ENTRE NOUS

The U.S. detention facility at Guantanamo Bay remains in operation. At the time of writing, around 30 individuals—all Muslim men—are still held there. As is the case with most of the individuals ever detained at the facility, most who remain there have never been charged with a crime. Only two still detained there have been convicted.

The events of 9/11 are seared into the memories of those old enough to have followed the news coverage on that day. Both horror and fear overtook most of us. Even in Vancouver, on September 11, 2001, those of us in office towers looked uneasily outside to see whether any rogue airplanes approached in an otherwise empty blue sky. Responsibility for the attacks in the United States was quickly attributed to the terrorist group Al-Qaeda. That the U.S. government sought desperately to address what had occurred and prevent reoccurrence was understandable, but the nature and scale of the human and moral catastrophes that resulted cannot be brushed aside.

The United States Congress adopted a joint resolution authorizing thenPresident George W. Bush, who signed the resolution on September 18, 2001, to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”.

On September 20, President Bush demanded that the Taliban regime in Afghanistan deliver to U.S. authorities “all the leaders of al-Qaeda who hide in your land”. The regime refused and by late September 2001, a U.S. Central Intelligence Agency team was in the country. That team was followed by U.S. and British special forces contingents and, in the public initiation of Operation Enduring Freedom, by air strikes on Taliban targets commencing on October 7, 2021. Later that fall, U.S. and allied forces, working with the Afghan anti-Taliban “Northern Alliance”, established their first ground base in Afghanistan.

By late December 2001, U.S. authorities were holding 45 Al-Qaeda and Taliban detainees. U.S. Secretary of Defense Donald Rumsfeld announced at that time that they would be sent to the U.S. naval base at Guantanamo Bay, situated on leased land in Cuba; he described it as “the least worst place we could have selected”. The New York Times reported at the time that the United States had rejected another option, the U.S. territory of Guam: local residents had raised security concerns (in the event terrorists mounted an attack to free prisoners), plus there was a government concern that prisoners held in a U.S. territory would attract more legal rights than prisoners held abroad. The newspaper quoted a Pentagon spokesperson as stating— in words that, given what we now know about the torture and depravity that ensued, are chilling—that the individuals in U.S. custody “are those that we think might provide some valuable information, so we want to be able to talk to them pretty thoroughly.”1

On January 4, 2002, a newly formed task force headed by U.S. Marine Brigadier General Michael Lehnert received orders to deploy to Guantanamo Bay and build 100 cells in 96 hours. His team finished its building work in slightly less than the allotted time and on January 11, 2002, the first 20 detainees arrived. At its peak in 2003, the by-then expanded facility held 660 detainees. In total, around 780 detainees—all Muslim men and boys— have at some point been held there, with the last one arriving in 2008.2 Many of the detainees may have had little connection with Al-Qaeda or the Taliban, although certainly some did. Among the one-time detainees was Canadian Omar Khadr, who was taken prisoner in Afghanistan in July 2002, when he was 15 years old, and transferred to Guantanamo later that year.3

Various of the detainees sent to the Guantanamo facility arrived only after months or years at “black sites” elsewhere in the world. The use of “enhanced interrogation techniques” at those sites and at Guantanamo itself came at tremendous moral cost, as well as, of course, inflicting sustained physical and mental cost on detainees. The methods also reportedly yielded little useful information as a practical matter as well as, from a legal perspective, arguably further making the criminal convictions of those interrogated, in any ordinary court, unlikely at best. The United States sought to avoid application of the Geneva Conventions to the “unlawful combatants” it detained, although in Hamdan v. Rumsfeld, a 2006 decision in a case involving Osama bin Laden’s former chauffeur, the U.S. Supreme Court found those conventions did apply at least in part.4

In 2015, retired Major General Lehnert (by the time of his retirement he had been promoted) spoke eloquently about the need to shutter the Guantanamo facility, whose existence he had initially understood would be shortterm. “History continues to judge our decisions—decisions made when we were angry and frightened,” he said.5 Six years later, in 2021, he conveyed the same thoughts in testimony to the U.S. Senate Judiciary Committee:

The speed of Guantanamo’s creation and the urgency to gain information had bad consequences …. The subsequent decision to subject detainees to so-called “enhanced interrogation techniques,” and to avoid application of the Geneva Conventions except when it suited us, cost us international support and aided the cause of our enemies.

Speaking plainly, we are where we are today because of those misguided policy decisions to cast aside our values and the rule of law. I’m not an attorney, but even I know that when you forgo generations of legal thought and precedent, bad things happen.

The vast majority of the 780 men sent to Guantanamo never should have been there. Among the 39 [in December 2021] prisoners who remain in Guantanamo, there are some who need to pay the price for their crimes. But what we have now is not justice. There is no justice for the detainees but more importantly the relatives of the victims of 9/11 and of other terror attacks deserve justice and they deserve closure.

