Towards the Closure of Guantanamo

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Chapter 3 Conditions of Detention | 43ultimate sovereignty of the Republic of Cuba over the lands and waters subject tothe lease.” 52 Therefore, according to this understanding, Guantanamo Bay wasconsidered to be a law-free zone where officials could detain non-citizens outsidethe sovereign territory of the United States and without interference from federalcourts.76. With regard to the legal status of prisoners held at Guantanamo, on January 9, 2002,Deputy Assistant Attorney General John Yoo addressed a memorandum to theDepartment of Defense on “the application of treaties and laws to Al Qaeda andTaliban Detainees.” 53 The memorandum concludes that the Third GenevaConvention applicable to prisoners of war “do[es] not protect members of the alQaeda organization, which as a non-State actor cannot be a party to theinternational agreements governing war” and that “these treaties do not apply tothe Taliban militia.” 54 Following the endorsement of this legal opinion by WhiteHouse counsel Alberto R. Gonzales, President George W. Bush decided that Al-Qaedaand Taliban detainees were not prisoners of war under the Third GenevaConvention. 55 The IACHR notes that Secretary of State Colin L. Powell requested thePresident to reconsider that decision given that it would “undermine public supportamong critical allies” and “reverse over a century of U.S. policy and practice insupporting the Geneva Conventions and undermine the protections of the laws ofwar for our troops.” 5677. It is in this context that the first prisoners arrived at Guantanamo Bay on January11, 2002, where they were held in indefinite detention. The United StatesGovernment justified the indefinite detention and the denial of the prisoners’ rightto challenge the legality of their detention and to any internationally recognizedstatus under the laws of war by classifying them as “enemy combatants,” a distinctcategory not recognized under international law.78. The IACHR notes that since President Obama took office in 2009 there have beensome changes in the position of the United States Government regarding the legalstatus of the detainees at Guantanamo Bay. The United States has recognized thatthe laws of war govern the detention and treatment of the detainees and has5253545556Memorandum for William J. Haynes, II, General Counsel, Department of Defense, re: Possible HabeasJurisdiction over Aliens Held in Guantanamo Bay, Cuba, from Patrick F. Philbin and John C. Yoo, DeputyAssistant Attorneys General, Office of Legal Counsel, U.S. Department of Justice, December 28, 2001, p.3.Memorandum for William J. Haynes, II, General Counsel, Department of Defense, re: Application of Treatiesand Laws to Al Qaeda and Taliban Detainees, from John Yoo, Deputy Assistant Attorney General, and Robert J.Delahunty, Special Counsel, Office of Legal Counsel, U.S. Department of Justice, January 9, 2002. Available at:http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdfMemorandum for William J. Haynes, II, General Counsel, Department of Defense, re: Application of Treatiesand Laws to al Qaeda and Taliban Detainees, from John Yoo, Deputy Assistant Attorney General, and Robert J.Delahunty, Special Counsel, Office of Legal Counsel, U.S. Department of Justice, January 9, 2002, p. 1.Memorandum for the President, re: Decision Re Application of the Geneva Convention on Prisoners of War tothe Conflict with Al Qaeda and the Taliban, from Alberto R. Gonzales, January 25, 2002. Available at:http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdfStatement of the United Nations Special Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishment, Juan E. Mendez, IACHR’s Hearing on the human rights situation of detainees atGuantanamo Naval Base, United States, Washington D.C., October 28, 2013.Inter-American Commission on Human Rights | IACHR
44 | Towards the Closure of Guantanamoabandoned the classification of “enemy combatants.” On March 13, 2009, in the faceof increased litigation after the Supreme Court’s decision in Boumediene, 57 theGovernment filed a memorandum in every detainee habeas case regarding itsdetention authority relative to the detainees at Guantanamo Bay. 58 Thismemorandum submitted a new standard for the government’s authority to holddetainees at Guantanamo.79. In the filing with the federal District Court for the District of Columbia, theDepartment of Justice, referring to the Supreme Court’s decisions in Hamdi andHamdan, 59 submitted that the detention authority conferred by the AUMF does notrely on the President’s authority as Commander-in-Chief and that the scope of hisauthority under this statute relies on the international laws of war (GenevaConventions and customary international law). The memorandum also providedthat individuals who supported Al-Qaeda or the Taliban were detainable only if thesupport was “substantial.” Therefore, the new standard did not claim authority tohold persons based on insignificant or insubstantial support.80. In addition, the new administration also carried out a first review process in 2009to determine the legal status of each detainee held at Guantanamo. The reviewconcluded that of the 240 persons who were detained at that time, 48 “weredetermined to be too dangerous to transfer but not feasible for prosecution.” 60Accordingly, these detainees would remain in indefinite detention without criminalcharges pursuant to the Government’s authority under the AUMF. As will bedeveloped in the section assessing the right to periodic review of detention, the U.S.Government initiated a second review process in 2013.81. The Inter-American Commission welcomes the steps taken by the United Statessince 2009 in refining the Government’s position on its detention authority and thelegal status of detainees held at Guantanamo. However, the IACHR notes thatdespite these changes in the Government’s position, prisoners are still held atGuantanamo indefinitely without charge, 13 years after the opening of the facility.The National Defense Authorization Act (NDAA) has reaffirmed the authority of theAUMF to detain persons suspected of having participated in the September 11attacks, or who substantially supported Al-Qaeda, the Taliban, or associated forces,without trial until the end of hostilities. 61 As the UN Special Rapporteur on tortureand other cruel, inhuman or degrading treatment or punishment stated, the NDAA5758596061Boumediene v. Bush, 553 U.S. 723, 769 (2008).Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held atGuantanamo Bay, In re: Guantanamo Bay Detainee Litig., No. 08-mc-442 (TFH) (D.D.C. Mar. 13, 2009).Available at: http://www.justice.gov/opa/documents/memo-re-det-auth.pdf. See also, Press Release,Department of Justice, Office of Public Affairs: Department of Justice Withdraws “Enemy Combatant”Definition for Guantanamo Detainees, March 13, 2009. Available at:http://www.justice.gov/opa/pr/2009/March/09-ag-232.htmlHamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) and Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006).Final Report of the Guantanamo Review Task Force, January 22, 2010, at 25-26. Available at:http://www.justice.gov/ag/guantanamo-review-final-report.pdfNational Defense Authorization Act for Fiscal Year 2012, Sec. 1023. Available at:http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf.Organization of American States | OAS
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Page 14: CHAPTER 1INTRODUCTION
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Towards the Closure of Guantanamo

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