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20 Years of Guantanamo: The Cost of Unlawful U.S. Detentions and Interrogations Post-9/11

Biden should stand firm on his vow to close the U.S. prison at Guantánamo and provide redress and rehabilitative services for victims. The President should also acknowledge wrongdoing and apologize to victims of torture and other unlawful practices.

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Two decades after the Guantanamo Bay detention camp started on January 11, 2002, The Costs of War Project at Brown University’s Watson Institute and Human Rights Watch published a report, assessing the massive costs of US unlawful transfers, secret detention, and torture after the September 11, 2001, attacks.

Here are the key points of the report (the full report can be cited at https://watson.brown.edu/costsofwar/papers/2022/DetentionandTorture)

The report notes that: On September 17, Bush issued a secret memo empowering the CIA to covertly capture and detain individuals “posing a continuing, serious threat of violence or death to U.S. persons and interests or planning terrorist activities”. On January 11, 2002, the first 20 men to be imprisoned at Guantánamo were flown to the base aboard a U.S. military plane. Later on, this number increased.

Abuses at Guantánamo

Around the world, Guantánamo remains one of the most enduring symbols of the injustice, abuse, and disregard for the rule of law that the U.S. unleashed in response to the 9/11 attacks. Since January 11, 2002, the U.S. has held at least 780 foreign Muslim males there, 15 of whom were minors at the time of their capture. The US military continues to detain at Guantánamo 39 men who were apprehended in the aftermath of 9/11. 27 of them had never been charged as of January 2, 2022.

Torture and Other Inhumane Treatment

During the Bush presidency, the U.S. military subjected the prisoners to torture and other ill-treatment that included placing them in stress positions, holding them in extended solitary confinement, threatening them with torture and death, siccing attack dogs on them, depriving them of sleep, and exposing them for prolonged periods to extreme heat, cold, and noise.

According to the Senate Torture Report, the CIA subjected at least 39 of these men to torture and other ill-treatment that is euphemistically referred to as “enhanced interrogation techniques”, which included “waterboarding”, “walling”, and “rectal feeding”.

Due Process Violations

The Guantánamo detainees have been denied due process rights and redress for abuses. More than six years passed before the U.S. Supreme Court, in Boumediene v. Bush (2008), affirmed that the constitutional right of detained people to challenge the lawfulness of their detention applied to the men at Guantánamo, striking down amendments to the federal statute to eliminate habeas jurisdiction for any “enemy combatant” in U.S. custody.

Bush authorized the creation of the military commission system at Guantánamo in November 2001 to try “certain non-citizens in the war against terrorism.” Despite subsequent reforms, including those enacted by Congress, the commissions are fundamentally flawed. Among their numerous flagrant violations of due process, the commissions have denied defense counsel the ability to prepare an effective defense, denied the accused access to all evidence presented against them, and failed to adequately guarantee that information obtained through torture or ill-treatment would not be used as evidence.

Medical Abuses

Aside from violations of due process, the men detained at Guantánamo continue to face abuse, including sporadic force-feeding during hunger strikes and medical neglect, even as their health needs become increasingly complex as they age. 81 Many of the tortured men are still suffering physically and psychologically. According to a 2019 report by Physicians for Human Rights and the Center for Victims of Torture, their medical records lack details about their trauma histories, leading to misdiagnoses and incorrect treatments, and the prison does not provide torture rehabilitation services.

Continuing Outcry over Detentions

Protests against the government’s inability to close the Guantánamo prison continue both inside and outside the government. In the past year, nearly 100 members of both houses of Congress have urged Biden to close the prison. Guantánamo is “a symbol of lawlessness and human rights abuses,” 24 senators wrote the president in April. The prison’s continued operation is “a fundamental betrayal of our values” that “undermines our ability to advocate for human rights and the rule of law,” 75 representatives wrote in August.

Costs at Home and Abroad

The corrosive repercussions of the Bush-era detention and interrogation abuses continue to this day, both at home and abroad. They have cost U.S. taxpayers trillions of dollars and militarized police responses at home. They have robbed victims of 9/11 and other extremist armed attacks of justice and shattered the lives of foreign men who were brutally detained for years without charge. They have given cover to foreign governments to carry out their unlawful detention and torture with impunity and to dismiss U.S. human rights diplomacy as hypocrisy. They have shaken the foundations of the international human rights system.

The “War on Terror” has cost U.S. taxpayers trillions of dollars and the detention component has easily run into the billions. U.S. taxpayers are spending $540 million a year just to detain prisoners at Guantánamo, which comes to nearly $13 million annually per prisoner, according to a 2019 investigation by The New York Times.184 This estimate includes the cost of nearly 2,000 guards, health care for aging detainees whose medical needs are complicated by the abuse they suffered in CIA black sites or in Guantánamo itself, and the military commissions. The true costs could be far higher as the estimate does not include classified expenses, such as the CIA presence at the base.

No Justice for September 11 Victims and Families

The U.S. government’s reliance on deeply flawed military commissions, along with other due process failures, has not only violated the rights of the men held at Guantánamo. It also has deprived survivors of the 9/11 attacks and families of the dead of their right to justice.

While some relatives of 9/11 victims laud the military commissions, others have expressed frustration at the delays, and others still, including some members of the group 9/11 Families for Peaceful Tomorrows, have said that the problematic proceedings contribute to their anguish.

Recommendations

It is not too late for the U.S. to mitigate some of the damage from its unlawful detentions, torture, and other violations of the rights of both victims and suspects. The Biden administration should promptly implement measures aimed at ending crimes and violations perpetrated under the rubric of the War on Terror, including unlawful airstrikes and raids that kill or injure civilians both in and out of recognized war zones.

Biden should stand firm on his vow to close the U.S. prison at Guantánamo and end the deeply flawed military commissions system. The president should press Congress to lift the ban on transferring the rest to the U.S. for prosecution in federal courts without using torture-tainted evidence, and, for those convicted, to serve their sentences in federal prisons.

Furthermore, Biden should direct the attorney general to appoint a special prosecutor to conduct a thorough, independent, and credible investigation into U.S. government detention practices and interrogation methods since 9/11, with an eye toward prosecutions. The U.S. Congress should create an independent, impartial commission to investigate enforced disappearances, extraordinary renditions, torture, and other abuses of detainees in U.S. custody since 9/11.

Judicial authorities in other countries should exercise universal jurisdiction or other forms of jurisdiction as provided under international and domestic law, to prosecute nationals from the U.S. or elsewhere alleged to be involved in serious international crimes against detainees since 9/11. Governments that participated in the RDI program should also ensure impartial and independent criminal investigations into the roles of their nationals and prosecute those implicated in crimes.

Biden should provide redress and rehabilitative services for victims. The President should also acknowledge wrongdoing and apologize to victims of torture and other unlawful practices. President should release the Torture Report and authorize the attorney general to appoint a special prosecutor to hold abusers to account.

Biden should increase transparency and accountability for other crimes and violations perpetrated in the name of countering terrorism, including unlawful airstrikes and raids that kill and injure civilians both in and out of recognized war zones.

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