It was between the hours of 8:30 and 10:30 am on the morning of September 11, 2001 that the unthinkable happened in the United States. Four passenger airplanes were hijacked by 4 groups of terrorist assailants and used as weapons of mass destruction in ways that seemed unimaginable. At approximately 8:45 am one of the four hijacked planes crashed into the North Tower of the World Trade Center. The media and bystanders, not knowing that the planes were hijacked by terrorist assailants, first claimed the incident as a tragic accident, however they would soon be corrected. Around 9:00 am a second hijacked plane crashed into the South Tower of the World Trade Center. Shortly after at 9:37 am, a third hijacked plane crashed into the Pentagon building in Washington, DC. The remaining fourth hijacked plane crashed into an open field in Pennsylvania at 10:03 am, instead of hitting its intended target as a result of the struggle between hijackers and passengers on board the plane who had heard of the earlier three attacks. The terrorist attacks of 9/11 represents one of the most tragic events on American soil, resulting in the death of close to 3,000 innocent people, and immediate changes in U.S defense and foreign policy.1
The applicability of Human Rights Law during armed conflict continues to present serious challenges. Much of the debate revolves around the question of whether Human Rights Law continues to be applicable during times of armed conflict, and if so under what circumstances? Retrospectively looking at history, the establishment of international human rights ensued from the atrocious human rights violations that led and occurred during World War II. How is it that principles encoded as Human Rights Law to prevent heinous patterns of human rights violations committed during World War I, the interwar period, and during World War II cannot be protected during armed conflicts? This leads to the question: Are the rights declared in the Universal Declaration of Human Rights (UDHR) truly inalienable?2 In theory yes, in practice unfortunately NOT. Yes, the rights in the Universal Declaration of Human Rights are defined as inalienable. Many of the rights in the Universal Declaration of Human Rights are not inalienable in practice when states are embroiled in armed conflicts. In practice the inalienability of rights is universally broken. The failure to codify the UDHR into law or to provide a practical means of enforcement, means it falls short of reaching its intended goal of providing a set of universal, inalienable, and indivisible rights enjoyed by everyone around the world in the same ways at all times. Armed conflicts challenges to national security is the catalyst for many patterns of massive human rights violations. Many nations use the breach of national security as a reason to justify actions that are acknowledged as human rights violations under the UDHR. The United States, along with global human rights advocates, have reached out to nations where human rights infractions have occurred to bring an end to human rights violations justified under armed conflict and the pursuit of national security. However, should the United States not also apply the same principles they so valiantly defend abroad to their own actions?3 In the wake of the terrorist attacks of 9/11/2001, the United States went from improving its human rights record, and reverted to being a habitual violator of human rights. Prior to the attacks, The United States endorsed the prohibition of torture by signing in 1988 and ratifying in 1994 the United Nations Convention Against Torture (CAT) and the Geneva Conventions.4 As a signatory to international conventions, the United States must assume obligations and duties under international law to respect, to protect, and to fulfill human rights by implementing domestic measures and legislation compatible with their treaty obligations and duties. To further prevent any future loss of life or possible imminent threat to national security, the Bush administration resorted to previously banned immoral practices that undermine the UN Convention Against Torture and many other Geneva Conventions. The United States’ actions after the terrorist attacks are contrary to its values and undermine its standing in the world as a human rights advocate.5
After the terrorist attacks on the World Trade Center on the morning of September 11, 2001, the Bush administration declared that the United States would wedge a war on terror. The Bush administration vowed that the terrorists responsible for the attack would be brought to face judgment.6 Days after the terrorist attacks, Congress passed the Authorization for Use of Military Force (AUMF), which allowed President Bush “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. The Islamic terrorist group, Al-Qaeda, claimed responsibility for the attacks on 9/11. The Al-Qaeda was believed to have trained the suspected terrorist, and planned the attacks in a remote region in Afghanistan. The ruling regime, the Taliban, in Afghanistan gave safe haven to the Al-Qaeda network, allowing it to conduct its operations. The United States and its North Atlantic Treaty Organization allies launched an operation to designed to destroy the Al-Qaeda and topple the regime that protected it.7 U.S Military’s initial response in Afghanistan led to the capture of suspected terrorists presumably involved in the 9/11 terrorist attacks. The capture of suspected terrorists led to the need for a secure facilities outside the borders of the United States to detain individuals labeled as enemy combatants. So on January 11, 2002 the prison at Guantanamo Bay, Cuba was opened by President Bush. Guantanamo Bay essentially was the perfect location for the Bush administration. The Bush administration wanted to permanently hold dangerous suspected terrorists outside the United States for safety reasons but also outside the jurisdiction of US courts. Detainees were interrogated and tortured under the guise of imminent danger to extract intelligence.8 Guantanamo Bay’s purpose was never to serve as a prison for terrorists to serve out their sentences for the crimes committed during the 9/11 attacks. It was meant as a detention facility to prevent enemy combatants from continuing the fight against the US and its partners in the war on terror. The goals behind Guantanamo Bay were neither juridic nor penal, but rather military and tactical. 9
