Guantánamo

Guantanamo Bay, a U.S. military base on the island of Cuba, is a detainment camp in a permanent state of exception, for while the United States have “complete jurisdiction” over the base, the ultimate sovereignty is reserved to Cuba, a country that has no diplomatic relations with the USA and, by the terms of the 1903 agreement, cannot evict the U.S. military without their consent.

According to the U.S. government, conventional American legal norms do not apply to what is technically foreign soil, and enemy combatants can be held prisoners incommunicado until the end of the ongoing war that, in the words of Vice-president Dick Cheney, may well last for generations. Critics have argued that the need to find a proper balance between security and freedom does not justify violations of humanitarian law.

These very same questions have been debated for centuries. Alexander Hamilton once remarked in Federalist 8 (1787) that “safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property…a state of continual danger, will compel nations the most attached to liberty to resort…to institutions which have a tendency to destroy their civil and political rights.”

Indeed, during WWI and WWII, the U.S. government imprisoned thousands of dissidents and of citizens whose only fault was to belong to the “wrong” ethnic group. McCarthyism and the McCarran Internal Security Act (1950), somehow revived the witch-hunting spirit of the provisions included in the notorious Alien and Sedition Acts (1798), allowing the detention, expulsion and de-naturalization of persons suspected to be engaged in “un-American” activities.

The Bush Administration’s response to the terrorist attacks of September 11, 2001, as illustrated by the August 2002 memo issued by the office of legal counsel of the justice department, which proclaimed that “the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces”, is the logical continuation of this approach to the issue of national security.

The war on terror has already caused a number of patent violations of the writ of habeas corpus, one of the fundamental rights defined by the U.S. Constitution, and of other constitutional guarantees such as due process of law, trial by jury, and right to counsel. Under such conditions, the process of moral inversion, whereby what is normally judged to be deplorable becomes not only provisionally acceptable but desirable, is more likely to set in. The controversy surrounding the Guantanamo Bay detainment camp is a case in point.

Guantanamo Bay is one of the selected locations where, according to the current American administration, international obligations should no longer apply on grounds of national security and the protection of sensitive information. “Unlawful combatants”, so it is argued, should be considered as outside the Geneva Conventions on the treatment of prisoners of war.

Numerous allegations of torture and mistreatment have attracted the attention of international human rights organizations and several cases have been presented to the U.S. Supreme Court for its consideration. On June 29, 2006, in Hamdan v. Rumsfeld 548 U.S. _ 2006, the Supreme Court has ruled that: (a) the ad hoc military commissions established by President Bush on 13 November 2001 with Military Order No. 1, entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism”, to try the Guantanamo detainees and other non-nationals suspected to have committed acts of terrorism, are unauthorized by the Congress and illegal under both military justice law and the four Geneva Conventions of 1949; (b) the detainees are protected by Common Article 3 of the Geneva Conventions, prohibiting “violence to life and person . . . cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment;” (c) and, reiterating the conclusions and recommendations of Hamdi v. Rumsfeld 542 U.S. 507 (2004) and Rasul v. Bush 542 U.S. 466 (2004), which stated that foreign nationals detained outside US borders could file writs of habeas corpus and contest the lawfulness of their detention before a U.S. federal court, that their cases can be heard in federal courts.

Some have pointed out that the fact that the June 29 ruling was generally described as “extraordinary”, rather than simply pertinent and opportune, reflects the nonessential role of international human rights and legal standards in U.S. current foreign policy. Indeed, the White House’s reaction to the ruling – “it requires little more than having Congress put its stamp of approval” – shows a dismaying unconcern with the separation of executive, legislative, and judicial powers, namely one of the major achievements of constitutional democracy.