Amina Henry (web gesture by Nina Mankin and Alexei Taylor)

Political Performance

Professor Diana Taylor

New York University

Spring 2004



"Disappearance" in Guantanamo Bay


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Image found on: April 18, 2004


           This paper is meant to function as an escrache, or public shaming, of the United States government concerning its indefinite internment of individuals in Guantanamo Bay, Cuba.  Through a brief summary and exploration of the issues involved in the Guantanamo Bay internments, one may see the United Sates government as culpable in an attempted international "disappearance".  The United States, or more specifically, the Bush administration, began its reported "war on terror" after 9/11; internments in Guantanamo Bay function as an insidious weapon for the US for its "war on terror".  Individuals, possibly "terrorists" or "persons dangerous to national security", are being held for "questioning", or interrogation, regarding certain unlawful "activities".  The vagueness of the term "war on terror" is parallel to the vagueness of the persons currently held by the US, most of who do not possess recognized legal status or legal representation.  What are the identities of the prisoners being held in Guantanamo Bay?  Why have they not been officially charged with crimes?  When are they to be released, or at the very least, made to stand trial in a legal court of law?  How can the US justify an action that clearly goes against international legal policies established by the United Nations during the Geneva Convention?

            In the wake of the September 11, 2001 attacks in the United States, President Bush initiated an extensive and open-ended "war on terror".  As part of this "war on terror", persons suspected of being al Qaeda [1] and Taliban [2] members have been captured by the U.S. army and sent to a U.S. naval base located in Guantanamo Bay, Cuba.  Since early 2002, hundreds of people have been captured and detained without official charges being pressed against them.  The majority of those held were captured during the Taliban's defeat to the U.S. in late 2001.  Detainees do not have access to legal counsel, as they would if they were recognized as being under U.S. legal jurisdiction.  The U.S. government specifically chose Guantanamo Bay as a detention center because of the slippery relationship the site has to U.S. legal jurisdiction.  "Under a century-old lease agreement with Cuba, the United States has 'jurisdiction and control' over the Guantanamo base, but Cuba retains 'ultimate sovereignty' [3] ; hence, Guantanamo Bay, at least in terms of how the U.S. government deals with it, exists in between the law.  Guantanamo Bay has a history of territorial tension because of its ambiguous legal status.  Even though the United States pays about four thousand dollars of rent to the Cuban government each year, the Cuban government never cashes the treasury check because it views the base as illegitimate." [4]  

There is a growing international outcry against the internment situation, causing the Bush administration to release some prisoners and give some access legal counsel, while also continually defending itself against criticism.  "The Bush administration has taken the position that all 650 current Guantanamo detainees are unlawful combatants and are, therefore, not prisoners of war entitled to the protections of the Geneva conventions, as they would be if they had been fighting for a regular army" [5] (emphasis mine).  Yet, why are these individuals not considered "prisoners of war" when they were captured as part of a proclaimed "war on terror"?   "Granting prisoner of war status to the captives would have given them sweeping rights, including the right to disclose only their name, rank and serial number under interrogation and to go home as soon as the conflict ended." [6]   U.S. officials have suggested that those held in Guantanamo Bay will have their cases reviewed annually; this review rate is appalling if one considers the possible innocence of those who are being interrogated.  "The U.S. concern is that if Washington gave prisoner of war status to Taliban fighters and members of al Qaeda - the network loyal to Saudi-born militant Osama bin Laden who Washington says masterminded the September 11 attacks - it would be virtually impossible to interrogate them." [7]  

The Bush administration bases its defense against granting "prisoner of war" status to those held at Guantanamo Bay in the definition of "prisoner of war" as asserted in the Geneva Convention.  The U.S. calls those persons suspected of involvement with al Qaeda and the Taliban unlawful combatants because the Third Geneva Convention defined lawful combatants as:

(a)   that of being commanded by a person responsible for his subordinates;

(b)  that of having a fixed distinctive sign recognizable at a distance;

(c)   that of carrying arms openly;

(d)  that of conducting their operations in accordance with the laws and customs of war. [8]

Because many of the people fighting do not have uniforms, they do not fit into provision (b); hence, they are not considered lawful combatants by the U.S.  This suggests that only those who can afford to buy uniforms can lawfully wage a war. 

            Theoretically, no one exists outside of the law.  Even if the persons being detained in Guantanamo Bay are "unlawful combatants", they are under the protection of some judicial system.  "Persons not entitled to POW status, including so-called 'unlawful combatants,' are entitled to the protections provided under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Times of War." [9]   Therefore, the U.S.'s reluctance to designate an official status upon detainees with an official tribunal does not absolve the U.S. from a political and legal responsibility towards them.  "Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention.  There is no intermediate status; nobody in enemy hands can fall outside the law." [10]

            President Bush's insistence on detainment as a strategy in his "war on terror" calls into question the power of the executive office during times of war.  "Many of the Bush administrations' post-September 11 domestic strategies directly challenge the role of federal and administrative courts in restricting executive action, particularly action that affects basic human rights."


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Regardless of whether or not these persons held in Guantanamo Bay are "prisoners of war" or "hostages", the logic behind the Bush administration's actions concerning the detainees is dubious at best.  There have been disturbing reports of the treatment these persons have received during their detainment.  According to the Geneva Convention, all persons detained as a result of war are entitled to humane treatment; persons who are detained are not to be subject to degradation or torture in any way.  "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.  Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." [12]   While "unlawful combatants" are not entitled to the same protections as POWs, they are still protected under international human rights law.  In addition to the psychological damage of not knowing - what the official charges are, if and when they will be released, the status of family members - there have been reports of sleep deprivation, excessively long periods of standing or kneeling, solitary confinement, inadequate food rations and enforced silences.  There have also been reports of juveniles being held at the base.  Reports of suicides and attempted suicides have alarmed several human rights organizations.

The Supreme Court in April 2004 (finally) began hearing official arguments concerning the right of the detainees to plead their cases before a judge.  The overall debate is one of power, in relation to both executive and judicial branches of the U.S. government.   An April 2004 news article about the Supreme Court hearings states: "At yesterday's hearing, a majority of the justices sounded skeptical of the administration's claim that the president alone has control over the fate of the Guantanamo prisoners.  It was the first of three cases to be heard this month that will test whether the president can label certain prisoners as "unlawful enemy combatants", and deny them all rights under the law." [13]   Can the president of the U.S. legally "disappear" people?  Can he "disappear" people based on the fact that they do not wear official uniforms?  

Everyone except the Bush administration doesn't seem to think so.  So there is shame.  But there is also hope.


Image found on: April 18, 2004





Image found on: April 18, 2004



[1] Al Qaeda is an Islamist paramilitary movement which is widely regarded, especially in the West, as a terrorist organization, that being an organization that targets civilians with acts of violence to achieve desired ends.  Osama bin Laden is considered to be Al Qaeda's leader and head.

[2] The Taliban is an Islamist movement which ruled most of Afghanistan from 1996 until 2001; after the September 11, 2001 attacks in the United States, the Taliban was held largely responsible by the U.S. because of the TalibanŐs alliances with Al Qaeda.









[10] Remarks of Michael J. Matheson, American University Journal of International Law and Policy, Vol. 2. No. 2 (1987) pp. 425-426.


[12] Third Geneva, Art. 17.