and economic control, the answer was to grant Cuban independence under U.S. terms (Weston, 2004).

The U.S. administration made it clear that there would be no Cuban constitution unless it included an appendix, known as the "Platt amendment" which demanded the right for U.S. military intervention in Cuba and a naval base (Weston, 2004). Initially rejected in Cuba, the Platt amendment had also been unpopular in the U.S. Senate, described by one Senator as an "ultimatum to Cuba," the Cuban government had no other choice but to yield to U.S. pressure and agree to the lease if they wished to have any form of independence (Weston, 2004).

The Treaty was signed, supposedly granting Cuban independence, but merely transforming Cuba into a quasi-protectorate (Weston, 2004). Articles 51 and 52 of the Vienna Convention on the Law of Treaties say that any treaty signed under coercion is illegal, it could be argued that the Vienna Convention only came into force in 1980, yet international opinion was way ahead of this (Weston, 2004).

In 1947, Serge Krylov, a judge at the International Court of Justice said that any treaties "by which an imperialist power imposes its will upon a weaker state" are invalid (Weston, 2004).

2) The treaty was binding in 1903, but is illegal in the post-colonial age

After the Second World War the decolonisation process began and a new set of norms and principles based around the UN Charter meant that obsolete, unequal, colonial laws were being replaced (Weston, 2004).

In the 1970s, the Panamanian Ambassador to the UN argued against the Panama Canal Treaty, which had created a lease that granted the U.S. sovereignty over the Canal for an unlimited time (Weston, 2004). They were widely supported, the Peruvian Ambassador said it was "not in the spirit of the age" and the Canadians said it was "part of the old order" (Weston, 2004).

During the relevant discussions at the UN the Friendly Relations Resolution of 1970 was used as constituting customary international law (Weston, 2004). In the case of the Panama Canal, the treaty had become obsolete, due to the creation of a new international order, encapsulated in the norms and principles of the UN (Weston, 2004).

Yet despite many calls from Cuba at the UN for the return of Guantanamo (the latest being June 2002) there has not even been any discussion, hardly in keeping with the UN Charter and its obligation to negotiate disputes (Weston, 2004).

3) The terms of the lease have been broken (Weston, 2004). The U.S. administration should certainly be trying to negotiate the terms of the lease, as they have continually broke the terms set down in it (Weston, 2004). The 1903 Treaty permits a "base for naval and coaling purposes" and goes on to say that any commercial use would be illegal (Weston, 2004). It is well-known, however, that Guantanamo Bay now contains several commercial concessions, including a bowling alley and of course a certain well-known fast food chain (Weston, 2004).

Other uses have included an internment camp for Haitian refugees in the early nineties, logistical base for the regime changing invasions of Grenada and Panama, numerous acts of provocation against Cuba as well as its present disgraceful use, all of which brake the terms of the lease (Weston, 2004).

4) The treaty breaks the rules of sovereignty (Weston, 2004). It is now absurd to think that any bilateral or multilateral Treaty can be lawful if it is based on anything other than the sovereign equality of the contracting parties, yet in this case, countless U.S. administrations have suggested that a disputed lease is more powerful than the sovereignty of one of its neighbours (Weston, 2004).

Article 56 of the Vienna Convention appears to provide an answer to this, as it allows for denunciation or withdrawal from a treaty containing no provision on an ending (Weston, 2004). Targeted at this kind of treaty or alliance, which may and often do lapse after a change of government (Weston, 2004).

To make it even simpler there is Article 62, that allows for termination on the grounds of fundamental change of circumstances (Weston, 2004). Once again Cuba is facing special treatment, it is quite unrealistic to say that a lease has no end, no other international lease has lasted for over 99 years, yet this one has lasted for over a hundred without an end in sight, despite the illegality of the situation (Weston, 2004).

The continued occupation of Guantanamo Bay is a rather unsubtle reminder of nineteenth century colonialism, completely at odds with the principles of the United Nations Charter, which highlights the right to self-determination and the right to dispose of a people's natural resources (Weston, 2004).

Chapter 4: Why Do the U.S. Hold Guantanamo Bay?

This Chapter discusses why the United States sees it as necessary to hold on to this area of Cuba; what the United States has done with this land in the past, and what the United States is currently doing with this land.

So what goes on at Guantanamo, and why is it necessary for the U.S. To have a base on the territory of a country where they have imposed an economic blockade for over forty years (CSC, 2003)?

According to the U.S. It has been essential in fighting drug trafficking during their war on drugs, and vital for military training, such as Ocean Venture in 1992, when a 30,000 strong force was flown in at a cost of millions of dollars; it has, however, also been pivotal in the invasions of the Dominican Republic, Haiti, Nicaragua, Mexico and Panama, continuous reconnaissance missions over Cuba, planning counterrevolutionary missions, attempting to engage Cuban forces in full scale combat and thousands of violations and acts of provocation against the Cuban people (CSC, 2003). These attempts have included throwing objects from planes, aiming rifles, canons and even tanks, disrespecting the Cuban flag, and breaking boundary fences: in 1962 alone there were nearly 6,000 violations of Cuba's jurisdictional waters with military vehicles (CSC, 2003).

These acts began in 1961 when an oil refinery was damaged and a sailor killed by shots from a pirate ship that had come from the base (CSC, 2003). Local people have been targeted; for example, in 1964 38 fishermen were imprisoned on the base, and there are numerous tales of Cubans being arrested and even murdered after being accused of working for the Cuban government (CSC, 2003).

The U.S. authorities have a shameful record of treatment of employees at the base, and there have been periodic mass layoffs, which could only be avoided by Cubans renouncing their citizenship, and although all staff are meant to be given a retirement fund made up of 6% of their wages, very few have ever received it, with well over $4 million owed by the U.S. government (CSC, 2003).

Actions like those listed above show that the Guantanamo Naval base has been an expression of the United States' unsatisfied geopolitical ambitions for Cuba (CSC, 2003). The cause of the dispute between the two states, has been the U.S. authorities' resistance to seeing Cuba become a free and sovereign nation, breaking away from plans for U.S. control over the Cuban people that have spanned three centuries, which is why the U.S. has never even entered into any discussions over a possible eventual handover, despite repeated requests from the Cuban government (CSC, 2003).

Chapter 5: The Legal Position Regarding the U.S. Being in Guantanamo Bay

This Chapter looks at the legal position regarding the U.S. being in Guantanamo Bay, in terms of the laws that apply to this situation.

Even during the Missile Crisis in 1962 the U.S. administration was not prepared to talk about handing back Guantanamo, but was prepared to take the world to the brink of nuclear war; yet, according to international law, the United States has no right to still be at the base (CSC, 2003). International law establishes consent as the basis for any legal obligation resulting from an agreement, but consent is conspicuously absent in any of the agreements concerning Guantanamo (CSC, 2003).

