09/11 – The Road to Guantanamo

September 11 marked yet another anniversary of the terrorist attacks in the United States, which prompted the George W. Bush administration to invade Afghanistan, and a little later, in the spring of 2003, Iraq. In addition to the consequences of these wars for the inhabitants of the two countries and the United States itself, the shameful stain associated with this military adventure is the secret prison at Guantanamo, where prisoners are still being held. This place has become not only a household name associated with torture and double standards, but the mere decision to create this center itself had and still has consequences in other parts of the Globe.

Historically, the US Navy base in Guantanamo Bay appeared in accordance with the terms of a long-term lease concluded with Cuba in the early 20th century, when there was a pro-American government there. According to this bonded agreement, the U.S. government exercised “full jurisdiction and control” over the land it occupied there. After the Cuban Revolution, Fidel Castro asked to leave the territory, but the United States refused. In fact, this is the US-occupied territory of Cuba, although Washington refers to the treaty. It is important to note that during the Caribbean Crisis, one of the points of negotiations that the Cuban side defended was the withdrawal of the American military. However, with the final agreement with the United States, the Soviet side, unfortunately, did not insist on the withdrawal of the base and it remained there.

One of the key ideas behind the creation of the Guantanamo detention center was the desire of the American command in Afghanistan to shift the task of holding enemy prisoners outside the country so that the military could focus on combat operations. In November 2001, the Bush administration was considering various deployment options, including on the U.S. mainland, U.S. military bases in Europe, in Pakistan, Pacific islands and even its Navy ships. But in the end, the choice fell on Guantanamo, because the base met several criteria set by Bush administration officials: the naval base in Cuba was large enough, sufficiently protected and, most importantly, was located on foreign territory, which means it was beyond the reach of any American court. Usually, when criticizing Guantanamo Bay, it is said that this place was chosen in order to avoid legal consequences within the United States, because then all prescribed formalities would have to be applied, and the military and special services would be accountable to the judicial system of the United States itself.

US Secretary of Defense Donald Rumsfeld announced the creation of a new center at Guantanamo to the American public on December 27, 2001, and the first detainees arrived two weeks later.

Another critical decision of the Bush administration was to designate prisoners, mostly captured on Afghan soil, as “illegal combatants” rather than prisoners of war. If during traditional armed conflicts between the countries, in accordance with the Geneva Conventions of 1949, in particular the Geneva III  Convention, prisoners of war must be provided with a minimum level of care, which includes safe accommodation, adequate food and medical care, and it is prohibited to subject prisoners to violence, torture or cruel and degrading treatment, then the “illegal combatants” did not have such conditions. In fact, it was a legal newspeak, which is not defined in any conventions and treaties, and the United States considered that the Geneva Conventions were inapplicable to the conflict with Al-Qaeda. “The war on terrorism is opening up a new paradigm,” President Bush wrote in a February 2002 memo to his top national security officials.

In its legal justification for this decision, the Bush administration stated that Al-Qaeda prisoners are part of a non-State actor that is not a party to the Geneva Conventions.

The documents says: “We conclude that Geneva III does not apply to the al Qaeda terrorist organization. Therefore, neither the detention nor trial of al Qaeda fighters is subject to Geneva III (or the WCA). We conclude that the President has more than ample grounds to find that our treaty obligations with the Taliban militia under Geneva III were suspended during the period of the conflict- Under Article II of the Constitution, the President has the unilateral power to suspend whole treaties or parts of them at his discretion. In this part, we describe the President’s constitutional power and discuss the grounds upon which he can justify the exercise of that power. There are sufficient grounds to believe that these treaties do not protect members of the Taliban militia. This memorandum does not express any opinion on whether the President should make a political decision that the U.S. armed forces should adhere to the standards of conduct set forth in these treaties regarding the treatment of prisoners.”

And although Afghanistan is a party to these conventions, the Taliban prisoners did not receive any protection that is due to prisoners of war, because, according to the White House, they did not meet the criteria for prisoners of war set out in the Third Geneva Convention.

Strikingly, the United States has consistently insisted that terms and procedures be used in relation to a number of terrorist groups, especially those operating in the North Caucasus in Russia, which will allow them to be granted rights in accordance with the Geneva Convention. In other words, there are “good terrorists” whom the United States calls freedom fighters (by the way, the founder of Al-Qaeda, Osama bin Laden, was also called a freedom fighter in the United States when he fought against the legitimate government supported by the USSR in the 80s), and there are also bad ones – those who threaten the interests of the United States. No conventions or treaties are valid against them, so they can be subjected to both torture and ill-treatment.

Not only citizens of Afghanistan and neighboring Pakistan were sent to Guantanamo. Representatives of almost 50 states were imprisoned in this prison. It is known that eight prisoners were from Russia. The citizens of Afghanistan (219), Saudi Arabia (134), Yemen (115) and Pakistan (72) turned out to be the most. A total of 780 people were captured and sent to Guantanamo, the last of them in 2008.

Needless to say, the US experience in extraterritorial prisons has been applied in other places according to the principle of precedent.

After 2001, the CIA also interrogated “high–value detainees” at secret facilities in foreign countries, including Thailand and Poland, and then transferred some of these detainees to Guantanamo.

It is also known about the secret CIA prisons in Lithuania and Romania.

It was noted that “the Council of Europe and its Parliamentary Assembly (PACE) have hitherto failed to demonstrate the due will to discuss the refusal of the governmental authorities in Vilnius, Warsaw and Bucharest to investigate the multiple occasions of human rights violations, ensuing from the agreement of these countries to host the establishment of CIA black sites on their territory. Such an attitude erodes the very foundations of the European Union, weakens the belief of European citizens that their fundamental rights are truly guaranteed, divests the EU of its moral authority and discredits its allegiance to the universal human values.”

After Libya was plunged into chaos by NATO countries in 2011, the EU also set up secret prisons there where migrants were held. For this purpose, the Europeans allocated special funds.

And recently, The Daily Telegraph newspaper reported that the British authorities are considering sending convicted criminals to serve their sentences in Estonia in order to relieve their own overcrowded prisons. The newspaper referred to Government sources who confirmed that such options were being considered due to the difficult situation in the United Kingdom’s prison system. According to the British Ministry of Justice, only 83 places remained vacant in men’s prisons in England and Wales in August.

These are the consequences of the Bush doctrine and the precedent of the Guantanamo Bay prison, the page of which is still open.

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