The major general has of course not been alone in expressing concern— quite the contrary. He pointed to over 50 retired generals and admirals who had also said the facility should be shuttered. Numerous citizens, politicians and non-governmental organizations have done so both in the United States and around the world. By 2006, President Bush himself expressed the view that the detention facility should be closed. Indeed, over time, the Bush administration “released” around 540 detainees (most destined for custody in their home countries). In 2008, both presidential candidates (Barack Obama and John McCain) supported closing the facility. In 2009, almost immediately upon taking office, President Obama signed an executive order requiring the facility to be closed within one year. (Obviously this did not actually occur, including because Congress thwarted the transport of continued detainees to the United States to face trial there.) The Obama administration released around 200 detainees. President Donald Trump was, of course, characteristically unperturbed by the facility’s continued existence and only one detainee was released (to a Saudi prison) during his term. The Biden administration has released a number of detainees; however, as noted at the outset, around 30 still remain there. Numerous of them have been approved for transfer out of the facility but continue to be held nonetheless, in part because of the challenge of determining where they can be sent that is not overly dangerous to them.

It would be naïve to think there are not large difficulties in completing this process. However, there are large costs in not doing so, including— though perhaps crass to raise given the more fundamental philosophical nature of the others—monetary ones. By September 2022, the Guantanamo detention facility had reportedly consumed US$7 billion over the course of its existence, and the cost to keep each individual detainee there was US$13 million per year. The immense cost stems in part from an “enormous rotating work force” housed in what in effect are suburban neighborhoods constructed on the military base, and in part from the stop-start nature of efforts to, variously, close or maintain the facility.6

In 2021, Major General Lehnert urged a finite period for closure: “I was given 96 hours to open it. 96 days to close it seems reasonable.” And if not 96 days, fewer than two more decades?

The fact that the Guantanamo facility continues to exist is disturbing in and of itself. However, also disturbing is what its continued existence, in face of all the above, says more generally about American legal and political systems, and Western democratic society. While the facility is obviously not in our power as Canadians to close (although it would have been within the federal government’s power over the years to resist participation in it), we suspect the sorts of factors that foster or allow inaction in this case are emblematic of those that allow other problems to fester on both sides of the border.

The Guantanamo facility is clearly one of the most notorious, if not the most notorious, detention facilities in the world. Many people, including U.S. presidents—holding what has been described as the world’s most powerful office—have wished to see it closed. The facility is run by a country that espouses liberty and claims to be an example of moral and political virtue for others in the world. The facility’s bad image reputedly draws recruits to terrorist and military forces that wish to do harm to the United States. It is an enormous financial burden. It has been the subject of tremendous attention, although that sometimes wanes, for more than two decades. Certain practices there, at least historically, have been morally repugnant and contrary, at the very least, to legal norms that would ordinarily apply in war, in U.S. courts and in detention facilities in the United States. There are a limited number of remaining detainees, in relation to whom issues may be difficult but, at least, finite. And yet, the facility survives.

How is this possible? Is it a lack of political will, focus or cohesion? A lack of government or diplomatic competence? A combination of the above?

Given the Guantanamo facility has survived for more than 20 years despite the worldwide attention it has received, what does this say about our chances to fight successfully against other injustices of a more local nature—and our ability to achieve results swiftly enough for those results to matter?

If we can tolerate the continued existence of Guantanamo, what does this say about what else we can tolerate? And what else is out there—perhaps even worse—that, with Guantanamo having occupied for over two decades a significant portion of media and political bandwidth, we may never even have heard about or directed our attention to?

Endnotes

1. Katharine Q Seelye, “A Nation Challenged: The Detention Camp; US to Hold Taliban Detainees in ‘the Least Worse Place’”, The New York Times (28 December 2021), online: <www.nytimes.com/2001 /12/28/us/nation-challenged-detention-camp-ushold-taliban-detainees-least-worst-place.html>.

2. This is despite Donald Trump, during the 2016 presidential election campaign, vowing to “load up” the facility with “some bad dudes”.

3. Canada (Justice) v Khadr, 2008 SCC 28; Canada (Prime Minister) v Khadr, 2010 SCC 3.

4. 548 US 557 (2006).

5. Maj Gen Michael Lehnert (retired), “I Helped Create Gitmo. Now I Want to Shut It Down”, Politico (11 January 2015), online: <www.politico.com/magazine /story/2015/01/guantanamo-closing-i-helpedcreate-gitmo-now-i-want-it-shut-down-114162/>.

6. Carol Rosenberg, “At Millions Per Detainee, Guantanamo Prison Stuck in a Cycle of Costly Delays”, The New York Times (16 September 2022), online: <www.nytimes.com/2022/09/16/us/politics/ guantanamo-bay-prison-cost.html>.