Millennium Post

Notes on a penal colony

As Barack Obama signed an executive order on the first full day of his tenure as the 44th president of United States of America, in January 2009, the green premier had made an earnest declaration.

‘Guantanamo will be closed no later than one year from now.’ On last Tuesday, as he delivered yet another ‘State of the Union’ speech, now to a multitude of disillusioned Americans, the president reminded everyone of this forgotten promise, saying, ‘With the Afghan war ending, this needs to be the year the Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay – because we counter terrorism not just through intelligence and military action, but by remaining true to our Constitutional ideals, and setting an example for the rest of the world.’

Laughably pitiable words, no doubt. For the ‘Gitmo,’ as the highly controversial US military prison located with Guantanamo Bay Naval Base, Cuba is called, has been an embarrassment for the left liberals and Democrats in America ever since it was established in January 2002, in the shaken wake of 9/11. The idea was to detain ‘extraordinarily dangerous prisoners’, in the words of then Secretray of Defense Donald H Rumsfeld, who served under George W Bush, perhaps America’s most hated president ever. Gitmo was the brainchild of the hardline Bush administration that wanted an extraterritorial rendition centre to carry out, in plain terms, extra-constitutional and practically criminal methods of interrogation, amounting to, almost incontrovertibly always, gruesome torture. In addition, the intention was also to prosecute prisoners for war crimes and the list of inmates includes the 9/11 mastermind Khalid Sheikh Mohammed, along with other detainees captured in the ‘war on terror’, comprising mostly Afghans and Iraqis, and some Pakistanis, as well as some Southeast Asian ‘terrorists.’


A naval base used by the US authorities for temporary housing of Cuban and Haitian refugees captured on the high sea, Guantanamo Bay became the most dreaded prison camp in modern history. In fact, even before the extraterritorial prison was set up in 2002, Gitmo was declared unconstitutional by the US District Court Judge Sterling Johnson Jr. on 8 June 1993 for the inhumane treatment meted out to the Haitian refugees in the camp. Yet the sprawling, high-security detention centre, with zonal components such as Camp Delta, Camp Echo, Camp Iguana, Camp X-Ray, and the ‘classified’ Camp 7 and Camp No to practice ‘enhanced interrogation techniques’, etc, has since 2002 housed over 779 men, although nearly 200 were released by mid-2004, since the torturous grilling sessions yielded no incriminating evidence to indict the innocents. Gitmo has been synonymous with the US war on terror, its ugly face and endless indiscretions, its state-sponsored system of carrying out the deadliest form of racially charged human rights abuse, driving several detainees to suicide, and airbrushing those who succumbed to the torture.

 For all their claims of intelligence sharing on enemy combatants carrying out and spreading seeds of global terrorism in Af-Pak region, report after report has falsified such assertions. Not only were the combatant status review tribunals, to assess whether individuals actually posed a security threat and therefore rightfully detained, not conducted for those hurriedly released to avoid further criticism, often the detainees were handed over by Pakistani or Afghan soldiers to US officials as bounty exchanges, turning Gitmo into an extended prison cell for low-profile Af-Pak petty criminals not associated with any of the big league terrorist syndicates. In fact, at least 20 juveniles were housed in the camp in gross violation of international law. Moreover, several were detained without any charge and were eventually released after facing two or three years of unimaginable torture, leaving them physically maimed and psychologically scarred forever. In July 2005, 242 were moved out of Gitmo, of which 69 were extradited to custody of other governments and in May 2011, another 600 had been released, some transferred to detention facilities in other countries.

Currently, 44 detainees, including Khalid Sheikh Mohammed and other high-value prisoners, such as Abu Zubaydah, an Osama-related middleman of terror, Mustafa Ahmad Al-Hawsawi, Walid Bin Attash, David Hicks, all linked to September 2001 attacks on the World Trade Centre twin towers.     

Although legal advisers to the Bush administration tried to portray the circumstances behind the setting up of the Guantanamo Bay as an unprecedented case of national security emergency that required bypassing of the Geneva Convention and international human rights laws, many American judiciary and legal luminaries couldn’t be convinced of the flimsy legal edifice which was erected in support of the feared incarceration camp. One of the initial hiccup was the combatant status review tribunals (CSRT), which were supposed to establish if the detainee was indeed waging war on US.

But on 8 November 2004, a federal court stalled proceeding of Salim Ahmed Hamdan, a Yemeni, who was supposed to be the first inmate to be tried before a military commission. Subsequently, the military tribunal was judged incompetent, rudimentary in proceedings by a US district court judge, James Robertson, saying it flouted Article 5 of the third Geneva Convention. Later, another three-judge bench overruled Robertson’s ruling,  but it was reinstated by the US Supreme Court, which said that the Bush administration had no jurisdiction and authority to set up war crime tribunals, which was the domain of the Hague. Moreover, the CRSTs were trashed for guaranteeing no constitutional rights to the detainees, not giving them access to legal counsel, and withholding the most incriminating charges from them. In addition, US Supreme Court cited habeas corpus and ruled in 2008 that Gitmo detainees were entitled to the protection of the US Constitution and the rights guaranteed thereby.


The methods adopted by the Gitmo officials, clearly under the direction of the Bush administration, were widely condemned by the global fraternity and rights activists everywhere. A 2005 Amnesty International report called the detention centre a ‘Gulag of our times,’ saying that Gitmo ‘reveals a familiar pattern of abuse and impunity across different situations … entrenching the notion that people can be detained without any recourse to law.’ The report, like several others, linked the detention centres in Gitmo, Abu Ghraib, Bagram and others under US control reek of abuses and tortures that were practiced in Soviet and Latin American junta times, with ghost or unregistered detainees held incommunicado and subjected to inhuman abuse, physical and mental. In fact, the report has become a classic text in the area of human rights activism and those rallying for the cause of the camp’s closing down.

‘Under this agenda, accountability is being set aside in favour of impunity; a prime example being the refusal of the US Administration or US Congress to conduct a full and independent investigation of the use of torture and ill treatment by US officials, despite the public outrage over Abu Ghraib and despite the evidence, collected by AI and other, of similar practices in Bagram, Guantanamo and other detention centres under US control. The pick and choose approach to international law is being replaced by a “erode where you can, select if you must and subvert where you will” approach. The US refuses to apply the Geneva Convention for detainees in Afghanistan. It continues to press for bilateral agreements to provide its citizens immunity from prosecution of the International Criminal Court (Congress legislation last year to penalise those who refuse). But nothing shows the disregard of international law as clearly as the attempts by the US, UK and some European countries to set aside the absolute prohibition of torture and ill treatment by re-definition and “rendering” – or the transfer prisoners to regimes that are known to use torture. In effect sub-contracting torture, yet keeping their own hands and conscience clean.Under this dangerous agenda, justice is not only denied, it is also distorted.’ — Amnesty International Report, 2005.


Twelve years on, Guantanamo Bay is still not a bad chapter that belongs to the past but a sordid reality, a failure of humanitarian goals of a liberal democracy that the US claims itself to be.

President Barack Obama’s State of the Union speech, which brought up the matter amidst the risible churn of politics over his Affordable Care Act, must not become yet another exercise in populist rhetoric, but should yield some real results this time. While Obama had cited technical reasons for not being able to so far close the notorious camp, chiefly the continuation of the Afghan war, he has now held that with the troops soon withdrawing, perhaps it is time to close this chapter indeed. Let’s hope the gulag ends now.
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