The Honorable Charles Hagel
Secretary of Defense
US Department of Defense
1000 Defense Pentagon, Room 3E880
Washington, DC 20301-1000
Re: Continuing Indefinite Detention and Hunger Strike at Guantanamo
Dear Secretary Hagel:
Congratulations on your recent appointment as Secretary of Defense.
We write about the continued indefinite detention without charge or trial of most of the 166 detainees currently held at the Guantanamo Bay detention facility.
The ongoing hunger strike at Guantanamo raises serious concerns about the health and well-being of the detainees. The latest media reports indicate that the Defense Department acknowledges that 33 detainees are currently on hunger strike, and lawyers for the detainees allege the hunger strike is even more widespread than official figures suggest.
Regardless of the exact figures, the number of detainees resorting to life-threatening measures is alarming. The International Committee of the Red Cross (ICRC), lawyers for the detainees, and the commander of the US Southern Command, Gen. John Kelly, have said that one of the main reasons for the hunger strike is uncertainty on the part of the detainees about their fate. According to the detainees’ lawyers, this uncertainty has heightened feelings of stress, fear and despair. Many of Guantanamo’s detainees remain in the facility, with no end to their detention in sight, despite being recommended for transfer out of Guantanamo by an interagency task force years ago.
The hunger strike highlights the problem of ongoing detention without charge at Guantanamo. As recently as March 27, the Obama administration publicly reaffirmed its commitment to closing the detention facility at Guantanamo. An essential element to closing the facility is the transfer of approved detainees to either home countries or third countries for resettlement. The National Defense Authorization Act for Fiscal Year 2013 empowers the Secretary of Defense to approve these transfers using the certification set forth in section 1028(b) and the national security waiver set forth in section 1028(d). We understand there are approximately 86 detainees eligible for transfer (56 of whom are from Yemen). We urge that you begin signing certifications and waivers to return detainees to their home countries, or resettle those for whom it is appropriate.
We understand an additional 46 detainees have been designated for further indefinite detention because they were deemed too dangerous to release and the administration either did not have sufficient admissible evidence against them to prosecute or their acts did not amount to a chargeable crime. The indefinite detention of individuals without trial at Guantanamo has been in violation of international law. The lawful course for dealing with these detainees is to either prosecute them or release them.
Executive Order 13567 of March 7, 2011 presented the possibility of additional administrative review of detainees’ cases, as the creation of a Periodic Review Board (PRB) provided an opportunity for detainees in this category to challenge their continued detention. Despite a requirement that the PRB commence review within one year, no PRB has been created and therefore no detainee has had the opportunity to challenge his indefinite detention designation. We urge you to commence periodic reviews so that detainees can challenge their designations, and additional detainees can be approved for transfer.
Finally, Human Rights Watch would like to renew its request to have full access to Guantanamo Bay detention camps so that we can independently review and report on the conditions of confinement. On prior occasions we have requested this access including access to the detainees, yet our request has been repeatedly denied. Human Rights Watch has been provided access and monitored conditions in many detention centers around the world for more than three decades, promoting adherence to international human rights and humanitarian law. Currently, only the ICRC has some access to the facility and detainees, and the ICRC has a policy of not commenting publicly on detention conditions. Therefore the main information the public hears about detention conditions at Guantanamo comes from detainee lawyers or the government. Granting Human Rights Watch access to the facility and detainees would allow an independent nongovernmental body to report on current conditions and further transparency, a key commitment of this administration.
We hope you will consider our request and policy recommendations, and would be happy to discuss this matter further in person.
John F. Kerry, Secretary of State
Mary McLeod, Acting Legal Adviser, Department of State
Michael Williams, Senior Legal Adviser for Guantanamo Policy, Department of State
Robert S. Taylor, Acting General Counsel, Department of Defense
William K. Lietzau, Deputy Assistant Secretary of Defense for Detainee Policy