Guantanamo Bay: ‘The legal equivalent of outer space’
How the US decided on a place where suspected ‘terrorists’ could be jailed without legal protections after 9/11.
Twenty years ago, the world was still reeling from the events of 9/11 that rocked the very foundations of the United States. In the immediate aftermath of the attacks, the Bush administration began looking for ways to show the American people that the US was doing everything it could to bring those responsible to justice.
Military action in Afghanistan had started with Operation Enduring Freedom on October 7, 2001, less than a month after 9/11. The US’s hunt was on for those deemed responsible for the deadliest “terrorist” attack on its soil. Finding them was one thing, what to do with them was quite another.
As with the other so-called “war on terror” policies, including “enhanced interrogation”, lawyers were among the first to be consulted. Meanwhile, the US State Department feverishly worked on a plan to find a suitable location to hold those whom Donald Rumsfeld, then US secretary of defence, famously described as “the worst of the worst”.
‘A lot will have to be done quietly’
In Bad Men: Guantanamo Bay and the Secret Prisons, Clive Stafford Smith, human rights lawyer and director of a justice campaign group, 3DC, recounts a Newsweek article in which the US State Department lawyer David Bowker discussed his work on a committee looking at the rights of suspected “terrorists”.
Bowker told Newsweek that their aim was to “find the legal equivalent of outer space”, somewhere out of the reach of the US judicial system.
Those who were not US citizens still enjoyed constitutional rights when they were on American soil, so it was important to find a place where those jailed would have no legal rights.
In any case, al-Qaeda had been branded the enemy in the global “war on terror” and, as such, this gave the Bush administration more flexibility in handling those they considered prisoners of war, rather than criminals.
To make themselves even less accountable for their dealings with detainees, Rumsfeld, with the support of White House Counsel Alberto Gonzales, labelled the suspects as “unlawful combatants”. This effectively rendered them outside of the 1949 Geneva Conventions protections.
The US had military bases around the world, so there was no shortage of options, but each had its individual drawbacks. The military bases in Europe would potentially be subject to a liberal press and public antipathy towards its “war on terror” policies; locations in the Arab world would be politically sensitive, especially given those being jailed were Muslim and predominantly Arab.
Despite this, in 2013, the Open Society Justice Initiative detailed 54 countries including Germany, Italy, Spain, the United Kingdom and Poland as well as several Arab states including Egypt, Syria, the United Arab Emirates, Yemen, and Jordan that did collaborate with the CIA in their programme of extraordinary rendition. This involved the detention and torture of suspects on their soil.
Under US occupation, bases in Iraq and Afghanistan were also home to several “black sites”. These included Bagram airbase and the infamous Abu Ghraib prison, where those jailed would be subjected to inhumane, humiliating and barbaric abuse, including waterboarding and sleep deprivation.
There were other options, too, in far-flung universes, away from the prying eyes of the pushy press or, even worse, dreaded human rights defenders.
“A lot of what needs to be done here will have to be done quietly,” said then-US Vice President Dick Cheney, in the days following 9/11.
Their attention turned to the Chagos Islands, a little-known 65-island archipelago in the Indian Ocean. The islands are 1,609 kilometres (1,000 miles) from the nearest continent and had been occupied by the British since 1814 as part of the British Indian Ocean Territory (BIOT).
The largest island, Diego Garcia, was made available to the US in 1966, for military purposes, and there was already a significant base there.
But British occupation meant that it was covered by the jurisdiction of the European Court of Human Rights, which could pose a problem.
In addition, the British occupation of Chagos and the treatment of Chagossians, who had been brutally expelled in the 1960s and 70s, was contentious, to say the least, and the islanders were fighting for their right to return.
That case would later reach the United Nations, when in 2019, the UK was instructed by a 116-6 vote in the General Assembly to return the islands to Mauritius. The UK still refuses to comply, insisting it will only cede the archipelago when it is no longer needed for its defence purposes.
To avoid causing embarrassment to Britain, holding detainees in ships offshore may have been another option considered by the Bush administration.
Diego Garcia is a narrow rim of land surrounding a sizeable lagoon, 10.5 kilometres (6.5 miles) wide and 21 kilometres (13 miles) long. Under the UN Convention on the Law of the Sea, inland bodies of water are considered the territory of the state holding the land, and the standard offshore territorial limit extends out 12 nautical miles.
