International pressure for the United States to shut down the Guantanamo Bay prison is mounting. The latest call was by the U.N. Committee Against Torture in its report of May 19. The report, by a 10-person panel of independent experts from all over the world, also said that the U.S. should not hold detainees in secret prisons or send them to other countries where they could face torture. The obligation not to commit torture or cruel, inhuman or degrading treatment is enshrined in the Convention Against Torture, to which the U.S. became a party in 1994.
The report also called on the U.S. to halt interrogation techniques including sexual humiliation, “water boarding,” “short shackling,” and the use of dogs to terrify detainees. Water boarding makes the victim experience near-drowning and short shackling involves shackling a detainee to a hook in the floor.
Other calls to close the prison have come from Lord Goldsmith, the British attorney general, who said earlier this month that the prison was a “symbol of injustice” and hence “unacceptable.” In his words, “the historic tradition of the United States as a beacon of freedom, of liberty and of justice, deserves the removal of this symbol.” German Chancellor Angela Merkel has made a similar call and, according to British Prime Minister Tony Blair, the prison is “an anomaly.”
Why doesn’t the U.S. shut down Guantanamo, since President Bush and Secretary of State Condoleezza Rice have said that the administration would like to do just that? In Rice’s words, “we do not want to be the world’s jailers.” But she also said that those detained are dangerous people who have connections with al-Qaeda and they have indicated their intention, if released, “to go back to killing Americans.”
President Bush has said that the decision about Guantanamo will be made after the June ruling by the U.S. Supreme Court on the validity of military commissions he established by executive order to hear charges against the detainees. Earlier, the Supreme Court overruled the administration’s position by holding that the detainees can in fact challenge their detention in court.
Alberto Mora, former general counsel of the Navy, in an unclassified internal memo, opposed these techniques, calling them cruel and not in compliance with U.S. treaty obligations. Guantanamo was selected for housing suspected terrorists with connections to al-Qaeda caught on the battlefield in Afghanistan because of its location in Cuba, where there would be a legal “black hole” with respect to U.S. laws and jurisdiction. The prison, which opened in January 2002, currently holds 460 detainees.
The Bush administration contends that improvements have been made. John Bellinger, the State Department’s legal adviser, criticizes the U.N. report, contending that the panel of experts did not take into account a message clearly given to the panel by the U.S. delegation during four days of hearings in Geneva: The U.S. does not indulge in inhumane practices. The report, he says, contained “a number of both factual inaccuracies and legal misstatements.”
Several lawyers on the defense team have suggested that many of the detainees are known not to be “enemy combatants” and will have to be released. Others must also be released when the war is over. But when will the “war on terror” be over? Every day generates more hatred against the U.S., not only on the part of those being held, but also in Muslim communities around the world.
The excesses at Abu Ghraib and Guantanamo are well known. This controversy highlights the tension between compliance with human rights obligations undertaken by the United States in various treaties and its perceived national security interests. It is worth recalling that dramatic changes in international law occurred after World War II, in the recognition of inalienable human rights for everyone. Some of these rights, codified in the genocide and anti-torture conventions, are not to be derogated from under any circumstances.
The U.S. was in the vanguard of the human rights’ revolution, providing exemplary leadership. But in the last few years, the country is seen as backsliding for not having ratified several human rights treaties, such as those on women’s and children’s rights, land mines and the international criminal court. It is high time that the U.S. reasserts its role as a champion of human rights.
Ved Nanda (vnanda@law.du.edu) is the Evans University Professor, Marsh Professor of Law and director of the International Legal Studies Program at the University of Denver.
