UPDATE: This Q&A was originally published on May 4, 2017. It was updated by adding the final two questions on February 1, 2018 after Trump issued an executive order about Guantanamo.
On January 11, 2002, the United States brought 20 prisoners to the US Naval Base at Guantanamo Bay, Cuba, the beginning of the long-term detention of hundreds of individuals apprehended in Afghanistan, Pakistan, and elsewhere. Then-Defense Secretary Donald Rumsfeld labeled Guantanamo’s first detainees “unlawful combatants” who “do not have any rights under the Geneva Convention.” By holding detainees outside of the US, the administration of President George W. Bush reportedly hoped to avoid US court jurisdiction, though ultimately the US Supreme Court rejected the administration’s attempts to deny Guantanamo detainees access to US courts.
As part of the detainees’ interrogation, the US military subjected them to torture and other ill-treatment, including placing them in painful stress positions and in extended solitary confinement; threatening them with torture, death, and military dogs; depriving them of sleep; and exposing them for prolonged periods to extreme heat, cold, and noise.
At least 780 people have been held at Guantanamo, the vast majority without charge or trial. Nine detainees have died there, six from suspected suicide. The US has transferred 731 to home or third countries, 533 during the Bush administration and 144 during the administration of President Barack Obama. On his second day in office Obama promised to close Guantanamo, but by the end of his term in office, 41 detainees remained, including five that his administration designated for release.
Donald Trump has said that as president he would keep the Guantanamo Bay detention facility open and add to the inmate population there. On January 30, 2018, Trump signed an executive order about US detention practices at Guantanamo and discussed the facility during his State of the Union address. The two final questions below refer to the January 30 order.
Human Rights Watch has long called for the US government to charge Guantanamo detainees in US federal courts or release them to safe home or third countries.
The following questions and answers look at current issues regarding detentions at Guantanamo and those that may arise under the Trump administration.
The military detention facilities created at Guantanamo Bay were designed from the outset to be outside the regular US justice system. Nearly all of those detained at Guantanamo since its inception have, for one reason or another, been held in violation of applicable international humanitarian law or international human rights law. Detainees were held without regard for their legal status under the laws of war. Very few were charged with a criminal offense. Many were tortured or otherwise ill-treated, were held based on inaccurate evidence or analysis, or on misinformation, or were cases of mistaken identity, and were not provided with adequate means to challenge their detention. These violations have damaged the US human rights record and undermined the fight against extremist armed groups by feeding into terrorist propaganda and providing them a powerful recruitment tool.
Guantanamo detainees who were charged have faced military commissions – a judicial system created at Guantanamo that does not meet international fair trial standards.
Most of the 780 men sent to Guantanamo were turned over by Afghan militias or Pakistani forces to US forces after the US-led invasion of Afghanistan following the September 11, 2001 attacks on the United States. Afghans made up the largest number of those captured, but many came from dozens of other countries, drawn to the region to support various forces fighting in Afghanistan’s civil war at the time, or for other reasons. A large but unknown number were turned over to the US for bounties; as one offer stated, the bounty would provide “enough money to take care of your family, your village, your tribe for the rest of your life.”
A smaller number were apprehended far from Afghanistan, in places like Azerbaijan, Kenya, Thailand, and Turkey, and then transferred to US custody and sent to Guantanamo. According to Jane Mayer’s The Dark Side, a former top military commander at Guantanamo, Maj. Gen. Michael Dunlavey, estimated that at least half of those held at Guantanamo were held by mistake. An academic study by Seton Hall University Law School concludes that according to US documentation, at least 55 percent of the detainees at Guantanamo never engaged in any hostile acts against the US and only 8 percent had any association with the militant group Al-Qaeda.
People held at Guantanamo include:
Mohamedeou Ould Slahi, who was held for more than 14 years without charge or trial before his release in October 2016 and return to his native Mauritania. While still detained and after years of battling US government censors, he published a memoir about his time at Guantanamo. In Guantanamo Diary, Slahi details years of torture and abuse. The US intended to press charges against Slahi but a military prosecutor refused to do so after learning that Slahi’s most incriminating statements were obtained through torture.
Omar Khadr, a Canadian, who was 15 when he was apprehended by the US during a firefight in Afghanistan. US forces treated him abusively in Afghanistan and sent him to Guantanamo, where, he said, he was put in stress positions and threatened with rape, among other abuses. The US never treated him in accordance with its international obligations toward children used in armed conflict. Two years after pleading guilty to crimes before the fundamentally flawed US military commissions in 2010, he was transferred to a detention facility in Canada. He was released on bail in 2015, and is currently appealing his US military commission conviction.
Mustafa al Shamiri, a Yemeni detainee once deemed “too dangerous to release,” whose detention proved to be a case of mistaken identity. Shamiri, who was 16 or 17 at the time of his detention, spent more than 14 years imprisoned at Guantanamo before a US inter-agency review board found that the original intelligence about him being a trainer at an Al-Qaeda camp was wrong.
