POST 7: Guantánamo Bay: A Legal Black Hole with a View

 

Guantánamo Bay: A Legal Black Hole with a View

The U.S. naval station at Guantánamo Bay, Cuba, was selected after 9/11 specifically because it was not part of U.S. territory. The thought was that keeping people there would put them beyond the reach of U.S. courts and, some would argue, outside the complete safeguards of the Geneva Conventions. In the early perspective of the Bush administration, al Qaeda and Taliban detainees were seen as “unlawful enemy fighters” — not prisoners of war — and the unique legal situation of the base meant that federal habeas corpus did not apply.

Even now, the U.S. holds around 30 detainees at Guantánamo. Some have been cleared for transfer but still stay there because no nation will accept them, or due to political obstacles. The mere presence of the prison has been used by oppressive governments to defend their own wrong actions (“America does it too”). The hidden line at Guantánamo has set a worldwide example for the weakening of legal standards.

What Are the Torture Memos?

A set of legal documents created by the Department of Justice’s Office of Legal Counsel (OLC) between 2002 and 2005, mainly by John Yoo and Jay Bybee. They significantly restricted the meaning of torture, approved harsh “enhanced interrogation methods,” and claimed that the president’s powers as commander-in-chief could override both U.S. and global laws. These memos gave the legal justification for what occurred at Guantánamo, CIA secret sites, and elsewhere.

The most notorious one. It redefined “torture” so strictly that nearly nothing met the criteria. Pain had to be “equivalent to the pain associated with serious bodily injury, like organ failure, loss of bodily function, or even death.” By this measure, waterboarding — which makes people feel like they are drowning — wasn’t considered torture because it didn’t lead to organ failure. Keeping someone awake for 180 hours straight? Not torture if it didn’t cause death. Stress positions? Acceptable, as long as no organs failed.

This was a planned wording trick. The UN Convention Against Torture, which the U.S. signed, forbids any serious physical or mental pain or suffering deliberately caused to gain information. The memos simply changed the definition to fit the methods the CIA wanted to apply, then declared those methods as “legal.”

The Yoo Memo (same day)

It stated that the Common Article 3 of the Geneva Conventions — which bans “outrages upon personal dignity” even in non-international disputes — did not apply to al Qaeda or Taliban detainees. They were seen as “unlawful enemy fighters,” so all humanitarian laws were, in Yoo’s view, a voluntary set of rules the president could disregard if it was necessary for national security.

INERACTIVE GAME

The Commander-in-Chief Power Argument

Across various memos, Yoo and Bybee claimed that the president’s constitutional power as Commander-in-Chief could not be restricted by Congress or by international agreements regarding the questioning of enemy fighters. This indicated that no anti-torture law, no War Crimes Act, and no Geneva Convention could legally constrain the president’s actions during the war on terror. This was extremely radical — a legal idea of almost limitless executive power in the name of safety. If you’re a CIA agent and the Department of Justice informs you in writing that waterboarding is permissible, it is hard to be charged later. The memos served as a preventive shield. Even after they were taken back, the fact that interrogators relied on them in good faith created a lasting protection. That’s why no senior official has faced charges.

The CIA requested the OLC for a list of approved methods. The OLC supplied it: waterboarding, walling (throwing a detainee against a flexible wall), tight confinement, food manipulation, and sleep deprivation up to 180 hours. This turned torture into a formal process. Each method had a memo, a legal stamp, a “clean” document trail. This protected the program from internal critics — who at State and the JAG Corps were shouting that it was illegal — because now “the lawyers said it was allowed.”

Since the memos stated Geneva didn’t apply and the president could approve secret detention, the CIA could keep individuals incommunicado indefinitely without access to the ICRC, lawyers, or family. That’s enforced disappearance — a crime under international law — but the U.S. contended its own legal rules had “allowed” it. The invisible boundary wasn’t a place; it was a document.

The memos were classified “Secret” for several years. When they were leaked and later declassified, the same authors argued they were just providing good-faith legal guidance. The Office of Professional Responsibility later concluded that Yoo and Bybee had engaged in professional misconduct, but the Department of Justice overruled that, claiming they showed “poor judgment” but did not intend to do wrong. The circle of immunity closed.

The memos did not only apply to Guantánamo. They were crafted for the CIA’s worldwide program. Black sites in Thailand, Poland, Romania, Lithuania, Afghanistan — all functioned under the same legal shield.

The “beyond” is this: the memos made normal the concept that the president can label anyone, anywhere, outside the law’s protection. That’s the ideological basis of the global drone killing program, the extension of the battlefield to any place on Earth, and the military commissions that still try to accept evidence gained through pressure. After internal pushback, the OLC released a new opinion in December 2004 (the “Levin Memo”) that officially rejected the Bybee Memo’s explanation of torture. In 2009, President Obama signed an executive order that prohibited “enhanced interrogation” and shut down the black sites. But:

- No one faced charges for drafting the memos or for implementing the actions they allowed.

- The U.S. has offered no reparations to victims who suffered torture with OLC’s approval.

- The “state secrets” privilege, an additional legal option, was used to stop lawsuits from victims like Khaled El-Masri, preventing courts from deciding if the program was lawful.

The outcome: a hidden line of legal protection now appears whenever national security is mentioned. Future governments might revive the same Commander-in-Chief claims, release new secret documents, and create another series of unlawful locations. The frameworks are unclassified and ready.

References:

Cole, D. C. (2009). The Torture Memos : Rationalizing the Unthinkable. In Internet Archive. The New York Review of Books. https://archive.org/details/torturememosrati0000unse_v5t9/page/n13/mode/2up