Getting to Grips with Guantánamo I: Rendition to the Caribbean

KMSThis post is by Kasey McCall-Smith: a lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School.

This post is the first in a series of blogs that chronicle the history and current state of play regarding the US rendition and detention programme in the immediate aftermath of 9/11. They were written during the author’s visit to Guantánamo Bay, Cuba, to observe military commission proceedings in the case of USA v. Khalid Shaikh Mohammad, et. al.  30 May – 3 June 2016, which is the initial phase of her project Getting to Grips with Guantánamo.

Following the attacks against the US on 9/11, then-President Bush declared open-season on all individuals with any established link to al Qaeda. In furtherance of the Bush declaration, the US Central Intelligence Agency (CIA) commenced what would eventually prove to be the most egregious and calculated rendition and detention campaign in modern, post-WWII history. A campaign defined by blatant breaches of both US and international law. To this day, it serves as a black mark on America’s international image, and the resulting impact of the decisions taken by the Bush Administration in the early days of 2001 continue to resonate today.

The President’s basis for aggressive action against third-state enemies on foreign soil was supported by a memorandum opinion detailing his powers under the War Powers Resolution (50 U.S.C. §§1541-48). Specifically, the President exercised the power to authorize a classified covert action allowing the CIA to seek out, take into custody and detain terrorists or anyone assisting terrorists.

In November of 2001, the President issued a public military order outlining the US position that in order to prevent further terrorist attacks the US would detain and try individuals under the laws of war and normal principles of law and rules of evidence would not apply in such cases. The military order reinforced the covert operations already set in motion by the classified action authorizing the CIA’s Detention and Rendition Program (DRP) on 17 September. These orders were the first steps toward the ‘legal black hole’ known as Guantánamo.

After surveying the potential sites for the anticipated detention of foreign nationals under the DRP, specifically members of al Qaeda and the Taliban, the Office of Legal Council determined that Guantánamo Bay Naval Base (GTMO) (pronounced ‘Gitmo’ by all military staff) was the ideal location due to its unique establishment. Guantánamo Bay was first leased by the US following the Spanish-American War in 1903 ‘to enable the United States to maintain the independence of Cuba’, at which time GTMO was established.  When the first detainees arrived at GTMO in 2002, the US naval base had been in operation for 99 years. The Treaty between the United States and Cuba Defining Their Relations (29 May 1934, US Treaty Series No. 866) supplemented the original 1903 agreement and confirmed that Guantánamo Bay remained the sovereign territory of Cuba on perpetual lease to the US. This salient feature of the treaty would become a pivotal factor in the post-9/11 rendition programme.

In December 2001, the Office of Legal Counsel in the US Department of Justice issued a memorandum on the ‘Possible Habeas Jurisdiction over Aliens Held in Guantánamo Bay’. In the memo, they detail a provision in the original 1903 lease which provides that ‘the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba’ over the land and water now commonly known as GTMO. Thus, their conclusion underscored that GTMO was outside of the jurisdiction of US federal courts for purposes of anticipated detainees bringing writs of habeas corpus. This conclusion facilitated the rendition of approximately 780 individuals to GTMO between 2002 and 2008.

The Philibin/Yoo memo made it clear that the selection of GTMO was made in order to avoid international legal obligations under the Geneva Conventions and the International Covenant on Civil and Political Rights. As would be revealed in the months and years that followed, denial of habeas rights was only the tip of the iceberg in terms of blatant disregard for the basic rights of human beings. Ultimately, the denial of habeas was determined a violation of the US Constitution in Rasul, et. al. v. Bush, 542 U.S. 466 (2004). What followed from that case is a line of federal claims and, ultimately, a 6000 plus page report, the US Senate Intelligence Committee Study on CIA Detention and Interrogation Program, finding that the CIA actively engaged in torture with the full backing of the Bush Administration. Of those confirmed detainees held at GTMO since the beginning of the CIA’s RDP, 691 have been transferred out of GTMO without charge, 28 continue to be held in law of war detention but are recommended for transfer, 42 remain in custody without charge but without potential for transfer at this time, and only 10 have been charged under the laws of war – three of whom have thus far been convicted. In each instance, individuals have been subjected to treatment far below the minimum standards recognised by international law. This shadow of ill-treatment continues to shape international views of the US operations at GTMO as well as the development of the military commissions cases.