by Peter Jan Honigsberg, professor of law at the University of San Francisco and founder and director of the Witness to Guantanamo project. He is also the author of Our Nation Unhinged, the Human Consequences of the War on Terror, published by the University of California Press.
ACS asked me to write a piece on Guantanamo for the twelfth anniversary of the attacks on the Twin Towers and the Pentagon on September 11, 2001. I am the founder and director of the Witness to Guantanamo project. The project films interviews with former detainees and others who lived or worked in Guantanamo Bay, Cuba.
However, as I try to write about the men still held in Guantanamo after nearly 12 years, President Obama’s threat to bomb Syria for its alleged use of chemical weapons continues to tug at my thoughts. There is an intersection between America’s threatening events in Syria and our treatment of the men in Guantanamo. In both scenarios, the rule of law is ignored and abandoned.
Of the 164 men still imprisoned in the detention center, 84 have never been charged with a crime and are cleared for release. Yet, Obama has done nothing to release them except to express the belief that Guantanamo should be closed. He signed an executive order that the prison be shuttered on his second day of office, more than four years ago. The prison is still open.
He reiterated that desire to close the detention center this spring, and recently released two men to Algeria. However, Obama points to Congress for tying his hands when, in fact, he has the authority to release the 84 cleared men within 30 days, as he did for the two men transported to Algeria.
Of the 80 men not cleared for release, approximately 20 may be prosecuted. The government considers the remaining 60 too dangerous to release. The military holds them because it does not have sufficient evidence to win a conviction against them, or because the evidence against them is tainted from torture. These detainees are looking at the possibility of living the rest of their lives in Guantanamo, without charges. As of now, their only hope of leaving is in a coffin.
The U.S. is in clear violation of the rule of law in Guantanamo, and has been since the first twenty detainees arrived at the naval base on January 11, 2002. America violated the rule of law in Guantanamo when it imprisoned husbands, fathers and sons in the detention center for more than a decade without charges. The U.S. further violated the rule of law and human rights when it engaged in torture and cruel, inhuman and degrading treatment of the men incarcerated. And now it is ignoring the rule of international law and the United Nations charter in claiming the authority to act on its own in attacking Syria.
The U.S. does not have the unilateral authority to invade the territory of a country caught in the midst of a civil war. President Obama is required to act in concert with the international community and the United Nations Security Council. It is the duty of the U.N. to act when countries violate human rights. If the U.N. fails to act, he should devote himself to persuading the nations of the world to support his belief that action is urgent and essential. The U.S. cannot take unilateral action under international law except in self-defense, when attacked. Bombing Syria is not self-defense.
Of course it is despicable that Syria allegedly used chemical weapons, and that more than 1000 people died in horrible, writhing deaths. And, chemical weapons are outlawed by international law, as well as customary law and norms. However, we live in a global community. Simply being the strongest member of that community does not give the right to act independently. As Americans, we hold ourselves out to the world as the defender of the rule of law. If we believe that, we must observe it.
Interestingly, many of the detainees we interviewed for the Witness to Guantanamo project told us that before they were seized, they had admired the U.S. as the guardian of human rights and the rule of law. However, the U.S. betrayed its values, they told us. The U.S. will betray its values again, if it bombs Syria unilaterally.
President Obama has a duty to America and to the world to respect and adhere to the rule of law in Guantanamo and in Syria.