1. Guantanamo Bay
The US Navy base at Guantanamo, Cuba was established over time, following the Spanish-
American War of 1898. In 1901 the Platt Amendment granted Cuba independence. This was
followed in 1903 with a leasing agreement that granted US authority to establish a coaling
station in southeast Cuba.
Guantanamo today is an active US Navy base that supports activities in the Caribbean and
throughout Latin America. Plans are being discussed to base a US Marine Corps reaction
force there in the future.
Prior to the September 11, 2001 attack on America, Guantanamo Base had shrunk to a
holding facility with approximately 3,000 personnel stationed there. After being selected as a
holding facility for enemy combatants following Operation Enduring Freedom (the liberation of
Afghanistan), personnel numbers have risen to approximately 10,000.
In an order signed on November 13, 2001 called "Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism," President Bush outlined policy, procedures,
safeguards, and legal guidance for detaining enemy combatants in the new war.
Detention Facility Established
When surprisingly large numbers of enemy combatants were captured on Afghanistan's
battlefields - some estimates are as many as 70,000 Taliban and al Qaeda fighters captured
(of these, approximately 10,000 were screened by Coalition authorities - it was determined that
a secure holding facility had to be established to house a small percentage of these men who
were considered high-intelligence-value, high-threat individuals. Of the mass of enemy
combatants captured, fewer than 800 were selected to be evacuated to Guantanamo.
Early Days in Guantanamo
It helps to recall that late 2001 through 2002 was a fearful period in America. Almost everyone
was braced for a follow-on attack. Meanwhile, public awareness of al Qaeda and Usama bin
Laden's declaration of war against the US and the West had become widespread.
Concomitantly, letters containing weaponized anthrax virus appeared almost randomly, killing
five people and temporarily shut down the Houses of Congress, US Postal facilities, and
terrified the public.

2. Authorities needed to learn as quickly as possible what, if any future attacks were pending. To
that point, agencies sent representatives to Guantanamo with the overall mission of finding out
what future al Qaeda plans may be. It was a chaotic time in the facility. Commanders of the
detention and interrogation sections were at odds with each other, and an unorganized,
competing group of agency representatives were each trying to interrogate detainees for their
own purposes.
Inter-agency rivalries were brought to Guantanamo. Representatives from FBI, CIA, DIA,
NYPD, Washington DC Police, DEA, and others arrived, each of them tasked to learn
information vital to that particular agency’s needs. For example, CIA needed to gather
information that might influence the outcome of the ongoing war. DIA wanted to gain military-
related information. FBI was interested in domestic activities and in building a criminal case
against detainees suspected of participation in the 911 attack.
All were highly parochial and did not share information. At one point, even the detainees were
put off by the process. One detainee chided the interrogators by asking “Don’t you guys talk to
each other? The other people asked me these same questions two days ago!"
Ultimately the new joint command established “Tiger Teams” that were made up of joint
agency representation to expedite the interrogation and information sharing
processes. Despite these reforms, institutional rivalries persist to this day, with the CIA being
especially parochial about its activities, and the FBI continuing to be hyper-critical of any
interrogation procedures that deviate from their processes that are designed around handling
of domestic criminal investigations .
Why Pick Guantanamo
According to Pentagon sources, a large inter-agency effort was launched to select a site for
the detention facility. Ultimately, the Department of Justice held sway, and Guantanamo was
chosen from among candidates like Diego Garcia Island, Guam, and others. Factors in
selection included security of the site as a paramount necessity and proximity to the US for
relative ease of access.
Geographically Guantanamo is a fairly secure location. All overland access is blocked by high
fences and mine fields emplaced during the period when US-Cuban relations were tense. Air
traffic is monitored closely by US radar on the base and by the Cubans who control airspace
surrounding their nation. While the nearby Windward Passage is a busy commercial and
recreational route, approaches into Guantanamo Bay itself are closely monitored by the US
Coast Guard and Navy.
The American base commander – a Navy Captain, different from the JTF Commander – meets
frequently with his Cuban counterpart. The Cuban authorities are not eager to see this part of
their country turned into a more controversial issue. The Cuban commander has restricted
access to the exterior of the facility to occasional international groups who wish to demonstrate
outside of the base, and has issued assurances that any escapees will be returned to US
control.

