Running Head: GUANTANAMO BAY: THE LEGAL TRUTH

Guantanamo Bay: The Legal Truth

Austin Yoon
Virginia Tech

GUANTANAMO BAY: THE LEGAL TRUTH

To understand the legality and constitutionality of Guantanamo Bay, one must first
understand the context in which the detention center was formed and used. Guantanamo Bay
was obtained by the United States in 1898 at the end of the Spanish American War, given back to
Cuba, and then leased from Cuba in 1903 (Lazar, 1968, p.739). Before January 11, 2002,
Guantanamo Bay was not used as a military prison, nor an interrogation camp. Rather, it was
used as a refugee camp for migrants that fled Haiti from the early 1990s to 1995 (Sweeny, 2007,
p.684). Since January 11, 2002, it has been officially deemed as a joint military prison and
interrogation camp under the leadership of the Joint Task Force Guantanamo of the United States
Navy. Widespread criticism of the detention center has only begun recently, as the former and
current prisoners of Guantanamo Bay have claimed that they have been, or are being, tortured.
The United States Department of Defense denies all accusations of torture and stands by their
statement that all prisoners are being treated humanely and are being interrogated using
enhanced interrogation techniques (Maran, 2006, p.153). Since February of 2002, the
detention of prisoners, interrogation techniques, and prosecutions of prisoners has been under
widespread criticism.
The legality of the indefinite detention of prisoners has long been a controversial topic.
However, when looking at Guantanamo Bay, from an unbiased legal standpoint, it is a
technically completely law abiding detention facility that follows all policies. Constitutionally
speaking, the prisoners within the prison are not considered United States citizens and are
therefore not subject to the United States Constitution. All prisoners are also technically enemy
combatants that have been captured and detained within Guantanamo Bay. As long as the
prisoners do not set foot upon United States soiland the Cuban base is not considered a part of
the United Statesthey will be denied the rights guaranteed to criminals under the United States

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Constitution, such as the presumption of innocence and trial by a grand jury stated in the fifth
amendment (Maran, 2006, p.153). When challenged in court systems within the United States,
the defendants argued that the Guantanamo Bay Detention Camp ultimately resides in Cuban
territory, and therefore United States courts do not have the power or jurisdiction to hear matters
relating to prisoners being held in Cuba (Maran, 2006, p.154). If any prisoners wished to have
some sort of trial, the only judiciary action that could be taken was through internal military
tribunals conducted by the United States Military, whose rules differ extensively from traditional
domestic courts within the states.
As for the international legality of the holding of prisoners within the camp, the Third
Geneva Convention is currently established by international law as the official policy for dealing
with prisoners of war. However, the United States government clearly stated with the creation of
the detention camp that all prisoners are considered enemy combatants rather than prisoners of
war (Maran, 2006, p.154). According to the Geneva Conventions, all prisoners of war are
granted mandatory hearings before a competent tribunal (Maran, 2006, p.154). Since the
treatment of enemy combatants are not specifically outlined in the Third Geneva Convention,
the United States government does not consider the prisoners to be subject to the Geneva
Conventions, and thus, they can be held indefinitely without trial. Also, in international law, the
Geneva Conventions do not apply to unlawful combatants who act under the orders of a leader
who is not a part of a recognized and independent nation-state. When looking at the prisoners
detained in Guantanamo Bay, they are all acting under the orders of the Taliban or Al Qaeda
(Johns, 2005, p.613-635). Both of these terrorist organizations do not act under the flag of a
nation, rather, they act under the orders a few men at the helms of the two organizations.

GUANTANAMO BAY: THE LEGAL TRUTH

Therefore, these unlawful combatants do not have the rights of the Geneva Conventions, as
international law explicitly outlines who does and does not have these rights given to them.
The interrogation techniques used in Guantanamo Bay are indeed controversial, however,
are completely legal. According to the torture statute (18 U.S.C. sections 2340-2340A), cruel,
inhumane, or degrading treatment is not considered torture, and therefore does not violate the
torture statute. In the exact definition of torture, severe pain is considered to be serious physical
injury, organ failure, impairment of bodily function, or even death. Even in the leaked videos
and official reports of the interrogation techniques used in Guantanamo bay, there are no forms
of severe pain, or even the slightest hint of the aforementioned symptoms to severe pain.
Reported enhanced interrogation techniques include, but are not limited to, waterboarding, sleep
deprivation, forcing detainees to be held in uncomfortable positions, and putting detainees in
excessively cold rooms (Maran, 2006, p.155). If using the strictly legal definition of torture
outlined within both international law and the United States Constitution, none of these enhanced
interrogation techniques cause any type of severe pain. Waterboarding provides a false
sensation of drowning, where a cloth is placed over the victims head, and water is poured on
that cloth. The drowning sensation stops immediately when the water is stopped pouring. Sleep
deprivation can cause hallucination and sensitivity to light, and even death in some extreme
cases, however, no detainees died due to sleep deprivation, and the effects of sleep deprivation
could be fixed after sufficient sleep (Ross, 2005, p.3). The cold rooms detainees were held in
were all kept above freezing temperature as to avoid hypothermia or frostbite, and therefore
would only provide discomfort to the victim. The discomfort could be stopped by simply
moving the detainee to a warmer location. Detainees being forced to be held in uncomfortable
positions only had to deal with muscle strain, and no bones or limbs were moved in such a way

