【Editor's Note】This article is authorized by the founder of the Great Diplomatic Think Tank to authorize the "Qin'an Strategy" headline platform to be published exclusively and originally, and reprinted from the public account "Kuzhi Jiaotong University". The author is Yin Chenhuan, assistant intern of researchers at the Great Diplomatic Think Tank.
On February 20, 2022, the Associated Press published an article titled "EXPLAINER: Why half of Guantanamo's prisoners could get out," putting the public eye back on Guantanamo once again. The Biden administration has been secretly preparing for the release of guantanamo inmates and has established a review committee that includes military and intelligence officials. More than half of the 39 men in the prison, who were supposed to be held indefinitely, can now safely return to their home countries or be sent to another country, but in recent weeks the government has received widespread criticism at home and abroad for not doing more to close the prison as it claims.
The "prisoners" are held in Guantanamo Prison. (Source: The New York Times)
This is reminiscent of what Chinese Foreign Ministry spokesman Zhao Lijian said at a regular news conference a month ago. On January 21, 2022, a reporter asked about the Pakistani British Berg recounted his painful experience of being subjected to various types of torture and ill-treatment such as bundled interrogation, punching and kicking, and waterboarding at Guantanamo Prison. Zhao Lijian responded that the Guantanamo Prison, which cannot be closed, is an indelible stain on human rights in the United States, and its various atrocities can be called the "dark textbook" of human rights violations in the United States.
Today, on the 20th anniversary of the establishment of Guantanamo Prison, let us once again focus on this, what is special about Guantanamo Prison, why it was established, why it has not been closed after the frequent scandals of prison abuse, and how does its difficult closure process reflect the principle of separation of powers and checks and balances in American politics?
First, the background of the construction
Guantanamo is a 26-block province of Cuba located in southeastern Cuba, and its capital, Guantanamo, is close to the feng shui road connecting the Atlantic Ocean and the Caribbean Sea, and is also an important trading center for sugarcane, coffee, cocoa and banana production areas.
The U.S. military's Guantanamo base covers an area of 117 square kilometers, and now has two airports, a wharf, and facilities such as a desalination plant. Toward the end of the Spanish-American War in 1898, the United States took all of Cuba from Spain, adopted it as a protectorate, and established the "United States Naval Base at Guantanamo Bay." Guantanamo was once the U.S. Navy's primary training and maintenance base.
Facing the sea on three sides, the base is heavily guarded on one side, and there is a natural barrier of cacti and bushes, making it unlikely that detainees will escape and outsiders will break in. The prison was built on the side of the U.S. Naval Base in the Delta camp, where the temperature was as high as 35 degrees Celsius and the humidity reached 90%, almost suffocating.
Geographical location map of the base (image source @ Baidu)
The Guantanamo base has always been a barometer of U.S.-Cuba relations, and the presence of troops in the border areas of the two countries reflects fluctuations in the distance between the two sides. In the late 20th century, the main role of the base was to host Cuban and Haitian refugees who remained on the high seas to intercept them. Since 2002, a small part of the Base (X-ray camps, Delta camps and Echo camps) has been used to hold Al-Qaida and Taliban suspects captured in Afghanistan and elsewhere.
On September 11, 2001, the United States suffered an unprecedented terrorist attack. A month later, the war in Afghanistan began. The U.S. military has captured thousands of suspected terrorist organizations and Afghan irregular troops on the battlefields of Afghanistan. Since terrorist suspects do not belong to the armies of any State, they do not have prisoner status and are held and interrogated in a manner different from those required in international conventions such as the Geneva Conventions.
On the one hand, because it is illegal in the United States to detain suspects indefinitely without trial, these captured detainees cannot be held in the United States. On the other hand, the U.S. government is also under enormous time pressure, so the Pentagon began to hastily choose the place of detention in late 2001. Eventually, for various reasons, the isolated Guantanamo base, which is adjacent to the United States, was chosen as the venue for the detention and interrogation of senior al-Qaida members.
International disputes
In December 2002, former U.S. Secretary of Defense Rumsfeld approved 16 so-called "enhanced interrogation laws," including waterboarding and sleep deprivation, to extract useful intelligence from prisoners through tough means. Since 2004, international organizations and the media have continuously exposed the large number of abuses in Guantánamo Prison. In 2005, the base was lifted little by little to further widespread international controversy as prisoners went on a mass hunger strike to protest the harsh conditions in the prison and the indefinite detention without trial.
