Ten years have passed since the detention center of Guantanamo Bay started hosting prisoners of the “War on Terror”. After a massive use of its facilities by the Bush administration, President Obama officially declared he would have closed it. He did not. For ten years all human rights NGOs have denounced the abuses committed against detainees held in custody, showing to the world the outrageous conditions of their stay. Yet, other issues have hardly been discussed: why is that detention center in Guantanamo and not in the USA? Why are prisoners being tried under military commissions rather than federal courts? What is legal and what is not?
First of all, some background information. During the spanish-american war, in 1898 American troops were deployed in Guantanamo bay to support Cuba in its endeavor for independence. In the aftermath, the US exercised a strong power on the island; in 1903 the Cuban Constitution included the Platt Amendment, a treaty between the United States and Cuba that defines lease conditions of the bay to the US. The rent consist of roughly 4.085 dollars per year, but Havana is refusing money since 1959. The Platt Amendment was repealed in 1934, when the new Treaty of Relations entered into force, governing the lease of Guantanamo. In fact, article III states: “Until the two contracting parties agree to the modification or abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations, [...] the stipulations of that agreement with regard to the naval station of Guantanamo shall continue in effect”. Under international law, the treaty can be modified only with the consent of both parties. The treaty states that the US can use the bay only as a naval base and for cole supply purposes: clearly not as detention center. The point is that the Bush administration has always rejected its jurisdiction over the bay, although de facto it exercises power over the territory. With this excuse, the USA claim they don't have any responsibility on alleged criminal conducts over the persons detained.
Thus, a sort of legal black hole has been created. Prisoners made during the “War on Terror” are being kept in custody there because of their “particular” status. This has been invented to legitimate a different legal approach to them, who are called “enemy combatants”. This category doesn't exist in international law (namely the Geneva Conventions), but it has been used by the US to describe all non US citizens caught mostly in Afghanistan. A different category implies different treatment and application of different standards. The notion of “enemy combatant” was used for the first time in the case Ex Parte Quirin (1942), to identify German saboteurs that committed crimes in the USA during the II World War. Yet, in that case, those criminals belonged to a sovereign state in the context of a declared war between two states, directly acting on behalf of one party. The US are now using the same category for Guantanamo's detainees because they claim that the standards guaranteed to prisoners of war as described in the III Geneva Convention (which the USA are part of) shall not apply. The notion of “enemy combatants” doesn't have any legal meaning. Under international humanitarian law (which governs armed conflicts), if persons involved in hostilities don't belong to the category of prisoners of war as described in article 4 of the Convention, they are not subject to military justice, because they are not part of the armed forces. Thus, national ordinary law (criminal law) must apply. It means that the so called “enemy combatants” should be tried by federal courts rather than by military commissions. Furthermore, the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations guarantee basic standards to every kind of prisoner, that clearly don't correspond to those applied in Guantanamo.
On military commissions, in the case Hamdan v. Rumsfeld, the Supreme Court declares them illegal for a bunch of reasons. Most importantly because military commissions are supposed to try persons that have allegedly committed war crimes during the conflict and on the battlefield. Yet, the majority of Guantanamo “guests” are detained for the attack to the Twin Towers, thus before the conflict in Afghanistan, and for crimes not committed in the Afghan territory (the battlefield). Additionally, the Supreme Court judges illegal the procedures governing the military commissions because they violate basic procedural standards: the right for the suspect to be present, the right to be informed of the charges and the expeditiousness of the trial. In fact, detainees are being held in the center for years without access to a lawyer, not knowing why and for how long they would stay there.
The main concern is not only the application of the law (which is already regrettable), but also its creation. After 9/11, the Congress approved the “Authorization for Use of Military Force” (AUMF), that enables the President to adopt specific legal texts: having declared the state of war, he is entitled to apply the law of the war. Additionally, he attributed to himself the power to adopt Ordinances to regulate the conditions of prisoners of war, primarily to establish military commissions. Legally speaking, the law of the war cannot be applied to prosecute terrorist acts or criminal organizations: another reason not to set up military commissions and to try Guantanamo's prisoners under criminal law. Moreover, the President has the power to determine wether a person can be identified as an enemy combatant. In fact, under the AUMF “[..] the President is authorized to use all necessary and appropriate force against those [...] persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001[...]”. On the possible prevarication by the Executive on other powers, one should not forget that the AUMF was approved by the Congress, thus the actions undertaken by the President are legally backed by the Legislative. The problem is that it has authorized a sort of state of emergency, which is always difficult to monitor. In a genuine democratic system, the state of emergency should not last for a decade, and in no case it allows restrictions to basic human rights, such as the right to a fair trial. States often try to circumvent human rights obligations. Yet, international political pressure can achieve remarkable goals. On January 25 I attended the meeting of the Subcommittee on Human Rights of the European Parliament in Brussels, and one of the agenda items was Guantanamo. The Subcommittee urged the US to close down the detention center, to guarantee a fair trial to all suspects before civil courts or their unconditional release if not charged. Additionally, MEPs raised their concern on the National Defence Authorization Act (NDAA), on budget allocation (662 billion dollars) for Defence policies. This piece of legislation permits the President to detain indefinitely any US citizen under his suspicion of posing a terrorism threat, until the threat is perceived to have passed, without trial or hearings. Following the question tabled by Miss Frieda Brepoels MEP to the European External Action Service on the steps taken by the Commission on that, the Service stated that discussions are still ongoing with the United States, and one main point of concern is how to safeguard EU citizens under this law. For the moment, any definite evaluation would be premature.
Why should the US (and the rest of the world as well) care about those people? Beside moral reasons, it's a matter of reciprocity. Terrorist attacks are often caused by reproachable conducts of foes, in retaliation: are we sure we want to take this risk? What's wrong with Guantanamo then? Of course all violations of prisoners' rights are regrettable, but this is not the point, it's just the effect. What's wrong with Guantanamo is the illegal conduct of a state that is circumventing international and national law (and jurisprudence), the conduct of an Executive that has overcome the Judiciary and thus the basis of democracy: the respect of separation of powers and human rights.