The catastrophe of the Guantanamo Military Commissions System
Legal regime
The origins of the Guantanamo Military Commissions System can be traced back to November 13, 2001, when President George W. Bush issued a military order for the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorrism” (hereinafter referred to as “the order”), within the context of the so-called War On Terror.
The issuance of the order was justified by the commission of acts of terrorism carried out against the United States (such as the 9/11 attacks), which were regarded as having the possibility to endanger the “continuity of operations” of the Government. It was argued this determination was an urgent public measure necessary to handle the emergency at hand[1].
The order scarcely defined a series of characteristics that would make an individual subject to it, such as the reason to believe that they were a member of Al Qaida; that they had engaged in, conspired or prepared acts of international terrorism; or that they had harbored individuals who engaged in the abovementioned actions. Such individuals would be tried by military commission for any and all offenses triable by such a modality, for which the Secretary of Defense was to issue orders and regulations for the appointment of commissions and pretrial, trial and post-trial procedures. It barely established any limitations for the exercise of the powers of the Government in space and time[2].
In the judgment of Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court held the military commissions established under the order violated the rules of the Geneva Conventions and the Uniform Code of Military Justice[3], particularly as they did not comply with the basic procedural standards that should govern trials by military commission, thus invalidating them.
Due to the above, on October 17th, 2006, Congress enacted Public Law №109–366 (known as the Military Commissions Act of 2006), in which it made an important distinction between “unlawful’’ and “lawful” enemy combatants.
Particularly, the term “unlawful enemy combatant” was defined as an individual who engaged in hostilities against the United States, its co-belligerents or supported them, and did not qualify as a “lawful enemy combatant’’. On the contrary, a “lawful enemy combatant” was defined as either 1) a member of the regular forces of a State party engaged in hostilities towards the US; 2) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in hostilities towards the US (provided they meet certain requirements set therein); or 3) a member of a regular armed force who professes allegiance to a hostile government, not US-recognized.
In that sense, under the Military Commissions Act of 2006, alien unlawful enemy combatants subject to trial by commission were expressly “banned” from invoking the Geneva Conventions as a source of rights. Additionally, it was stated that no Court should have jurisdiction over habeas corpus proceedings initiated by aliens detained by the Government under a defined unlawful enemy combatant status or waiting to have such status determined.
Subsequently, in Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court decided that the suspension of access to the writ of habeas corpus (a right of first importance) was unconstitutional, insofar as the Military Commissions Act did not establish an adequate substitute[4] for the writ that protected personal liberty. It also rendered the Government’s obstruction of detainees’ access to the writ of habeas corpus unconstitutional under the consideration that they were not granted constitutional protection as they were technically not in national territory, as Guantanamo is de facto controlled by the United States.
The Military Commissions Act was amended in 2009, through which the term “unlawful enemy combatant” was replaced by the term “unprivileged enemy belligerent”, that is, those who do not fall within the protected categories in terms of Article 4 of the Geneva Convention Relative to the Treatment of War and had either engaged in hostilities against the country or its coalition partners; purposefully and materially supported these hostilities or were part of Al Qaeda. This is the Act that is currently in force.
The Military Commissions Act organizes the offenses triable by military commission (including offenses to the law of war), the composition of the commissions, basic norms for pre-trial, trial and posttrial procedures, including pleas, means of defense and penalties.
Even though the Guantanamo Military Commissions System has improved over the years, it is still widely criticized for its arbitrariness and opacity, as well as the excessive length of procedures, with numerous calls for reform by national and international institutions.
Relevant events
The first detainees to arrive at Guanatanamo in relation to the War on Terror got there on January 11, 2002 from Afghanistan[5]. Ever since, a total of 780 men have passed through the detention center, and only a total of 8 have been convicted by a military commission[6], which is a staggering statistic considering the system was designed exclusively for that purpose.
On January 22, 2009, President Obama issued Executive Order 13492 titled “Review and Disposition of Individuals Detained At the Guantánamo Bay Naval Base and Closure of Detention Facilities”[7], through which he determined it was in the interest of the United States to review the status of detainees at Guantanamo and instituted an “Operation of Review”, which included the duty to decide the “disposition” of detainees, concretely, to determine whether individuals should be either transferred, released, or prosecuted before the federal courts.
Unsurprisingly, the Executive Order also left the option available, in case of detainees whose disposition “was not achieved” under the aforementioned means, so that the authority could select a lawful way (consistent with national security and foreign policy) for the disposition of such individuals (whatever “disposition” might be construed as).
The abovementioned speaks to the astonishing lack of coherent standards of apprehension and minimal burden of proof governing the Commissions — if the Government could clear the majority of the prisoners at Guantanamo, the legitimacy of their detention is even more questionable.
Most importantly, the Executive Order provided that the detention facilities at Guantánamo should be closed no later than a year after the date of the order, that was, January 22, 2010. Not only did this not happen in due time, but it was actually reversed by President Trump through Executive Order 13823 of January 30, 2018, ‘Protecting America Through Lawful Detention of Terrorists’’.
While on the campaign trail, President Biden expressed his intention of shutting down Guantanamo if elected. And while some “efforts” (if they can be deemed as such — and not an obligation) have been made to continue prisoner transfers to other countries, approximately 30 men are still being held there.
