The Fate of Guantanamo Bay

August 2, 2013

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The Guantanamo Bay detention center was established in January of 2002, scant months after the devastating attacks of September 11.  The administration of President George W. Bush selected the site because it was outside the jurisdiction of the United States.  Therefore, the administration’s legal team argued, the detainees were not entitled to the protections of the Geneva Conventions.  In 2004, the U.S. Supreme Court overturned that opinion, finding that the prisoners were, indeed, entitled to the rights of the Geneva Conventions. 

As of March 2013, 166 detainees remain at Guantanamo.  The Obama administration is looking at options for closing the camp and dealing with its current detainees.

In this issue, Teresa Hutchins, assistant professor of political science, and Jayme Feagin, assistant professor of history, discuss the Guantanamo Bay detention center – whether it should have been created outside American jurisdiction, whether it should continue to exist, how to handle detainees and the controversial issue of enhanced interrogation techniques.  Finally, we’ll see our experts’ opinions on what the next steps for the center should be.  Feagan will speak from the liberal point of view, Hutchins from the conservative.  This dialogue doesn’t necessarily represent their personal points of view.  Rather, they agreed to take one side in the debate for the sake of a weighty, balanced discussion.

We invite you to join the debate in the blog below.  As always, please remember the rules of civility. 

Feagan:  The detention center at Guantanamo Bay, controversial from its inception, should not still be in operation in 2013 for several reasons.  First, its use violates international law, including both the Geneva Conventions and the international legal principle of habeas corpus (the requirement that someone be brought to court to determine if he may continue to be held).  As the United Nations Economic and Social Council noted in February of 2006, “The indefinite detention of prisoners of war and civilian internees for purposes of continued interrogation is inconsistent with the provisions of the Geneva Conventions.”  That assertion is backed up by the Supreme Court’s ruling in Hamdan v. Rumsfeld that article 3 of the Geneva Conventions applies to these prisoners.  Secondly (and not unrelated to the first reason), the existence of Guantanamo Bay as a de facto prisoner of war camp hurts America’s international reputation, with Amnesty International labeling the camp a “gulag of our time,” and countries all over the world calling for its closure and for the trial or release of the remaining 166 prisoners held in the detention center.

Hutchins:  Yet polling data indicates that a majority of Americans support keeping Guantanamo Bay open.  A poll from the Huffington Post/You Gov found that 54 percent of Americans favored the continued operation of the prison.  And Congress has passed legislation restricting the use of funds for constructing an additional detainment facility in the U.S. and the transfer of detainees to foreign countries.  So legally and in the court of public opinion the argument for maintaining the detention center has been won.  Besides that, we have gathered invaluable information from the prisoners held there.  The security risks inherent in releasing these detainees or holding them in prisons on U.S. soil are too great to choose either of those options.

Feagan:  I acknowledge that there may be security risks, but violating international law does nothing to secure the American position within the global community, either with our often disapproving allies or our enemies.  And the more we thumb our noses at the Geneva Conventions, the more likely our own soldiers are to be abused when captured.  After all, we are ignoring the laws we don’t like.  Why not our enemies?    In fact, the continued existence of the camp gives impetus to terrorist organizations, which see Gitmo as further evidence of American exploitation of the Islamic world.  Given the fact that its deterrent effect cannot be adequately determined, the negative implications outweigh the positives, leading me to conclude that the camp must be closed.

Hutchins: I tend to agree with Sen. Lindsey Graham (R-SC) who claims that if we no longer provide a place to house these prisoners, our special forces will kill enemy combatants they would rather capture and question.

Feagan:  And that brings up the ugly subject of just how we question those detainees – which, in turn, begs for a definition of the Geneva Conventions.  But let’s talk about the ugly T word first.  I know.  We don’t use torture.  We use enhanced interrogation techniques.  But several international agencies have reported abuse at the facility.  Former prisoners have reported that they have been beaten, confined in isolation over extended periods of time, made to hold awkward positions for extended periods, forced to drink large quantities of water and not allowed to use restrooms.  Is that the kind of treatment what we want to be known for?

Hutchins:  I don’t really like the idea of enhanced interrogation.  But we gained some valuable information through the use of waterboarding, and if we need to waterboard one person to save thousands, there’s certainly a case to be made for it.  Former Vice President Dick Cheney has pushed for a return to the practice because we did get such good information.  Of course, many conservatives don’t agree, most notably Sen. John McCain, R-Ariz., who was brutally tortured when he was held as a P.O.W. in Vietnam.

Feagan:  The internationally agreed upon definition of torture set forth in Article 1 of the United Nations Convention Against torture says, “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”  Aside from the long-winded legalese, that definition absolutely covers waterboarding.”