Only 16 of those held at Guantanamo were ever charged with criminal offenses. Ten of them remain at Guantanamo, along with 31 others being held without charge. Seven, including five men accused in the September 11, 2001 attacks, currently face charges before the military commissions, and three others were convicted after trial or plea bargain. The US has maintained that it could continue to hold detainees who still pose a security risk even after they finished serving their sentences.
Five of the 16 who were charged, including Khadr, have since been released. One of the 16, Ahmed Ghailani, was transferred to US federal court in New York, where he was convicted of conspiracy in 2010 and later sentenced to life in prison. He is the only Guantanamo detainee transferred to federal court for prosecution. At least three of the military commission convictions were thrown out and others partially overturned after a US appellate court found that material support for terrorism and solicitation were not war crimes and, therefore, could not be charged in the military commissions.
Numerous current and former national security policymakers have called for closing Guantanamo. The UN Committee against Torture and other UN rights officials and many government leaders in other countries have called on the US to end detention at Guantanamo and close the facility.
Most of the 41 men held in Guantanamo as of May 2, 2017, have been detained by the US for nearly 15 years without charge or trial. They fit within three broad categories:
Five were cleared for release during the Obama administration but were not transferred to home or third countries by the end of Obama’s term. It is not yet clear if the Trump administration will act on Obama’s decision.
There are 26 detainees whom the US asserts it can detain indefinitely for security reasons. The government made these determinations about these men after reviews largely conducted in secret and without adequate process. In 2008, the US Supreme Court ruled that Guantanamo detainees could challenge their detention in federal habeas corpus proceedings. However, not all detainees obtained these hearings and when they did, the courts ultimately sided with the government, ruling that the US can hold them even with very little evidence, weighed in the government’s favor, of connection to terrorist groups until the end of hostilities. The courts have not determined what constitutes the “end of hostilities,” so those held are effectively detained indefinitely.
Seven of the 41 face charges, and three more remain imprisoned after trial or accepting plea agreements with Guantanamo’s military commissions.
Human Rights Watch has said that all Guantanamo detainees should either be charged in a court that meets international fair trial standards – such as US federal courts – or released to safe home or third countries.
The military commissions at Guantanamo do not meet international fair trial standards and should be disbanded. The military commissions are, among other things, mired in excessive secrecy, fail to adequately protect attorney-client privileged communications, and permit the introduction of coerced evidence.
Current cases in the commissions are plagued by procedural problems and questions over the applicable law. The case against the five suspects in the September 11, 2001 attacks is headed into its fifth year of pretrial hearings, with a trial date still years away. That is bad for the defendants, for the families of the victims, and for justice generally. The slow progress is the result of government secrecy about the defendants’ torture in CIA custody, the novel nature of the commission’s untested rules and procedures, and logistical difficulties associated with holding hearings on an island several hundred miles from the United States.
During the last hearing, the military judge in the case, Col. James Pohl, refused to set a trial date because the prosecution remains behind in turning over classified evidence to the defense, and court facilities are inadequate. Meanwhile federal courts, though not without their flaws, have, since 9/11, prosecuted several hundred terrorism cases much more effectively and with respect for due process.
Only eight verdicts have been obtained in the military commissions. Three of them have been completely overturned by US court decisions, and others partially. They were overturned on the grounds that the charges did not amount to recognized laws of war violations that Congress authorized to be tried in the Guantanamo Bay military commissions. As a result of these cases, charges of material support for terrorism and solicitation were ruled outside the commissions’ jurisdiction, and charges of conspiracy are in question.
US government reporting on alleged terrorism by former Guantanamo detainees has been controversial. While some former detainees are reported to have engaged in, or been associated with, violent acts, the vast majority of the more than 731 detainees released from Guantanamo are not reported to have been involved in any such activity.
The US Office of the Director of National Intelligence (DNI) has reported that about 118, or 17 percent, of former detainees have become involved in terrorism since their release. These figures are based on a definition of terrorism that broadly includes “insurgent attack[s]” not necessarily against US forces but rather “coalition or host-nation forces.” Moreover, the DNI uses a preponderance of the evidence standard for “confirmed” acts of terrorism, meaning it believes it is “more likely than not” the individual has engaged in the reported acts, rather than a more reliable standard.
The overwhelming majority of these reported cases of violence predate 2009, when many detainees were released without very effective post-release monitoring and reporting mechanisms in place. Since 2009, when these mechanisms improved, the DNI reports that only seven former detainees are “confirmed” to have engaged in what it defines as terrorism.
The credibility of the DNI figures has been contested based on publicly available information about terrorist attacks. The DNI has released inadequate information about former detainees allegedly involved in attacks, and about the attacks themselves.
