Guantánamo Bay: Your Questions Answered


Located in a “legal black hole” on the south eastern coast of Cuba, Guantánamo Bay detention camp is a place most people have heard of, but that’s about it. Finally, an article that answers all your questions on Gitmo in one place.


#1     Where and what is it?


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Guantánamo Bay is not a prison, it’s a detention camp in a US military base. It’s not on US territory – it’s based on the south eastern end of Cuba.


The US and Cuba have a funky relationship. In 1898 domestic pressures and the mysterious sinking of a US battleship pushed the US to get involved in the Cuban fight for Independence from Spain (who used to have an Empire). The result of this war was a US-Cuban treaty allowing the US extensive involvement in Cuba’s international and domestic affairs to protect their independence. So a big country gets a lot of control of a smaller country to ensure that smaller country is independent, doesn’t sound too independent really…    

The way it works is that Guantánamo Bay is leased, or rented, to the US who get “complete jurisdiction and control” over the 45 square mile area. It technically belongs to Cuba, but the US can do what they want. According to one source, the total rent for this space as of 2015 adds up to $372, 460. So far Cuba has not cashed any of the US cheques (apart from one by accident in 1959). This is because it doesn’t recognise the US lease. Now the two countries are ‘normalising’ their relationship after decades of the cold shoulder, Cuba wants Guantánamo Bay back. Like we said, funky.

The Guantánamo Bay detention camp was set up in 2002 under President George W. Bush. This came straight after the attack on the World Trade Center. The detention camp was created especially for people caught during President Bush’s new fangled War on Terror and the US invasion of Afghanistan. Lucky them.


#2     Who is detained there?


Photo Credit: Reuters

As of October 2015, there are 112 detainees. All in all 779 people have been detained there, and all of them are Muslim men and boys. Their ages have ranged from 13 to 89 and around 20 people under the age of 18 have been held there.

As of 2013, only 3 had been convicted of terrorism, and only 6 others were facing charges. The rest have been released or held without being charged with any crime. In most democratic countries, the law says you can only be held for a few weeks without being charged with a specific crime and getting to appear before a judge. It’s part of what is called habeas corpus. Some Guantánamo detainees, of the current 112, have been held without charge for nearly 14 years. The big thing to understand about Guantánamo detainees is that they do not have access to the regular rights that most prisoners get, like having to be charged with a specific crime, having access to a lawyer or getting a fair trial. More on how the hell that’s OK below.

35 detainees have been labelled as too dangerous to be released, but cannot be charged because there is not enough evidence against them. This means they have been designated for ‘indefinite detention’. We’re getting to how this is legal, we promise.

More than half of current detainees were cleared for release over 5 years ago. This includes Shaker Aamer, the last UK resident of Guantánamo Bay. He was only released a few days ago, 5 years after they said he didn’t need to be detained any more and 8 years after he was cleared of charges. This gives you an idea of how slow the process is. This Guardian article does a good job of explaining why it took so very long for Shaker Aamer to be released. The short answer is (1) bureaucracy (crazy paperwork) and (2) government officials who just want to keep Gitmo going. According to a law professor, these officials “believed their own overblown rhetoric about Guantánamo inmates being the worst of the worst.”

That was the claim when Gitmo was set up – that the detention centre was to deal with the US’ number 1 enemies. The thing is, a report published in 2006 by the Centre for Policy and Research found that 92% of Guantánamo detainees had not been Al Qaeda fighters. A 2003 memo, from the same guy (Secretary of Defence Donald Rumsfeld) who was saying these detainees were the “worst of the worst”, stated “We need to stop populating Guantánamo Bay (GTMO) with low-level enemy combatants.”


#3     Do they use torture?

Photo Credit: Association Presse

Yes: Torture was used under the Bush administration, and possibly under the Obama administration. Senior Bush administration officials have said themselves that torture has been used. Former judge Susan Crawford was among the first to say this publicly, when she concluded in 2009 that “the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold.”

A report released in 2014 from the US Senate showed that torture by the Central Intelligence Agency (CIA) was more widespread than that, and not only in Guantánamo bay. “Enhanced interrogation” techniques include waterboarding, keeping the prisoner naked in a cold cell and dousing him with cold water, forcing the prisoner to stand shackled for hours on end (often including sleep deprivation), shaking the prisoner, and two types of slaps to the prisoner. These were authorised by the Bush administration shortly after the attack on the World Trade Center, and were practised in ‘black sites’ across the world, which include Guantánamo Bay. Aaandd again we’ll explain the legalities of this in a bit.

Map showing CIA black sites

So there is official evidence of torture being used under the Bush administration, although three of these practices were banned whilst George W. Bush was still President. What about Obama?

The remaining three of these “enhanced interrogation” techniques were banned when Barack Obama became US President. He also banned procedures for force feeding hunger-striking detainees, describing them as “torture”.

But throughout his administration, Obama was criticised for allowing a similar force-feeding practice to continue. The criticism came for the United Nations Committee Against Torture and other leading human rights groups, including Reprieve. The celebrity formerly known as Mos Def volunteered to undergo the procedure of being strapped to a chair and fed through a nose-tube, in solidarity with the 45 hunger-striking Guantánamo detainees in 2013.

