Guantanamo Bay? Human Rights Laws Have Never Lived There!!

It is the darkest stain on America's human rights record!! Opened in 2002 in a fit of rage over 9/11, a criminal act to which neither Islam nor the Muslim world is related, it is still open. Challenging every Rule of Law. Obama tried to close it; Trump declares that he shall repopulate it. This is no way to MAGA (Make America Great Again). It is a way for ISIS to justify its lunatic existence.

Why is Guantanamo a human rights hell hole? The reasons are diverse, but their centrality resides in the following:

• Scooping whole populations in Afghanistan and Pakistan in a massive American dragnet? A nasty violation of the American Constitution injunction against "attainder." What is attainder?: Grabbing a person anywhere and hauling them to prison without notice, arraignment or charges.
• No habeaus corpus application. What is that? Enabling the detainee to appear in a court of law to challenge the cause of their loss of freedom. No Guantanamo detainee (their number has once exceeded 700 Muslims) was allowed that legal relief. 
• Who caused the deprivation of that elementary human right, which, in English, means "you have the body of the detainee?" By legislation of the US Congress, the legislative arm of the US Government. What was the reason for such unconstitutional legislation?: The laughable claim that these Muslims are neither American citizens, nor are they on US soil!!
• Really? But then what are they, and where are they on the part of the planet Earth called Guantanamo Bay, Cuba? They, from the ludicrous view violating human rights, are not American citizens, but "economy combatants." Thus, that foolish view goes on to say: these Muslims are not entitled to Habeaus Corpus application.
• But isn't the designation of "enemy combatant" the prerogative of a congressional action? Yes, but this is total war (where there is no distinction between military and civilian). So Congressional action has been dispensed with. Furthermore, so the lawless argument goes, those Muslims are not on American soil!!
• Oh My God!! Are you claiming that habeaus corpus can only apply on American soil? But Guantanamo Bay is American soil!! How do we know that?: The American flag is fluttering over it; the US Defense Department controls it; the Cuban Government has no scintilla of control over it; and the US Supreme Court had in 2004 dealt directly with it.
• How did SCOTUS (the Supreme Court of the US) deal with it? In the famous case of Hamdi v. Rumsfeld (2004). (Hamdi was a Guantanammo detainee; Rumsfeld, the Secretary of Defense), the Supreme Court required the Defense Department to provide Hamdi with the opportunity to challenge his classification as enemy combatant.
• The importance of that case lies in: (a) the Court's recognition of Guantanamo as "territory of the US.;" (b) confirmed the lawful extension of Habeaus Corpus to anyone detained in such territory; (c) four of the Justices relied on the Geneva Conventions (1949) as a source of due process; and (d) declared that the term "enemy combatant" does not exist in those Geneva Conventions.
• Here we should note that since 2003, the year of the American war of choice on Iraq, those conventions were downgraded to things of the past (depasse). And therefore not applicable to what the Justice Department and White House counsel called a new type of war: non-conventional, since the adversary (the terrorists) wore no uniforms; held no recognizable boundaries; and had no clear command and control hierarchy. As could be seen below, these are all bogus claims rebutted by international rules of laws of armed conflict. 

The Supreme Court cases of Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006), proved that Guantanamo Bay, seen from the angle of human rights, was no more than a legal swamp whose drainage was called for by the US Constitution, US laws, international conventions on human rights to which America has affixed its accession.

• Rasul v. Bush (2004) held that America had sufficient sovereign control over Guantanamo. Thus justifying the extension of Habeaus Corpus to "the foreign nationals seized in Pakistan and Afghanistan, during America's invasion of Afghanistan in 2002 and transferred to Guanatanmo."
• And Hamdan v. Rumsfeld (2006) denied the legality of the US establishment of "military commissions." Said the Supreme Court that those commissions, established as substitutes for the regular US criminal courts to try the Guantanamo detainees, were not authorized by the US Congress.
• The link made by the Supreme Court between the US legal system and international conventions were at its broadest in yet another case. In Boumedienne v. Bush (2008), the Court recognized the challenge raised by foreign nationals to the concocted term "enemy combatant," and to their endless detention at Guantanamo. Once more the absence of Habeaus Corpus application was noted, but on broader grounds. The Court's holding in that case declared that that deprivation violated the US Constitution federal laws, the US treaty obligations under the Geneva Conventions (1949), and Customary International Laws.

Guantanamo, the human rights catastrophe, has led to a Congressional act called the Military Commissions Act (MCA). MCA was declared unconstitutional by the US Supreme Court. Such act constitutes aggression against the Rule of Law. This is because it precluded the federal judiciary from having Guantanamo detainees from bringing before it Habeaus Corpus challenges.

Thus a totally non-Rule of Law structure has been built. Infecting both Congress and the Executive, as far as law and order are concerned, with the Guantanamo disease.

Not only have the Geneva Conventions (1949) been blatantly flouted. So, among others, have been the UN Universal Declaration of Human Rights (1948); the UN Convention of Civil and Political Rights (1966); the UN Convention on Economic, Social, and Cultural Rights (1966); and the Torture Convention.

Specifically on the Torture Convention: It is most ironic for a former US Vice President (Cheney) to regard "water boarding" (subjecting a detainee to the simulation of drowning to force out confessions) as not torture. Torture, which has been the modus operandi in Guantanamo against detainees (all Muslims), is legally regarded "a universal crime." A universal crime is defined as a crime punishable by any State anywhere. Universal is universal.

A brief legal analysis of the Torture convention reveals: (1) The Torture Convention is an international treaty; (2) The US is a signatory of that Convention; (3) Under the theory of integration, developed by US chief justice John Marshall, in the case Marbury v. Madison (1832), that Convention has become the law of the land; (4) Under that Convention, torture is considered "a universal crime;" (5) Therefore, all American states are estopped from extraditing any individual, regardless of their status on American soil, to any other country where there are "substantial grounds for believing that there is a danger of torture."

It should also be stated that Guantanamo has not served to enhance US security; has resulted in the conviction of only ONE detainee (out of more than 700), namely Khaled Sheikh Muhammad; has offered the jihadists, including ISIS and Al-Qaeda, justification for their existence; has demeaned the claim by the US that it is a governance based on the Rule of Law, including supporting human rights laws.

Keeping Guantanamo open is akin to keeping alive the aura of suspicion on the part of 1.7 billion Muslims that Islamophobia has, in America, become a war on Islam. No system of international peace and security can be sustained world-wide "without the gates of that hell hole been firmly shutdown."

Even the Alien Tort Claims Act provides American federal courts with jurisdiction over any claim of a violation of the law of nations. (the Kadic Case). The time may not be far into the future to get ready for massive reparations. Accountability Matters!!

THE US SYSTEM OF JUSTICE IS NOT ON THE SIDE OF GUANTANAMO. WHY? BECAUSE HUMAN RIGHTS HAVE NEVER RESIDED THERE. THE ONLY RESIDENT THERE GOES BY THE LONG NAME OF "ANTI-MUSLIMS POLITICAL MANIPULATION."