The government has used its claims of connections to violence by former Guantanamo detainees to deny release to current detainees, particularly those from the same country. But decisions to release detainees should be based on individualized assessments about whether they can be prosecuted for a criminal offense, not on the actions of former detainees released years before. Detaining someone because of the actions of others amounts to collective punishment and denies detainees due process.
Sending new detainees to Guantanamo would compound the detention facility’s history of injustice, and might repeat past violations of international law. Doing so would also be counterproductive to US counterterrorism efforts by providing fuel to the Islamic State (also known as ISIS), Al-Qaeda, and other Islamist armed groups that are seeking to discredit the US.
Such armed groups have routinely used the situation at Guantanamo in their propaganda materials to recruit fighters globally. For instance, many non-Iraqis who took up arms against the US in Iraq did so because of US abuses at Guantanamo as well as at the US military prison at Abu Ghraib.
Sending future detainees to Guantanamo is also unnecessary – the US has other options for holding those apprehended and accused of alleged crimes committed abroad.
US forces abroad that apprehend people suspected of war crimes and other crimes under US law should promptly transfer the suspects to the United States for prosecution in US federal courts. Otherwise, the US should, wherever possible, transfer captured combatants and civilians posing a serious security threat to national authorities in the country of capture for possible prosecution. In circumstances in which such transfers cannot lawfully be made, such as if the detainee would face likely torture or if the US is acting without the permission of the national authorities, such as in Syria, continued detention must meet basic due process standards.
Anyone being transferred out of a country by US forces, including someone turned over by non-state armed groups, should be able to contest the transfer in that country’s courts. This would not be required during a so-called international armed conflict between governments, such as between the US government and the Syrian government. Every detainee must be treated humanely at all times. Places of detention should not be near combat zones though to the extent possible they should be close to detainees’ homes. Visits from family members must be allowed if practicable. Children being detained must be held separately from adults, unless they are detained with their family.
People taken into custody during an armed conflict are entitled to basic protections. These include being promptly brought before an independent authority, such as a judge. The detainee must be provided specific reasons for their detention and have the ability to contest the detention. Where feasible the detainee should have access to a lawyer or other counsel. Individuals who are not being prosecuted for a criminal offense may only be held for exceptional reasons of security and must be released as soon as the reasons for their deprivation of their liberty cease to exist. Detention under such circumstances should be reviewed at least every six months.
Regular soldiers and civilians captured in fighting between two government forces would be protected under the rules for prisoners-of-war and security detainees under the Third and Fourth Geneva Conventions.
Human Rights Watch supports closing the Guantanamo Bay detention facility, but not by detaining individuals currently held there in US prisons without charge or trial. Moving them to the US would not end the rights violation of detention without trial, just transfer people whose rights are being violated to a new location.
However, those who can be charged with a criminal offense should be, and should be brought to the US and prosecuted in US federal courts. Those who cannot be charged should be released to a safe home country or third country.
Currently, US law bars the transfer of prisoners from Guantanamo to the US for continued detention or trial. Any revision of the law should not permit the transfer to super-maximum security (“supermax”) prisons in the US, which are designed for convicted prisoners deemed extremely dangerous. The use of extremely harsh supermax prisons raises grave human rights concerns generally. They should not be used to hold people who have not been convicted of an offense, such as those being held without trial at Guantanamo.
On January 30, 2018, President Trump signed an executive order to keep the Guantanamo Bay detention facility open. The order revokes former President Barack Obama’s 2009 executive order that mandated the facility’s closure and pledged to do so within one year of signing—a goal Obama did not achieve. While the language of Trump’s order merely continues many of the same policies that were in place during the Obama administration, it rejects the broader policy aim to close Guantanamo and suggests that future detainees may be sent to Guantanamo, which Obama did not do.
The order directs the defense secretary to re-examine US detention policy and provide recommendations for handling detainees captured by the US in connection with an armed conflict, including an option of sending them to Guantanamo. The order also states that newly captured suspects can be prosecuted in federal court. Interagency review boards will continue to examine the cases of Guantanamo detainees, and they could be released if cleared by a review board or a court.
Though the executive order largely reaffirms existing US government policies, the Trump administration has thus far not shown a strong commitment to enforcing them. For example, though Guantanamo detainees’ can seek to have interagency boards review their cases, Trump has said there should be no further releases from Guantanamo and detainee lawyers contend that the any review process will not will not be genuine. The order preserves the option to transfer detainees out of Guantanamo, but Trump has not transferred out any detainees since taking office in January 2017.
Some Justice Department attorneys do not want terrorism suspects apprehended abroad sent to Guantanamo because the federal courts have been much more effective at prosecuting terrorism cases than the military commissions at Guantanamo. Moreover, many countries that would normally work with the US on counterterrorism efforts will not extradite suspects to the US if they could be sent to Guantanamo. While Trump himself has recognized that the military commissions have been ineffectual in prosecuting terrorism cases, the executive order raises concerns that under certain circumstances he intends to send future detainees there.