U.S. President Joe Biden intends to close the detention camp at Guantanamo Bay. During a press briefing on Feb. 12, White House Press Secretary Jen Psaki confirmed: “That’s certainly our goal and our intention.”
She added that “they are undertaking a National Security Council process to assess the current state of play that the Biden administration has inherited from the previous administration, in line with our broader goal of closing Guantanamo.”
The Guantanamo Bay detention camp, which is a U.S. naval base in Cuba, is one of the most controversial symbols of the "war on terror." It has been open since 9/11 and has come to the fore with every election in the U.S. Now, the question is whether Biden will be capable of closing Guantanamo Bay in line with his promise.
During the George W. Bush administration, hundreds of people from across the world, who were connected with al-Qaida, the Taliban or any associated forces were detained by the U.S. to use counterresistance measures against terrorism. Those measures have included painful body positions, sleep deprivation, prolonged isolation, feigned suffocation, sexual provocation, beating and displays of contempt for "Islamic" symbols.
The allegations that detainees were tortured have been confirmed by the United Nations, the International Committee of the Red Cross (ICRC) and Human Rights Watch (HRW).
“Guantanamo is a place of arbitrariness and abuse, a site where torture and ill-treatment were rampant and remains institutionalized, where the rule of law is effectively suspended and where justice is denied,” a group of U.N. experts said on Jan. 11. They also urged the new U.S. administration to immediately close the "disgraceful" Guantanamo Bay.
Amnesty International on Jan. 11 released a report on human rights violations at the Guantanamo Bay detention camp. The report stated that the U.S. has exposed detainees to “secret transfers, incommunicado interrogations, force feeding of hunger strikers, torture and enforced disappearance, unfair trial proceedings.”
Former U.S. President Barack Obama once also said that “in the dark halls of Abu Ghraib and the detention cells of Guantanamo, we have compromised our most precious values.”
However, the U.S. has not been investigated and held to account for crimes committed against detainees. About 40 detainees remain at Guantanamo Bay.
The legal status of detainees is the main point to the U.S. defense. Although detainees are protected under the Geneva Convention and International Humanitarian Law, they are identified as "unlawful enemy combatants" by the U.S. The nomenclature constitutes a new status that is not included in the law.
The new ambiguous status, with the argument of counterterrorism, leads to engender a "legal black hole." Detainees have neither "prisoner-of-war" status arising from the Geneva Convention nor the status of "civilian detainees" protected by the International Humanitarian Law, according to the U.S. Therefore, it causes a gap in which even core human rights cannot be implemented.
On the grounds that detainees are too dangerous and the worst of the worst, they are excluded from the protection of the law. However, it must be highlighted that no one is out of the law; unprivileged belligerents, spies, even, civilian saboteurs have the right to be treated with minimum standards of protection.
In line with core minimum standards protected by the HRW, detainees in the Guantanamo Bay shall be prosecuted fair and regular trial, shall access sufficient evidence and communicate with a qualified defense lawyer and presumption of innocent shall not be violated.
However, detainees are still held without charge or trial. The U.S. has left the detainees out of the law.
Obama accepted that the detention camp is a "legal black hole" and must be closed. He stated that Guantanamo Bay “flouts the rule of law” and "shakes the belief the world had in America’s justice system."
Therefore, the former U.S. president issued an executive order to shut down the detention camp within a year on his second day in office on Jan. 22, 2009, though he was never able to carry out that policy on closing Guantanamo Bay.
Unlike the Obama presidency, Donald Trump signed an executive order to keep the Guantanamo Bay open and even vowed to "load it up with some bad dudes."
Guantanamo Bay has thus continued be a symbol of torture with indefinite detention without trial. Trump also said about torture that “don’t tell me it doesn’t work – torture works,” and “If it doesn’t work, they deserve it anyway, for what they’re doing to us.”
As can be seen, the fate of Guantanamo Bay depends on the radically changed U.S. policy despite grave human rights violations. Will the unlawful government conduct which has continued over the years be altered under the Biden administration?
Whereas the Obama-Biden administration did release lots of detainees, it failed to keep its campaign promise to close the detention camp. The administration ran into fierce political opposition. The opposition also continues with the same intensity in Biden's presidency.
After the White House announcement about Biden’s intention to close Guantanamo Bay, Sen. John Cornyn, a Republican from Texas, released the following statement: “The Democrats’ obsession with bringing terrorists into Americans’ backyards is bizarre, misguided, and dangerous. Just like with President Obama, Republicans will fight it tooth and nail.”
Many of the same political and legal challenges still continue as during the Obama-era, but now there are 40 detainees at Guantanamo Bay.
Reaching the aim now stands closer with an interagency process. It is expected that a number of key policies from the departments of defense, state and justice will work.
Biden did not set a time limit to reach his “certain goal and intention.” The process may extend over his whole presidency; however, 40 victims of torture and the whole world await when the unlawful government conduct will finally end.
*Master of Law student at Queen Mary University of London
