Letter to Obama regarding plan to close the Guantanamo Bay detention facility

September 1, 2015

Barack Obama
President of the United States of America
The White House
1600 Pennsylvania Avenue
Washington, DC 20500

Re: Plan to close the Guantanamo Bay detention facility

Dear President Obama,

I write on behalf of Human Rights Watch concerning recent reports of an administration plan to close the military detention facility at Guantanamo Bay that would include transferring a number of detainees there to the United States.

The US has held people indefinitely, without charge or trial, at Guantanamo Bay for nearly 14 years, in violation of international humanitarian law on the detention of captured combatants and others and the due process protections of international human rights law. While your administration has made some progress towards ending this injustice by transferring more than 100 detainees to other countries, 116 men remain there. The overwhelming majority of these detainees are in legal limbo: they face no criminal charges, yet they also have no sense of when, if ever, they will be released. Many have been cleared for release years ago. Their communications with relatives are limited to letter writing and, in at least some cases, occasional calls or video messages that are strictly monitored. The numerous hunger strikes engaged in by detainees seem to reflect despair over the indeterminacy of their detention. This situation should end, not only for humanitarian and legal reasons, but also because ongoing indefinite detention at Guantanamo serves as a rallying cry for armed groups abroad who threaten US security interests.

We are encouraged by the recent appointment of Lee Wolosky as State Department Guantanamo envoy, and news stories that your administration has secured places in a dozen countries for nearly half of the 52 detainees currently cleared for release. These releases should take place as soon as possible.

But we are deeply troubled by reports about certain aspects of your administration’s plan to close Guantanamo, including that your administration intends to continue to indefinitely detain at least some Guantanamo detainees on US soil; that it may place detainees transferred to the US in so-called supermax facilities that would worsen their existing conditions of confinement; and that the US may place improper new restrictions on the rights of detainees held in the US. We address each of these concerns below.

Plan should end all indefinite detention without charge or trial

We strongly urge you to ensure that your plan to close Guantanamo include an end to

indefinite detention without charge or trial. Any detainees now being held in Guantanamo

should either be released or charged and fairly tried. To continue indefinite detention of

any detainees, wherever they may be held, would prolong their detention without legal

basis, keep the US in violation of international law, and continue to fuel animus abroad

towards the US.

Plan should not worsen detainees’ conditions of confinement

We are concerned that the US plan may call for imprisoning detainees transferred to the

US in super-maximum security (“supermax”) detention facilities, where conditions of

confinement are extremely harsh and disproportionate to legitimate security and inmate

management objectives; impose pointless suffering and humiliation; and reflect a

stunning disregard of the fact that all prisoners—even those deemed the “worst of the

worst”—are members of the human community. Supermax conditions often include

prolonged isolation that can lead to prisoners experiencing depression, despair, anxiety,

rage, claustrophobia, hallucinations, problems with impulse control, and/or an impaired

ability to think, concentrate, or remember. Inmates have described life in a supermax as

akin to living in a tomb.

US government access restrictions have kept Human Rights Watch and other nongovernmental organizations that report publicly from monitoring conditions of detention at Guantanamo, but media reports and statements by the Department of Defense indicate that many detainees there are being held in “communal living” situations. To transfer them into supermax conditions—which are problematic under international human rights law for any prisoner, and under international humanitarian law for prisoners of war and many other detainees—would compound the harm of indefinite detention, and could significantly worsen the plight of many detainees.

Plan should not allow for new restrictions on the rights of detainees transferred to the US

The Senate version of the draft National Defense Authorization Act (NDAA) for FY2016

(S. 1376, 114th Congress), which calls on the administration to propose a plan for closing

the Guantanamo detention facility, contains several provisions that would improperly

restrict rights of detainees now at Guantanamo, and create dangerous precedents for the

future. These include provisions that: would bar a specifically disfavored group from

seeking asylum (sec. 1032(d)(1)); could be read to strip rights to all legal actions (including habeas review) from all detainees at Guantanamo (Sec. 1032(e)(1)), with the
exception of those transferred to the US; could be read to narrow the scope of habeas
even for those transferred to the US (Sec. 1032 (e)(2)); and could be read to strip
detainees transferred for medical treatment of their basic rights (Sec. 1034(f)(2) and
(3)(B)). We urge you to push back on efforts to include these provisions—which raise
due process concerns under both constitutional and international law—in the NDAA.

Many people around the world were encouraged when, upon taking office in 2009, you signed an executive order to close the detention facility at Guantanamo Bay. Transferring detainees to other countries for release, or ensuring that they face a fair trial in a court of law, would be important steps towards fulfilling that promise. But allowing indefinite detention to continue—and compounding that harm by attempting to further strip detainees of rights and worsening their conditions of detention—would betray the spirit of that initial commitment. It could also entrench a system of indefinite detention on US soil that may be used by future administrations. We strongly urge you to ensure that the plan you ultimately present to the Senate addresses these concerns.

Sincerely,

Kenneth Roth
Executive Director
Human Rights Watch