Guantanamo Bay: Twenty Years of Counterterrorism and Controversy

A Legal Black Hole?
In response to these concerns, the George W. Bush administration made two decisions that are core to Guantanamo’s controversies: the first was the selection of the site itself; the second was the determination that the Geneva Conventions did not apply to the detention of al-Qaeda and Taliban prisoners. Much of the legal thinking behind those decisions was rebuffed by the U.S. Supreme Court years later.

An early impetus for having a detention site at Guantanamo was a push by U.S. commanders in Afghanistan to offshore the task of holding enemy prisoners so that the military could focus on combat operations. In November 2001, the Bush administration considered various sites, including on the U.S. mainland, at U.S. military bases in Europe, in Pakistan, on Pacific islands, and even on Navy ships. However, Guantanamo was the only one that fit several criteria set by administration officials: the U.S. naval base in Cuba was large enough, secure enough, and—most importantly—on foreign soil, and therefore beyond the reach of any U.S. court. It was also a short flight from Washington, DC, allowing U.S. officials to travel back and forth with relative ease.

Under the terms of its long-running lease with Cuba, the U.S. government exercised “complete jurisdiction and control over” the land it occupied there. It did not need to obtain permission from the Fidel Castro government, with which Washington was already at odds. U.S. Secretary of Defense Donald Rumsfeld announced the new detention center to the American public on December 27, 2001; the first detainees arrived two weeks later.

Decision Two: Defining the Captives
The Bush administration’s other fateful decision was to label the growing number of enemy captives, mainly taken on Afghan soil, as “unlawful combatants” rather than prisoners of war (POWs). The distinction would have a direct bearing on how detainees would be treated. During traditional armed conflicts between states, combatants are bound by the Geneva Conventions of 1949, specifically the Third Geneva Convention, to provide POWs a minimum standard of care that includes safe accommodation, adequate food, and medical attention. At the same time, states are strictly prohibited from subjecting prisoners to violence, torture, or cruel and degrading treatment. The Geneva Conventions have been ratified by 196 states, including the United States, with the goal of protecting combatants and limiting the suffering of civilians and other vulnerable groups during periods of conflict.

The Bush administration, however, concluded that the Geneva Conventions did not apply to the conflict with al-Qaeda. The “war against terrorism ushers in a new paradigm,” wrote President Bush in a February 2002 memo [PDF] to his top national security officials. The administration said it would not consider al-Qaeda or Taliban detainees to be POWs but rather “unlawful combatants,” a term not defined in the Geneva Conventions or other treaties. Bush did instruct U.S. military forces to “treat detainees humanely” and “in a manner consistent with the principles of Geneva.”

In its legal rationale [PDF] for the decision, the administration said that al-Qaeda prisoners were part of a nonstate group that was not a party to the Geneva Conventions. Although Afghanistan was a party to the conventions, Taliban prisoners would also not receive POW protections because they did not fit the criteria for POWs in the Third Geneva Convention, the administration said.

Unusual Suspects
Bush administration officials described the captured men being flown to Guantanamo in the facility’s early days as “the worst of the worst”—only the most hardened terrorists and their enablers. However, many held at the camp were later determined to have little or no connection to al-Qaeda or the Taliban.      

Most detainees were captured in Afghanistan or along the border with Pakistan in the early days of the U.S. invasion. Many were reportedly caught by U.S. allies and handed over in exchange for bounties that ran into the thousands of dollars. Some were held and interrogated by the CIA for months or years at undisclosed locations, commonly referred to as “black sites,” before their transfers to Guantanamo.

In total, the United States has imprisoned 780 men—all Muslim—at Guantanamo since the 9/11 attacks. At its peak in 2003, the prison held around 660 men. The last detainee arrived in 2008. Nine died at the facility. The Bush administration released more than five hundred; President Barack Obama transferred out about two hundred; President Donald Trump just one; and President Joe Biden three. As of September 2022, thirty-six remained.

Interrogations and the Torture Debate
Guantanamo has become indelibly linked to allegations of mistreatment and abuse of detainees before and during their time at the detention facility. Many of the alleged abuses, including torture, occurred during interrogations conducted by the CIA and U.S. military, which were tasked with gaining intelligence to disrupt the al-Qaeda network and prevent another mass-casualty terrorist attack.

The CIA conducted its interrogations of “high-value detainees” at black sites in foreign countries including Thailand and Poland, and later transferred some of those detainees to Guantanamo. Meanwhile, the military oversaw interrogations of detainees at Guantanamo. Outside of the authorized interrogation methods, until 2009, some detainees were reportedly also subjected to unapproved, harsher interrogation tactics, as well as abusive disciplinary actions.

CIA’s Enhanced Interrogation Techniques 
The CIA developed its enhanced interrogation techniques (EITs) shortly after the capture of Abu Zubaydah in March 2003. In developing these techniques, which included physical slaps and grabs, sleep deprivation, stress positions, and waterboarding, the agency consulted psychologists who had worked at a U.S. military school that teaches service members how to survive enemy torture.