GUANTANAMO BAY: THE LEGAL TRUTH

that they would be broken or mutilated. To remedy uncomfortable positions, detainees were
simply united. In all of these cases, none ever riddles the detainee with permanent physical
damage, and all could stopped immediately to prevent accidental death. Furthermore, any type
of prosecution using the torture statue could be refuted, as the President of the United States has
the right to executive order during a time of war. Therefore, if deemed necessary by the
President, any interrogation techniques can be claimed as necessity or self-defense.
The trials for prisoners have long been under criticism. As of 2006, of a total of 770
detainees brought to Guantanamo Bay, 315 had been released, 110 had been labeled for release,
and of the remaining 375, just above 70 will face trial (Maran, 2006, p.152). Since the only real
form of judiciary action they can request is a military tribunal, they are not guaranteed a speedy
trial, nor are they guaranteed a grand jury such as those in traditional domestic courts within the
United States. More specifically, United States Military tribunals can be described as an
inquisitorial system based on changes brought by military authorities, prosecuted by military
authorities, judged by military officers, and sentenced by military officers. Therefore, if not
enough evidence is gathered, or if such a state is deemed by a military authority commissioned
within the military tribunal, the detainee being charged can be held indefinitely until either
enough evidence is gathered, or until the detainee is recognized as not being affiliated with said
charges and being released (Maran, 2006, p.153). Furthermore, since all detainees at the
Guantanamo Bay Detention Camp are enemy combatants, they are subject to military tribunals,
and if deemed necessary by military authorities, they can be held indefinitely through completely
legal and lawful means. As for international law, again, the Geneva Conventions do not apply to
enemy combatants, nor does it apply to those who act under the orders of a leader not affiliated

GUANTANAMO BAY: THE LEGAL TRUTH

with any nation. Therefore the detention of all prisoners within Guantanamo Bay is legal both
according to United States law, and international law.
When piecing it all together, the three most controversial topics about Guantanamo Bay
are all legally correct. Morally speaking, the interrogation techniques could be completely
immoral in the eyes of humanitarians. On the other hand, in the eyes of Americans who fear for
the safety of their nation, it can be morally justified, because it is an act of both self-defense and
self-preservation. Many arguments can be made for either side, however, moral arguments rarely
have a right and wrong side, but good points from either side of the argument can be duly
noted. It may not be right to cause such pain to prisoners for information, and maybe that
information can be coerced from the prisoners in a different fashion. However, until a more
effective method is developed, for the safety of the American people and for the safety her allies,
these current interrogation techniques must continue. They are the most effective tools in the
toolshed of the Central Intelligence Agency for gathering information from prisoners.
When looking at the activities within Guantanamo Bay from a holistic standpoint, not
single hair is out of line when looking for legal faults. All policies, acts, and events are
considered legal both domestically and internationally. Public outcry is for the moral aspects of
the events that happen within Guantanamo Bay. There is no legal way of attempting to shut
down the facility using the law to aid the prosecutors. All interrogation techniques are legal in
terms of the actual definition of torture, and in addition, the President of the United States can
execute an executive order during a time of war to preserve the nation if deemed necessary. The
detention of criminals within the interrogation camp for an indefinite amount of time is also
technically legal, as those who run the military tribunals deem it necessary to hold the prisoners
for extended periods of time to gather evidence, or even to prove that there is a lack of evidence,

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such that the prisoner can be tried or released from the camp. For the overall detention of
prisoners within the camp, again, it is completely reasonable to detain enemy combatants that
may have prospects of intelligence that the Central Intelligence Agency can use to prevent future
terrorist plots, or even to assassinate and eliminate top leaders in both the Taliban and Al Qaeda.
There is no question that the Guantanamo Bay Detention Camp and the events that occur within
are completely legal and necessary for the defense and preservation of the United States. Most
critics of the Guantanamo Bay Detention Camp have arguments that are solely based on morals,
and morals are not objective whatsoever. Morals change on a per-person bases, and should not
be used to judge whether or not a government operation should cease to exist. The way a person
is raised will change which way their moral compass points on this issue. Some, raised by those
who are considered conservative and are concerned about national defense, will agree that the
treatment of prisoners makes complete sense. However, there are some others that are raised to
care more about the well-being of others, rather than themselves, who disagree with the activities
at Guantanamo Bay Detention Camp. Morally speaking, there are so many different ways to
approach what they do and how they treat prisoners, it would be unreasonable to even think
about all of the arguments that could possibly be made. For example, arguments could be made
that prisons in the United States are bad because it provides the criminals of the nation with free
food, shelter, and entertainment, when they should be receiving punishment for their actions.
Taxpayers are essentially handing out free vacations to those who break the law. It would even
make sense for those who are homeless and are in absolute poverty to engage in criminal
activities in order to have guaranteed meals and shelter every day and night for the rest of their
sentence. In this sense, moral justifications can range from being logical to being far-fetched and
ridiculous, and thus should not be considered for issues such as Guantanamo Bay.

GUANTANAMO BAY: THE LEGAL TRUTH

Resources
Lazar, Joseph (July 1968). International Legal Status of Guantanamo Bay. Retrieved
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Sweeny, Joseph C. (February 2007). Guantanamo and U.S. law. Retrieved

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Johns, Fleur (September 2005). Guantanamo Bay and the Annihilation of Execption. Retrieved
from http://ejil.oxfordjournals.org/content/16/4/613.full

Maran, Rita (2006). Detention and Torture in Guantanamo Bay. Retrieved

from http://www.jstor.org/stable/29768407?pqorigsite=summon&seq=
2#page_scan_tab_contents

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Ross, Brian (2005). CIAs Harsh Interrogation Techniques Described. Retrieved
from http://abcnews.go.com/WNT/Investigation/story?id=1322866