Twenty years ago, the world was still reeling from the events of 9/11 that shook the foundations of the United States. In the immediate aftermath of the attacks, the Bush administration began looking for ways to show the American people that the United States is doing everything in its power to bring those responsible to justice.
Military action in Afghanistan began with Operation Enduring Freedom on October 7, 2001, less than a month after 9/11. The U.S. hunt was on for those believed to be responsible for the deadliest “terrorist” attack on its land. Finding them was one thing, what to do with them was quite another.
As with the other so-called “war on terror” policies, including “intensified interrogation”, lawyers were among the first to be consulted. Meanwhile, the US State Department was feverishly working on a plan to find a suitable place to keep those whom Donald Rumsfeld, then US Secretary of Defense, described as “the worst of the worst”.
“A lot will have to be done quietly”
In Bad Men: Guantanamo Bay and the Secret Prisons, Clive Stafford Smith, human rights lawyer and director of a justice campaign group, 3DC, tells a Newsweek article in which U.S. State Attorney David Bowker discussed his work on a committee looking at the rights of suspected “terrorists.”
Bowker told Newsweek their goal was to “find the legal equivalent of outer space,” somewhere beyond the reach of the U.S. legal system.
Those who were not U.S. citizens still enjoyed constitutional rights when they were on U.S. soil, so it was important to find a place where those who were put in jail would have no legal rights.
In any case, al-Qaeda has been branded as the enemy in the global “war on terror” and as such has given the Bush administration more flexibility in dealing with those they regarded as prisoners of war, rather than criminals.
To make themselves even less liable for their dealings with detainees, Rumsfeld, with the support of White House lawyer Alberto Gonzales, described the suspects as “illegal fighters”. This effectively delivered them outside the 1949 Geneva Conventions protections.
The US had military bases around the world, so there was no shortage of options, but each had its individual disadvantages. The military bases in Europe are likely to be subject to a liberal press and public antipathy to its “war on terror” policy; places in the Arab world would be politically sensitive, especially since those imprisoned were Muslims and predominantly Arab.
Despite this, in 2013, the Open Society Justice Initiative detailed 54 countries including Germany, Italy, Spain, the United Kingdom and Poland as well as several Arab states including Egypt, Syria, the United Arab Emirates, Yemen and Jordan who did cooperate with the CIA in their program of extraordinary interpretation. This involved the detention and torture of suspects on their land.
Under US occupation, bases in Iraq and Afghanistan were also home to several “black yards”. This included the Bagram air base and the infamous Abu Ghraib Prison, where those imprisoned would be subjected to inhuman, degrading and barbaric abuse, including water boarding and sleep deprivation.
There were other options, too, in distant universes, away from the greedy eyes of the intrusive press or, worse, dreaded human rights defenders.
“Much of what needs to be done here will have to be done quietly,” the then U.S. vice president said. Dick Cheney, in the days after 9/11.
Their attention has to Chagos Islands, a little-known 65-island archipelago in the Indian Ocean. The islands are 1,609 kilometers (1,000 miles) from the nearest continent and have been occupied by the British since 1814 as part of the British Indian Ocean Territory (BIOT).
The largest island, Diego Garcia, was made available to the United States in 1966, for military purposes, and there was already a significant base there.
But British occupation has meant that it has been covered by the jurisdiction of the European Court of Human Rights, which could cause a problem.
In addition, the British occupation of Chagos and the treatment of Chagossians, who were brutally expelled in the 1960s and 70s, was controversial, to say the least, and the islanders fought for their right to return.
That case would later reach the United Nations, when the UK was given a 116-6 mandate in 2019 voice in the General Assembly to return the islands to Mauritius. The UK still refuses to comply, and insists that it will relinquish the archipelago only when it is no longer needed for its defensive purposes.
To prevent Britain from causing embarrassment, detaining prisoners on ships abroad could have been another option considered by the Bush administration.
Diego Garcia is a narrow edge of the country around a big lagoon, 10.5 kilometers (6.5 miles) wide and 21 kilometers (13 miles) long. Under the UN Convention according to the Law of the Sea, inland water bodies are considered the territory of the state that owns the land, and the standard area boundary of the coast extends over 12 nautical miles.