3. Escapes from other Prisons
One of the prime characteristics for selection of Guantanamo as a prison was that escape
would be difficult. To date no detainee has escaped from confinement.
Other international prisons have been less able to hold prisoners. Two dozen major al Qaeda
related prisoners escaped from a prison in Yemen , apparently with complicity from jailors in
February 2006. Between December 2001 and 2006 alone, at least 138 suspected or convicted
Muslim terrorists fled from behind bars in Afghanistan, Russia, Pakistan, the Philippines, and
Yemen and, collectively, went on to murder at least 328 individuals and injured 518 others .
Just this summer 389 Taliban militants escaped from a prison in Kandahar, Afghanistan, when
suspected members of al Qaeda used truck bombs to topple walls and motorcycles to carry off
prisoners.
In the Coalition maintained prison in Bagram, Afghanistan there have been several successful
escapes including one by Omar al-Faruq the instigator of the Bali bombing.
NGO reports
On November 30, 2009, The New York Times published excerpts from an internal memo
leaked from the U.S. administration, referring to a report from the International Committee of
the Red Cross (ICRC). The ICRC reports of several activities that, it said, were "tantamount to
torture": exposure to loud noise or music, prolonged extreme temperatures, or beatings. It also
reported that a Behavioral Science Consultation Team (BSCT), also called 'Biscuit,' and
military physicians communicated confidential medical information to the interrogation teams
(weaknesses, phobias, etc.), resulting in the prisoners losing confidence in their medical care.
The newspaper said the administration and the Pentagon had seen the ICRC report in July
2004 but rejected its findings.
In a foreword[ to Amnesty International's International Report 2005, the Secretary
General, Irene Khan, made a passing reference to the Guantánamo Bay prison as
"the gulag of our times," breaking an internal AI policy on not comparing different human rights
abuses. The report reflected ongoing claims of prisoner abuse at Guantánamo and other
military prisons.
A number of children are interned at Guantánamo Bay, in apparent contravention of
international law.
Suicides and suicide attempts
By 2008 there had been at least four suicides and hundreds of suicide attempts in
Guantánamo that are in public knowledge.
During August 2003, there were 23 suicide attempts. The U.S. officials would not say why they
had not previously reported the incident. After this event the Pentagon reclassified suicides as

4. "manipulative self-injurious behaviors" because it is alleged by camp physicians that detainees
do not genuinely wish to end their lives.
On May 19, 2002, a UN panel said that holding detainees indefinitely at Guantánamo violated
the world's ban on torture and that the United States should close the detention center
In 2008 a video was released of an interrogation between Canadian Security Intelligence
Service, and a Central Intelligence Agency (CIA) officer and Omar Khadr, a youth held in
Guantánamo Bay, in which Khadr repeatedly cries, saying what sounds to be either "help me",
"kill me" or calling for his mother, in Arabic.
Prisoner complaints
Three British Muslim prisoners, now known in the media as the "Tipton Three", were released
in 2004 without charge. The three have alleged ongoing torture, sexual degradation, forced
drugging and religious persecution being committed by U.S. forces at Guantánamo Bay.
Former Guantánamo detainee Mehdi Ghezali was freed without charge on July 9, 2004, after
two and a half years internment. Ghezali has claimed that he was the victim of repeated
torture. Omar Deghayes alleges he was blinded by pepper spray during his detention. Juma Al
Dossary claims he was interrogated hundreds of times, beaten, tortured with broken
glass, barbed wire, burning cigarettes, and sexual assaults. David Hicks also made allegations
of torture and mistreatment in Guantánamo Bay, but as part of his plea bargain Hicks withdrew
the allegations.
In 2005, it was reported that sexual methods were allegedly used by female interrogators to
break Muslim prisoners.
In a leaked 2007 cable, a State Department official requested an interview of a released
Libyan national complaining of an arm disability and tooth loss that happened during his
detainment and interrogations.
Human rights violations
There are a number of legal concerns relating to the circumstances in which the detainees are held.
There is uncertainty with regard to the legal basis of detention and the exact legal status of individual
prisoners. The detainees have been called "enemy combatants", but it is unclear whether this means
they are detained as quasi 'prisoners of war', 'war criminals', 'terrorists', under administrative
detention, or something else. To date, none of the detainees held at Guantanamo Bay have been
formally charged with any crime and it is still uncertain if and when the US authorities intend to do so
and on what legal basis. The length of their detention is therefore at the moment indefinite
There are also concerns over potential violations of international human rights norms and articles of
the International Covenant on Civil and Political Rights (ICCPR); such as, Article 7 (prohibition against
torture), Article 9 (right to liberty), Article 10 (right to humane treatment), Article 14 (right to a fair
trial) and Article 26 (equality before the law). In March 2003, 18 detainees were released and returned
to Afghanistan, in addition to three prisoners released in October 2002. The released detainees allege
that they were sometimes hooded and handcuffed, and held during their detention in "two-metre by
two-metre cages". The ICRC has been given access, but as usual their findings are confidential.
Right to habeas corpus