Interior view of Guantanamo Prison (Image source @ Deutsche Welle)
For 20 years, the international community has been crying out for responsibility for Guantanamo Prison. The U.N. Human Rights Office posted a statement on the U.N. website on February 23, 2021, saying the U.S. should investigate allegations of torture and ill-treatment at Guantanamo Prison. U.S. human rights experts have also urged a transparent and comprehensive accountability review of the prison's operations and legacy of the U.S. Military Commission. But to the disappointment of the international community, the closure of Guantanamo prison is still far from here after 20 years. So why has such a notorious prison been so delayed in closing, and what challenges have successive U.S. governments faced in closing Guantanamo, and how have they responded?
III. Responses and Challenges of Successive Governments
(i) The George W. Bush Administration
The George W. Bush administration expressed its intention to close Guantanamo prison as early as 2006 and to study concrete steps to achieve the closure goals. But Bush also stressed that the closure of Guantanamo "must simultaneously ensure that innocent people in the United States and the rest of the world are protected from hardcore terrorists." However, many details such as the transfer and resettlement of prisoners involved in the closure of prisons and how the legal rights of these prisoners after they were transferred to the United States eventually suspended the further decisions and actions of the George W. Bush administration.
Related parades
The Bush administration has pressured some countries to accept the prisoners, but the request has been rejected by more than 20 countries. It was not until December 2008, when Portugal expressed its willingness to accept some of the detainees from the United States, that France, Spain and Sweden showed their willingness to accept them.
(ii) The Obama administration
By the time Obama took office, Guantanamo had about 240 inmates left. During the campaign, Obama promised to close the prison within 100 days, demanding a comprehensive reform of the U.S. policy system for terror suspects, including the closure of Guantanamo prison within the year. In an effort to build national consensus, Obama gave a speech on the issue at the National Archives in Washington, D.C., in which he noted that instead of providing tools to combat terrorism, Guantanamo became a symbol and slogan that would help al-Qaida to recruit terrorists in its pursuit.
Al-Qaida (Image source @ Bing)
As a result, Obama stepped up his lobbying for allies after taking office, but he was challenged diplomatically. As German Interior Minister Wolfgang Scheuble said: "If those people the United States itself cannot accept, why can Europe accept them?" How to explain it to European citizens? "That's why European countries such as Austria, the Czech Republic and Germany are resolute. In 2009, four Guantanamo "East Turkistan" elements moved to Bermuda in the British Isles, which was met with double protests from the local population and the British government.
(c) The Biden administration
During obama's presidency, the release of hundreds of detainees who were agreed to be released was halted during Trump's tenure. Until May 17, 2021, the White House's decision to release three detainees who had been held at Guantanamo for nearly 20 years sparked speculation about the possibility that President Joe Biden would close the infamous U.S. military prison.
Among the three detainees the Biden administration agreed to release on May 17 included Sevara Paracha, a 73-year-old Pakistani, the oldest of the detainees. Unlike most other detainees, he has not been charged in any way.
(Image source @ Al Jazeera)
Of the 40 men still in detention, nine have been told they are leaving. Twelve other people, including Khalid Sheikh Mohammed, who allegedly planned the 11 September attacks, are awaiting trial by the military commission. The commission has delivered only two verdicts in 20 years, while 19 other individuals are facing a judicial impasse, detained without guilt and not acquitted by the Presidential Review Commission. The detainees' cases have been slow to progress due to procedural issues and changes in judges or lawyers, as well as the political risk that trying them in civil court could pose to Biden.
Khalid Sheikh Mohammed
Although "closing Guantanamo Prison" has been Biden's campaign slogan since Obama, Biden's approach so far has made those who follow the incident "very frustrated and impatient." According to a Report by the New York Times on December 29, 2021, the Pentagon is spending $4 million to secretly build a new court for war crimes at Guantanamo Bay, which is undoubtedly more alarming.
Fourth, the United States balances power
The purpose of Guantanamo prison is to detain suspected terrorism who cannot be disciplined under U.S. law and to limit their ability to challenge acts of detention. In the course of a series of legislation and judgments against the prison, the political nature of the balance of power in the United States is fully reflected: the judicial and legislative organs check the executive power of the president in the mechanism of American power.
