After 21 Years, the Harms of Guantánamo Bay Are Still Unending

Site Visits and U.N. Reports

In April, Patrick Hamilton, the head of the International Committee of the Red Cross (ICRC), made a site visit to Guantánamo and issued “a rare statement of alarm.” It was, as New York Times reporter Carol Rosenberg pointed out, the ICRC’s 146th visit to the prison since it opened in January 2002. That short statement urged American officials to address the deteriorating health of the prisoners there, concluding, “The planning for an aging population,” it concluded, “cannot afford to wait.”

Then, in mid-June, the U.N. Human Rights Council followed up its own site visit by issuing a comprehensive, devastatingly critical report. Fionnuala Ni Aoláin, that council’s special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, focused on the potential war crimes and “crimes against humanity” committed against the detainees during and after their time at that island prison, now in its 21st year of existence.

Ni Aoláin was the perfect person for the job. She’s long defended human rights and international law, with a particular focus on issues of justice and human dignity. In 2013, she co-edited Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective. Her 2023 report, clear, fact-based, and measured in tone, is in many ways a step above that of any of its predecessors.

“Arbitrariness pervades the entirety of the Guantánamo detention infrastructure.”

Hers was, of course, anything but the first U.N. report to address the sins of Guantánamo. In 2010, the U.N. Human Rights Council prepared a detailed report on “global practices in relation to secret detention in the context of countering terrorism.” It focused on violations of international law carried out globally, often involving exceptionally cruel treatment and outright torture. Alongside sections on countries throughout Africa and the Middle East that abused captives, the torture and misuse of prisoners in the American war on terror at CIA black sites around the world and Guantánamo Bay took center stage. The study focused special attention on the lack of accountability when it came to Americans who had implemented or abetted the mistreatment and secret detention of prisoners.

Twelve years later, in March 2022, Ni Aoláin, five years into her role as special rapporteur, wrote a follow-up to the report, highlighting “the abject failure to implement the recommendations” of that study and the “tragic and profound consequences for individuals who were systematically tortured, rendered across borders, arbitrarily detained, and deprived of their most fundamental rights.” Her update “reiterates the demand that accountability, reparation, and transparency be implemented by those states responsible for these grave human rights violations.”

Now, she has issued her new 23-page report, adding significantly to the debate over liberty and security that has defined discussions over Guantánamo since its birth in January 2002.

A Singular Report

A notable distinction between this report and those that preceded it is the access the special rapporteur was granted by the Biden administration. It was, in fact, the first visit ever to Guantánamo by an independent U.N. investigator. After two decades in which administration after administration placed severe restrictions on journalists as well as non-governmental and international organizations when it came to covering that prison, the Biden administration granted Ni Aoláin remarkably full access “to former and current detention facilities and to detainees, including ‘high value’ and ‘non-high value’ detainees.”

The interviews she conducted with those still imprisoned there were both confidential and unsupervised. She was allowed to deal with “military and civilian personnel, military commission personnel, and defense lawyers.” She also “interviewed victims, survivors, and families of victims of the September 11, 2001 terrorist attacks, former detainees in countries of resettlement or repatriation, and human rights and humanitarian organizations.” Ni Aoláin commended the Biden administration for allowing such unprecedented access. “Few states.,” as she puts it, “exhibit such courage.”

In the process, she drew a uniquely sweeping picture of Guantánamo—from the period after the horrifying 9/11 attacks through the widespread and gruesome torture of prisoners at CIA black sites to the grim details of detention at Gitmo itself to the often unjust and harmful fates of the detainees who were finally released to the persistent challenges that lie ahead. It’s the first report to tie together, historically as well as legally, the many grim pieces of the post-9/11 story that have previously been underappreciated.

“Regrettably, the vast majority of detainees continue to experience sustained human rights violations beginning with the very process of transfer to the country of return or resettlement.”

Like its predecessors, Ni Aoláin’s report reiterates the sins of Guantánamo: the physical and psychological abuse and outright cruelties committed there and the lack of any access to justice for its prisoners. She also reminds us that “the vast majority of the men rendered and detained there were brought without cause and had no relationship whatsoever with the events that took place on 9/11.” She calls out the United States for its widespread ongoing violations of human rights and international law and mentions numerous times that the way it dealt with its detainees amounted to “cruel, inhuman, and degrading treatment.”

Her report, however, also potentially shifts the never-ending discussion of Guantánamo to new ground.

Putting the Focus on the Prisoners 

As a start, Ni Aoláin looks beyond policymaking to the more subtle forms of injustice and harm that became the daily essence of Guantánamo. She particularly focuses on what she calls the “arbitrariness” and the damage it has caused. “Arbitrariness,” she concludes, “pervades the entirety of the Guantánamo detention infrastructure,” leading to a persistent lack of predictability in treatment. While Standard Operating Procedures (SOPs) do exist when it comes to “detainee reception and transfer, restraints, cell block searches, mess operations, religious accommodations, and medication distribution,” the deeper reality has been one of constant, cruel, and unpredictable deviations from those SOPs.

