Wrong Treatment in the Wrong Place
Anyone who has traveled to Cuba or listened to mariachis sing in myriad Latin restaurants is familiar with the lovely song, Guantanamera–the little girl from Guantanamo. Based on a poem by Jose Marti, the father of Cuban independence, the song is narrated by "an honest man from where the palm tree grows," who speaks of the beauty of Cuba. In stark contrast, the post 9/11 Guantanamo Bay is home to a veritable "concentration camp," in the words of the Cuban government, the National Lawyers Guild, and the American Association of Jurists.
More than 600 prisoners have been incarcerated there for nearly two years. They are kept in small cages, with no charges against them, without access to the courts to challenge their confinement.
The United States government illegally occupies that part of Cuba’s territory. It is held under a lease negotiated between Cuba and the U.S., which gave the United States the right to use Guantanamo Bay "exclusively as coaling or naval stations, and for no other purpose." Nowhere does Cuba give the United States the right to utilize this land as a prison or a concentration camp.
President Fidel Castro, who calls the Guantanamo base "a dagger plunged into the heart of Cuban soil," refuses to cash the rent checks the U.S. government sends annually. He says: "An elemental sense of dignity and absolute disagreement with what happens in that portion of our national territory has prevented Cuba from cashing those checks." The United States, according to President Castro, has transformed Guantanamo base into a "horrible prison, one that bears no difference with the Nazi concentration camps." In December, Cuba’s National Assembly decried the Guantanamo "concentration camp," saying: "In the territory illegally occupied by the Guantanamo naval base, hundreds of foreign prisoners are subjected to indescribable abuses."
Indeed, nearly half the prisoners are interrogated each week in sessions lasting up to 16 hours. A prisoner released in May told Amnesty International that the interrogations "were like torture." Australian lawyer Richard Bourke asserted on ABC Radio that prisoners had been subjected to "good old-fashioned torture, as people would have understood it in the Dark Ages." He reported: "One of the detainees had described being taken out and tied to a post and having rubber bullets fired at them. They were being made to kneel cruciform in the sun until they collapsed."
Shortly after September 11, the Cuban government did not oppose housing the U.S. prisoners at Guantanamo: "Although the transfer of foreign war prisoners by the United States government to one of its military facilities–located in a portion of our land over which we have no jurisdiction, as we have been deprived of it–does not abide by the provisions that regulated its inception, we shall not set any obstacles to the development of the operation."
Cuba, which boasts one of the most advanced medical systems in the world, offered to provide medical services and sanitation programs for the Guantanamo prisoners. The Cuban government, in its January 2002 statement, expressed satisfaction at "the public statements made by the U.S. authorities in the sense that prisoners will be accorded an adequate and humane treatment that may be monitored by the International Red Cross."
But the Red Cross, which recently concluded a two-month visit to the Guatanamo camp, "observed a worrying deterioration in the psychological health of a large number of them." The Red Cross reported that "the US authorities have placed the internees in Guantanamo beyond the law. This means that, after more than eighteen months of captivity, the internees still have no idea about their fate, and no means of recourse through any legal mechanism." Indeed, The New York Times reported 32 suicides in 18 months and several detainees being treated for clinical depression as a direct result of the uncertainties of their situations.
The Bush administration has denied these prisoners access to U.S. courts to challenge their detention, disingenuously claiming that the U.S. is not sovereign over Guantanamo Bay. The Ninth Circuit U.S. Court of Appeals, which decided last month that U.S. courts do have jurisdiction to hear the prisoners’ complaints, said that by employing Guantanamo as a prison camp, "our government has purposely acted in a manner directly inconsistent with the terms of the Lease and the continuing Treaty, [which] … limit U.S. use of the territory to a naval base and coaling station."
However, the appellate court was perhaps most alarmed at the government’s assertion during oral argument that these prisoners would have no judicial recourse even if they were claiming the government subjected them to acts of torture or summary execution. The Ninth Circuit said: "To our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition." The court said this was "a position so extreme that it raises the gravest concerns under both American and international law." During its present term the Supreme Court will decide whether U.S. courts have jurisdiction over these prisoners.
An editorial in The New York Times described the Guantanamo situation as a "scandal," saying: "Whoever they are, their treatment should be a demonstration of America’s commitment to justice, not the blot on its honor that Guantanamo has become." The United States government must immediately close its concentration camp, and release or try the prisoners in accordance with international norms. It should return Guantanamo Bay to its rightful owner, the Republic of Cuba.
MARJORIE COHN, a professor at Thomas Jefferson School of Law in San Diego, is executive vice president of the National Lawyers Guild. She was recently elected the U.S. representative to the executive council of the American Association of Jurists. A longer version of this article will appear in 76 Covert Action Quarterly, Winter 2004. She can be reached at: email@example.com