The United States had acquired Guantanamo Bay from Cuba after the Spanish American War in 1898. Cuba was in the midst of revolting against Spain when the United States sent the USS Maine to Havana to protect American interest on the island, however the ship exploded and sunk along with its crew. Under false pretenses, the U.S believed that the ship hit a Spanish mine, which led to the US’s involvement to help Cuba defeat Spain in the war known as the Spanish American War of 1898. After the Spanish American War, the United States Military remained and occupied the island of Cuba. The United States and Cuba both came to an agreement, known as the Platt Agreement of 1903, which stated that the United States would withdraw its military presence in Cuba, and in return Cuba would lease Guantanamo Bay as a coaling and naval station to the United States at the cost of $4,085 a year.10
Guantanamo Bay received its first group of detainees on January 11, 2002, sparking the controversial indefinite detention and use of interrogation techniques or torture on hundreds of suspected terrorists apprehended during the war on terror. All forms of torture are forbidden in the United States and internationally by several Geneva Conventions and international instruments: the United Nations Convention Against Torture, the 1948 Universal Declaration of Human Rights, the Torture Victims Protection Act of 1992, the United States Uniform Code of Military Justice, and other international and domestic anti-torture statutes that establish criminal liability for violations during times of peace or times of armed conflict.11 12 13 14 15
The Department of Justice, Department of Defense, and the Office of Legal Counsel advised the White House on how to avoid prosecution, and how to exclude Taliban and Al-Qaeda detainees from being labelled as prisoners of war protected under the Geneva Convention, rather than advising the White House on how to comply with domestic and international law.16 The Bush administration also resorted to redefining torture that in order for it to be constituted as torture the intensity of the pain inflicted must rise to the level of serious physical conditions or injury such as death, organ failure, or serious impairment of bodily functions. President Bush proclaimed,
I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with Al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, Al Qaeda is not a High Contracting Party to Geneva…and…I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either Al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.17
Moreover, President Bush continued to state that the Al Qaeda detainees are unlawful combatants, therefore, they do not qualify as prisoners of war under Article 4 of the Geneva Convention.18 Detainees held for interrogation at Guantanamo Bay were stripped of rights granted under the Third Geneva Convention, including the protection against physical or mental torture, or any other form of coercion, that may be inflicted on prisoners of war to secure from them information of any kind that would protect them and entitle them to humane treatment.19
As more information on Guantanamo Bay became public, international organizations and the US public began to discover how Guantanamo Bay was being governed and the conditions under which detainees were held. The prison population at Guantanamo continued to increase as the war on terror progressed. Detainees suffered from indefinite detention, sleep deprivation, exposure to extreme hot and cold temperature, serious threats, forced stress positions, beating, water boarding, and choking. The range of torture interrogation techniques varied based on the detainee’s potential intelligence and status. Secretary of Defense Rumsfeld authorized a “special interrogation plan” for detainee Mohamed al-Qahtani because he was deemed to have high intelligence value. Amnesty International reported that Mohamed al-Qahtani was subject to 18-20 hour interrogation days, extreme isolation for 3 months, forced to wear woman underwear, tied by a leash and was made to perform dog tricks, coerced to dance with male interrogators, forced shaving of his head and beard, sexual humiliation, strip search by female interrogators, loud music, white noise, sleep deprivation, exposure to extreme hot and cold temperatures, placed in stress positions for long periods, forced to urinate on himself, threatened with shipment to foreign torture centers, and injected with tranquilizers.20 Another detainee known as Omar Khadr, claimed to have urinated during interrogation and the soldiers dragged him through the urine “like a human mop.”21 To protest the indefinite detention, detainees began participating in hunger strikes and some have even resorted to attempting suicide in order to bring adverse publicity to the prison. In June of 2006, 3 detainees managed to commit suicide in their cells. Guantanamo Bay officials resorted to force feeding those detainees participating in hunger strikes. Critics claim the detention facilities actions constituted torture and publicized the accounts of those detainees who were forced fed.22 By May of 2003, the Guantanamo prison population hits its peak, housing 680 detainees.