Currently, pre-trial proceedings are being conducted regarding a case, United States v. Khalid Sheikh Mohammed, et al.-, involving four (five until one of them was deemed mentally unfit to stand trial) defendants that allegedly had a particularly important role in planning the 9/11 attacks. Parallelly, there are plea negotiations going on since 2022[8].
It is important to mention that one of the major obstacles these proceedings have faced is the amount of evidence tainted by torture[9]. Indeed, the use of “enhanced interrogation techniques’’ by CIA interrogators, expressly authorized by President George W. Bush[10], against detainees who would later be taken to Guantanamo, has rendered key Prosecution elements inadmissible[11].
In sum, both the public and specialized opinion[12] seem to agree that Guantanamo is a legal and political disaster for the United States.
Final comments
The fact that the Guantanamo Military Commissions System continues operating, with some prisoners having been there for more than 20 years without a resolution of their cases, is proof of how the system has significantly failed in becoming the mechanism for accountability as envisioned by the Government of the United States.
The United States is party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and the Geneva Conventions, among other instruments, which provide the minimum standards that guarantee State treatment mindful of human dignity, which includes the right to a fair trial, the jus cogens prohibition of torture, and humane treatment of prisoners.
By manipulating these standards and creating loopholes, the United States made it possible to bypass basic due process principles.
Rigging the rules to facilitate the prosecution and conviction of so-called terrorists is the easy way out for governments to appear like they are taking on valuable actions, losing sight that they might very well be “false positives’’, makes it harder to investigate and punish actual terrorism[13]. It is illusory. And, as in any fundamentally unfair system, the most aggrieved individuals are the less advantaged ones.
Regardless of the above, the mere fact that such blatant human rights violations have been present since its foundation and are ongoing, is more than enough reason for this facility to be shut down. For this to happen, pressure should not cease on the United States for it to take the necessary measures to solve, expeditiously, the cases of the remaining detainees, in a jurisdictional instance whose fairness and capacity are unquestioned.
Sources
[1] Military Order of November 13, 2001 — Detention, treatment and trial of certain non-citizens in the war against terrorism (66 Federal register 57831–57836, 2001), Sec. 4.
[2] Human rights organizations were quick to point this out. See the Memorandum sent by the American Civil Liberties Union to Congress on President Bush’s Order Establishing Military Tribunals, May 6, 2002,
“The order exceeds the President’s constitutional authority. It was issued without any authorization by the Congress to establish such tribunals and without a formal declaration of war. It circumvents the basic statutory requirement — at the heart of the compromise on detention in the USA Patriot Act1 — that non-citizens suspected of terrorism must be charged with a crime or immigration violation within seven days of being taken into custody, and that such detainees will have full access to the federal courts.’’
[3] “VI
Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President’s use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the “rules and precepts of the law of nations,” Quirin, 317 U. S., at 28 — including, inter alia, the four Geneva Conventions signed in 1949. See Yamashita, 327 U. S., at 20–21, 23–24. The procedures that the Government has decreed will govern Hamdan’s trial by commission violate these laws.
(…)’’
[4] The Supreme Court referred to the procedure for the review of detainee status under the Detainee Treatment Act.
[5] Anniversary of first prisoners arriving in Guantanamo on 11 January 2002. AlJazeera Centre for Public Liberties & Human Rights. https://liberties.aljazeera.com/en/anniversary-of-first-guantanamo-arrivals-on-11-january-2002/
[6] Guantanamo by the Numbers. Human Rights First. https://humanrightsfirst.org/library/guantanamo-by-the-numbers/
[7] Federal Register / Vol. 74, №16 / Tuesday, January 27, 2009 / Presidential Documents, page 4897
[8] Sept. 11 Trial Plea Negotiations Still Underway at Guantánamo Bay. Carol Rosenberg, the New York Times. https://www.nytimes.com/2024/05/01/us/politics/sept11-case-plea-negotiations.html
[9] In the words of John G. Baker, Brigadier General, United Stats Marine Corps Chief Defense Counsel in his testimony before the Senate Judiciary Committee on December 7, 2021:
‘’At the heart of the commissions’ problems is their original sin, torture. The United States chose to secretly detain and torture the men it now seeks to punish. From the beginning, justice was an afterthought.’’
[10] Torture, War Crimes, Accountability. Visit to Switzerland of Former US President George W. Bush and Swiss Obligations Under International Law. Amnesty International.
[11] See, for example, the August 18, 2023 ruling in United States of America v. Abd Al Rahim Hussayn Muhammad Al Nashiri, where the Military Judge decided to exclude certain statements made by the accused, considering the long-lasting effects of the torture he was inflicted years before.
[12] For instance, in its ruling in the case In re Al-Nashiri 921 F.3d 224 (D.C. Cir. 2019), the United States Court of Appeals for the District of Columbia (with exclusive jurisdiction to review final judgments issued by the commissions), recognized the existence of a “powerful case for dissolving the current military commission’’.
[13] Brian J. Foley, Guantanamo and Beyond: Dangers of Rigging the Rules, 97 J. Crim. L. & Criminology 1009 (2006–2007)