All is Fair in Love and the War on Terror, According to the U.S. Supreme Court

By Manasi Chande, Fall 2023 Barbara Harlow Intern in Human Rights and Social Justice

Days after the terror attacks on September 11th, 2001, U.S. President George W. Bush launched the global “War on Terror,” sending the U.S. military to invade several countries, beginning with Afghanistan, with orders to capture and detain suspected terrorists. To incarcerate individuals whom Afghan and Pakistani citizens turned in as terrorists, often with little evidence, the U.S. opened Guantanamo Bay Prison in Cuba in 2002, where it detained, interrogated, and prosecuted these suspected terrorists. For over two decades, most prisoners were detained without any tangible prospect for release as most were never charged with a crime and none received the same right to the trial guaranteed to all other prisoners in the American legal system. Guantanamo Bay prison was intentionally designed to operate outside of the bounds of U.S. and international law, denying detainees several key legal rights, including the right to a fair trial, legal representation, and freedom from arbitrary detainment. These legal rights are embedded within universal human rights standards, extending beyond mere procedural differences in each country’s legal and justice system. Therefore, the legal system in Guantanamo Bay prison, or lack thereof, is a violation of not just of civil rights in the U.S., but also international human rights.

The legal justification for the creation and existence of Guantanamo Bay prison stems from the 2001 Authorization for Use of Military Force (AUMF), authorizing the president to use any “necessary and appropriate force against those he determines” to have committed or aided in the 9/11 attacks. Granting the president such broad military powers enabled the Bush Administration to justify a wide range of actions as a part of the response to the 9/11 attacks and the ensuing “War on Terror.” Specifically, the Bush Administration cited the AUMF as the legal basis for opening Guantanamo Bay, arguing that the detention of terrorists in a separate prison was an integral part of the military operations in the War on Terror (Bridge Initiative Team, 2020).

Guantanamo Bay Prison is often described as a “legal blackhole” because detainees were first denied the right to any trial or legal representation at all (Ambos & Poschadel 2013). The Bush administration chose Guantanamo Bay, Cuba as the prison site because of its unique location; it was still under U.S. control, but since it was not inside an official U.S. state or territory, the administration claimed U.S. law did not apply to the prison or its detainees. While prisoners in the U.S. are guaranteed the right to legal counsel and a speedy, public trial, the U.S. did not extend these same rights to prisoners in Guantanamo Bay, even though they are also, by definition, prisoners in the U.S. legal system. As a result, detainees did not initially have access to the same constitutional rights to “due process of law” and a fair trial guaranteed under the Fifth and Sixth Amendments, respectively. Similarly, under U.S. law, prisoners must either be charged with a crime or released, as indefinite detention is considered a violation of the right to due process of law. However, since there was little to no concrete evidence of links to terrorist activities for most Guantanamo Bay prisoners and while considered too dangerous to release, they were never charged with a specific crime nor released from the prison.

The U.S. also claimed international law governing rights for prisoners of war did not apply to detainees either, despite signing the Third Geneva Conventions in 1949, a set of international legal standards for war operations, including the treatment of prisoners of war. Since the U.S. government deemed detainees too dangerous to be afforded rights that could lead to their release, it refused to classify the prisoners as prisoners of war, and instead created a new term: “unlawful enemy combatants.” Therefore, the detainees were considered neither U.S. prisoners nor prisoners of war, and since so-called “enemy combatants” did not have any established legal rights, the U.S. claimed it could hold detainees in Guantanamo Bay without charges indefinitely and refused to prosecute them in U.S. courts.

Instead, the U.S. established a separate legal system for such prisoners, known as military tribunals. These courts did not confer the same rights to the accused as traditional U.S. courts as to favor the U.S. government. For example, these military courts implemented a rule that evidence against the detainees could be introduced without showing it to them first, a direct violation of the Sixth Amendment, which guarantees that all prisoners “be informed of the nature and cause of the accusation [and] be confronted with the witnesses against him (U.S. Const. amend. VI.).” Such rules highlight the inequality between the U.S. Court system and the military court system designed for Guantanamo Bay prisoners.