However, Peter Sand, a lecturer and legal adviser to the UN Environment Program, writes in his 2009 book, United States and Britain in Diego Garcia: The Future of a Controversial Base, that the British only maintain a three-nautical-mile limit around BIOT , with the exception of Diego Garcia, where “unauthorized vessels” were excluded to come closer than the standard 12 nautical miles (22.2 kilometers).
This effectively created a military exclusion zone within which the US could anchor its ships unhindered by interference from the outside world. Not only that, according to the UK Foreign and Commonwealth Office in 2000, American warships anchored at Diego Garcia “enjoy state immunity and are therefore outside the UK’s jurisdiction and control”. This, and the fact that the British ratification of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment included most overseas territories, but not the BIOT, constitutes a “legal black hole at sea”.
These maritime manipulations may sound complicated, but any suggestion that the British might allow the torture of the missing in secret prison ships in their territorial waters could drag them through the political mud, just as it would if they were found complicit in extradition to make possible. flights to land, or “black sites” to operate on their territory.
In 2008, it came to light that at least two version flights stopped at Diego Garcia in 2002 to refuel, each flight apparently carrying one detainee. The discovery led to the then British Foreign Secretary, David Miliband, to apologize to the House of Commons, and reported that “the flights were wrongly overlooked in previous U.S. internal investigations carried out on behalf of the UK”.
In 2014, further details emerged when the US Senate Select Committee for Intelligence found that the CIA had indeed detained “high-value suspects” on Diego Garcia, with the “full co-operation” of the British government. The extent to which Diego Garcia was involved in the United States’ global “war on terror” interpretation program is not yet entirely clear. This is partly because in 2014 it was alleged by the British Foreign Office that CIA flight logs, which could potentially expose British complicity, had been made “incomplete due to water damage”.
“Locked up in limbo”
In the search for a place to house those who were rounded up during the “war on terror,” the U.S. already had a bait up its sleeve. The U.S. naval base at Guantanamo Bay, Cuba, had all the advantages but none of the disadvantages or complications of the other sites considered. It was not only abroad, and thus met the requirements of a “legal black hole”, but it was formerly a detention center.
President George HW Bush used it in the early 1990s to accommodate Haitian refugees fleeing their country after a coup. Thousands of Haitian migrants went through the facility, and, most disturbingly, those who tested HIV-positive stayed the longest in indefinite detention.
A 1993 ruling eventually allowed Haitians detained at Guantanamo to enter the US. It was then revealed that many had been told “that they could be at Guantanamo for 10 to 20 years or possibly until a cure for AIDS is found”.
That George Bush Junior followed his father’s example to realize Guantanamo’s “offshore” potential is certainly no great surprise and will be a recurring pattern in the catastrophic invasion and subsequent war in Iraq.
As with the British Chagos Islands, the history of American “ownership” of Guantanamo also stretches far back, to a time when the US helped the Cubans capture their Spanish colonial rulers. The 1898 Hispanic American War finally saw the decolonization of Cuba, with Spanish withdrawal and transfer to temporary US rule until Cuba’s independence in 1903.
The Cubans reluctantly agreed that the US maintain a naval base and coal station at Guantanamo Bay in exchange for independence. The term of the lease specifically provided that the land would be used “only as coal or naval stations, and for no other purpose”, so that its extension to a detention facility could be deemed technically illegal. The US still pay only $ 4,087 a year for the lease, although Cuba has not cashed the check since 1959, when Fidel Castro came to power.
Once Guantanamo was chosen as the long-term “legal equivalent of outer space”, and the eternal home for eternal prisoners, locked up in limbo without charge or trial, the infamous Camp X-ray was relocated and prepared for the arrival of the first group of detainees on 11 January 2002.
Twenty years later 39 men locked up in their own separate universe, far from the reach of U.S. federal or international law. Twelve of these men have been released for release but are still awaiting their release; 17 of them are considered to be of “high value”, including the alleged 9/11 architect Khalid Sheikh Mohammed; and 10 of them are so-called “eternal prisoners” – who float in space forever, without charge, no trial and no response of land control.