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fionnuala ni aolain
After 21 Years, the Harms of Guantánamo Bay Are Still Unending
A recent U.N. 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.
Aug 01, 2023
There can be little question that the grim prison at Guantánamo Bay, Cuba, which still shows no sign of closing anytime soon, is a key legacy—in the worst sense imaginable—of America’s post-9/11 forever wars. I’ve been covering the subject for decades now, and that shameful legacy has never diminished.
Last month, in response to a column I wrote for TomDispatch—one of dozens, I’m sad to say, that I’ve done on Guantánamo over these endless years—I received a surprise email: an invitation to attend a meeting at the British Parliament. A group known as the All Party Parliamentary Group (APPG) for Closing the Guantanamo Bay Detention Facility, formed this April, was gathering for the second time. Its stated purpose is “to urge the U.S. administration to close the Guantánamo Bay detention facility, to ensure the safe resettlement of those approved for release, and to ensure that due process is expedited for all the remaining prisoners.” Nine members of the House of Parliament and four Members of the House of Lords have already joined the group.
Thirty men remain in custody at that infamous American prison in Guantánamo Bay, Cuba. Sixteen of those detainees have finally been cleared for release; they are, that is, no longer subject to criminal charges or considered a potential danger to the United States and yet they still remain behind bars. Three other prisoners have never either been charged with a crime or cleared for release. Ten more are still facing trial, while one has been convicted and remains in custody there. For the APPG, the release of those 16 cleared detainees is a paramount goal.
“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.”
That meeting I attended included a handful of MPs from all parties, as well as leading figures from British organizations that have been supporting justice for Guantánamo’s detainees for decades. Also present were two former detainees. One was Moazzem Begg, among the first prisoners released in 2005 and repatriated to England, where he is now a senior director at CAGE, an advocacy group focused on the remaining Gitmo detainees. In 2006, he published Enemy Combatant: My Imprisonment at Guantanamo, Bagram, and Kandahar, an early account of the injustices and cruelties in America’s war-on-terror prisons. The other was Mohamedou Salahi, whose bookGuantánamo Diary led to the dramatic film The Mauritanian about his life at that infamous prison. A third former detainee, Mansoor Adayfi, author of Don’t Forget Us Here, had been transferred from Gitmo to Serbia in 2016. Though invited to attend, his visa wasn’t approved in time.
That meeting was but one of several recent events in which organizations outside the United States have issued detailed impassioned calls for this country to finally address the ongoing nightmare it created so long ago at Guantánamo.
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.
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'Scathing' Report From UN Expert's Historic Visit Revives Calls to Close Guantánamo
"It is well past time to demand the closure of the prison, accountability from U.S. officials, and reparations for the torture and other ill-treatment that the detainees have suffered at the hands of the U.S. government," said one campaigner.
Jun 26, 2023
Human rights advocates on Monday renewed their calls for the swift closure of the U.S. prison at Naval Station Guantánamo Bay in Cuba after a United Nations expert released the findings from her historic trip to the infamous facility.
The prison was established in 2002, after then-President George W. Bush launched the War on Terror in the wake of the September 11, 2001 attacks. On the campaign trail and since taking office, President Joe Biden—who is seeking reelection next year—has indicated he wants to close the facility. His administration was the first to allow a visit by a U.N. expert earlier this year.
Irish attorney and law professor Fionnuala Ní Aoláin, the U.N. special rapporteur (SR) on the promotion and protection of human rights and fundamental freedoms while countering terrorism, focused on three key topics: "the rights of victims of the September 11, 2001 terrorist attacks, the rights of detainees at the Guantánamo detention facility, and the rights of former detainees."
"The Biden administration needs to get out of its own way on Guantánamo closure."
Allowing U.N. access to the prison "is an important signal from the United States government to the international community that the Guantánamo detention facility is on a path to de-exceptionalism," her report states. "It opens the possibility to address the profound human rights violations that have occurred there and the irreparable harms to the lives and health of the 780 Muslim men who have been detained there, including 30 men who remain."
"For many of the detainees she spoke with, the dividing line between the past and the present is exceptionally thin—for some nonexistent—and their past experiences of torture live with them in the present, without any obvious end in sight including because they have received no torture rehabilitation to date," the publication continues, adding that despite improvements since 2002, current conditions amount to "ongoing cruel, inhuman, and degrading treatment at the Guantánamo Bay detention facility, and may also meet the legal threshold for torture."