5. In the circumstances the protection of Article 9(4) of the ICCPR is crucial; that is, the writ of habeas
corpus or amparo. The remedy which permits a detained individual to take proceedings before a court
to determine the lawfulness or otherwise of detention, and to order release if detention is not lawful.
This is also the legal vehicle by which alleged breaches of international human rights law can be aired
and tested. The US courts have so far, however, denied the remedy of habeas corpus to the
Guantanamo Bay detainees.
The US Courts
A handful of cases have come before the US District Courts on this issue. The leading case is that of the
US Court of Appeal (District of Columbia) in the case of Odah (March 2003). In Odah the relatives of a
number of detainees brought claims relating to the lawfulness of detention. In rejecting the claims the
Court upheld a 1950 US Supreme Court ruling that the US courts do not have jurisdiction to issue writs
of habeas corpus for alien nationals detained outside the "sovereign territory" of the US. The status of
Guantanamo Bay in international law is unusual - although by no means unique - in that it was leased
from Cuba by the US in 1903. The Lease provides that Cuba keeps "sovereignty" over the territory, but
that the US has "complete jurisdiction and control". The US Courts have interpreted this to mean that
they have no jurisdiction over aliens held at Guantanamo Bay because whilst the US authorities have
"jurisdiction and control" under international law the territory belongs to Cuba. A technical point,
maybe, but, unless there is a successful appeal to the US Supreme Court, under US Constitutional law
the detainees do not have access to any US court or tribunal to review the lawfulness of their
detention.
International human rights law
The approach of the US courts, to providing access to habeas corpus to foreign nationals under their
control on foreign territory, differs from well established principles of international human rights law;
in particular, the practice of the UN Human Rights Committee (HRC), the Inter-American Commission
on Human Rights (IACHR), the European Commission on Human Rights (the European Commission),
and the European Court of Human Rights (ECHR).
On the issue of jurisdiction, Article 2(1) of ICCPR provides that each State Party "undertakes to respect
and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized"
in the Covenant.
With regard to the writ of habeas corpus itself, even if the US Courts found jurisdiction it is likely to be
argued that the President's Military Order of 13 November 2001 (Military Order) has suspended the
prisoners' right to seek habeas corpus.
In the context of international human rights law, the HRC have confirmed that the right to habeas
corpus "applies to all persons deprived of their liberty by arrest or detention" (General Comment 8/16,
1982) and that this includes proceedings before a military court (Vuolanne v Finland, HRC Doc
A/44/40). Individuals are entitled to this right "without delay" regardless of the reasons for their
detention. But the Guantanamo Bay detainees have been held for up to 450 days without access to a
court to determine the lawfulness of their detention.
Thus, if the US Courts were to apply international human rights law, rather than exclusively relying on
US Constitutional law, the detainees at Guantanamo Bay should have the right of access to habeas
corpus, regardless of the existence of a declared state of emergency in the US.