Guantánamo Bay is renowned for its degrading treatment of detainees. Released detainees have accused the detention camp of ongoing torture, sexual degradation and religious persecution. The last British resident detainee to be released, Shaker Aamer, has announced he won’t be pressing charges against the British government for the maltreatment and torture he claims to have suffered in Guantánamo. These claims include sleep deprivation and being shackled to the floor in sub-zero temperatures. Alex Salmond, the former Scottish first minister, told the Guardian it’s reasonable to believe that the British government knew about this treatment. Not everyone accuses Guantánamo Bay of maltreating its prisoners. According to the Wikipedia page however, a United States House Committee on Armed Services complimented the quality of the food in June 2005.


#4     How is it legal?

bush at podiumMost of what has gone on there is legal. Law is a tricky thing, though. Those who run or support Gitmo have a few legal-type things they can point to and say “See, legal!”

But then there are quite a few other people, a lot of them lawyers, judges or human rights groups, who are looking at what is (or has been) going on there and saying “Hhmmm I don’t know man it still doesn’t feel all that legal to me.”

There’s just one (super interesting) legal concept you need to wrap your head around to understand the entirety of what’s gone down at GuantánamoBay. Here it comes:

Guantánamo Bay detainees are classed as “unlawful enemy combatants”.

Back-track and let’s explain. After WWII, the countries who had been involved in the war got together to agree the Geneva Convention. This defines the rights people have during war time, particularly if they are prisoners of war (POW).

If you are a prisoner of war, then your rights are covered by the Third Geneva Convention and you have basic rights like humane treatment, being able to communicate with relatives and not being compelled to give any information other than name, age rank and service number.

You don’t get this POW status if you are an unlawful enemy combatant. An unlawful combatant is someone who engages directly in combat in violation of the rules of war. These rules include trying your hardest not to harm people (civilians) who are not directly involved in the war.

If you don’t follow these rules of war, then the Geneva Convention states that a “competent tribunal” (an impartial court that does its job properly) can determine whether you count as a prisoner of war or as an unlawful enemy combatant. Until you are judged to be an unlawful combatant, you have to be treated as having the same rights as a prisoner of war. Innocent until proven guilty?

Once you are judged to be an unlawful enemy combatant, the Bush administration has argued, you have essentially only the rights your captors are willing to allow you, and you can be detained and tried under the domestic law of whatever state has a hold of you.

What this means: If Guantánamo detainees are unlawful combatants then, as far as the US administration is concerned, it’s completely fine (legally speaking) not to give them any rights.

There are a few problems with this.

First, some interpreters argue that if you are not a prisoner of war then you have to be given the rights of a civilian, even if you are ‘unlawful’. Secondly, a whole bunch of courts reckon the Guantánamo detainees have not been properly classified as unlawful combatants, and therefore have been denied rights they should have had.

To be fair, the government did try to do things by the book.

The Bush administration set up Combatant Status Review Tribunals (CSRT) in 2004 to determine whether Guantánamo detainees were unlawful combatants. But it didn’t work so well, at least not in the eyes of a few judges. First a US District Court Judge ruled that the CSRTs did not qualify as the competent tribunals needed to make the process lawful. Then a three-judge panel said the CSRTs did qualify as competent. Then a US Supreme Court judge ruled again that they did not qualify as competent tribunals. The conflict kept on going in this happy vein, with another federal district judge ruling in January 2005 that the detainees should have access to the rights granted in the US constitution, including access to a lawyer and the right to see evidence used against them. If this is confusing to you, that’s because if it’s confusing to everyone. If all these judges disagree, is it legal for the US to have detained all these people without access to basic rights?

As for the torture. Torture is against international law. The US is one of the countries to have signed the United Nations Convention Against Torture, which does what it says on the tin and bans torture.

“Enhanced interrogation techniques”, which is the name given to the methods used by the CIA later recognised as torture by the US authorities, were authorised by the US justice department. These techniques have been alleged to constitute “severe pain or suffering” under the UN convention, which would be a violation of the United Nations Convention Against Torture and thus a violation of US law, because US law is supposed to be in line with the convention. So a US decision saying “enhanced interrogation” was OK violated a US law that said torture was not OK… Were those interrogations legal?

Sorry folks, we’ve not really learned whether this stuff is legal or not. What we have learned is that law has great gaping holes in it, and if a mega powerful country like the US wants to do controversial things in the name of national security, there’s not that much to be done about it.


#5     Didn’t Obama say he was going to close Guantánamo?

Yeah he did

…but, you know how it is. You get elected as US president with all these ideas, and then both the Senate and the Congress (separate houses in US parliament) keep voting against plans to transfer detainees to American soil because they “don’t want them in their backyard“, because a handful of released detainees have re-engaged in terrorist activity, and because the torture and abuses that went on there are “a thing of the past”. Then other countries refuse to accept former Guantánamo detainees, and then terror threat briefings arrive on your desk daily, and you just kind of get tired. Then you sign a few bills which some reckon make it more difficult to close Guantánamo because of restrictions on where to transfer detainees to. The man had good intentions.

The efforts are being stepped up once again though, and new goal is to get it closed before the end of Obama’s administration in 2017. The short-term goal is to get the number of detainees down to under 100 by the end 2015. The release of a number of detainees in recent months is a good sign? Or should national security still be the number 1 priority?


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