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Guantánamo, Due Process, and the Rule of Law

By Peter Jan Honigsberg

Guantánamo Bay protest in front of the White House on the seventeenth anniversary of Guantánamo Bay, January 11, 2019.
Guantánamo Bay protest in front of the White House on the seventeenth anniversary of Guantánamo Bay, January 11, 2019. Photo credit: Victoria Pickering

Daniel A. Medina’s excellent article on Mohammed al-Qahtani, the would-be twentieth al-Qaeda terrorist hijacker, identifies an important long-term problem that all presidents have faced since al-Qaeda terrorists crashed planes into the World Trade Center, the Pentagon, and a field in Pennsylvania on September 11, 2001. Does due process apply to Guantánamo? As Medina points out in discussing al-Qahtani’s case, the Biden administration has not taken a stance on this question.

Under a due process and rule of law system, the men in Guantánamo would not have been held for years and, for some, even a decade or more without charges. They would have had access to attorneys from the time they were first incarcerated to challenge their detentions and assure them of other due process rights. They would have been guaranteed full and fair trials in federal court to defend any charges brought against them. They would not have been systematically physically and psychologically tortured in the prison. (Psychological torture includes periods of isolation, sleep deprivation, and sensory deprivation such as wearing hoods.)

Al-Qahtani was physically and psychologically tortured in Guantánamo. He nearly died during one episode of unrelenting abuse. His heart rate dropped precipitously in an interrogation session, and he was rushed to the hospital. In 2008, senior Pentagon official Susan Crawford refused to allow the military to prosecute al-Qahtani. “We tortured Qahtani,” she admitted. 

As Medina notes in his article, the Biden administration has until September 8 to decide whether to: 1.) challenge a federal judge’s order to permit a due process right to an independent medical evaluation for al-Qahtani to determine his eligibility for repatriation to Saudi Arabia for psychiatric care; 2.) agree to the medical evaluation for al-Qahtani; or 3.) repatriate him to Saudi Arabia and dodge the issue.

Key to the administration decision is whether Guantánamo detainees are entitled to due process. Previous administrations have argued that such rights do not apply to the detainees.

Due process and the rule of law are the cornerstones of our democracy. We cannot accept that administrations deny these rights to people we have detained. President Biden must take a stand if he is going to lead the US back to the respect it once commanded around the world. He must acknowledge that due process and the rule of law apply at Guantánamo. Denying these rights impacts not only the detainees but has long-term implications for the future of our nation.

“Guantánamo Bay, I think, is going to be seen as the significant start of the fall of American democracy.” In 2012, Australian attorney Stephen Kenny spoke these words to our Witness to Guantánamo project. 

For nearly a decade, Witness to Guantánamo filmed interviews with 158 people who lived or worked in Guantánamo across twenty nations. Fifty-two of the people interviewed were former detainees. Others included prison guards, interrogators, interpreters, chaplains, attorneys, medical personnel, reporters, high ranking military and government officials, and family members of the detainees.

Stephen Kenny was referring to how the United States government broke the rule of law by imprisoning 780 alleged Muslim terrorists from more than forty countries at Guantánamo Bay, Cuba. The US government denied the men the due process rights that all people detained by the US government are entitled to under the Constitution. Rather than charge them with crimes and hold fair trials, the Bush administration incarcerated the men and threw away the key. 

We will never know how many of the 780 prisoners were international terrorists because nearly all were never charged, tried, or convicted of a crime. In fact, many of the men held in Guantánamo were not captured by US soldiers but were purchased by the US military for ransom or bounty from Pakistani and Afghan soldiers.

Of the thirty-nine prisoners currently at the base, eleven have been charged. Ten other people have been thoroughly vetted by six national security agencies and cleared for release. Although they have been recommended for transfer, they continue to remain housed at the prison until the government can repatriate them or find other countries that are willing to accept them. The Biden administration repatriated one person to Morocco last month.  

Al-Qahtani, along with seventeen other people who were never charged, are essentially “forever” prisoners. The Biden administration should apply the rule of law and due process to Guantánamo and release al-Qahtani, the other seventeen other forever prisoners, and the ten men who have been cleared for release. What kind of message are we sending to the world on the rule of law when we hold people for nearly two decades without charges? 

President Biden must apply our cherished Constitution to the men in Guantánamo. We must be mindful of due process and the rule of law in all our actions. Stephen Kenny’s words should not haunt us in the future.


About the Author 

Peter Jan Honigsberg is professor of law at University of San Francisco, founder, and director of Witness to Guantánamo, and author of A Place Outside the Law, Forgotten Voices from Guantánamo, published by Beacon Press.