According to the report, which was released on the International Day in Support of Victims of Torture:
In every meeting she held with a detainee or former detainee, the SR was told with great regret that she had arrived "too late." She agrees. At the time of her visit only 34 detainees remained at the site. It is evident that the horror and harms of extraordinary rendition, arbitrary detention, and systematic torture, cruel, inhuman, and degrading treatment or punishment inflicted over time occurred in part because of an exceptional and international law deficient legal and policy regime; the permeation of arbitrariness across subsequent detention practices; and the lack of international law compliant domestic oversight and accountability...
The SR reaffirms the right to remedy and reparations for victims of serious violations of international human rights and humanitarian law, underscoring that such rights encompass preventive and investigative elements, as well as the right to access justice, remedy, and reparation. The U.S. government is under a continued obligation to ensure accountability, make full reparation for the injuries caused, and offer appropriate guarantees of nonrepetition for violations committed post-9/11. The world has and will not forget. Without accountability, there is no moving forward on Guantánamo.
The document also praises the U.S. government, saying that "it is a sign of a commitment to international law that the visit occurred, was highly cooperative, constructive, and engaged at all levels of government, and is reported upon."
In its formal response, the U.S. government said it provided Ní Aoláin with "unprecedented access" and her team with "detailed information both prior to her visit and in response to her questions." The statement notes the "significant progress" the Biden administration has made in reducing the Guantánamo population, highlights ongoing military commissions and transfer efforts, and reaffirms the president's intention to close the facility.
The statement also stresses that while the administration is reviewing the U.N. expert's recommendations, the government "disagrees in significant respects with many factual and legal assertions" in her report, and claims that the U.S. is committed to "safe and humane treatment" for Gitmo prisoners, who "receive specialized medical and psychiatric care."
Pointing to Ní Aoláin's report, Center for Victims of Torture policy analyst Yumna Rizvi said Monday that "the government is obligated to provide rehabilitation, and the detainees are entitled to it, but the government is continuing to choose not to meet its obligation."
"It has an opportunity to do so, and to lead as an example, especially as the largest contributor to the U.N. Voluntary Fund for the Victims of Torture," Rizvi added. "However, the U.S. continues to turn its back on what is right. The government's response to the report is a denial of the existing reality as it relates to medical care of detainees. The government must address these issues immediately before the worst possible outcome occurs, the responsibility of which will fall squarely on its shoulders."
Amnesty International secretary general Agnès Callamard—a former U.N. special rapporteur—said the "scathing" U.N. report highlights "the urgent need for President Biden to finally close the detention facility at the Guantánamo Bay military base, and to end the unlawful practice of indefinite detention without charge or trial."
"It is well past time to demand the closure of the prison, accountability from U.S. officials, and reparations for the torture and other ill-treatment that the detainees have suffered at the hands of the U.S. government," she argued. "There remains a shocking lack of access to justice for those currently or previously detained—and many have complex and untreated healthcare needs as a result of their ill-treatment."
"The military commissions created for Guantánamo Bay detainees, including those alleged to have planned or assisted the September 11 attacks, have been a complete failure through which the United States government has intentionally skirted U.S. and international law and abused the rights of those still imprisoned at the facility—jeopardizing the rights of survivors and families of victims of the attacks to receive justice," she added.
Wells Dixon, senior staff attorney at the Center for Constitutional Rights and council to several Gitmo detainees, similarly declared that "the Biden administration needs to get out of its own way on Guantánamo closure."
"It makes no legal or policy sense for the government to continue to fight in court, to detain men it no longer wants to detain, in a prison it has said should be closed, in a war that has ended," said Dixon. "It also makes no sense to continue contested military trials that have failed to achieve justice or accountability for anyone."
September 11th Families for Peaceful Tomorrows welcomed that "in issuing her report on Guantánamo, the special rapporteur stated unequivocally that, 'Torture was a betrayal of the rights of the victims of the 9/11 attacks.'"
"For families and survivors to ever receive a measure of judicial resolution, the fact that the 9/11 accused were tortured must be legally acknowledged," the organization asserted. "The U.S. government must now, more than two decades after the attacks, end the 9/11 military commission at Guantánamo, accept guilty pleas from the 9/11 defendants, and provide victims and survivors with the information and accountability they have so long sought."
