Twenty years have passed since the first detainees arrived at Guantánamo Bay. The US detention center is located on a naval base in eastern Cuba. The Cuban government continually calls for its closure and considers it to be located in occupied territory. The prison was built in ninety-six hours after the terrible attacks of September 11, 2001, and has held 780 prisoners. They were of forty-nine different nationalities, mostly Afghans, Saudis, Yemenis, and Pakistanis, and ranged in age from thirteen to eighty-nine when detained. Guantánamo is an impregnable place where torture and impunity were — and presumably still are — the order of the day.
Guantánamo is a demonstration of the worst of a state, the worst of what human beings are capable of inflicting on their fellow human beings. In these two decades, only twelve of the detainees have been prosecuted; of these, only two were convicted by a military commission. Today, thirty-nine people are still in prison, twenty-seven of them without charge. The twenty-seven who have not been charged in all this time remain there, in the belief that they are war detainees in the conflict with al-Qaeda, with no end in sight to their situation. As the newspaper La Vanguardia recently recalled, the trial of the five alleged 9/11 ringleaders, including that of the alleged leader, Khalid Shaykh Mohammed, has still not begun after ten years of preliminary hearings.
In 2002, from court number 5 of the Audiencia Nacional, I issued an indictment against the Spanish citizen Hamed Abderrahaman Ahmed — alias Hamido, imprisoned in Guantánamo — as a member of the Spanish al-Qaeda cell. In December 2003, I issued an arrest warrant. I used this to request his extradition from the United States.
His release was obtained in February 2004 in exchange for the commitment of José María Aznar’s government to keep him in prison, a matter that was clearly in my jurisdiction on the basis of the proceedings that had been opened. On February 13, Interpol confirmed his surrender to me. On the same day, I received a call from the minister of justice, José María Michavila, asking me to assure him that the detainee would not be released, as it could prejudice the elections that were to be held on the following March 14. I responded categorically that what he was saying to me was out of place.
This was to be the first case in the world in which a person was released from that prison. It was about someone who had been deprived of all his rights regaining them, without prejudice to the charges that could be made against him and which predated his departure from Spain to Afghanistan. Once he arrived, I ordered him to undergo a thorough medical examination, but before that, I asked him about his detention and treatment at Guantánamo.
From my notes from that time:
He spoke to me of individual iron cells (cages) measuring 2 x 1.5 m; with not every day a fifteen-minute trip outside, in permanent silence, with a hood over his head, blows to his face, successive interrogations without a lawyer. For more than two years, this person has lived in a situation of no rights. I agreed to have him admitted to the Gregorio Marañón hospital, despite the fact that the medical reports are not unfavorable.
I have experienced a confused feeling. On the one hand, the satisfaction of having been handed over a presumed terrorist, but, on the other, I have felt the sorrow, the discomfort, the disgust and the uneasiness that the disorientation he brought with him, the ordeal he has had to go through in that concentration camp. I have authorized the family to see him in an open and comfortable space (the secretary’s office and not in the dungeons) in case this alternative could bring back to him what he experienced in Guantánamo. The lawyer Javier Nart has been very professional and has told me that he will file a civil liability suit against the United States.
The United States Against the Judge
In 2009, I initiated a court case to investigate those responsible for the torture of Guantánamo prisoners. Several complaints and lawsuits followed. Today, as on that day in 2004, I am still overwhelmed by the victims’ stories. The practice of torture has been a temptation and a constant throughout history. Multiple investigations have shown this (dictatorships, Guantánamo, Abu Ghraib, terrorism, prisons, interrogations). It is the very negation of human rationality and the grossest denial of the rule of law.
Naturally, the US authorities never collaborated except to hinder the investigation, with the invaluable collaboration of some Spanish officials, as revealed in 2010 by WikiLeaks. I am not forgetting those cables from the US embassy in Madrid that spoke of “twisting Garzón’s arm” or “we suspect that Garzón will get all the publicity for the case unless he is forced to drop it.” This publication probably saved the case and led the judges of the Audiencia Nacional to confirm jurisdiction and order the investigation to continue. The Spanish Supreme Court would qualify Guantánamo as in judicial limbo, considering that any evidence obtained there was illegal.
The US Senate Report
On December 9, 2014, a US Senate report made it clear that Guantánamo embodies the barbarity of a system that has lost all humanitarian references and has forgotten the rule of law in the sewers of clandestine detention centers, secret prisons, and in every blow to or humiliation of helpless people deprived of their most elementary rights. In an article that I published a few days later on the website of my foundation, FIBGAR, I outlined what I think today: that the justification of the need to apply these methods to fight terrorism, as well as being a legal aberration, is false, and supports a deception of more than twelve years shared by many governments and judicial systems that have remained ominously silent. And that the shame extends to all those countries whose leaders have consented and continue to consent to the illicit actions of US agencies and those who aid or abet them.
But even more so, this Senate ruling confirmed that such criminal actions by the CIA in Guantánamo were useless because the detainees — who had not been tried — in the face of these expeditious methods, signed false statements that served to justify the senior officials of that intelligence agency and the US authorities who systematically used torture as a means of fighting terrorism and as a state policy to subjugate other countries.
As for the US administration, President George Bush admitted that Taliban and Afghan detainees would be covered by the Geneva Convention. In 2006, the Supreme Court ruled that this convention applied to all detainees and that the military commission system violated international law. Five hundred of the detainees were released. Another two hundred were to be released during Barack Obama’s term in office, when he planned to close the center within a year.
Donald Trump came along and brought this process to a halt. Joe Biden became president with a promise to close it. To date, only one prisoner has been transferred. The Biden administration’s position is clear: Guantánamo is “a moral stain,” as State Department spokesman Ned Price declared. But Biden is up against Republicans in the Senate who reject any possibility of closing the prison. Prisoners are considered dangerous, and public funds are prohibited from being used for their transport to any destination or for any improvements to prison facilities.
In London, protests are currently taking place over what they call “eternal prisoners.” “Charge them or release them,” the protesters demand. Guantánamo is a disgrace and a paradigm of what a country that dresses itself up in human rights is capable of doing against them, misleading the world’s message of safeguarding them.
Universal jurisdiction, the instrument that allowed us in Spain to carry out this investigation and the subsequent trials, had been revealed as a tool capable of putting in check the systematic and arbitrary attacks by any regime, however powerful it might be. But politics does not withstand pressure well and, on too many occasions, judges do not fight as they should for their independence. Organic Law 1/2014, of March 13, amending Organic Law 6/1985, of July 1, on the judiciary, on universal justice, under the People’s Party government, came to put a definitive end to a first reform in 2009 under a Socialist government, which limited it. If Spain had been a world benchmark, impunity would be limited and the protection of the vulnerable would be solidified.
As for Guantánamo, I always tried to get those I could out of that nightmarish place. But all this has only reaffirmed for me, today and during these twenty years, that the defense of victims and the guarantees of rule of law must be maintained above any compromise, and that it is crucial to denounce those who seek to put obstacles in the way of the exercise of independent justice — however powerful they may be.