As the international community marks the 22nd anniversary of the establishment of the Guantánamo Bay detention facility, I acknowledge we have made some progress in “undoing” the legacy of this infamous facility. At the height of the exceptional legal and political regime, 780 Muslim men were rendered, arbitrarily detained, and subjected to torture, cruel, inhuman and degrading treatment there. Now, 30 remain. “Undoing” Guantanamo has required the relentless pursuit of justice by lawyers, political courage by some U.S. executive branch officials, persistent global human rights advocacy, trenchant journalism, and activism by released detainees who have become the frontline of advocacy as they rebuild their lives.
As a former United Nations Special Rapporteur on Counter-Terrorism and Human Rights, I particularly acknowledge the Biden administration’s valiant decision allowing the U.N., and specifically an independent human rights expert, access to the facility and detainees. The report I issued documents current conditions of confinement and makes multiple recommendations to the U.S. government. Those recommendation follow from the report’s core finding that the “the totality of these factors [conditions of confinement], without doubt, amounts to ongoing cruel, inhuman, and degrading treatment at the Guantánamo Bay detention facility, and may also meet the legal threshold for torture.” The report is not easy reading, and I was hearted by the government’s position, which, while it disagreed with some my findings, still stated in response that it planned to consider those recommendations seriously.
I reflect here on the importance of implementing my recommendations, and then highlight some particularly egregious challenges that former detainees face, following their transfer to countries or origin or resettlement in third countries.
My overarching recommendations echo the positions of former U.N. Special Rapporteurs and Working Groups, including closure of the facility, acknowledgment of the human rights violations committed in this facility, apology to detainees who were subjected to torture, cruel, inhuman and degrading treatment or arbitrarily detained, and reparations to those harmed. But, with an eye on the present, there is a list of positive steps that would meet some of the immediate rights and needs of the men still detained and those who have been released.
- Advance meaningful torture rehabilitation available to all remaining men, including by enabling full access to their medical records and appointing medical personnel with training in complex geriatric care and trauma rehabilitation to the facility.
- Institute a mechanism that would allow detainees prompt access to independent medical examinationand
- Make the detention facility’s Standard Operating Procedures available to the detained men and their lawyers – bringing certainty and removing trauma inducing helplessness and anxiety from those who remain.
- Standardize the frequency and quality of family calls, to undo current arbitrariness to ensure that all detainees regardless of their categorization (“high-value” and “non-high-value”) are provided with at least one call per month.
- Increase the frequency of calls with family members for detainees who are now transfer for eligible; expand the level of “extended” family members included in family call (for example to include aunts, uncles, cousins).
- Standardize and equalize the extent of access to counsel regardless of the category of legal representation, including with respect to the scope of what can be discussed with detainees, the scope of essential items that can be provided, and the scope of access to information and evidence about the detainees’ situation of confinement, including their medical condition.
- Safeguard the prohibition of all-torture derived evidence from all proceedings, including pre-trial, post-trial and in plea bargains.
I highlight the unique trauma, anxiety, despair and helplessness felt by those men who have been cleared by the Periodic Review Board, a process in which several federal agencies determine whether continued detention is necessary for U.S. national security, but remain arbitrarily detained at the facility. To know that there is no reason for one’s detention, to have been told of one’s impending release, to have a family member effectively held arbitrarily due to the vastitudes of national policy and the inability to deliver transfer to another country, is a particularly egregious form of cruel, inhuman, and degrading treatment. Ensuring that human rights compliant transfers happen for this group with urgency should be a priority for the Biden administration. The serious efforts of the State and Defense Departments must be matched by seriousness on the part of White House officials to complete these transfers expeditiously.