Hutchins:  Yes, but it’s rather a moot point now, as the Supreme Court ruled against the practice in Hamdan v. Rumsfeld.  But there’s a very real and viable debate about the Geneva Conventions and whether they apply to these detainees.  There are four conventions that cover soldiers wounded on the battlefield, sailors wounded and shipwrecked at sea, prisoners of war and civilians taken by an enemy military.  But what is interesting is that organizations like the Heritage Foundation say that only recognized countries can participate in these treaties.  Heritage, for example, issued a report that said, “Only nation states may become parties to international treaties … entities that are not party to the Conventions, by definition, may be denied the privileges extended to parties to the Conventions.”  The report goes on to say that because Al-Qaeda isn’t a country or lawful ruling party of a country that signed the Conventions, it can’t and shouldn’t be protected by the Conventions.  From that position follows the belief that captured al-Qaeda fighters have no legal basis to claim prisoner of war status and aren’t entitled to the protections provided by the third convention.

Feagan:  That’s stretching it a bit, don’t you think?  After all, we’ve imprisoned them for fighting against our country, for terrorism against our people.  They are prisoners of the United States, and as such, subject to the provisions of the 1949 Geneva Conventions.  And moving them off-shore makes no difference whatsoever.  What bothers me the most are the moral implications of the legal maneuvering and the parsing of legal language to justify the indefensible.  Do we really want to be known as a nation that tortures other human beings?  I’ve always believed America stood for optimism, strength, fairness – not indignity, inhumanity and cruelty.  I’ve always seen us as a nation that lifts others, not one that subjugates people viewed as enemies.  Of course we have our historical warts.  Every country does.  But we have tended, historically, to recognize and agonize over them after the fact if not while we were committing some wrong.

Even the international committee of the Red Cross issued a statement in no uncertain terms about the detainees’ status. Its statement said, “Every person in enemy hands must have some status under international law: he is either a prisoner of war, and as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or a member of the medical personnel of the armed forces who is covered by the First Convention.  There is no intermediate status; nobody in enemy hands can fall outside the law.”

Hutchins:  You certainly make an impassioned case, and I tend to agree with you. I have always been uncomfortable with the concept of human beings inflicting pain and suffering on each other, though there is an argument to be made for making one person suffer instead of thousands. Still, let’s turn our attention to next steps.  What should we do with the prisoners?  Should we close the camp?  Try these combatants in military or civilian courts?  Let me offer my opinion.

Let’s try the ones we can through a military court.  Doing so in federal court makes no sense because investigators can’t go back to the battlefield and gather the evidence such as gun residue or shell casings that they would need to convict someone in a federal civil trial.  Military trials don’t require the same kind of evidence.  Some will not be tried but are considered too dangerous to release. International law is clear that captured enemy fighters may be held until the end of hostilities in a war to prevent them from returning to battle.

Feagan:  By all means, let’s try these people and move them wherever is appropriate.  President Obama has classified the remaining Guantanamo prisoners into four categories:

  1. Those who can be released on court order or transferred to another country.
  2. Those who will be tried as criminals in federal court.
  3. Those who will be tried through military commissions for violating the laws of war.
  4. Those who can’t be prosecuted but constitute a clear danger to Americans.

I went to the Human Rights Watch 11-Point Plan for settling the issues at Gitmo, and agree with their recommendation to close the facility and either release or try the remaining prisoners.  The U.S. must reject the notion that indefinite detention is an alternative to prosecution, and recommit to the internationally supported legal principle of habeas corpus.

Hutchins:  You do know that habeas corpus, per the Constitution, allows for its suspension in cases of rebellion or invasion of the public safety?  I’d say these combatants meet that condition.

Feagan:  Let’s face it.  Terrorism and violent extremists are probably going to be around for the rest of our lives.  So you think those prisoners who can’t be tried should remain locked up for the rest of their lives?  We’ve done a pretty good job at preventing another attack on our shores on the scale of 9/11, but we haven’t yet found an effective way to deal with the larger socio-economic, geo-political and religious/cultural problems and conditions that have led terrorism to be directed at America. And that might mean hostilities never cease.  Keeping people incarcerated for 50 years or more without a trial isn’t the answer.

Hutchins:  We are winning the war on terrorism, and that’s because plots have been foiled as a result of surveillance programs and our other national security measures.  The shape of terrorism has evolved, too.  We now seem to be getting lone-wolf attacks, and they are often perpetrated by home-grown terrorists.  That means we have to have stronger federal-state-local capabilities.  It doesn’t mean that we let known terrorists go.  I think we both realize that the issue is complex, and many highly intelligent people are working on solutions.

Feagan:  And someday we’ll find solutions.  Because the one thing Americans do superbly in a crunch is work together to achieve a goal.  Those are our finest hours, when we all become not Democrats or Republicans, not liberals or conservatives, but cooperatively focused, determined Americans.

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