A series of important U.S Supreme Court ruling between 2004-2008 ruled in favor of the detainees in Guantanamo Bay. One of the first court cases that was brought up to the U.S Supreme Court was Rasul v. Bush. The Supreme Court in Rasul v. Bush ruled that the U.S courts have jurisdiction to hear habeas corpus petitions filed on behalf of foreign nationals imprisoned at Guantanamo Bay. As a result of the decision, hundreds of detainees had the legal right to challenge their imprisonment at Guantanamo Bay.23 In 2006, the Supreme Court case Hamdan v. Rumsfeld ruled that military commission established by the Bush administration to try Guantanamo detainees violates both the Universal Code of Military Justice and the four Geneva Conventions. Furthermore, the Court also concluded that Congress did not strip the Court of jurisdiction to hear cases from Guantanamo detainees when it passed the Detainee Treatment Act of 2005.24 In response to the court ruling in Hamdan v. Rumsfeld, Congress passed the Military Commission Act of 2006, which authorized trial by military commission for violations of the law of war. The act prohibited detainees who had been classified as enemy combatants from using habeas corpus to petition federal courts in challenges to their detention.25 In 2008, the Supreme Court case Boumediene v. Bush ruled that enemy combatants held in Guantanamo Bay have a constitutional privilege of habeas corpus. The Court also found section 7 of the Military Commission Act, which limited judicial review of the petitioner’s enemy combatant status, an unconstitutional suspension of habeas corpus.26
By February 2006, 240 detainees had been let go following the establishment of the Combatant Status Review Tribunals. Towards the end of the Bush administration the total number of detainees grew to 390. Some detainees were released and others were transferred to their home countries for incarceration. Leading into the 2008 presidential election, Barack Obama during his campaign promised to close Guantanamo Bay, to reject the Military Commission Act, and to adhere to the Geneva Conventions. On the second day of office, President Obama issued Executive Order 13491, which stopped the use of interrogation techniques, like waterboarding, on individuals in custody.27 On that same day, Obama also passed Executive Order 13492, which prompted the determination of how to deal with and dispose of those detained in Guantanamo Bay and the closure of the detention facility.28 The process was much more difficult than the Obama administration anticipated it would be. Not having bipartisan support within Congress on closing Guantanamo Bay, the Obama Executive branch was unable to bring an end to the infamous detention facility. 9 years later, after Obama vowed to shut down Guantanamo Bay for good, the detention facility still remains open with detainees raising further criticism.29
Obama’s efforts to close Guantanamo Bay were placed to rest on January 23rd, 2018, when President Trump issued Executive Order 13823: Protecting America Through Lawful Detention of Terrorists. Executive Order 13823 revoked the Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities, thereby keeping Guantanamo Bay open indefinitely to house any new suspected terrorists.30 During the first State of the Union Address Trump stated, “In the past, we have foolishly released hundreds and hundreds of dangerous terrorists, only to meet them again on the battlefield. […] I am asking Congress to ensure that, in the fight against ISIS and al-Qaeda, we continue to have all necessary power to detain terrorists, wherever we chase them down, wherever we find them. And in many cases, for them, it will now be Guantanamo Bay.”31 Till this day, the Guantanamo facility remains open and home to 40 detainees.32 History will cast a harsh judgment on the human rights violations that have occurred amidst the war on terror. The actions that have occurred at Guantanamo Bay will portray the U.S in the eyes of many as a nation that failed to follow the very principles it imposes to the rest of the world. Until further legislative action and bipartisan support is gathered, Guantanamo Bay will continue to remain open, undermining the U.S’s status as a human rights advocate.