The lease was forced onto a government that had been installed as puppets of the American regime and remained there under threat of military intervention (CSC, 2003). International law also consecrates the precept of basic change of circumstance, which should have led to a U.S. departure as soon as they broke off diplomatic relations in 1961 and the base was no longer a show of "friendship" but a tool of U.S. aggression (CSC, 2003). Finally, and quite simply, it is absurd to think that the owner of anything that is leased cannot recover it at a given time, as any lease is per se, temporary (CSC, 2003).

Chapter 6: Recent Events at Guantanamo Bay: Camp X-Ray and Camp Delta

This Chapter looks at what has happened in Guantanamo Bay since, for convenience, September 11th 2001, as this is the time that the United States decided to go to war against terrorism, and has taken prisoners from its spoils; most of which it has placed in Guantanamo Bay. The format of the United States camps are discussed, as is the level of prisoner numbers, and the treatment received by the prisoners.

As we have seen, the United States outpost at the eastern tip of Cuba is officially known as Guantanamo Bay Naval Base, and the U.S. has occupied the area since 1898, leasing it from Cuba for some $4,000 per year (CBC, 2004). Cuban President Fidel Castro refuses to cash the rent cheques, however, calling the 116-sq.-km base "a dagger pointed at Cuba's heart" (CBC, 2004).

Detention facilities at Camp X-Ray were temporary; as a result of this, of the single occupancy capacity at Camp X-Ray being limited to 320, and with Guantanamo Bay preparing to receive up to 2,000 Al-Qaeda and Taliban detainees, the need arose for the construction of larger enclosed long-term detention facilities at Naval Station Guantanamo Bay, Cuba (Pike, 2004).

As of April 9, 2002, construction of Camp Delta had already been approved and funded with construction having already begun at Radio Range, approximately five miles from Camp X-Ray (Pike, 2004). Construction of the new detention facility officially began on February 27, 2002; the first 408 new detention units were completed by the middle of April, and done by Brown & Root Services, as well as Navy SeaBees and Marine engineers (Pike, 2004).

Camp Delta was initially a 612-unit detention facility; it is built on the site of a former facility made up of cinder-block buildings used years before during a Haitian refugee operation (Pike, 2004). Each detention units is 8 feet long, 6 feet 8 inches wide and 8 feet tall and constructed with metal mesh material on a solid steel frame (Pike, 2004). Approximately 24 units make up a detention block; the facility has indoor plumbing with each unit having its own floor style flush toilet, metal bed-frame raised off the floor, and a sink with running water; none of which was available at Camp X-Ray where portable toilets were used instead (Pike, 2004). Areas at Camp Delta are also better controlled than Camp X-Ray and detainees are out of the sun more; there are also two recreation/exercise areas per detention block at Camp Delta, and the maximum security portion of camp Delta is made up of three detention blocks (Pike, 2004).

The Detention Hospital is a 20 bed facility located inside Camp Delta and is dedicated to providing expert medical care to the detainees (Pike, 2004). The Detention hospital is comparable to a full-service, medical facility with state-of-the-art equipment and professional medical staff (Pike, 2004). Detainees receive three culturally appropriate meals a day, one of which is an MRE (Meal, Ready to Eat), and to guard against detainees fashioning "make-shift" weapons, special procedures have been put in place (Pike, 2004).

Special arrangements were made with the MRE manufacturer to ensure that these MRE's would have neither cardboard packaging, heating units, accessory pack, nor candy (Pike, 2004). In addition, Military Police personnel are tasked with sanitizing each MRE, and removing toilet paper, the plastic wrapper off the spoon, a bag of spiced cider, and any additional material deemed to pose a potential threat (Pike, 2004). This includes salt, with each detainee allowed only one salt; material given to each detainee for meals in his cell is accounted for once the meal is finished (Pike, 2004).

Clean laundry bundles provided to each detainee is made up of one sheet, two towels, one washcloth, one orange bottom (pants), one orange bottom (shorts), and one orange bottom top (shirt) (Pike, 2004). They are also provided a prayer cap, flip-flop shoes, a foam sleeping mattress, a blanket, a 1/2-inch thick prayer mat, and soap (Pike, 2004). Detainees are also given a copy of the Koran; according to an account published by the Mirror in September 2002, detainees are allowed two 15-minute showers a week, at which time, they receive a new orange suit (Pike, 2004).

Camp Delta was first occupied on April 28, 2002, when 300 detainees previously held at Camp X-Ray were transferred to Camp Delta; the rest of the detainees were moved on April 29. Camp X-Ray closed down on that same day (Pike, 2004).

Guantanamo is central to the Bush Administration's strategy to prevent judicial review of the legal status of prisoners (Pike, 2004). Located on Cuban territory, it is the "legal equivalent of outer space," according to one U.S. government official, unlike military bases on U.S. territories (Pike, 2004). These other locations were ruled out as prison sites because they fall under the jurisdiction of the often-liberal Ninth U.S. Circuit Court of Appeals (Pike, 2004).

To qualify for transfer and detention at Camp Delta, Guantanamo, prisonners taken in Afghanistan must meet any one of the following criteria: be a foreign national; have received training from Al-Qaeda; or be in command of 300 or more personnel (Pike, 2004). As of June 26, 2002, the total number of detainees at Camp Delta was standing at 536 (Pike, 2004). On August 5, 2002, 34 suspected terrorists arrived at Guantanamo Bay, by an Air Force C-17 military aircraft, thus bringing to 598 the total number of detainees being housed at Camp Delta (Pike, 2004).

With military officials running out of detention space, construction work began on August 8, on a new wing for the Camp Delta prison camp (Pike, 2004). An additional 204 cells are to be added to facility with the work to be finished by October 1, 2002, thus bringing the number of cells in the compound to a total of 816 (Pike, 2004).

On October 28, 2002, the Department of Defense announced that the first release of detainees from Guantanamo Bay, Cuba, had taken place on Oct. 26, 2002; they numbered four (Pike, 2004). Senior leadership of the Department of Defense, in consultation with other senior U.S. government officials, determined that these detainees no longer posed a threat to U.S. security (Pike, 2004). On October 28, 2002, a group of Al-Qaeda and Taliban detainees arrived at Camp Delta under tight security, bringing the total number of detainees to approximately 625 (Pike, 2004).

As of early December 2002, it was also reported that about five percent of the detainee population at Camp delta were being treated for psychological disorders either pre-existing or that have arisen since their arrival at the Guantanamo Bay (Pike, 2004). According to a story from the British paper, The Mirror, dated September 9, 2002, 30 detainees had over time tried to take their lives, with some of these using the plastic ustensils provided to them to try and slash their wrists (Pike, 2004).

As of early February 2003, there had been a total of 15 suicide attempts by detainees since Al-Qaeda suspects began being flown to Guantanamo Bay (Pike, 2004). As of February 6, 2003, five of these 15 attempts had taken place within the span of the previous three weeks; the most serious incident took place on January 16, 2003, during which a detainee was found hanging in his cell and was only prevented from killing himself through the intervention of guards; the prisoner was said to be in stable but serious condition (Pike, 2004).

