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June 26, 2006
Prisons and policy
The vast network of overseas U.S. military bases has long been a source of international discontent. Most bases generate this ill will by taking up valuable local real estate, through the misbehavior of U.S. servicemen based abroad, or by use of the facilities for unpopular combat operations. But arguably the most contentious U.S. base fits none of these criteria and is notorious for a completely different reason. And despite widespread outcry and the efforts of several Senators and Congressmen, the legislative branch can do little to rectify the situation.
Guantanamo Bay Naval Base has always been an anomalous base. A relic of the United States' first imperial forays in the early twentieth century, Guantanamo has existed in a unique legal limbo since Fidel Castro seized power over 40 years ago. The treaty governing the U.S. lease can only be broken with the consent of both parties, which the United States has yet to provide. In protest, Cuba has refused to accept the annual rental dues paid by the U.S. government.
Guantanamo's hazy legal status--it is U.S. controlled, but it is not technically U.S. territory, nor is it the territory of a sensitive U.S. ally--has contributed to the base's negative image. Since early 2002, Guantanamo has been used as a detention facility for "enemy combatants" captured in the so-called war on terror. The term "enemy combatants" deliberately situates the detainees somewhere between POW status (with which they would be entitled protection under the Geneva Convention) and criminal status (with which they would have to be formally charged and tried for a crime).
The legal limbo in which Guantanamo detainees are held, as well as the reportedly poor conditions at the facility, have understandably elicited outrage from the Muslim world. But many western governments and human rights groups have also attacked Guantanamo. German Chancellor Angela Merkel and UN Secretary General Kofi Annan have called for its closure, as did a recent report by the UN Committee Against Torture. Amnesty International has referred to Guantanamo as the "gulag of our times." The pressure to close the facility began shortly after its creation in 2002 and has only increased since.
In recent weeks, however, several events have given this chorus of condemnation new focus. In May, the U.S. military reported the most serious prisoner revolt yet at the base, when several inmates staged a suicide attempt to draw guards into a room, at which point other prisoners attacked the guards with makeshift weapons. More recently, guards discovered three inmates who had succeeded in killing themselves. Although there had been many unsuccessful suicide attempts by Guantanamo detainees since 2002, these were the first to succeed. Rear Admiral Harry Harris, commander of Joint Task Force-Guantanamo, described the suicides not as "[acts] of desperation, but [as acts] of asymmetric warfare committed against us," and Colleen Graffy, Deputy Assistant Secretary of State for Public Diplomacy, described them as a "good PR move to draw attention."
The widespread opposition to Guantanamo, both domestically and internationally, has not escaped Congress' attention. Late last year, Sen. John McCain (R-AZ) succeeded in adding an amendment to a defense appropriations bill that read, in part: "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." McCain's amendment, while not specifically limited to the treatment of detainees at Guantanamo, was certainly motivated by the international criticism of the facility and the reports of mistreatment there, in addition to his own experiences as a POW in Vietnam. The Bush administration threatened to veto any bill containing McCain's amendment, with particular resistance coming from Vice President Dick Cheney. Ultimately, faced with mounting public pressure, the president consented to McCain's amendment.
Along with his signature, however, Bush also issued a "signing statement." This statement was neither generated by Congress nor reviewed by that body prior to presidential signature. It presented the administration's interpretation of the new law, noting that, "the executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President ... as Commander in Chief." Some legal scholars interpreted this as evidence that the administration would only abide by the restrictions laid out in McCain's amendment at its own discretion.
Despite the legislature's difficulty in affecting change at Guantanamo, the judicial branch has had some success in influencing events there. In Hamdi v. Rumsfeld (2004), the Supreme Court found that U.S. citizens designated as enemy combatants by the executive branch had the right to challenge their detainment. In Rasul v. Bush (2004), the Court determined that the U.S. court system had the authority to decide whether foreign nationals held at Guantanamo were rightfully imprisoned. And in Hamdan v. Rumsfeld (2006), for which a decision is forthcoming, the Court will rule on the legality of the military commissions established by the Hamdi case and on the refusal to classify Guantanamo detainees as prisoners of war.
The string of legal challenges surrounding the Guantanamo detainees has succeeded in shedding some light on the conditions there and in providing the detainees with a modicum of legal recourse. But progress has been slow and inconsistent. The Pentagon, as part of the executive branch, clearly favors continued and unfettered operation of the Guantanamo facility. Journalists have been strictly limited in their coverage of Guantanamo, and several reporters who had been sent to cover the recent suicides were expelled from the base shortly after their arrival. This behavior is perfectly consistent on the Pentagon's part, as recent decades have witnessed an ever-greater centralization of war powers in the executive branch of government. Since 9/11, this trend has only accelerated.
In addressing the issue of the Guantanamo detention facility, then, two of the three branches of government are fundamentally handicapped. As is the case with most aspects of military policy, the executive branch is preeminent--change must come from the top. But to the surprise of many, such policy change is looking increasingly possible. "I'd like to close Guantanamo," President Bush said recently, while also indicating his interest in the Supreme Court's forthcoming ruling in Hamdan. Bush reiterated that statement this week in Austria, addressing the issue before what was expected to be a barrage of criticism during meetings with European leaders.
Although the Pentagon has not let UN human rights experts inspect the Guantanamo facilities, it has granted access to the International Committee of the Red Cross. And even congressional critics of the detention facilities, such as Rep. Sheila Jackson Lee (D-TX), have noted improvement in the conditions there. During a recent visit, she noted that, "the Guantanamo we saw today is not the Guantanamo we heard about a few years ago ... what we've seen here is evidence that we've made progress."
Despite assertions from administration critics to the contrary, however, the Guantanamo detention facility cannot simply be closed overnight. The administration would be unlikely to release every detainee, because several probably represent genuine security threats. It is unlikely that each detainee's host country would agree to assume custody of them either, for even the hint of collusion with Guantanamo would be poisonous for many governments around the world. And if the administration were to look for alternative locations to house the detainees, it would find that all arrows point right back to Guantanamo. By virtue of its unique history, the base is tailor-made for legally ambiguous operations--that's why the detainees were sent there in the first place. For these reasons and others, the administration clearly is in no hurry to close the detention facilities.
Nevertheless, policy change on the question of Guantanamo is no longer inconceivable. Opposition to the detention facilities there--from foreign leaders, Congress, the courts, U.S. citizens, and current and former Guantanamo detainees themselves--has been the necessary prerequisite for the shift of tone coming from the executive branch. That fact alone shows that time and public pressure can sometimes be more effective in changing policy than any judicial ruling or Congressional amendment.
Foreign Policy Association, 22 June 2006
Posted by Daniel Widome at 01:26 AM to Americas, Middle East, U. S. Politics
