Guantanamo Bay, Enemy Combatants, Post 9/11

Since early 2002, the United States military has used the Guantanamo Bay Naval Base on the southeastern coast of Cuba to house prisoners associated with al Qaeda, the Taliban, and related organizations. The detentions began during the conflict in Afghanistan following the September 11, 2001, Al Qaeda attacks on the United States. There are currently approximately 480 detainees at Guantanamo, down from a high of more than 600; the detainees come from over fifty countries. None are U.S. citizens.

The detentions at Guantanamo have been the subject of intense domestic and international criticism. From the beginning critics claimed that the detentions themselves violate international law, including the Geneva Conventions of 1949, a series of treaties providing a broad set of protections for civilians and combatants during armed conflict. Criticism has also focused on claims of physical abuse (including sleep deprivation, isolation, and sexual humiliation), the indefinite nature of the detentions, the detention of minors, attempted suicide by detainees, force feeding of detainees engaged in hunger strikes, and other conditions. The United States maintains that the detentions comply with its obligations under domestic and international law. U.N. Secretary General Kofi Annan, a United Nations Committee Against Torture, and the German and British governments have all called for Guantanamo to be closed.

Many lawsuits filed in the United States have challenged the detentions. The Supreme Court has issued an opinion in one, Rasul v. Bush, 542 U.S. 466 (2004), holding that the U.S. courts have jurisdiction over habeas petitions brought by Guantanamo detainees. The opinion did not resolve the scope of the detainees’ rights under domestic or international law; many cases raising these issues are currently pending before the lower courts. In 2004, partially in response to the Rasul opinion, the United States government established Combatant Status Review Tribunals (‘‘CSRTs’’) at Guantanamo. A CSRT conducts a hearing and reviews the evidence against each detainee to determine whether he is an ‘‘enemy combatant.’’ In addition, an administrative review is conducted annually for each prisoner to determine whether further detention is warranted. Prisoners are not entitled to have lawyers, hearsay evidence is considered, and for security reasons detainees are not entitled to hear all of the evidence against them; these and other aspects of the review process have provoked extensive criticism. In early 2006, the United States released for the first time transcripts of the CSRT and administrative review board hearings, as well as the names of all persons currently and formerly detained at Guantanamo. As of May 2006, the United States reports that is has released 192 detainees and transferred 80 detainees to other governments, including Afghanistan, Australia, Bahrain, Belgium, Denmark, France, Great Britain, Kuwait, Morocco, Pakistan, Russia, Saudi Arabia, Spain, Sweden, and Uganda.

Ten of the detainees have been designated by the President to appear before military commissions established at Guantanamo. Charges against them include conspiracy to commit war crimes, murder and terrorism. The military commissions have been challenged in the U.S. courts on the grounds that they violate international law and exceed the President’s statutory and constitutional authority. The Bush administration maintains that Congress has authorized the military commissions and that in any event the President, as Commander in Chief, has the power to determine how to try enemy combatants during wartime. The Supreme Court is considering these questions in Hamdan v. Rumsfeld, with a decision expected in Summer 2006.

INGRID BRUNK WUERTH

References and Further Reading

• Aldrich, George H., Editorial Comment, the Taliban, Al Qaeda, and the Determination of Illegal Combatants, American Journal of International Law 96 (2002): 891.
• Anderson, Kenneth, What to Do With Bin Laden and Al Qaeda Terrorists: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Naval Base, Harvard Journal of Law and Public Policy 25 (2002): 591.
• Commentary on the Geneva Conventions of 12 August 1949: III Geneva Convention Relative to the Treatment of Prisoners of War, Jean S. Pictet et al., eds., 1960.
• ‘‘Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment,’’ 26 Feb. 1996, Sen. Treaty Doc. No. 100-20, 1914 United Nations Treaty Series 519.
• ‘‘Geneva Convention Relative to the Treatment of Prisoners of War,’’ 12 August 1949, United States Treaties and Other International Agreements, vol. 6, p. 3316.
• Murphy, Sean D., Contemporary Practice of the United States: Executive Branch Memoranda on Status and Permissible Treatment of Detainees, American Journal of International Law 98 (2004): 820.
• ‘‘Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,’’ 12 Dec. 1977, Arts. 43, 44, 1125 United Nations Treaty Series, p. 3.
• Ratner, Steven R., Notes and Comments: Jus ad Bellum and Jus in Bello After September 11, American Journal of International Law 96 (2002): 905.
• Memorandum from the Deputy Secretary of Defense for the Secretary of the Navy, dated July 7, 2004, Subject: Order Establishing Combatant Status Review Tribunals, available at https://www.defenselink.mil/news/Jul2004/d20040707review.pdf (last visited May 22, 2006)
• Presidential Order, Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Certain non-Citizens in the War Against Terrorism, available at https://www.whitehouse.gov/news/releases/2001/11/20011113-27.html (last visited May 22, 2006).
• United States Department of Defense, Military Commission Instructions, available at https://www.defenselink.mil/news/Aug2004/commissions_instructions.html (last visited May 22, 2006).
• Washington Post, Names of the Detained in Guantanamo Bay Cuba, available at https://projects.washingtonpost.com/guantanamo/ (last visited May 22, 2006).

Cases and Statutes Cited

• Rasul v. Bush, 542 U.S. 466 (2004)