In fact, “arbitrariness, confusion, and inconsistency” define life at Guantánamo and have only been exacerbated by the secrecy with which those SOPs are guarded, further intensifying the cruel and inhuman treatment that has always defined that prison. Ni Aoláin suggests that it’s finally time for transparency to come to Gitmo. For example, many of the detainees suffer from the long-term effects of torture, a past all too lacking in transparency, and neither they nor their lawyers have access to their unclassified medical files.

She underscores her focus on finally bringing humanity to Gitmo by arguing that the widespread abuses Americans committed over the years, including by setting up a prison offshore of American justice, also significantly impacted the families of those who were killed in the attacks of September 11, 2001. She begins with torture, suggesting “that the systematic rendition and torture at multiple (including black) sites and thereafter at Guantánamo Bay, Cuba—with the entrenched legal and policy practices of occluding and protecting those who ordered, perpetrated, facilitated, supervised, or concealed torture—comprise the single most significant barrier to fulfilling victims’ rights to justice and accountability.” In her view, the use of torture was “a betrayal of the rights of victims,” too, by making the holding of trials impossible to this day and so making both accountability and closure inconceivable for the victims’ families.

“The U.S. government has an ongoing obligation to investigate the crimes committed [there], including an assessment of whether they meet the threshold of war crimes and crimes against humanity.”

While widening the lens to include a larger pool of victims, Ni Aoláin also widens the time frame. The mistreatment of detainees at Gitmo, she emphasizes, continues to this day. “Regrettably,” she writes, “the vast majority of detainees continue to experience sustained human rights violations beginning with the very process of transfer to the country of return or resettlement.”

In fact, the transfer of former prisoners from that prison to countries like the United Arab Emirates (UAE), Serbia, Kazakstan, and Slovakia has often resulted in yet more degradation, including utter social ostracism, the inability to obtain work, or even additional transfers to countries where yet more cruel and inhuman treatment has subsequently occurred. Sadly, for those “released” from that prison, the term “Guantanamo 2.0” best describes their situations.

One case in particular has been a focal point for the APPG in London: Ravil Mingazov, a Russian citizen granted asylum in Great Britain. He was captured in Pakistan in 2002. Accused of being associated with al-Qaeda and the Taliban, he would then be transported to Gitmo where he remained until 2017 when he was cleared for release to the UAE. After his arrival there, however, he was again imprisoned, despite assurances that his release would include rehabilitation and support for rebuilding his life. He’s now been detained there for six years. In 2021, reports circulated that the UAE was trying to send Mingazov back to Russia, where he would face probable imprisonment and mistreatment. To make matters worse, for the past two years, his family has had no news of him.

Ni Aoláin also highlights American attempts to destroy certain parts of Guantánamo and so functionally erase the record of what went on there. She calls instead for “the preservation and access to both prior and present detention sites,” as well as medical records and digital evidence. The crimes committed at Guantánamo, she emphasizes, need to be kept on the record and addressed, adding that “the U.S. government has an ongoing obligation to investigate the crimes committed [there], including an assessment of whether they meet the threshold of war crimes and crimes against humanity.”

Worse yet, redress for the victims of the 9/11 attacks and their families remains lacking. They continue to need treatment in ways not provided for and she recommends a “comprehensive audit of existing medical support (physical and psychological) for victims and survivors” and a commitment “to comprehensive lifelong holistic support for survivors.”

Succinct, measured, and profoundly disturbing, her report calls for a way forward that directly addresses the crimes of the past, including the need for public apology, compensation to former detainees, and the shutting down of that infamous prison. Her message: After all these years, even decades, the harm and the crimes associated with Guantánamo are still unending.

Where We Are Now

While the U.N., the ICRC, the British Parliament, and various nongovernmental organizations focus on Guantánamo’s sins and its painful legacy, the United States continues to fail to close the prison, even though the need for closure was acknowledged in 2006 by no less than its “founder,” President George W. Bush. On July 14, when the House passed its version of the latest National Defense Authorization Act, it not only kept in place a prohibition on the use of funds to close Guantánamo but extended a congressional ban on using such funds to transfer detainees to the United States or six countries in the greater Middle East, making the end of Gitmo that much harder.

With her steady hand and deployment of facts, Ni Aoláin was unsparing in her conclusions about the injustice and perpetual cruelty that still is Guantánamo. Yes, she appreciates any movement forward, even at this late date, including “the openness and willingness” of the Biden administration to allow her to visit the prison. Still, she couldn’t be clearer on what, 21 years later, is needed: accountability for the perpetrators and restitution for the victims.

Closing the prison, if it ever actually happens, will not be enough. Sadly, even such an act will not bring true closure to the sins of America’s forever prison.