Yet, in some instances, CIA personnel used unauthorized techniques. For example, according to a 2014 Senate report [PDF], a CIA interrogator used a gun and a cordless drill to intimidate the alleged planner of the 2000 bombing of the USS Cole at a black site in 2002. The CIA largely ended its black site program in 2006, having held more than one hundred detainees over the years, of which at least thirty-nine were subjected to EITs. President Obama banned the use of EITs upon taking office in 2009. The 2014 Senate investigation leveled numerous critiques and concluded, among other things, that the CIA’s program was not an effective means of intelligence gathering and damaged U.S. standing around the world.

Defense Department’s Aggressive Interrogation Techniques
Typically, the military adheres to interrogation standards outlined in the U.S. Army Field Manual, which comports with the Geneva Conventions and, among other things, bars using force against prisoners. In December 2002, Rumsfeld signed off on an initial list of fifteen techniques that could be used on Guantanamo detainees, which included: the use of specific phobias (e.g., dogs), stress positions, deprivation of light and sleep, loud sounds or music, removal of clothing, grabbing, pushing, and poking. According to a 2008 Senate report [PDF] on the treatment of detainees, Rumsfeld approved the techniques despite objections from some military lawyers and FBI counterterrorism experts, who said that they might violate U.S. and international law, would likely prove ineffective, and would reinforce enemy stereotypes about “evil Americans.”

These techniques were first used at Guantanamo on Mohammed al-Qahtani, sometimes referred to as the “twentieth hijacker” in the 9/11 attacks. However, Rumsfeld rescinded approval for the techniques just weeks later, after the Navy’s chief attorney said they “could rise to the level of torture.” In April 2003, Rumsfeld approved a revised set of twenty-four less aggressive techniques [PDF] that still included some not listed in the field manual, such as environmental and dietary manipulation and sleep adjustment. These techniques reportedly also influenced the U.S. military’s treatment of detainees in Afghanistan and Iraq, which included the abuses at Abu Ghraib prison that came to light in 2004, although some Bush administration officials have disputed this claim. In 2006, the Pentagon directed its personnel to comply with the Geneva Conventions after the U.S. Supreme Court ruled that they apply to the conflict with al-Qaeda; and, in 2009, Obama ordered all detainee interrogations to comport with the army’s manual. 

In addition to harsh interrogations, Guantanamo detainees have also reported suffering abusive physical and psychological disciplinary actions [PDF], such as long periods of solitary confinement, sleep deprivation, exposure to extreme weather, beatings, stress positions, forced shavings, forced feedings, and sexual humiliation. The 2008 Senate report concluded that “the abuse of detainees…damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.”

However, some Bush administration officials said the allegations of detainee mistreatment were inaccurate. “Irresponsible charges leveled by human rights groups, by editorial pages, and, most shamefully, by members of the U.S. Congress…unfairly tarnished Guantanamo’s reputation—and the reputations of our country and of the men and women of the American military who served at the facility,” wrote Rumsfeld in his 2011 memoir.

Wartime Justice
The Guantanamo experience has also raised profound questions about the U.S. government’s powers to detain and try suspected terrorists and enemy fighters. What wartime powers does the president have? Who can be detained? How long can they be held? What rights do they have? What legal forum should they be tried in? Can the Supreme Court intervene?

Prior to the 9/11 attacks, the United States prosecuted suspected terrorists in the federal court system, which has strict, well-established rules that govern the legal process, including constitutional safeguards. An arrested suspect must be charged with a crime (or else released), tried, sentenced, and then granted a chance to appeal. For instance, Omar Abdel Rahman, the Muslim cleric who planned a spree of bombings in New York in 1993, was convicted in federal court and sentenced to life in prison.   

However, as part of the war on terrorism, the Bush administration said that the 9/11 attackers and their supporters committed war crimes and would therefore be detained and prosecuted by the military according to a different set of legal rules and principles. These were embodied in a new system of military commissions (sometimes called tribunals), which were last used during and after World War II to prosecute German saboteurs in the United States. (Note: Military commissions are different from court martials, which are permanent military courts used to prosecute members of the U.S. armed forces for violations of military law.)

Bush’s Legal Battles
In the years that followed, some detainees challenged the Bush administration in court, chipping away at some of its broader claims of executive authority and refining many of its detention powers. 

In a 2004 case, Rasul v. Bush, the Supreme Court rejected the administration’s attempt to keep federal courts from reviewing Guantanamo cases, ruling that even foreign nationals held outside the United States could challenge their military detention. In another case decided on the same day, Hamdi v. Rumsfeld, the court ruled that the government must give U.S. citizen detainees some factual justification for their detention and some ability to contest it. 

The administration responded to these rulings by setting up a formal, nonpublic process to review the status of each Guantanamo detainee to ensure he qualified as an “unlawful enemy combatant.” As a result, around three dozen of the more than 550 detainees were released after it was deemed they did not meet the threshold. An additional military panel was created to annually assess whether detainees continued to represent a threat. In all, it recommended that more than 130 detainees be released or repatriated. 