Challenges Following Transfer and Resettlement
For the men who the U.S. government has transferred or resettled, my report documents the despair, challenges, and undisputable harms most continue to face following release. Former detainees need the essential means to live a dignified life. As my Report set out in full, such basic minimums include the right to legal status where they reside and the highest attainable standard of physical and mental health, including meaningful access to mental health services and rehabilitation and the means or provisions to pay for such services. Meaningful healthcare access for torture victim survivors also includes medical and psychosocial treatment, which can address or manage prior systematic torture as well as health support for family members as secondary victims. Other minimal essentials include the realization of access to education, training, and support to enable meaningful work, access to and capacity to pay for culturally and socially appropriate housing, access to food, the right to have a family life including reunification with family members in resettled countries or to leave to join their families, and ultimately the right to a regular legal status allowing them move freely within a country (whether country of settlement or citizenship) and to enter and leave the country. Only a very small number of countries of resettlement have offered former detainees a path to citizenship.
It has been obvious that in many cases, access to these essentials for former detainees has not improved across U.S. administrations and there is consistent political position of eschewing responsibility for past or ongoing harms to the men post transfer. In interviews with former detainees, they articulated the keen sense of being discarded or treated as “objects” rather than persons endowed with dignity and rights throughout and after the process of transfer. U.S. policy has not consistently acknowledged any legal or moral responsibility to these men, and where this becomes most obvious is in transfers where the confidential diplomatic assurances of “humane treatment” are completely disregarded.
A couple of high-profile cases stand out and have been the subject of official U.N. communications to the United States and multiple other governments. The PRB cleared all of these men and the United States released them subject to diplomatic assurance of “humane treatment.” The key point here is that if the receiving State holds such assurances as meaningless, the United States must use all of its available political and legal resources to address any harms that follow when they transfer torture survivors to places where they are then subject to further harm.
For example, Ravil Mingazov a Russian of the Muslim faith, was transferred to the United Arab Emirates (UAE), and was immediately it appears the victim of prolonged arbitrary detention and sustained torture. Rumours of proposed transfer to Russia, about which he had voiced fears of persecution before being sent to the UAE – and which the UAE provided assurances to the U.S. government it would not do prior to receiving Mingazov – is particularly concerning. His detention and ongoing harm in the UAE have no end in sight. This case highlights the urgency with which the United States should accept its obligations to torture victim survivors and secure a second humanitarian transfer using all its diplomatic resources to a country where Mingazov will be protected, supported by family, and able to recover from sustained and tortuous harm.
Another examples is Saeed Bakhouche who was transferred to Algeria in April 2023 after spending 20 years in U.S. custody. He was never charged with a crime, and, while in detention, the PRB commended his compliance and viewed him as a well-suited candidate for release. Once transferred he was immediately imprisoned in Algeria and again allegedly subject to sustained ill-treatment. If diplomatic assurances are to mean more than the paper they are written on for former Guantanamo detainees then action is urgently needed to protect these men in real time by the country who first tortured them and then transferred them. The requirement to prevent torture is also part of State obligations under the U.N. Convention Against Torture, which the United States and over 170 other nations have joined.
A third example is Ghassan Abdallah Ghazi al-Sharbi who was transferred to Saudi Arabia in March 2023. His case illustrates the transfer trend line of harm that I observe for former detainees. After al-Sharbi was transferred, he was immediately detained and appears to have been forcibly disappeared, and is now under investigation for terrorism, despite being in detention by the United States for over 20 years and suffering from severe health challenges.
In short, as we mark the 22nd anniversary we have an obligation to look to the long-term to support the victims of torture. That obligation clearly falls on the State which engaged in rendition and torture, the States that facilitated and enabled torture, and the States where the released men now reside. We need imaginative and practical solutions to address the profound social, legal, and medical needs of these torture and rendition survivors that honor the commitment to preventing torture while remaining focused on the needs of victims of gross and systematic human rights violations. The international human rights community also has responsibilities here. I have been struck by the ways in which Guantanamo is a symbol for many organizations to promote their anti-torture and impunity work, but few if any organizations provide direct support to the men who are in dire need of human rights defenders at their side after their release. So, we all have work to do. The long shadow of Guantánamo is not going away. Until those who ordered, enabled, legally defended and carried out torture are held responsible, Guantánamo will remain with us. The work goes on simply and most importantly, so it can never happen again.