According to defense officials, every effort is made to prevent suicide attempts as well as other efforts by prisoners to intentionally injure themselves (Pike, 2004). Mental health teams are assigned to work with the detainees; with authorities concerned, both medical and security teams were reported to have stepped up their efforts to prevent further suicide attempts, as well as other actions by detainees to harm themselves intentionally (Pike, 2004). Other actions taken reportedly included having guards enter cells during suicide attempts without waiting for response teams and also swapping standard military blankets for ones designed to rip when either twisted or stretched (Pike, 2004).

It was revealed in late April/early May 2003, that U.S. Secretary of State Colin Powell had written a letter to Defense Secretary Donald Rumsfeld complaining of the indefinite detention and lack of progress on the determination of the status of detainees there; it was also revealed that the detainees included also "one-13-year-old, one-14-year-old, two-15-year-olds, one-16-year-old, an 88-year-old, and a 98-year-old" (Pike, 2004).

On May 16, 2003, the U.S. Department of Defense announced the release of one detainee from Guantanamo Bay, Cuba, and the transfer of four Saudi detainees for continued detention by the Government of Saudi Arabia, on May 14, 2003; U.S. officials having determined that these detainees either no longer posed a threat to U.S. security or no longer required detention by the United States (Pike, 2004).

On July 18, 2003, the Department of Defense announced the transfer of 27 detainees for release from Guantanamo Bay, Cuba, to their countries of origin, after determining that these detainees either no longer posed a threat to U.S. security or no longer required detention by the United States; the arrival of approximately 10 enemy combatants to Guantanamo Bay was also announced (Pike, 2004).

On November 24, 2003, the Department of Defense announced that it had transferred 20 detainees for release from Guantanamo Bay, Cuba, to their home countries on Nov. 21 (Pike, 2004). Additionally, approximately 20 detainees arrived at Guantanamo from the U.S. Central Command area of responsibility on Nov. 23, putting the number of detainees at GTMO at approximately 660 (Pike, 2004).

On November 25, 2003, the United States and Australian governments announced that they agreed the military commission process provided for a full and fair trial for any charged Australian detainees held at Guantanamo Bay Naval Station (Pike, 2004). On January 29, 2004, the U.S. DoD announced that it had released three teenageers, believed to be aged 13 to 15, and returned home to Afghanistan (Pike, 2004). The three had been held at the Iguana House facility; two had been detained as a result of two in raids on Taleban camps while the third was captured while reportedly trying to obtain weapons (Pike, 2004). The release brought to 87 the number of detainees released from Guantamo Bay, in addition to 4 detainees, who were transferred to the care of Saudi Arabia (Pike, 2004).

A dining facility, the Seaside Galley, is available for JTF personnel working inside Camp Delta; established in 2002, it consists of a large, air-conditioned tent, with two hand-washing stations located just outside of the tent (Pike, 2004). A more permanent dining facility is scheduled to be built in September 2003, and a new dining facility is to be located at the same location, and is known as the Delta Galley (Pike, 2004). Other improvements made to Camp Delta include the installation of rubber mats on the floors for guards walking up and down the detention blocks, as well as the setting up of air-conditioned offices at the extremities of each block; with each one to be later equipped with a computer and connected to a LAN (Pike, 2004). All of these improvements, of course, suggest that the U.S. government has plans to keep their camps in Guantanamo Bay, and also to keep their occupancy of Gunatanamo Bay.

Camp Delta boasts the only traffic light on the Guantanamo Bay, Cuba, facility, and the second traffic light in Guantanamo Bay history; the light is mounted on the guard shack located at Camp Delta's traffic check point (Pike, 2004).

Camp Delta is comprised of at least six detention camps: these are Camps 1, 2, 3, 4, Echo and Iguana (Pike, 2004). Three of these (Camps 3, 2, 1) are maximum-security camps that can house about 800 detainees who live in solitary confinement; Camp 5, a more permanent concrete and steel structure, is designed to hold 100 detainees and open in early May 2004 (Pike, 2004).

According to a May 2, 2004 report in the Washington Post ("Guantanamo -- A Holding Cell In War On Terror" by Scott Higham, Joe Stephens and Margot Williams), about $118 million was being spent per year to run the prison facilities and other related operations (Pike, 2004). Additionally contracts worth $110 million and $14.5 million had respectively been awarded to KBR, a subsidiary of Halliburton Co. And Dick Corp.; the latter for the construction of a criminal investigation task force headquarters facility (Pike, 2004).

Camp 3 is the highest-level maximum-security facility at Camp Delta; when an enemy combatant first arrives, he is held at Camp 3 (Pike, 2004). Detainees that cooperate with JTF GTMO staff and help to develop intelligence are moved from Camp 3 to Camp 2 (Pike, 2004). Camp 2 and 3 approximately hold a combined 340 individuals (Pike, 2004). Further additional cooperation by detainees allow them to be transferred to Camp 1 where the detainee receives additional privileges; about 150 detainees are held there (Pike, 2004).

In early December 2002, reports began surfacing of the construction at Camp Delta of a new, dormitory style, medium-security, detention facility (Pike, 2004). Construction of the facility was scheduled to be completed in January this year; with dormitories able to hold up to 20 detainees in each unit, the facility is aimed at enabling a limited number of captives the opportunity to interact with one another (Pike, 2004). There, detainees are able to eat, sleep and pray together (Pike, 2004). Admission to the facility will reportedly be conditional on each detainee's good behavior and cooperation with the interrogation process: this facility is known as Camp 4 (Pike, 2004).

Detainees held at Camp 4 are allowed to live there as a result of having demonstrated that they are no longer security risks and are cooperating with the intelligence-gathering effort (Pike, 2004). Detainees held at Camp 4 wear white colored uniforms rather than the orange-colored ones, in addition to a locker for personal storage and access to writing material; approximately 160 detainees are held there (Pike, 2004).

Camp 4 is a medium security facility built inside the limits of Camp Delta (Pike, 2004). Camp 4 opened and received its first detainees on Feb. 28, 2003; twenty detainees were transferred on that date (Pike, 2004). According to DoD, Camp 4 is used for detaining enemy combatants that are considered less of a security risk than others and who have been cooperative in the interrogation process (Pike, 2004). Though the total capacity of this camp was originally reported to be approximately 200, subsequent information released by DoD reports the total capacity of Camp 4 to be approximately 160 (Pike, 2004).

Within Camp 4, detainees are housed in building complexes where each complex consists of communal living rooms, each with a private toilet and sink, as well as a larger shower and toilet room that serve the entire complex (Pike, 2004). There are four communal living rooms that can house up to 10 detainees each (though it was initially reported each could house up to 12 detainees); each detainee has a bed with a mattress, locker for storing personal comfort items and other items like writing material and books (Pike, 2004). Camp 4 also has small, common recreational areas for playing board games and team sports (Pike, 2004). Rather sickeningly, the Camp's inner tower is known as Liberty Tower (Pike, 2004).

Camp 5 differs from other camps at Camp Delta in that it is a multi-winged complex made of concrete and steel; it cost $31 million to build, is designed to hold 100 detainees and was opened in early May 2004 (Pike, 2004).