In a 2006 Supreme Court ruling, for Hamdan v. Rumsfeld, which many legal analysts see as the most important decision related to Guantanamo, the court said that although the president has the authority to establish military commissions, the specific procedures the administration was using for the trials violated the Geneva Conventions. In other words, contrary to the administration’s claims, the Geneva Conventions applied to the U.S. conflict with al-Qaeda.

Congress and the president responded to the decision with the Military Commissions Act of 2006, which gave explicit authority for the tribunals at Guantanamo, defined the crimes to be tried, and outlined its procedures. During these military trials, the Bush administration obtained guilty pleas or convictions for three detainees on terrorism-related charges, although two of the cases were later overturned on appeal.

Obama’s Pivot
Within days of taking office in 2009, Obama ordered Guantanamo to be closed within one year and, in the meantime, suspended the use of military commissions. He also created a task force to review the legal status of each detainee. His administration concluded, however, that the detainees could continue to be held under the law of war and not treated as POWs.  

Facing political pushback, the administration said it would restart military commissions to try some detainees under revised rules while prosecuting others in federal courts, the forum it preferred. In June 2009, it transferred Ahmed Ghailani, a suspect in the bombings of two U.S. embassies in Africa in 1998, from Guantanamo to New York to face federal charges.

That November, Obama signed the Military Commissions Act of 2009, which banned commissions from using detainee statements that had been obtained via torture or other cruel treatment. Around the same time, the administration announced its intention to transfer the five alleged 9/11 plotters, including Khalid Sheikh Mohammed (KSM), from Guantanamo to New York to face federal prosecution.

However, the plan was shelved in 2011 following backlash from Congress and political leaders in New York. Congress tied the president’s hands by passing legislation that effectively banned the administration from transferring Guantanamo detainees to the United States. Obama instead said the five men and other detainee defendants would be tried by military commission at Guantanamo. 

Today, of the thirty-six detainees that remain at Guantanamo, ten have been either charged or proposed for trial by military commission (across four cases); two have been convicted; twenty have been approved for transfer but remain at the facility because of diplomatic challenges, including concerns that they could be harmed in receiving countries; and four are being held indefinitely in nonpenal detention, pursuant to the law of war.

After repeated delays, pretrial hearings of KSM and the four other alleged 9/11 conspirators were set to resume at Guantanamo in late 2022, but the trial could still be several months away.

Time to Close?
One of the most intense controversies surrounding Guantanamo is determining how it ends. Part of that debate has centered on a legal question: How long can the United States hold detainees, particularly those it has not charged with any crimes but whom it perceives to be ongoing threats? 

According to international humanitarian law—the law of war—belligerent states can hold combatants for the duration of a conflict to prevent them from returning to the battlefield but must repatriate them after the cessation of hostilities. That the U.S. conflict with al-Qaeda is an ongoing, unconventional war with nonstate actors, which in some respects spans the world, has complicated attempts to define when hostilities end. This lack of clarity has put many detainees in a limbo of “indefinite detention,” where they could be held without charge until their deaths. In August 2022, a CIA drone strike killed al-Qaeda leader Ayman al-Zawahiri at his home in Kabul, a high-profile reminder that the U.S. counterterrorism campaign against the group continues.

The other part of the controversy centers on a political question: How does the government close Guantanamo? Most proposals to close the facility have included plans to bring at least some detainees to the United States for either prosecution or continued incarceration. However, the executive and legislative branches of government have clashed on this issue. Presidents Obama and Biden have sought to close Guantanamo but have been stymied by acts of Congress that prohibit the use of federal funds to transfer detainees to the United States.  

A Shrouded Legacy
Critics continue to argue that the counterterrorism policies and practices associated with Guantanamo, particularly during the Bush administration, have done lasting damage to U.S. moral standing and have served as a potent propaganda tool for al-Qaeda and other terrorist groups, although some research disputes this. Moreover, they claim that other bad actors around the world will point to U.S counterterrorism policies to justify their own human rights violations, and that this could lead to a broad deterioration of the rules-based international order. The harsh treatment of CIA and Guantanamo detainees could also put U.S. forces captured abroad at greater risk of torture and abuse by enemies, they say. 

Beyond the harm to U.S. influence abroad, detractors say that the alleged torture of some detainees, including the five alleged 9/11 plotters, has stymied attempts to prosecute them and has thus far denied justice and closure for those killed in the attacks, their families, and the country.

The Biden administration’s withdrawal of U.S. military forces from Afghanistan, which was completed just before the twentieth anniversary of the 9/11 attacks, has renewed calls for Guantanamo’s closure. However, the 2001 Authorization for Use of Military Force, enacted by Congress and upon which four presidents have relied to conduct the war in Afghanistan and post-9/11 counterterrorism operations, including the military detentions at Guantanamo, remains in place. It is unclear if and how Congress will repeal or alter that legal authority, and how Guantanamo might factor into that dynamic. As long as it stays open, a full accounting of Guantanamo’s legacy will have to wait. 

Jonathan Masters is deputy managing editor at CFR. Will Merrow and Michael Bricknell created the graphics for the original article. This article is published courtesy of the Council on Foreign Relations (CFR).