Guantanamo: the Legal Mess Behind the Ethical Mess

The School of Law’s Asylum and Human Rights program is one of 15 human rights organizations whose joint letter to US Secretary of Defense Chuck Hagel urges him to intervene to end the force-feeding of hunger-striking prisoners at Guantanamo Bay. Other prominent groups, including the American Medical Association and Amnesty International, have also publicly opposed the force-feeding.

Now, in the wake of President Barack Obama’s speech at the National Defense University on May 23, there is new hope that many of the prisoners could be released soon. Renewing his vow to close the prison, Obama told the nation he will lift a moratorium on transferring many of the detainees to Yemen, and he called on Congress to end restrictions on steps to close the prison and establish a US facility for remaining detainees.

Of the 166 detainees still held at Guantanamo, 102 are on hunger strikes, with some having refused food for more than 100 days. Samir Naji al Hasan Moqbel, a Yemeni prisoner at Guantanamo Bay since 2002, described the experience through an Arabic interpreter to his lawyers, calling the insertion of the force-feeding tube while he was tied to a chair as the worst pain he’s ever felt. “As it was thrust in, it made me feel like throwing up,” said Moqbel, whose story appeared in an April 2013 op-ed column in the New York Times. “There was agony in my chest, throat and stomach.” Moqbel, who has been on a hunger strike since February 10, described the situation at Gitmo as desperate. “I would not wish this cruel punishment upon anyone,” he said.

BU Today asked Susan M. Akram, a School of Law clinical professor of law and former executive director of Boston’s Political Asylum/Immigration Representation Project, to explain the questionable legality of force-feeding under international law, and why the remaining Gitmo prisoners have not been tried.

BU Today: If President Obama concedes that the detention facility at Guantanamo Bay “needs to be closed,” why hasn’t he done so already?

Akram: There are a number of reasons for President Obama’s public position that he cannot close the facility, but none is justifiable as a matter of domestic or international law. First, although Obama declared when he took office that he would close the facility within a year, he also adopted the George W. Bush administration’s “global war on terror” paradigm under the Authorization for Use of Military Force, which makes indefinite detention “lawful” as a matter of US policy and allows the executive branch to determine the legality of such detentions, not the judiciary. After the US Supreme Court held that federal courts had jurisdiction to determine the legality of Guantanamo prisoners’ detention, the Bush administration set up Combatant Status Review Tribunals and signed the Detainee Treatment Act (DTA) to avoid allowing the detainees the right to trials in US federal courts. Again, the Supreme Court struck down the DTA as unconstitutional, and detainees have prevailed in about 75 percent of the habeas cases.

Second, in 2010 the Obama administration announced that four dozen of the Guantanamo detainees could not be prosecuted or released, but would remain in indefinite detention without charge or trial. And third, the administration has claimed that it cannot close the facility because of Congress’ passage of the National Defense Authorization Act (NDAA), which Obama himself signed. The act prohibits transfer of any Guantanamo detainee to a country where returnees have reengaged in terrorist activity and requires certification from the receiving country that it has taken steps to prevent such activity. The administration has the authority to waive such restrictions; however, no prisoner has been released under the NDAA restrictions.

How many of the detainees have been legally cleared for release or transfer?

The president established a Guantanamo Review Task Force, staffed by professionals from the Departments of Justice, Defense, State, and Homeland Security and the FBI, the CIA, and the National Counterterrorism Center, which issued its final report in January 2010. They arrived at unanimous decisions about what should happen to the remaining detainees, finding that 126 should be transferred to other countries, 30 of the Yemenis could be transferred to Yemen or other countries under certain conditions, and 36 men should be referred for prosecution. That leaves only 48 men who have been determined too dangerous for transfer and not subject to prosecution. Of the 166 detainees, only 6 face any formal charges. Thus, more than half of the individuals remaining at Guantanamo have been cleared for transfer, but the president has failed to act to release them.

How could the detention center be legal at all if Congress has blocked funding for any trials for those still imprisoned there?

There’s no clear answer. The US Supreme Court, in four important decisions, Rasul v. Bush, Boumediene v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, held that international law applies to Guantanamo detainees, that they cannot be held indefinitely without trial, that constitutional habeas corpus protections apply to them, and that the combatant status review tribunals were unconstitutional and violated the Geneva Conventions. Yet Congress and the executive branch have, through policy and legislation, strenuously avoided implementation of these decisions. The United States has also been chastised repeatedly by other states and the United Nations and its human rights organs that its interpretation of the laws of war concerning the detainees is wrong and against international consensus. Since 2002, the Inter-American Commission on Human Rights of the Organization of American States has issued and reextended precautionary measures against the United States (the equivalent of domestic law injunctive orders), requesting that the United States take urgent measures necessary to have the legal status of the detainees determined by a “competent tribunal.”

Why are the detainees’ rights so different from those accorded by our constitution and international law?