Camp Echo is located just outside the main facility, and is the detention facility where pre-commissions detaineed are held (Pike, 2004). Detainees whom the President of the United States has selected for the Military Commissions are separated from the general population and moved there (Pike, 2004). The location allows access by detainees to their lawyers and to hold private conversations with them (Pike, 2004). Camp Echo is composed of individual on-storey buildings sub-divided into two rooms; this allows detainees to meet with their lawyer in an area of their own cell, but also to be guarded by MPs 24 hours a day (Pike, 2004).

Camp Iguana is a lower-security detention facility dedicated to juvenile detainees aged between 13 to 15 years and brought to Guantanamo Bay; detainees 16 years and older are housed with the other detainees in Camp Delta (Pike, 2004). According to media reports, the facility consists of at least one-story blockhouse, surrounded by a patch of grass and a high green-mesh fence (Pike, 2004). Detainees there are able to overlook the sea through a 30 by 7 feet gap that is protected by chicken wire (Pike, 2004). According to an article in the London Sunday Times on June 26, 2003, the living quarters are air-conditioned and consist of "a bedroom with twin beds, a small living room with two armchairs, sofa and television, and a bathroom and kitchenette," with an oven present for aesthetic reasons, and a refrigerator whose fruit and desserts contents are reportedly handed as part of a reward system (Pike, 2004).

A camp, called Camp America, was constructed to house Joint Task Force 160 personnel; as of mid-April 2002, Camp America had been opened to soldiers though it was then still in the process of being finished (Pike, 2004). Camp America is located halfway between Windmill and Kittery beaches and consists of 15' by 32' plywood shelters, called seahuts, each of which is equipped with air conditioning and state-of-the-art insulation (Pike, 2004). The seahuts replace the GP Medium tents the soldiers had previously been living in at Freedom Heights; a total of 105 seahuts were built over the span of three months by Navy seabees with each building housing up to 10 people (Pike, 2004).

Unlike "Freedom" Heights, both Camp America and Camp Bulkeley (another camp in which other troops assigned to Camp Delta also reside), the facilities feature hot showers, laundry, and workout facilities (Pike, 2004). Each weather-resistant seahut is equipped with two doors at either end and allows for amenities not available at Freedom Heights, such as a fully operating, local area networked communications seahut with phones and fast Internet access available 24 hours a day (Pike, 2004). The camp also possesses a basketball court, a library, and a hut offering a big-screen television, movies with seating for 20; each morale welfare and recreation seahut is grouped with two other MWR seahuts with a common porch around them (Pike, 2004). There are three groups of three MWR seahuts throughout the camp including a chaplain's area and a medical aid station to treat residents (Pike, 2004).

In addition to the seahuts, there are three tension frame systems (TFSs) at Camp America, supporting a gym complete with free weights, Nautilus-type machines and rubber-matted floors for exercise (Pike, 2004). The second TFS is the Seaside Galley; an air-conditioned mess hall capable of feeding a battalion-sized element, and which provides 4,000 hot meals a day (Pike, 2004). The last TSF is a general assembly are; the camp also supports command post operations by centralizing platoon headquarter seahuts among the living seahuts the same way Freedom Heights was set up at Camp X-Ray (Pike, 2004).

Both camps also feature MWR SEAhuts where troops have access to the internet and are able to relax during off-duty periods (Pike, 2004). Additionally, troops have also access to more phone lines and are allowed to make three 15-minute morale calls each week (Pike, 2004). As of mid-April 2002, construction operations for camp America were in phase two, extending it about another quarter mile down the beach; preliminary estimations suggested that the project would take longer than planned however (Pike, 2004).

On June 24, 2002, a new Joint First Aid Station was opened at Camp America (Pike, 2004). The clinic is equipped with air conditioning, telephones and computers linked directly to the Navy Hospital and serves both Camp America and Camp Buckeley (Pike, 2004).

Family housing facilities of Tierra Kay at Guantanamo Bay have also been refurbished, allowing many troops to move into those living quarters, and thus freeing up some of the SEAhuts at Camp America and Bulkeley for storage and office space (Pike, 2004).

As of mid-2003, two unused SEA huts, previously used as temporary housing, were being reconverted at Camp America into a club, dubbed 'Club Survivor' (Pike, 2004). The facility was to comprise of a bar in one building, and of and indoor, air-conditioned lounge in the other; the facility opened on July 11, 2003 (Pike, 2004).

A new 3,040-square-foot Navy Exchange (NEX) was scheduled to open in mid-late October 2003 at Camp America (Pike, 2004).

As of late November 2002, an additional new camp housing JTF GTMO personell had been opened; dubbed Camp America North, the facility is equipped with hard roofs and indoor latrines (Pike, 2004). As of mid-August 2003, construction work was underway for Camp America North II, also known as Camp America North, a mirror image of Camp America North (Pike, 2004). The new housing units were scheduled to house an additional 400 JTF troops. Both Camp America North I/II were scheduled to be upgraded with kitchenettes and other creature comforts; each house is to accommodate six soldiers and contain a washroom with a toilet and sink (Pike, 2004). The housing area is to include two male and two female toilet-shower combinations, a kitchenette, barbecue area, and basketball court; the contractual completion date for Camp America North II was December 10, 2003, while the JTF's goal was at one point October 15, 2003 (Pike, 2004).

The camp will include six administrative offices, four MWR buildings, two classrooms and a chapel office (Pike, 2004). A medical clinic will also function at the new camp; the Camp America Joint Aid Station will move to Camp America North, expanding into a full clinic (Pike, 2004). The JTF expected the building to be finished by mid November and to have the clinic functioning within two weeks of that date (Pike, 2004).

This, then, is where the Afghan "detainees" are being kept, starting with the first batch of 20 that arrived in January 2002, after a 20-hour flight from Afghanistan (CBC, 2004). The prisoners wore orange overalls and some reports said they were sedated, their heads hooded, and they were chained to their seats and to each other (CBC, 2004). The U.S. calls them "enemy combatants," rather than "prisoners of war," though Washington promises to abide by the Geneva Conventions governing POWs (CBC, 2004).

The open-air, high-security prison was known as "Camp X-ray"; the cells had a metal roof, but each was open to the elements, as this precaution was taken in order for guards to be able to see prisoners at all times (CBC, 2004). Camp X-ray was replaced in April 2002 by a newly built long-term prison known as "Camp Delta" (CBC, 2004). The prison can accommodate up to 2,000 prisoners and features enclosed cells, each with its own flush-toilet and running water (CBC, 2004).

As of November 2003, more than 600 detainees were being held there, from more than 40 countries; up to that point, 88 people had been transferred out of the Guantanamo prison, 84 of them released in their own countries and four sent to Saudi prisons (CBC, 2004).

In late October 2003, a Canadian, Abdurahman Khadr, was released from the prison, but was sent to Afghanistan; at least one other Canadian, Omar Khadr, 16, is still being held in Cuba (CBC, 2004). In November 2003, five Pakistani prisoners were released and, days later, another 20 left the prison, although their identities and nationalities were not released (CBC, 2004).

