No laws, no protection, no ethics, no justice…this was Guantanamo Bay, terra nullius under President George W Bush. President Barack Obama’s closing the hellhole will be just the first step in what might be a generation-long bid to rehabilitate America’s international reputation, writes Robert Briggs.
Cuban hellhole closure ends disgraceful US chapter
By Robert Briggs*
The infamous Guantánamo Bay internment camp is to be closed by the new US administration. It is not an exaggeration to say that everything about it transgressed the law.
No law authorised it, yet for seven years, people were detained and mistreated there, in open defiance of the Geneva Conventions as well as the settled law and practices of the USA. It was a shocking violation of international law, the Uniform Code of Military Justice, and the Pentagon’s own long-established policies.
Most detainees were brought to Guantanamo by force and without any valid legal process. Many were innocent of wrongdoing under any country’s laws. Some were not even captured in a war or theatre of war, and those who were, were granted neither PoW status nor the lesser protections of Common Article Three of the Geneva Conventions.
No valid process was ever provided to prisoners to demonstrate they had been wrongly detained.
Because the prisoners were not lawfully detained, most interrogations were improper, even without compulsion. In any case, the US Supreme Court has said that indefinite detention for the purpose of interrogation is unlawful.
The Guantánamo military commissions for so-called “war crimes” were also defective and invalid, both before and after US legislation purported to authorise them. In fact, under the Geneva Conventions, it is a war crime to subject a person to such an invalid proceeding, and the US has prosecuted others for doing so. The trials also violated the International Covenant on Civil and Political Rights.
In the detention, in the interrogations and purported trials, rules of conduct for military personnel were flouted, and codes of ethics for medical and legal professionals were repeatedly violated.
The reputation of the United States as a country that upholds the rule of law now lies in ruins. The once-honourable image of the US has been shattered and may take a generation to recover.
The continued vitality of international human rights treaties and obligations established since the Second World War, largely American-sponsored, has been called into question.
There has been collateral damage. The reputation of Australia, too, has suffered. One of our citizens was detained in an Australian prison pursuant to a transparently invalid foreign trial and conviction, for an invented and retrospective “crime” unknown to the law of war.
Like “material support for terrorism”, “conspiracy”, has been falsely claimed to be a war crime at the Guantánamo tribunals, even though a plurality of the US Supreme Court says it cannot be a war crime.
If there has been any conspiracy, however, it is the conspiracy formed by George W Bush and senior officials in his government to deny individuals the benefits and protections of international law and the US constitution.
In so doing, they have severely damaged the legal foundations of society. We can only hope that the Obama administration will quickly move to begin the restoration of the rule of law where it has been damaged.
Closing Guantánamo must be the first action the new government takes, but the practices undertaken there must be abandoned and disavowed. It would be a tragedy if any of the features of Guantánamo were re-created on the US mainland, or allowed to continue elsewhere, as in US prisons in Afghanistan.
* Robert Briggs is a dual-qualified US and Australian lawyer. He is a CLA member.