The aftermath of the attacks in the US on September 11, 2001, heralded a new era, giving birth to the “war against terror”. Images of men clad in orange jumpsuits – hands bound behind their backs and their faces obscured – siphoned through the media. Inside gravel enclosures, the men knelt with heads bowed, as American soldiers bellowed at them. It was to be emblematic of the most ruthless of terrorists. These were the prisoners of Guantanamo Bay.
Despite the blatant disregard of international and human rights law, many felt appeased – it was said to be what these men deserved. And being incarcerated in Guantanamo meant the government could forfeit federal jurisdiction – a move that was later found to be unconstitutional.
Seventeen years on, the validity of Guantanamo Bay has been questioned. The majority of prisoners were never charged with any crime, nor brought to trial. Most were revealed to be innocent and eventually released but only after years of torture – their youth, and physical and mental well-being long gone.
Director of Security with Human Rights at Amnesty International USA, Daphne Eviatar, said: “The US government has sadly done many things that are unlawful and unconscionable, including having secretly tortured many of these prisoners. It is now trying to cover up those crimes. Even men cleared by all relevant US national security agencies to leave Guantanamo remain stuck there because of the political positions of President Trump and his administration. This has nothing to do with safety. It has everything to do with partisan politics.”
One such person whom Amnesty International has been campaigning on behalf of is Toffiq al-Bihani. He was cleared for release from Guantanamo by the Obama administration in 2010, yet remains held at Guantanamo Bay today.
“Toffiq al Bihani was never charged with a crime and has never even been accused of committing any sort of violence against the United States or anyone else. Like many of the men who remain at Guantanamo Bay, Toffiq al-Bihani was tortured by CIA agents while in US custody in Afghanistan, before he was sent to Guantanamo Bay. His continued detention is not only arbitrary but also unlawful and unconscionable,” Eviatar argued.
“Although the US has acknowledged it has no reason to imprison him, it continues to do so indefinitely. Even those who have been accused of crimes have not been given fair trials, and seem to have no chance of getting one during the Trump administration, as the US government has completely dismantled any system for transferring detainees out of Guantanamo Bay – either for trial, for release or for detention elsewhere.”
Clive Stafford Smith OBE is the founder of Reprieve – a non-profit organisation of world-renowned lawyers who work with human rights cases, including Guantanamo Bay. For his unrelenting humanitarian work, Smith has been the recipient of numerous awards, including an OBE by the British Royal Family, and the Gandhi International Peace Award.
Smith brought the first litigation against Guantanamo on February 19, 2002, and since then, he has represented 88 of the detainees – 8 of whom still remain there. He has been to Guantanamo Bay 38 times.
“Guantanamo has always existed on deceit, with the false promise that it makes the US safe, whereas actually the hypocrisy that leads us to hold people without trial forever, in the name of Democracy and the Rule of Law, has made the world a much more dangerous place, by inspiring hatred and disdain for the very principles of human rights,” Smith said.
In 2018, President Trump signed an order for the facilities to remain open permanently, meaning that the prisoners stuck there remain indefinitely. The president has made clear that he has no intention of transferring any out. Smith believes this is a poor decision, stating that Guantanamo is bad for both the detainees and the US.
When asked what his opinion was on those who still believed that detainees deserved to be there, since the government would not imprison anyone unless they posed some threat or there was evidence against them, Smith simply replied:
Don’t trust me – look at the numbers. Of the 780 prisoners deemed to be the “worst of the worst” terrorists in the world, thus far, the United States intelligence agencies have cleared 745 – some 95%. In my view, of the remaining 35 who have not been cleared, at least 18 should be.
For those who have been eventually released after wrongful imprisonment, Smith added that there is no compensation from the US, and that even though some other countries have been sued successfully for their complicity (including the UK), all litigation against the government in the US has failed.
One of his most famous clients, Shaker Aamer, was one of Guantánamo Bay’s first prisoners back in 2002. Without any charge or trial, Aamer was held for almost 13 years, and reported that he was frequently subjected to a range of torture. Released in 2015, it was later revealed that he had been cleared for transfer since 2007. It was believed that he was unfairly detained for longer because he had witnessed both US and UK agents torturing men and committing unspeakable human rights violations. Such revelations would have called for an independent, judge-led inquiry into the UK’s role in the CIA’s torture program. To date, the UK’s role in Guantanamo Bay still remains a closely guarded secret.
A harrowing report from the US Senate revealed gruesome torture methods which included waterboarding, ‘rectal feeding’, mock executions, sleep deprivation, stress positions, and other cruel and degrading treatment. One prisoner was handcuffed and hung from a bar 22 hours a day while wearing a diaper, as he had no access to toilet facilities.
The war with Iraq – which was later proven to be illegal – claimed to want to spread democracy. Yet, holding prisoners for years with no charge or trial advocates a policy that undermines the notion of “liberty and justice for all”.