As of November 2003, there had been 32 suicide attempts, including five within a three-week period in January and February 2003 (CBC, 2004). U.S. officials have not said how many of those attempts were successful (CBC, 2004).

It was only in February of 2004 that the first of the Guantanamo detainees were charged (CBC, 2004). Two men - Ali Hamza Ahmed Sulayman al-Bahlul of Yemen and Ibrahim Ahmed Mahmoud al-Qosi of Sudan - were charged on February 24th, 2004, with conspiracy to commit war crimes; as we will see, they are expected to be tried by military tribunal (CBC, 2004).

In March 2004, the U.S. military released five British prisoners and sent them back to the U.K.; four of these men were then arrested under the Terrorism Act, and the other was detained by immigration authorities (CBC, 2004). All five of the men were released without charges (CBC, 2004).

Britain's third most senior judge, Judge Johan Steyn, has criticized the U.S. For holding terror suspects in Guantanamo, calling it a "monstrous failure of justice" (CBC, 2004). He went on, "By denying the prisoners the right to raise challenges in a court about their alleged status and treatment, the United States government is in breach of the minimum standards of customary international law" (CBC, 2004). The International Red Cross has also condemned the prolonged detention of military prisoners at the base (CBC, 2004).

The U.S. Supreme Court said in November 2003 that it would consider appeals from prisoners who say their detention is illegal; the lower U.S. Appeals Court dismissed the lawsuits, however, saying the Guantanamo base was outside of the jurisdiction of American courts (CBC, 2004).

Chapter 7: The Legal Position Regarding Events at U.S. Camps in Guantanamo Bay

This Chapter looks at the legality of the United States holding prisoners without trial in a land it does not legally occupy.

Despite a major international outcry and expert condemnation of U.S. government policy, hundreds of people of around 40 different nationalities remain held without charge or trial at the U.S. Naval Base in Guantanamo Bay in Cuba, without access to any court, legal counsel or family visits (AI, 2004). Denied their rights under international law and held in conditions that may amount to cruel, inhuman or degrading treatment, the detainees face severe psychological distress; there have been numerous suicide attempts (AI, 2004).

Many of those held were captured during the international conflict in Afghanistan, from where transfers to the Naval Base began in January 2002 under harsh conditions of transportation (AI, 2004). Others were arrested elsewhere and handed over to the U.S. authorities; sporadic transfers to, and releases from, the base continue, but the precise numbers, identities and nationalities of those held has never been made public (AI, 2004).

None of the detainees have been granted prisoner of war status or brought before a "competent tribunal" to determine his status, as required by Article 5 of the Third Geneva Convention (AI, 2004). The U.S. government refuses to clarify their legal status, despite calls from the International Committee of the Red Cross (ICRC) to do so (AI, 2004). Instead, the U.S. government labels them "enemy combatants" or "terrorists," flouting their right to be presumed innocent and illegally presuming justification for the denial of many of their most basic human rights (AI, 2004).

US Secretary of Defence, Donald Rumsfeld, has repeatedly referred to those held at Guantanamo as "hard core, well-trained terrorists," and "among the most dangerous, best-trained vicious killers on the face of the earth" and has linked them directly to the attacks of 11 September 2001 (AI, 2004). Vice President Dick Cheney has also labelled the detainees as "the worst of a very bad lot. They are very dangerous. They are devoted to killing millions of Americans" (AI, 2004). Despite these blanket allegations, several detainees have been released from the base without charge (AI, 2004). No compensation has been offered for the many months they were illegally detained at Guantanamo (AI, 2004).

In April 2002 the detainees were transferred from the small wire-mesh cages at the temporary Camp X-Ray to the confines of Camp Delta where the majority are held in maximum security blocks in cells even smaller than before, sometimes for up to 24 hours a day and with very little out-of-cell exercise time (AI, 2004). The detainees are also subjected to repeated interrogations sometimes for hours at a time and without the presence of a lawyer, raising fears that statements may be extracted under coercion (AI, 2004). The ICRC is the only non-governmental organization allowed access to the detainees (AI, 2004).

With no opportunity to challenge the lawfulness of their detention and the prospect of indefinite detention without trial in such conditions, the potential psychological impact upon those held is a major concern (AI, 2004). The ICRC delegation has stated that it has observed a "worrying deterioration" in the mental health of a large number of the detainees, and that their psychological condition has become a "major problem" (AI, 2004). Efforts to obtain justice in the U.S. courts have so far been unsuccessful, with the courts holding that they do not have jurisdiction over the detainees, because they are foreign nationals held outside U.S. sovereign territory (AI, 2004).

In November 2001, President Bush signed a Military Order establishing trials by military commission, which have the power to hand down death sentences and against whose decisions there will be no right of appeal to any court (AI, 2004).

Six foreign nationals held at Guantanamo have since been named as the first to be tried under the Military Order, amid mounting international concern that any trial before the military commissions would be intrinsically unfair (AI, 2004). In addition to the lack of right to appeal, the commissions will lack independence and will restrict the right of defendants to choose their own counsel and to an effective defence (AI, 2004). The commissions will also accept a lower standard of evidence than in ordinary courts: this could include evidence extracted under torture or coercion (AI, 2004). Lord Steyn, a judge from the UK's highest court had said that such trials would be "a stain on United States justice" (AI, 2004).

People have argued, and in particular Max Paul Friedman of the History News Service, has argued, that the U.S. actions in Guantanamo Bay are simply history repeating itself. As Friedman (2004) argues, missing from the debate over the U.S. prison at Guantanamo Bay in Cuba are the lessons of the United States only previous attempt to imprison foreign suspected subversives, captured overseas, in special camps beyond the reach of the courts; then, as now, casting aside legal principles led to injustices while weakening support for the United States abroad (Friedman, 2004). As the Supreme Court joins the dispute, recalling the mistakes of the past provides insight into the present (Friedman, 2004).

Last time, the targets were German immigrants taken from Latin America: during World War II, the U.S. government, fearing Nazi conspiracies, seized more than 4,000 Germans living in 15 countries below the Rio Grande and interned them in Texas (Friedman, 2004). Long forgotten, the internment of these men and women during a genuine national security crisis displayed an indifference to basic American values that proved ineffective and was ultimately ended by federal courts - for reasons still relevant today (Friedman, 2004).

Like the prisoners held at Camp Delta in Guantanamo, the internees in Texas had no lawyers, no trials and no appeals (Friedman, 2004). The FBI reported after the war that it had evidence of espionage against only eight of the 4,058 German internees (Friedman, 2004). Camp commanders expecting to guard hardened saboteurs found they were holding ordinary farmers, old men and whole families: about one internee in ten was a member of the Nazi Party, and it made sense to keep Nazis under surveillance (Friedman, 2004).