However, Peter Sand, lecturer and legal adviser to the UN Environment Programme, writes in his 2009 book, United States and Britain in Diego Garcia: The future of a Controversial Base, that the British were maintaining only a three-nautical-mile limit around the BIOT, with the exception of Diego Garcia, where “unauthorised vessels” were excluded from coming closer than the standard 12 nautical miles (22.2 kilometres).
Effectively, this created a military exclusion zone inside which the US could anchor its ships unhindered by interference from the outside world. Not only that, according to the UK Foreign and Commonwealth Office in 2000, US warships anchored off Diego Garcia “enjoy State immunity and are therefore outside the UK’s jurisdiction and control”. This, and the fact that the British ratification of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment included most overseas territories but not the BIOT, constitutes a “legal black hole at sea”.
These maritime manipulations may sound elaborate, but any suggestion that the British could possibly be enabling the torture of the disappeared in secret prison ships in their territorial waters could drag them through the political mire, just as it would if they were found complicit in enabling rendition flights to land, or “black sites” to be operated on their territory.
In 2008, it came to light that at least two rendition flights had stopped to refuel on Diego Garcia in 2002, each flight reportedly carrying one detainee. The discovery prompted the then-UK Foreign Secretary, David Miliband, to apologise to the House of Commons, reporting that, “the flights had been mistakenly overlooked in previous US internal enquiries carried out at the UK’s behest”.
In 2014, further details emerged when the US Senate Select Committee on Intelligence found that the CIA had indeed held “high-value suspects” on Diego Garcia, with the “full cooperation” of the British Government. The extent to which Diego Garcia was involved in the US’s global “war on terror” rendition programme is still not completely clear. This is partly because it was claimed by the UK Foreign Office, in 2014, that CIA flight logs, which could potentially expose British complicity, had been rendered “incomplete due to water damage”.
‘Locked up in limbo’
In the search for a location to house those rounded up during the “war on terror”, the US already had an ace up its sleeve. The US naval base at Guantanamo Bay, Cuba, had all the advantages but none of the drawbacks or complications of the other sites considered. Not only was it offshore, and therefore met the requirements of a “legal black hole”, but it had previously been a detention centre.
President George HW Bush had used it in the early 1990s to accommodate Haitian refugees fleeing their country following a coup. Thousands of Haitian migrants passed through the facility, and, most disturbingly, those testing HIV positive lingered longest in indefinite detention.
A 1993 judgement finally allowed Haitians who were being held at Guantanamo to enter the US. It was then revealed that many had been told “that they could be at Guantanamo for 10 to 20 years or possibly until a cure for AIDS is found”.
That George Bush Junior followed his father’s example in realising the “offshore” potential of Guantanamo is surely no great surprise and would be a pattern repeated in the catastrophic invasion and subsequent war in Iraq.
As with the British Chagos Islands, the history of American “ownership” of Guantanamo stretches back much further, too, to a time when the US assisted the Cubans in sending their Spanish colonial rulers packing. The 1898 Spanish-American War finally saw the decolonisation of Cuba, with Spanish withdrawal and transfer to temporary American rule until Cuba’s independence in 1903.
The Cubans reluctantly agreed to the US maintaining a naval base and coaling station at Guantanamo Bay in exchange for independence. The terms of the lease specifically stipulated that the land would be used “as coaling or naval stations only, and for no other purpose”, so its expansion into a detention facility could be deemed technically illegal. The US still pays just $4,087 a year for the lease, though Cuba has not cashed the cheque since 1959, when Fidel Castro came to power.
Once Guantanamo was chosen as the long-term “legal equivalent of outer space”, and the forever home for forever prisoners, locked up in limbo without charge or trial, the notorious Camp X-Ray was re-established and prepared for the arrival of the first group of detainees on January 11, 2002.
Twenty years on, there remain 39 men locked up in their own separate universe, far from the reach of US federal or international law. Twelve of these men have been cleared for release, but still await their freedom; 17 of them are considered to be of “high value”, including alleged 9/11 architect Khalid Sheikh Mohammed; and 10 of them are so-called “forever prisoners” – floating forever in space, with no charge, no trial and no response from ground control.