(1) Checks and balances between the three powers
Guantanamo Prison was officially put into use after 9/11, and due to the special circumstances at that time, public opinion in the United States was highly unified, requiring the government to be able to respond quickly and forcefully to ensure the safety of the country and the people, and this public opinion was reflected in the structure of the regime, that is, the concentration of power was centralized and unified by the president. The president also lost no time in expanding his authority in the name of "counter-terrorism" and won the full support of Congress. Although this approach is backed by popular support and escorted by Congress, the uncontrolled expansion of executive power has posed a potential threat to the political structure of the United States and the freedoms and human rights it pursues.
Judicial checks and balances began to act, using the human rights protection of non-U.S. prisoners in Guantanamo as a breakthrough and the constitutional "habeas corpus" clause as a basis to limit the abuse of executive power in order to achieve the original design purpose of the separation of powers and checks and balances: to preserve free government.
Schematic diagram of the separation of powers in the United States
Judicial checks and balances are legal means to achieve certain political ends, and their initiation must have a legal basis, but this basis must not be too specific and the scope cannot be too narrow, otherwise it will limit the realization of the function of checks and balances. Judicial checks and balances also have the characteristics of passivity, so it is necessary to make them have greater autonomy in the scope and reasons of checks and balances, and the more extensive the meaning of checks and balances, the more conducive they are to free elaboration. As we all know, the laws of the United States are themselves made by Congress and signed by the president, so if the courts cannot go beyond this, judicial checks and balances can only be empty talk.
Taking the relevant legal trials at Guantanamo Prison as an example, the Supreme Court initially used the "habeas corpus clause" in the Congressional legislation as the basis for the court's jurisdiction and judicial trial, but then the Congress twice enacted legislation to amend the relevant provisions, such as the incarcerated persons treatment law and the military commission law, to circumvent or even exclude judicial checks and balances. Therefore, the court must find a commanding height, a basis that can bind the president and Congress, and the constitution is undoubtedly a suitable carrier. In the end, the Supreme Court relied on the Constitution and used the power of unconstitutional review to achieve checks and balances of power.
But we cannot overestimate the role of judicial checks and balances. The nature of the judicial power determines that this check and balance can only be passive and case-by-case. Even the operation mode of the Supreme Court is completely one case at a time, which makes the judicial power more in the process of the game between legislative power and executive power, and at a specific stage, play a certain role of checks and balances.
(2) Checks and balances outside the three powers
The traditional theory of separation of powers and checks and balances emphasizes the mutual restraint between the three forms of state power within the system, but in fact, the forces that come from outside the system cannot be ignored. The separation of powers and checks and balances are inseparable from the general environment of the whole society, which can be seen as the fourth force in addition to the three powers - various civil organizations.
As mentioned earlier, the judicial power is a passive power that can only provide judgment, and a large number of specific tasks must be undertaken by someone. In a case that has lasted two or three years, with the president and the secretary of defense as the defendants, and the U.S. government and the military as opponents, it is difficult to complete the case only by imprisoning non-U.S. prisoners or their families. Its gradual filing of cases and carefully selected grounds for litigation show that there is a strong social force behind this series of cases.
brief summary
As Berg, an Englishman who spent two years in prison at Guantanamo, complained, "The most vicious torture in the world is to be held without knowing what crime was committed, without charge, without trial, but at the highest price for personal freedom."
January 11, 2022, marks the 20th anniversary of Guantanamo Prison. Despite repeated promises by successive U.S. presidents to close Guantánamo Prison, it has so far been empty talk. The irrevocable Guantanamo prison has long been a stain on human rights in the United States, and as Al Jazeera reported on January 9, the Biden administration has no real credibility if it does not take the lead in closing guantanamo prison while calling on other countries to respect human rights.
As part of the war on terror, interrogating captured Al-Qaida or Taliban members to obtain as much intelligence as possible to help armies in Afghanistan and Iraq win wars is a per se and justifiable act, but when ill-treatment and torture become the primary means of interrogation, prisoner suicides continue to occur. And in the context of a large number of international controversies, the US government still has not stopped torturing prisoners and closed Guantanamo Prison, but has spread its "black prison network" to the world, which not only damages its own national image, but also is a huge irony of "human rights" on the benchmark.