Like bewildered young Americans hunting the Taliban in Afghanistan, U.S. officials unfamiliar with Latin America had a hard time figuring out who was really a threat, and they knowingly locked up 81 Jewish refugees, some of whom had survived German concentration camps (Friedman, 2004). The only evidence against a Jewish butcher from Panama was his "many German customers" (Friedman, 2004).

How did a security program net so many of the wrong people (Friedman, 2004)? As Supreme Court justices listen to arguments over Guantanamo Bay, they will hear echoes of the earlier program: several plaintiffs from Afghanistan claim they were innocents turned in by bounty hunters (Friedman, 2004). During World War II, intelligence agents in Latin America paid $50 to anyone who would denounce a Nazi, and handing out cash for denunciations, then and now, draws unscrupulous volunteers (Friedman, 2004).

The embassies took all comers," recalled former Justice Department official Raymond W. Ickes, who traveled in 1943 to 18 Latin American countries to investigate the operation, and since most U.S. intelligence agents spoke neither Spanish nor German, Ickes said, "the local people could get away with almost anything" (Friedman, 2004). As a result, he insisted, most of the internees had "no more business being in detention in the United States than I had" (Friedman, 2004).

Such deficiencies in investigative practice are again at work in Afghanistan, where a U.S. ally, Gen. Abdul Rashid Dostum of the Northern Alliance, turned over young men he called "Taliban" for cash payments, and American agents could not evaluate his claims (Friedman, 2004).

Like Camp Delta, built in a Caribbean limbo, the Texas camps were deliberately placed outside the legal system through a clever trick (Friedman, 2004). When Germans from Latin America arrived on U.S. soil, an immigration officer asked for their visas, and flabbergasted, the typical prisoner blurted, "What visa? I was kidnapped!" And was duly informed that, having entered the United States illegally, he was subject to detention, indefinitely (Friedman, 2004). That kind of ploy opens any incarceration program to legal challenge (Friedman, 2004).

Protests from Latin American countries in the 1940s were dismissed like international protests over Guantanamo today, and when post-war investigations showed most internees to be harmless, federal judges intervened to order their release (Friedman, 2004). District Court Judge John C. Knox expressed outrage in 1947: "That a government can go into another country and transport a man against his will thousands of miles across the sea... is repulsive," he said, continuing, "If this situation were to become generally known, it would be subject to the severest criticism" (Friedman, 2004).

Since the war against terrorism is unlikely to have a discernible end, we cannot afford to wait until it is over to assess the Guantanamo episode; surely there are dangerous men held there, especially among those seized in battle, but without trials to determine their individual guilt, or prisoner of war status for combatants, the Guantanamo scheme will suffer from the same deficiencies of injustice and ineffectiveness that doomed the World War II operation (Friedman, 2004). The sorry record of that first Guantanamo-style venture shows that violating constitutional principles in the name of wartime necessity is both unfair and impractical: it diverts attention to the wrong targets, wastes resources, injures America's international standing by alienating allies, harms innocents and damages democratic government (Friedman, 2004). Friedman ends by saying that, "Americans and their Supreme Court should see this forgotten precedent as a cautionary tale" (Friedman, 2004).

On 7 October 2001 the United States launched a military attack on Afghanistan in response to the attacks on the U.S. On 9 September 2001; as a result of the conflict several hundred 'fighters' were detained by the U.S. military in Afghanistan (HRF, 2003). On 10 January 2002 the U.S. beganthe transportation of alleged members of the Taliban and Al Qaida to the U.S. Naval Station at Guantanamo Bay, Cuba (HRF, 2003). There are no exact figures in the public domain as to how many people are currently detained at Guantanamo Bay; reported figures vary from 384 to 660 detainees from more than 40 different countries (HRF, 2003).

As we have seen, there are a number of legal concerns relating to the circumstances in which the detainees are held (HRF, 2003). There is uncertainty with regard to the legal basis of detention and the exact legal status of individual prisoners (HRF, 2003). The detainees have been called "enemy combatants," but it is unclear whether this means they are detained as quasi 'prisoners of war', 'war criminals', 'terrorists', under administrative detention, or something else (HRF, 2003). To date, none of the detainees held at Guantanamo Bay have been formally charged with any crime and it is still uncertain if and when the U.S. authorities intend to do so and on what legal basis: the length of their detention is therefore at the moment indefinite (HRF, 2003).

There are also concerns over potential violations of international human rights norms and articles of the International Covenant on Civil and Political Rights (ICCPR); such as, Article 7 (prohibition against torture), Article 9 (right to liberty), Article 10 (right to humane treatment), Article 14 (right to a fair trial) and Article 26 (equality before the law) (HRF, 2003). In March 2003, 18 detainees were released and returned to Afghanistan, in addition to three prisoners released in October 2002 (HRF, 2003). The released detainees allege that they were sometimes hooded and handcuffed, and held during their detention in "two-metre by two-metre cages" (HRF, 2003). The ICRC has been given access, but as usual their findings are confidential (HRF, 2003).

In the circumstances the protection of Article 9(4) of the ICCPR is crucial; that is, the writ of habeas corpus or amparo (HRF, 2003). The remedy which permits a detained individual to take proceedings before a court to determine the lawfulness or otherwise of detention, and to order release if detention is not lawful (HRF, 2003). This is also the legal vehicle by which alleged breaches of international human rights law can be aired and tested; the U.S. courts have so far, however, denied the remedy of habeas corpus to the Guantanamo Bay detainees (HRF, 2003).

A handful of cases have come before the U.S. District Courts on this issue; the leading case is that of the U.S. Court of Appeal (District of Columbia) in the case of Odah (March 2003) (HRF, 2003). In Odah the relatives of a number of detainees brought claims relating to the lawfulness of detention; in rejecting the claims the Court upheld a 1950 U.S. Supreme Court ruling that the U.S. courts do not have jurisdiction to issue writs of habeas corpus for alien nationals detained outside the "sovereign territory" of the U.S. (HRF, 2003).

As we have seen, the status of Guantanamo Bay in international law is unusual - although by no means unique - in that it was leased from Cuba by the U.S. In 1903 (HRF, 2003). The Lease provides that Cuba keeps "sovereignty" over the territory, but that the U.S. has "complete jurisdiction and control" (HRF, 2003). The U.S. Courts have interpreted this to mean that they have no jurisdiction over aliens held at Guantanamo Bay because whilst the U.S. authorities have "jurisdiction and control" under international law the territory belongs to Cuba (HRF, 2003). A technical point, maybe, but, unless there is a successful appeal to the U.S. Supreme Court, under U.S. Constitutional law the detainees do not have access to any U.S. court or tribunal to review the lawfulness of their detention (HRF, 2003).

The approach of the U.S. courts, to providing access to habeas corpus to foreign nationals under their control on foreign territory, differs from well established principles of international human rights law; in particular, the practice of the UN Human Rights Committee (HRC), the Inter-American Commission on Human Rights (IACHR), the European Commission on Human Rights (the European Commission), and the European Court of Human Rights (ECHR) (HRF, 2003).

