This report discusses the transfers, how they could be a convenient tool for avoiding U.S. courts and circumventing the rights of detainees while at the same time allowing the Administration to maintain access to the individuals and to any information they may possess. The authors argue that although the types of transfer seem to change over time, one thing remains constant: detainees are not being given the opportunity to challenge their transfer on the grounds that they fear torture. The U.S. is therefore violating its international and domestic law obligation to protect against transfers to torture.
On June 28, 2004, the U.S. Supreme Court ruled in Rasul v. Bush that U.S. courts have jurisdiction to consider claims by foreign nationals captured abroad in connection with the global “War on Terror” and incarcerated at Guatnánamo Bay. While the federal courts work to determine the rights of these detainees, the Guantánamo Bay prison has itself become the focus of intense criticism by a wide variety of leaders and organizations, with prominent figures such as Former President Jimmy Carter calling for the prison to be shut down. Despite the criticisms, however, the Bush Administration continues to employ strategies that appear to be aimed at keeping “War on Terror” detainees outside the ambit of the U.S. legal system, including through renditions, extraordinary renditions, reverse renditions, and transfers to secret detention facilities in foreign countries.
Though the types of transfer seem to change over time, one thing remains constant: detainees are not being given the opportunity to challenge their transfer on the grounds that they fear torture. The U.S. is therefore violating its international and domestic law obligation to protect against transfers to torture.
As a general matter, each of the various transfers can fall into one or more legal categories, defined for the purposes of this paper as (i) legal transfer, (ii) extra-legal transfer, and (iii) illegal transfer. A legal transfer is a transfer that is clearly authorized under U.S. law and contains an established, regulated method for detainees to challenge their transfer on the grounds that they fear torture. An extra-legal transfer is a transfer that appears to be authorized under U.S. law but contains no method for the detainee to effectively challenge transfer on the grounds of fear of torture. Finally, an illegal transfer is a transfer that is clearly unauthorized under U.S. law.
As the courts address the scope of the rights due to those detained in Guantánamo Bay, and as pressure to close the Guantánamo Bay facility mounts, the use of extra-legal and illegal transfers is likely to increase even further. It is therefore imperative that criticisms of Guantánamo Bay and calls for the facility’s closure be accompanied by an equally strong condemnation of the use transfers designed to circumvent the rule of law and to undermine the principles of justice that form the cornerstone of the U.S. legal system.
June 28, 2005. This report was researched and written by Angelina Fisher and Margaret Satterthwaite.