The U.S. Supreme Court later expanded detainees’ legal rights and declared many of the executive branch’s operations relating to the prisons and military tribunals an unconstitutional exercise of power. In two landmark cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Supreme Court ruled that detainees who were U.S. citizens retain their fundamental right to a fair trial in traditional U.S. Courts, instead of the military courts that did not confer these same constitutional rights. It also declared the military courts unconstitutional because they were not expressly authorized in the AUMF. Absent this congressional authorization, the U.S. government had to prosecute Guantanamo Bay detainees in accordance with traditional U.S. and international law, including the Geneva Conventions’ principles, since Congress had signed the treaty into law. The U.S. ultimately circumvented these decisions when Congress authorized the military courts by passing the Military Commissions Act in 2006, enabling the federal government to once again try detainees under separate legal rules and to deprive them of constitutional rights in these military courts.

Human rights activist and scholar Barbara Harlow’s work in “Extraordinary Renditions” (2011) provides a framework for analyzing the continuous human rights abuses in Guantanamo Bay Prison’s “legal blackhole” or “law-free zone.” Harlow describes how the lack of a formal mechanism to adjudicate human and civil rights plunges these zones further into a cycle of human rights abuse. For example, the lack of a clear, just legal system to prosecute prisoners enables interrogation techniques that include torture, since these can never be fairly challenged in court without established legal mechanisms. Thus, the “law-free zone” essentially compounds the human rights abuses in the prison, perpetuating an endless cycle of abuse that detainees can never fairly challenge in court.

The slow and unequal legal processes for Guantanamo Bay prisoners to challenge their detention reveal several human rights implications and abuses. The two main international human frameworks that outline specific legal rights for detainees are the Third Geneva Conventions of 1949 and the International Covenant on Civil and Political Rights (ICCPR) adopted in 1966.

Firstly, the ICCPR defines specific civil rights for the accused as a subcategory of human rights. Therefore, the ICCPR removes certain aspects of criminal procedure from solely state jurisdiction and instead creates a universal baseline of rights that must be guaranteed to the accused. For example, article 9 outlines the right to be “brought promptly before a judge or other officer authorized by law to exercise judicial power” and that the accused are “entitled to take proceedings before a court, so that that court may decide without delay on the lawfulness of his detention.” Therefore, the U.S. government cannot unilaterally create a legal system to deny detainees any rights it sees fit. Since the U.S. is subject to the ICCPR’s guidelines, it must implement and protect the specific rights, including the right to challenge a case in court, outlined in the agreement. However, initially, the U.S. government denied Guantanamo Bay prisoners virtually all legal rights by depriving them of the right to legal counsel or a court hearing, violating detainees’ human right to access judicial processes.

Although the U.S. remedied some of such abuses by affording detainees the right to a trial through military courts at the behest of the U.S. Supreme Court’s decisions in Hamdi and Hamdan, it still did not guarantee them full legal rights. Specifically, these military courts were deliberately slow to process detainees’ legal claims or charge them with a crime, violating their human right to a “trial within a reasonable time.” (Article 9, ICCPR) Additionally, by excluding detainees from the U.S. court system and only allowing them to appear before military courts, the U.S. government also violates the right to “be equal before the courts and tribunals” as established in Article 14 of the ICCPR. Such military tribunals do not afford prisoners the same rights that U.S. prisoners have, such as the right to be aware of any incriminating evidence before it is presented in court or to exclude evidence that was collected through coercion, which heavily disadvantages the detainees’ cases in the trials. Since such military commissions and traditional courts have different procedures and standards, they cannot be considered equal. Thus, detainees are inherently unequal to other prisoners before the court and deprived of their fundamental right to equality before the law.

The Third Geneva Conventions further highlight specific human rights for prisoners of war. The U.S. claims that detainees are not prisoners of war because they are not official members of any state’s armed forces. However, Guantanamo Bay detainees are supposedly members of U.S. State Department-designated terrorist organizations, such as the Taliban and Al-Qeuda, which qualify as “volunteer militias.” Members of volunteer militias are specifically categorized as prisoners of war under the Geneva Conventions, so they are still entitled to the rights and protections afforded by the agreement.

These protections also include the requirements that prisoners of war be “subject to the laws of their captors” (Article 82, Third Geneva Conventions of 1949). The U.S. does not extend the same rights guaranteed under U.S. law to Guantanamo Bay detainees, since, as previously outlined, it has established separate standards for their court proceedings than for traditional prisoners’ who are afforded these rights. As a result, by failing to accurately categorize them as prisoners of war, the U.S. denies detainees the human right to equality under the law to which their status as prisoners of war entitles them.