On the issue of jurisdiction, Article 2(1) of ICCPR provides that each State Party "undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized" in the Covenant (HRF, 2003). With regard to the writ of habeas corpus itself, even if the U.S. Courts found jurisdiction it is likely to be argued that the President's Military Order of 13 November 2001 (Military Order) has suspended the prisoners' right to seek habeas corpus (HRF, 2003).

Article 7(b)(2) of the Military Order provides that "the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States..." (HRF, 2003). However, the U.S. Constitution states that: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it"; and it is worth noting that the writ of habeas corpus has been suspended only twice in U.S. history; first, by Lincoln during the American Civil War and, second, in Hawaii during the Second World War (HRF, 2003). Thus, there may be doubts whether the gravity of the existing threat to U.S. security permits a suspension of habeas corpus under U.S. Constitutional law (HRF, 2003).

In the context of international human rights law, the HRC have confirmed that the right to habeas corpus "applies to all persons deprived of their liberty by arrest or detention" (General Comment 8/16, 1982) and that this includes proceedings before a military court (Vuolanne v Finland, HRC Doc A/44/40) (HRF, 2003). Individuals are entitled to this right "without delay" regardless of the reasons for their detention (HRF, 2003).

Moreover, the HRC has stated that: "The Committee is satisfied that States parties generally understand that the right to habeas corpus and amparo should not be limited in situations of emergency" (General Comment 29/1950, 2001) (HRF, 2003). In particular, the right to habeas corpus cannot be derogated from in states of emergency in respect of those rights that are non-derogable (e.g. The prohibition of torture) (HRF, 2003). This is a view also shared by the IACHR; most recently in the case of Ocalan v Turkey (March 2003), the ECHR found a violation of the European Convention on Human Rights because of the lack of a remedy for the applicant to have the lawfulness of his detention decided and the failure to bring the applicant before a judge within at least seven days of arrest (HRF, 2003). By way of contrast, the Guantanamo Bay detainees have been held for up to 450 days without access to a court to determine the lawfulness of their detention (HRF, 2003).

Thus, if the U.S. Courts were to apply international human rights law, rather than exclusively relying on U.S. Constitutional law, the detainees at Guantanamo Bay should have the right of access to habeas corpus, regardless of the existence of a declared state of emergency in the U.S. (HRF, 2003).

If, however, the U.S. Courts are unable to act, what other court or tribunal can hear the detainees' allegations of human rights violations (HRF, 2003)? The answer is, apparently, none (HRF, 2003). First, the U.S. has not ratified the First Optional Protocol to the ICCPR, thus, the detainees have no basis on which to submit a complaint to the HRC (HRF, 2003). Secondly, on 13 March 2002, the IACHR ordered the U.S. To "take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal": the U.S., however, rejected the IAHCR's decision, arguing that the IACHR does not have jurisdiction to make such an order (HRF, 2003).

Thirdly, the relatives of some detainees have tried to bring cases in other jurisdictions to put pressure on foreign governments to use diplomatic channels to invoke their rights; for example, in the English Court of Appeal case of Abassi (Nov 2002), Feroz ali Abassi, a British national caught by U.S. forces in Afghanistan and held at Guantanamo Bay, sought judicial review to compel the UK Secretary of State to make representations on his behalf to the U.S. government (HRF, 2003).

The Court of Appeal rejected Mr. Abassi's case, although it was not unsympathetic to his cause, saying: "We have made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr. Abbasi may be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal" (HRF, 2003).

None of these alternatives works, however, and thus, as one commentator has put it, the detainees at Guantanamo Bay are in a "legal black hole" (HRF, 2003). In response to the decision of the U.S. Court of Appeal in Odah, the Special Rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy, said: "By such conduct, the Government of the United States, in this case, will be seen as systematically evading application of domestic and international law so as to deny these suspects their legal rights (HRF, 2003). Detention without trial offends the first principle of the rule of law" and he added, "can set a dangerous precedent" (HRF, 2003).

He further added: "The war on terrorism cannot possibly be won by denial of legal rights, including fundamental principles of due process of those merely suspected of terrorism" (HRF, 2003). He called on the U.S. Government to comply with the General Assembly Resolution on Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (A/RES/57/219, 16 December 2002) (HRF, 2003). A resolution that affirmed that states must ensure that any measure taken to combat terrorism complies with their obligations under international human rights law (HRF, 2003).

In its last report to the HRC (CCPR/C/81/Add.4, August 1994), the U.S. stated that "the fundamental rights and freedoms protected by the Covenant are already guaranteed as a matter of U.S. law, either by virtue of constitutional protections or enacted statutes, and can be effectively asserted and enforced by individuals in the judicial system" (HRF, 2003). In the case of the detainees at Guantanamo Bay, however, this is clearly not the case (HRF, 2003).

In the High Level Segment of the 59th session, Jeanne J. Kirkpatrick on behalf of the U.S., quoting from the preamble to the Universal Declaration of Human Rights, said that "human rights should be protected by the rule of law" and that "human rights can be realised only through good faith compliance and enforcement by governments" (HRF, 2003).

"good faith" application of the provisions of Article 9 does require the provision of security to U.S. citizens, but equally it requires the State to respect and ensure the human rights and fundamental freedoms of detainees as provided in international law, which includes the remedy of habeas corpus (HRF, 2003). The international law dimension was recognised by the U.S. District Court of Columbia and the U.S. government in the case of Rasul et al. (2002) when the Court expressed its "serious concern" that the court's decision would leave the prisoners without any rights, and recorded the government's recognition that "these aliens fall within the protections of certain provisions of international law and that diplomatic channels remain an ongoing and viable means to address the claims raised by these aliens" (HRF, 2003). The U.S. government therefore appears to be aware of its obligations, but reluctant to act upon them (HRF, 2003).

In the case of the detainees at Guantanamo Bay, there is a gap between the application of U.S. Constitutional law by U.S. Courts and the applicable international human rights law in relation to access to habeas corpus for alien detainees under the control of the U.S. authorities on foreign territory (HRF, 2003).

This gap is unlikely to be bridged until either the U.S. fully implements the ICCPR, by making it 'self-executing' and therefore making its provisions directly enforceable in its domestic law, or ratifies the complaints mechanism contained in the First Optional Protocol (HRF, 2003).

The U.S. is by no means alone in having failed to take these two measures, but it is not unreasonable to suggest that such steps are an integral part of good faith compliance and the protection of human rights in accordance with the rule of law (HRF, 2003). Moreover, states that wish to hold themselves out as leaders of civil and political rights, but wish to avoid accusations of "double standards," must be prepared to consistently, and not selectively, apply international human rights obligations (HRF, 2003).

In the meantime, several hundred prisoners - no doubt some guilty, but some innocent - remain detained at Guantanamo Bay, and also in Afghanistan, where they have been for over one year without any immediate hope of release or access to legal review (HRF, 2003).

Chapter 8: The Geneva Convention and Guantanamo Bay

After looking at the international laws concerning the detainment of prisoners without trial in Guantanamo Bayin the previous Chapter, this section looks specifically at the Geneva Convention, using examples of how Articles of the Geneva Convention are violated by the United States during the course of their detention of prisoners in Guantanamo Bay.