6. The legal 'black hole'
But, if the US Courts are unable to act, what other court or tribunal can hear the detainees' allegations
of human rights violations? The answer is, apparently, none.
First, the US has not ratified the First Optional Protocol to the ICCPR, thus, the detainees have no basis
on which to submit a complaint to the HRC. Secondly, on 13 March 2002, the IACHR ordered the US to
"take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay
determined by a competent tribunal. The US, however, rejected the IAHCR's decision, arguing that the
IACHR does not have jurisdiction to make such an order.
Thirdly, the relatives of some detainees have tried to bring cases in other jurisdictions to put pressure
on foreign governments to use diplomatic channels to invoke their rights. For example, in the English
Court of Appeal case of Abassi (Nov 2002), Feroz ali Abassi, a British national caught by US forces in
Afghanistan and held at Guantanamo Bay, sought judicial review to compel the UK Secretary of State
to make representations on his behalf to the US government. The Court of Appeal rejected Mr Abassi's
case, although it was not unsympathetic to his cause, saying: "We have made clear our deep concern
that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to
indefinite detention in territory over which the United States has exclusive control with no opportunity
to challenge the legitimacy of his detention before any court or tribunal."
None of these alternatives works. Thus, as one commentator has put it, the detainees at Guantanamo
Bay are in a "legal black hole".
The CHR context
In response to the decision of the US Court of Appeal in Odah, the Special Rapporteur on the
independence of judges and lawyers, Dato' Param Cumaraswamy, said: "By such conduct, the
Government of the United States, in this case, will be seen as systematically evading application of
domestic and international law so as to deny these suspects their legal rights. Detention without trial
offends the first principle of the rule of law" and he added, "can set a dangerous precedent". He
further added: "The war on terrorism cannot possibly be won by denial of legal rights, including
fundamental principles of due process of those merely suspected of terrorism". He called on the US
Government to comply with the General Assembly Resolution on Protection of Human Rights and
Fundamental Freedoms while Countering Terrorism (A/RES/57/219, 16 December 2002). A resolution
that affirmed that states must ensure that any measure taken to combat terrorism complies with their
obligations under international human rights law.
In its last report to the HRC (CCPR/C/81/Add.4, August 1994), the US stated that "the fundamental
rights and freedoms protected by the Covenant are already guaranteed as a matter of U.S. law, either
by virtue of constitutional protections or enacted statutes, and can be effectively asserted and
enforced by individuals in the judicial system". In the case of the detainees at Guantanamo Bay,
however, this is clearly not the case.
Filling the 'black hole'?

7. In the case of the detainees at Guantanamo Bay there is a gap between the application of US
Constitutional law by US Courts and the applicable international human rights law in relation to access
to habeas corpus for alien detainees under the control of the US authorities on foreign territory.
This gap is unlikely to be bridged until either the US fully implements the ICCPR, by making it 'self-
executing' and therefore making its provisions directly enforceable in its domestic law, or ratifies the
complaints mechanism contained in the First Optional Protocol.
The US is by no means alone in having failed to take these two measures, but it is not unreasonable to
suggest that such steps are an integral part of good faith compliance and the protection of human
rights in accordance with the rule of law.
Moreover, states that wish to hold themselves out as leaders of civil and political rights, but wish to
avoid accusations of "double standards", must be prepared to consistently, and not selectively, apply
international human rights obligations.
In the meantime, several hundred prisoners - no doubt some guilty, but some innocent - remain
detained at Guantanamo Bay, and also in Afghanistan, where they have been for over one year
without any immediate hope of release or access to legal review.
Obama's plan to close the camps
President Barack Obama's campaign promise to close the Guantanamo Bay detention center has
switched from In the Works to Stalled and back again (and again). All that movement reflects a simple
dynamic: Obama really wants to close the center. But Congress really doesn't.
The latest turn of events was the law authorizing defense spending for 2011. In addition to funding the
military for the year, members of Congress attached several stipulations about Guantanamo. The law
says no funds canbe used to transfer Guantanamo detainees to the United States, and no funds can be
used to transfer detainees to the custody of foreign countries, unless specific conditions are met about
how the prisoners will be held.
Obama didn't like those provisions and issued a statement deploring them. He said the limitation on
transferring prisoners to the U.S. is "a dangerous and unprecedented challenge to critical executive
branch authority ... ." Of the new requirements on transferring prisoners to foreign governments,
Obama said it could "hinder the conduct of delicate negotiations with foreign countries and therefore
the effort to conclude detainee transfers in accord with our national security."
Obama stopped short of saying he would disregard the law, something presidents sometimes do via
"signing statements." President George W. Bush issued many signing statements as president that said
he would disregard parts of laws passed by Congress that he believed infringed on his executive
authority. During the campaign, Obama said he would not "abuse" signing statements.
But nowhere did Obama say he would disregard the new restrictions. Instead, he said he would seek to
repeal of the restrictions.
"Despite my strong objection to these provisions, which my Administration has consistently opposed, I
have signed this Act because of the importance of authorizing appropriations for, among other things,