Former Guantánamo prisoner Majid Khan, who was freed in February, said Monday that "I survived and have forgiven my torturers, and I am moving on with my life in Belize. But I still wait for an apology, medical care, and other compensation."
"I appreciate all the support that Belize has provided me, but responsibility lies with the U.S.," he said. "It would mean a lot to me. I also ask other countries to follow the example of Belize and offer safe refuge to other Guantánamo detainees approved for transfer, including men such as Guled Duran who was never charged with any wrongdoing. It is time to close Guantánamo."
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UN Human Rights Expert to Conduct First-Ever Visit to Guantánamo Bay Prison
"It's hard to exaggerate the importance of this visit more than two decades since Guantánamo was open to hold detainees beyond the reach of the law," said one ACLU official.
Feb 01, 2023
For the first time ever, a United Nations human rights and counterterrorism expert will visit the U.S. military prison at Guantánamo Bay, Cuba, a U.N. office announced Wednesday.
The United Nations Office of the High Commissioner for Human Rights (OHCHR) said Irish attorney and law professor Fionnuala Ní Aoláin—the U.N. special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism—will visit Guantánamo as part of a "technical visit to the United States" from February 6-14.
In addition to visiting the prison, OHCHR said Ní Aoláin will "carry out a series of interviews with individuals in the United States and abroad, on a voluntary basis," including victims and relatives of those killed in the 9/11 attacks and former Guantánamo detainees in countries where they have been repatriated or resettled.
Human rights advocates welcomed the development.
"We commend the Biden administration for agreeing to let a U.N. human rights expert visit Guantánamo, finally ending a shameful U.S. government moratorium that sought to establish a prison outside the reach of law," Hina Shamsi, director of the ACLU's National Security Project, said in a statement.
\u201cFirst-ever visit by a UN human rights expert to Guantanamo. It\u2019s hard to exaggerate the importance of this visit more than 2 decades since Guantanamo was open to hold detainees beyond the reach of the law. Let\u2019s hope it signals real movement towards ending this shameful atrocity.\u201d— Jamil Dakwar (@Jamil Dakwar) 1675275471
"International human rights norms and institutions are integral to preventing the torture, indefinite detention, and unfair trials that now symbolize Guantánamo globally," Shamsi added. "It should never have taken two decades, but we're encouraged to see the basic principle of U.N. rights officials' independent access to all sites of detention and detainees respected at long last by our country."
Since it was first opened in January 2002 by the George W. Bush administration in the early months of the so-called War on Terror, Guantánamo, or Gitmo in U.S. military parlance, has imprisoned 779 men and boys. Many of them were tortured, and only a handful were ever charged with any crime. According to retired U.S. Army Col. Lawrence Wilkerson—who served as chief of staff to Bush-era Secretary of State Colin Powell—Bush, along with Dick Cheney, his vice president, and Donald Rumsfeld, the secretary of defense, knew that most Gitmo prisoners were innocent, but kept them locked up for political reasons.
Although then-Presdident Barack Obama—under whom President Joe Biden served as vice president—signed executive orders meant to close Guantánamo and end torture, he was blocked by Congress from implementing the former policy, while torture continued at Gitmo during his tenure.
"International human rights norms and institutions are integral to preventing the torture, indefinite detention, and unfair trials that now symbolize Guantánamo globally."
Hundreds of Guantánamo detainees were released during the Bush and Obama administrations, with a relative handful freed under Biden. Today, 35 men remain locked up at Gitmo. According to the Pentagon, 20 of them are cleared for release while nine—including alleged 9/11 mastermind Khalid Sheikh Mohammed—have ongoing cases before military commissions from which numerous prosecutors have resigned amid allegations of rigging to secure convictions.
September 11th Families for Peaceful Tomorrows, an activist group, said in a statement that it "deeply appreciates the willingness of the special rapporteur's office and the Biden administration to work together to make her visit to Guantánamo possible."
"As 9/11 family members, we remain gravely concerned about the absence of justice within the military commission system," the group added. "We welcome the commitment of the special rapporteur to the human rights of victims of terrorism and we hope that her work can inform a path forward to judicial finality for family members, the accused, and all those affected by 9/11 and its aftermath."
Biden—whose former press secretary said closing Guantánamo is "our goal and our intention"—has been criticized for failing to do so two years into his administration and 21 years after the prison opened.
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