What is the Geneva Convention? The Geneva Convention often written and spoken of in contemporary news is actually the fourth Geneva Convention ratified in 1949 in the aftermath of World War II (Farrell, 2002). The original Convention grew out concern for wounded soldiers in the late 19th century and has come to encompass the protection of prisoners of war, civilians and civilian non-combatants including reporters, photographers, and religious and medical personnel (Farrell, 2002).

The history of the Conventions is closely linked to the emergency aid organization the Red Cross, one of whose founders, Henri Dunant, helped form the original Convention in 1864 after witnessing the carnage of the Battle of Solferino (1859) during the War of the Italian Unification, one of the bloodiest battles of the century (Farrell, 2002). The 1864 Convention calls for the protection of all medical facilities, their personnel and any civilians aiding the wounded; it also gives the Red Cross international recognition as a neutral medical group (Farrell, 2002).

The 1864 Convention was signed by twelve nations (Farrell, 2002). The United States signed the treaty in 1882 by President Chester Arthur and was ratified by Congress; the U.S. was the thirty-second nation to sign the agreement (Farrell, 2002). The second Convention extended protection to wounded combatants at sea and shipwreck victims; a third Convention was convened to deal with the protection of prisoners of war in 1929 (Farrell, 2002). The fourth Geneva Convention, signed in 1949, reaffirmed the principles of the first three agreements and included in addition a section covering the protection of civilians during wartime (Farrell, 2002).

The 1949 Convention is a lengthy document with over a hundred articles; the Convention outlaws the taking of hostages, the mutilation and degradation of POW's, torture, executions, and discrimination based on race, sex, religion, nationality or political affiliations (Farrell, 2002).

Additional protocols have been issued including two in 1977 extending the 1949 articles to cover guerrilla combatants and to soldiers in wars of "self-determination": the United States signed the 1977 Protocols, but Congress refused to ratify them (Farrell, 2002).

Recent interest in the Geneva Convention has been sparked by the treatment of Taliban and Al Qaeda prisoners of war held by the United States at Guantanamo Bay in Cuba; initially, President Bush determined that the Geneva Convention did not apply to the prisoners there, but in early February in response to world pressure, he reversed administration policy, determining that the Convention does cover the Taliban prisoners since Afghanistan is a signatory to the agreement (Farrell, 2002). He specifically exempted from coverage the prisoners identified as members of Al Qaeda; none of the people held at Guantanamo are considered prisoners of war, however, and instead, they have been designated "unlawful combatants" (Farrell, 2002). The administration contends that they did not conduct themselves in accordance with the commonly accepted rules of war (Farrell, 2002).

U.S. Defense Secretary Donald Rumsfeld recently complained that the Iraqis were violating the Geneva Convention when they showed captured U.S. servicemen on Iraqi TV (Duggan, 2004). The worldwide western media immediately took up the complaint, airing his statement repeatedly and globally; they never, however, saw the irony that as soon as that sound-bite was over, next on their news tapes were often segments showing Iraqi POWs surrendering to Coalition forces, regardless of how the POWs' families in Baghdad would suffer at the hands of the Republican Guard if Iraqi-POW faces were recognized on CNN (Duggan, 2004).

The western media refuse to expose U.S. hypocrisy; apparently they are so overwhelmed with gratitude for their privilege of traveling with Coalition units on the battlefield that they have become nothing more than lap-dogs (Duggan, 2004). Somehow, it seems, Iraqis are not covered by the Geneva Convention if the U.S. decides that they are not, and the media doesn't dare go against them - not if it wants to keep filming in Iraq at any rate (Duggan, 2004).

Since Rumsfeld, Bush and Blair are so adamant about the Geneva Convention not being violated by the Iraqis, they had better hope that they are not held to the same standard: those that sent President Slobodan Milosevic to the World Court for war crimes could soon find themselves there as defendants (Duggan, 2004).

The U.S. government has sent over 600 men from Afghanistan to its military base in Guantanamo Bay, Cuba, in total defiance of the Geneva Convention (Duggan, 2004). The conduct of the U.S. is so outrageous that at least ten articles are being violated (Duggan, 2004). Listed below are some of the Articles of the (Fourth) Geneva Convention that the U.S. government is ignoring (Duggan, 2004):

ARTICLE 27, which states that "protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity" (Duggan, 2004).

The U.S. government broke this resoundingly by parading the Guantanamo Bay prisoners before Western television cameras, just as the Iraqis have done on their television (Duggan, 2004).

ARTICLE 31, which states that "no physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties," and ARTICLE 32, which states that "this prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents" (Duggan, 2004).

Afghani POWs were repeatedly shown to be forced to kneel for long times in chains on the ground, handcuffed behind their backs, suffering sensory deprivation by being forced to wear earphones and black goggles so they could neither see nor hear; the U.S. explained that this was a valuable interrogation method (Duggan, 2004).

ARTICLE 45, which states that "protected persons shall not be transferred to a Power which is not a party to the Convention. Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention," and ARTICLE 49, which states that "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive" (Duggan, 2004).

The U.S. has forcefully transferred its Afghan POWs to Guantanamo Bay, Cuba, which is not a party to the Convention, yet paradoxically claims that they have no rights under the Convention because they are not on Convention members' soil (Duggan, 2004).

ARTICLE 87, which states that "Canteens shall be installed in every place of internment, except where other suitable facilities are available. Their purpose shall be to enable internees to make purchases, at prices not higher than local market prices, of foodstuffs and articles of everyday use, including soap and tobacco, such as would increase their personal well-being and comfort" (Duggan, 2004).

The U.S. government has decided such a facility cannot fit inside the chain-link dog pens prisoners are forced to occupy, and hence canteens have not been installed in Guantanamo Bay.

ARTICLE 97, which states that "Internees shall be permitted to retain articles of personal use. Monies, cheques, bonds, etc., and valuables in their possession may not be taken from them except in accordance with established procedure. Detailed receipts shall be given therefore" (Duggan, 2004).

The "Taliban" POWs have been stripped of all their clothes, papers and possession, even photos of their parents, by U.S. soldiers stationed at Guantanamo Bay (Duggan, 2004).

ARTICLE 124, which states that "Internees shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein."

As we have seen, all POWs in Guantanamo Bay have been punished by extreme sensory deprivation and long hours of interrogation and separation from their families and each other (Duggan, 2004). The worst punishment of all is the fact that the U.S. government is denying that these POW's are even covered under the Geneva Convention, in order to be able to argue that they have no rights whatsoever (Duggan, 2004).

ARTICLE 125, which states that "They shall have permission to read and write, likewise to send and receive letters. Parcels and remittances of money, however, may be withheld from them until the completion of their punishment; such consignments shall meanwhile be entrusted to the Internee Committee, who will hand over to the infirmary the perishable goods contained in the parcels" (Duggan, 2004).