The Bush administration took the position that laws of war and humanitarian law under the four Geneva Conventions of 1949 did not apply to the armed conflict the United States was engaged in with al-Qaeda in the US invasion of Afghanistan. The Bush policy was that the Geneva Conventions did not apply to “unlawful enemy combatants,” such as al-Qaeda and the Taliban. In Hamdan v. Rumsfeld (2006), the US Supreme Court disagreed, finding that Article 3, common to all the Geneva Conventions, did apply to all individuals in the conflict, providing minimum guarantees of fair and humane treatment. The court found that Article 3 requires fair trials for all detainees, prohibits torture and indefinite detention, and binds both the United States and Afghanistan. This is the overwhelming consensus under international law of the applicability of the Geneva Conventions.

UN and international bodies, including the International Committee of the Red Cross (ICRC), the Inter-American Commission on Human Rights, and the UN Office of the High Commissioner for Human Rights, have consistently stated that the four Geneva Conventions apply to the Guantanamo prisoners as well as international human rights treaties. These prohibit torture, cruel and inhuman treatment, and indefinite detention without trial, and require prompt and fair trials for all prisoners before impartial tribunals. The problem is not the law; it is that both the Bush and Obama administrations have failed to apply the substantial body of law that does apply to the Guantanamo prisoners.

Isn’t force-feeding of hunger-striking detainees a clear violation of the Geneva Conventions?

The ICRC has taken the position that force-feeding hunger-striking detainees is a violation of Common Article 3 of the four Geneva Conventions, which, as noted, prohibit cruel, inhuman, and degrading treatment. The Detainee Treatment Act of 2005 also prohibits cruel, inhuman, and degrading treatment. The UN Human Rights Council previously found that force-feeding used in earlier hunger strikes was torture under the Convention Against Torture, a treaty to which the United States is a party.

In fact, the World Medical Association (WMA) has condemned force-feeding of prisoners who are competent to decide to hunger strike. The WMA has said that “feeding accompanied by threats, coercion, or physical restraint is a form of inhuman and degrading treatment.” Debilitating risks of force-feeding include major infections, pneumonia, collapsed lungs, heart failure, and post-traumatic stress disorder.

How would the detainees’ legal situation change if Congress allowed their relocation to US prisons?

They would be entitled to all the rights the Supreme Court and the federal courts have said they are entitled to under the US constitution and tried in Article 3 courts. However, this is the least likely of the scenarios available with this administration and this Congress.

Do you think estimates are accurate that a significant percentage of released Gitmo detainees have participated in terrorism since their release?

There are conflicting statistics of the recidivism rate of the detainees, as well as what is meant by returning to terrorist activity. In 2009, the New York Times reported that an unreleased Pentagon report claimed that one in seven of the detainees released from Guantanamo was involved in terrorism upon return. If that number is accurate, that represents about 14 percent of the released detainees. However, in two comprehensive studies of Defense Department information, Seton Hall Law School professor Mark Denbeaux concluded that the government’s definition of terrorist activity was so broad as to include “anti-US propaganda” and giving press interviews. And in 2012, John Brennan, the White House counterterrorism chief, stated that of the approximately 50 detainees the Obama administration released, none was suspected or returning to terrorist activity. It is also important to remember that 92 percent of the Guantanamo detainees were never al-Qaeda fighters in the first place, so if they return to terrorism, it is likely that it is their treatment at Guantanamo that radicalized them.

Among those in the legal profession, what do you think is the biggest concern about the Gitmo situation and its implications?

An Amnesty International report published in 2011 titled “Guantanamo: A Decade of Damage to Human Rights” encapsulates the key concerns of the majority of the international legal community. There has been deep and perhaps irreparable damage done to the bedrock norms of international humanitarian law and international human rights law, not just by Guantanamo, but the entire paradigm of the US engagement of its so-called war on terror. The United States has thrown out or rewritten fundamental provisions of the laws of war, including the prohibition against torture and cruel treatment under treaties that it has been instrumental in drafting and then promoting around the world. Aside from the damage to US treaty and customary international law obligations, the executive branch and Congress have also deliberately and systematically violated bedrock constitutional rights, such as the right to due process, fair trial, impartial tribunals, and the rights to be free of torture and indefinite detention.

What are the legal implications if the hunger strikers die?

Nine Guantanamo prisoners have already died in custody; six by apparent suicide. Yasser Talal Ali Zahrani is the youngest detainee to die, at 21 years old. He was captured at age 16 and spent the rest of his young life in Guantanamo. There have apparently been no legal implications, so it is not clear there will be any for the deaths of the current hunger strikers. Although one hopes that at some point there will be accountability for all the deaths at Guantanamo, as well as for the wrongful detentions and torture.

What have human rights lawyers been able to accomplish on behalf of the detainees?

I think it is a mixed picture. It is unclear how much influence the legal defense teams had on the decisions to release 532 of the detainees by the Bush administration or the 70 by the Obama administration. Certainly some of them were released through great pressure from their legal teams, such as the Uighurs, the Bosnian-Algerians, the Egyptians, and the British residents. Some, however, were released through pressure from foreign governments, including the British and German governments. The lawyers of the remaining detainees would likely say that their biggest accomplishment is simply reminding the prisoners that people care about them, and providing a lifeline for them to their families.