8. our military activities in 2011," Obama said in the statement. "Nevertheless, my Administration will
work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will
oppose any attempt to extend or expand them in the future."
Based on Obama's statement, he clearly still wants unfettered authority to move prisoners out of the
Guantanamo Bay facility. And at a press conference at the end of the year, he said it was important to
close Guantanamo because it is "probably the number one recruitment tool that is used by these
jihadist organizations."
"It is important for us, even as we're going aggressively after the bad guys, to make sure that we're also
living up to our values and our ideals and our principles," Obama said at the press conference. "And
that's what closing Guantanamo is about -- not because I think that the people who are running
Guantanamo are doing a bad job, but rather because it's become a symbol. And I think we can do just
as good of a job housing them somewhere else."
Obama may want to close Guantanamo, but legal impediments still stand in the way of him achieving
his goal. The meter remains at Stalled.
References
1. Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations; February 23, 1903 as
signed by the Presidents of Cuba and the United States.
http://www.yale.edu/lawweb/avalon/diplomacy/cuba/cuba002.htm
2. Treaty Between the United States of America and Cuba; May 29, 1934
http://www.yale.edu/lawweb/avalon/diplomacy/cuba/cuba001.htm
3. 07/07/08 "U.S. Weighs Guantanamo Transformation" by Damien McElroy, The Daily Telegraph, as printed in the New York
Sun (one of many, many articles covering the subject).
http://www.nysun.com/national/us-weighs-guantanamo-transformation/81267/
4. 03/03/05 US Department of Defense "From Mayberry to Metropolis: Guantanamo Bay Changes" by Kathleen T. Rhem,
American Forces Press Service
http://www.defenselink.mil/news/newsarticle.aspx?id=31290
5. "The Hunt for Bin Laden: Task Force Dagger," Robin Moore, New York, Random House, 2003. Also, "Jawbreaker: The Attack
on bin Laden and al Qaeda," Gary Berntsen and Ralph Pezzullo, New York, Crown, 2005. Also, Anonymous, "Hunting al
Qaeda," St. Paul, MN, Zenith Press, 2005.
6. Undated "Guantanamo Bay - Camp X-Ray" backgrounder from globalsecurity.org
http://www.globalsecurity.org/military/facility/guantanamo-bay_x-ray.htm
7. 2/13/04 US Department of Defense "Briefing on Detainee Operations at Guantanamo Bay" with Paul Butler, principal deputy
assistant secretary of defense for special operations and low intensity conflict, and Army Maj. Gen. Geoffrey D. Miller,
commander, Joint Task Force Guantanamo.
http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=2071
8. For more complete summary descriptions of the various camps within Guantanamo Bay please see "Detainee Living
Conditions" section of the Joint Task Force Guantanamo "Mission" webpage.
http://www.jtfgtmo.southcom.mil/mission.html
9. 12/4/03 Amnesty International "USA: Fear of forcible return / Fear of torture / Fear of execution" urgent action alert.
http://asiapacific.amnesty.org/library/index/ENGAMR511472003?open&of=ENG-USA
10. 02/13/04 Department of Defense "Guantanamo Detainees" fact sheet (Acrobat PDF file).
http://www.defenselink.mil/news/Apr2004/d20040406gua.pdf
11. "Declaration of War against the Americans Occupying the Land of the Two Holy Places" as first published in Al Quds Al Arabi,
a London-based newspaper, in August, 1996.

9. Presentation
Political science # 6
International law
Date: ,5 ,2011
Guantanamo Bay
Presented by:
1. Rabia tahir
2. Farah akram
Presented to:
Ms khushboo
WORD: 3,861

10. KINNAIRD COLLEGE FOR WOMEN LAHORE
CONTENTS
Guantanamo Bay
Detention Facility Established
Early Days in Guantanamo
Why Pick Guantanamo
Escapes from other Prisons
NGO reports
Suicides and suicide attempts
Prisoner complaints
Human rights violations
Right to habeas corpus The US Courts
International human rights law
The legal 'black hole'
The CHR context
Filling the 'black hole'?
Obama's plan to close the camps
References