Finally, the Third Geneva Conventions protect prisoners of war from prosecution for engaging in “legitimate acts of hostilities” in the armed conflict. Prisoners of war can only be prosecuted if they commit a crime outside the bounds of “legitimate hostilities” inherent to a war, such as planning or executing a terrorist attack against civilians. However, the Bush Administration has repeatedly referred to all detainees as terrorists, rather than as or in addition to “enemy combatants.” The indefinite detention of prisoners who are deemed “too dangerous to release” also implies that they are all being detained for committing specific crimes, not just for engaging in hostilities during war, even though only 8 of the total 759 detainees have ever been convicted of a crime (American Civil Liberties Union, 2015). The U.S. has lumped many prisoners who engaged in lawful hostilities with those who have committed crimes, categorizing them all as terrorists and criminals. The consolidation of all detainees as criminals has violated the prisoners who were merely combatants’ right to not be prosecuted or presumed guilty for engaging in legitimate warfare against U.S. military efforts.

The inequality between U.S. prisoners and Guantanamo Bay detainees is the crux of the human rights abuses in the prison and its legal system. The U.S. intentionally skirted classifying detainees as prisoners of war to deny them the same rights as all other U.S. prisoners, creating an endless cycle of abuse in which detainees are held indefinitely, tortured in interrogation, and blocked from accessing justice in a novel, isolated legal system.

Bibliography: 

1. Ambos, K., & Poschadel, A. M. (2013). Terrorists and Fair Trial: The Right to a Fair Trial for Alleged Terrorists Detained in Guantánamo Bay. Utrecht Law Review, 9(4), 109–126. https://doi-org.ezproxy.lib.utexas.edu/10.18352/ulr.245
2. Bridge Initiative Team. (2020). Factsheet: Legal Challenges to Guantánamo Bay Detention Camp. Retrieved from https://bridge.georgetown.edu/research/factsheet-legal-challenges-to-guantanamo-bay-detention-camp/
3. Congressional Record. (2001). Authorization for Use of Military Force of 2001, Pub. L. No. 107-40, 115 Stat. 224.
4. Guantánamo by the Numbers. American Civil Liberties Union. (2015, January 9). https://www.aclu.org/issues/national-security/detention/guantanamo-numbers
5. Hamdan v. Rumsfeld, 548 U.S. 557, 126 S. Ct. 2749, 165 L. Ed. 2d 723, 2006 U.S. LEXIS 5185, 19 Fla. L. Weekly Fed. S 452 (Supreme Court of the United States June 29, 2006, Decided). https://advance-lexis-com.ezproxy.lib.utexas.edu/api/document?collection=cases&id=urn:contentItem:4K94-WF60-004C-0026-00000-00&context=1516831.
6. Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578, 2004 U.S. LEXIS 4761, 72 U.S.L.W. 4607, 2004 Fla. L. Weekly Fed. S 486 (Supreme Court of the United States June 28, 2004, Decided). https://advance-lexis-com.ezproxy.lib.utexas.edu/api/document?collection=cases&id=urn:contentItem:4CR8-5480-004C-000D-00000-00&context=1516831.
7. Harlow, B. (2011). ‘Extraordinary renditions’: tales of Guantánamo, a review article. Race & Class, 52(4), 1–29. https://doi.org/10.1177/0306396810396579
8. International Covenant on Civil and Political Rights. OHCHR. (n.d.). Retrieved April 24, 2023, from https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
9. Lohne, K. (2021). Observing Justice at Guantánamo Bay: Human Rights NGOs and Trial Monitoring at the US Military Commissions. Human Rights Review, 22(2), 193–213. https://doi-org.ezproxy.lib.utexas.edu/10.1007/s12142-021-00619-z
10. Summary of the Geneva Conventions of 1949 and Their Additional Protocols. Red Cross. (n.d.). Retrieved April 25, 2023, from https://www.redcross.org/content/dam/redcross/atg/PDF_s/International_Services/International_Humanitarian_Law/IHL_SummaryGenevaConv.pdf
11. Sweeney, M. J (2003, January 01). Detention at Guantanamo Bay: A Linguistic Challenge to Law. American Bar Association. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/human_rights_vol30_2003/winter2003/irr_hr_winter03_detention/
12. U.S. Const. amend. VI.
13. Wittes, B. (2007, February 22). The Courts Can’t Fix Guantanamo. https://www.brookings.edu/articles/the-courts-cant-fix-guantanamo/