Since 2002, about 780 men have been held at the U.S. military prison Guantánamo Bay, Cuba. Thirty-nine remain, but this month the Biden administration approved the release of five more detainees (although when or where they will go remains unclear). Of the 39: 12 have been charged in the military commissions system, 10 are awaiting trial and two have been convicted. The rest are either in “indefinite law-of-war detention,” but face no charges (while also not being recommended for release), or are in "law-of-war detention" but have been recommended for transfer with security arrangements to another country. They've been denied access to the most basic of international human rights: Due process and the right to be free from torture and cruel and inhumane treatment. They’ve been locked up, tortured and forgotten in what a United Nations report has called a site of "unparalleled notoriety." What's worse? We're also arguably not safer as a result of this flagrant denial of human rights.
USA TODAY Opinion talked recently to Luigi Daniele, a senior lecturer at Nottingham Law School in the United Kingdom, about the 20th anniversary of the beginning of the detention of those captured after the 9/11 attacks, and what that has meant for international rule of law and security. His conversation with Editorial Board member Carli Pierson has been edited for length and clarity:
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Q. I saw you Tweeted, "One of the few things I still believe in is that sparkle of indignation in the eyes of the students when I show them (since they often do not imagine it), and then discuss, what was going on in Guantanamo and Abu Ghraib." Tell me what that class is like.
A. It is always striking to me to perceive the sense of shock in the eyes of my students when we read extract of the U.S. Senate torture report, watch together excerpts of documentaries, or accounts of journalists volunteering to try on themselves a brief sample of what was inflicted to detainees in these facilities. Even those who have a general awareness of what happened during the war on terror rarely imagine the brutality, and sadism, of the so-called enhanced interrogation techniques, amidst wars that recently revealed their outcome. Twenty years after the 9/11, the unforgettable images of the people jumping from the burning Twin Towers will have to be juxtaposed, in history books, to those of the Afghan civilians losing grip on the trolley of the U.S. military airplanes taking off from the Kabul international airport, dying after a long fall in the desperate attempt to escape.
Q. Did the experiment in black operations work? Is the American public and the world safer thanks to Guantanamo?
A. We have known for a long time that torture is always a state crime and can never be justified as "saving lives," on the contrary. Cesare Beccaria published "Crimes and Punishments" in 1764, igniting the European legal enlightenment and demonstrating that torture was not only morally indefensible, but useless and counterproductive and only assured “the acquittal of sturdy villains and the punishment of weak innocents.” Think about it, that means it took us nearly 260 years, and thousands of tortured innocents, to go back to this simple truth. A sense of moral superiority died in Guantanamo, and we have all lost a degree of ingenuity about it. By moral superiority I mean the idea that liberal democracies do not commit systematic human rights abuses, let alone international crimes – which we assume exclusive of authoritarian regimes. Guantanamo’s continued existence reminds us that is not true. We should all pay closer attention to data and studies that in these two decades have compellingly demonstrated the same patterns when we look at civilians killed in the wars waged by the Global North, and how they make us less safe. Civilians have paid the costs of the war on terror with hundreds of thousands lives. And data shows that when civilians are victimized on such a tremendous scale, the cycle of violence nurturing terrorism continues, and is reinforced, leaving people and families who have suffered unbearable grief more vulnerable to the calls of extremism and radicalization.
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Q. What is being done, or has been done, about U.S. violations of international humanitarian law and international criminal law?
A. In 2017, Fatou Bensouda, then Prosecutor of the International Criminal Court, requested authorization for an investigation into potential international crimes committed by the Taliban, and by U.S. forces as well, in connection to the conflict in Afghanistan. She presented a robust documentation detailing what was happening beyond Guantanamo, and years later, in other CIA secret sites in Europe. If you take the time to read that document, the account of extremely disturbing practices calculated to induce psychological breakdowns are jaw dropping: prolonged periods of physical and sensory isolation, forcing prisoners into stressful positions, with devices preventing sight and hearing, long periods of sleep deprivation and forced overstimulation (deafening music and sounds, flashing blinding lights); exposure of stripped inmates to extreme cold and heat; use of cultural, religious and sexual phobias, including forced undressing and various forms of humiliation, such as the so-called diapering (denying the use of toilets to induce inmates to urinate or defecate on themselves); all types of physical violence, suffocation through liquids, and even sexual violence such as rectal "forced feeding."
Despite an appeals chamber authorization (reversing the previous, contested decision of a pre-trial chamber) and the end of the unprecedented escalation brought by the Trump administration against the court, the current prosecutor of the ICC, Karim Khan, has decided to "deprioritize" the mentioned “aspects of the investigation.” This has been aptly described as "convenient pragmatism." Once again, international prosecutions are acceptable when instituted against citizens of weak countries in the international arena, and "unfeasible," or "too costly," when the well-documented abuses have been committed by agents of powerful nations.
Q. What solutions exist?
A. There is no simple solution. Surely the first step is closing Guantanamo. But it risks to remain a symbolic gesture without accountability. Victims of torture have a right to justice. We should not forget that the prohibition of torture is international law, that creates a general obligation for national and international institutions to take action against those who torture. Only a multilateral human-rights based approach can revert the tendencies we have seen. As Justice Robert Jackson once said before the Nuremberg trials, we cannot “lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” In other words: Treat others as you would like to be treated.
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This article originally appeared on USA TODAY: 9/11, Guantanamo Bay: Military prison, torture prolong war on terror