GUANTÁNAMO BAY
FIVE YEARS L ATER

Prepared by the

TABLE OF CONTENTS
Summary ……………………………………………………….……………………………………………………. 1
Overview …………………………………………………………………………………………………………….. 2
Legal Timeline ………………………….…………………………………………………………………………… 4
Chart: Released Detainees More Likely to Receive Fair Treatment ……….…………………………………… 5
from Other Countries than from U.S.
Top 10 Myths About Guantánamo Bay …………………………………………………………………...………. 6

SUMMARY
Four months after 9/11, on January 11, 2002, the
U.S. military flew 20 prisoners from Afghanistan to
the U.S. Naval Base at Guantánamo Bay, Cuba. More
would soon follow, as would allegations of torture
and abuse, public outcry both at home and abroad
over the mistreatment of detainees, and repeated calls
for the closure of Guantánamo.
The five years since then have seen the total number
of detainees rise to more than 750—some as young as
ten years old, and others as old as eighty—and
Guantánamo become a Kafkaesque symbol of the
U.S. government’s deeply flawed “war on terror,” a
place where the rule of law does not apply.
The U.S. government has twice attempted to strip
detainees, many of whom are guilty only of being in
the wrong place at the wrong time, of their legal right
to contest their detention. Over and over again, we
have seen the U.S. government reject the claim that
detainees have the right to habeas corpus, fair trials,
and due process of law.
Prisoners being interrogated at Guantánamo have
been:
 Held in solitary confinement for periods
exceeding a year;
 Deprived of sleep for days and weeks and, in
at least one case, months;
 Exposed to prolonged temperature extremes;
 Beaten;
 Threatened with transfer to a foreign country
for torture;
 Tortured in foreign countries or at U.S. military
bases abroad before transfer to Guantánamo;
 Sexually abused and humiliated or threatened
with rape;
 Deprived of medical treatment for serious
conditions, or allowed treatment only on the
condition that they “cooperate” with
interrogators;
 Routinely “short -shackled” (wrists and ankles
bound together and to the floor) for hours and
even days during interrogation.
From the Center for Constitutional Rights’ “Report on
Torture and Cruel, Inhuman, and Degrading
Treatment of Prisoners at Guantanamo Bay, Cuba”

In fact, only 10 detainees have ever been charged
with offenses, and none have been tried or found
guilty. Military officials have admitted that innocent
civilians have been detained at Guantánamo and that
most held at the prison have little, if any, intelligence
to offer. The vast majority, according to the
Pentagon’s own documents, have no direct ties to al
Qaeda or the Taliban.
While hundreds of detainees have been released,
hundreds continue to be held, most with no charges
against them and no trials in their future. Flimsy
evidence, if any at all, is used to justify their

continued detention. As confirmed by evidence from
the detainees, military personnel, and even the F.B.I.,
many of the detainees have been tortured, abused,
and humiliated at the hands of the U.S. government.
The International Committee of the Red Cross, the
United Nations, Amnesty International, European
officials like British Prime Minister Tony Blair and
German Chancellor Angela Merkel, and other human
rights groups have called for Guantánamo to be
closed. The U.S. government, meanwhile, has
employed every possible tactic to evade judicial
review of its detention and interrogation practices at
Guantánamo Bay.
During the past five years, the Center for
Constitutional Rights has been at the forefront of the
legal battle for justice for Guantánamo detainees,
winning landmark Supreme Court cases and
organizing hundreds of lawyers to represent the
detainees. CCR was the first human rights
organization to fight for the rights of the detainees
and continues to work with organizations around the
world to call for humane treatment and due process
for those the government had branded the “worst of
the worst,” as well as to fight for the reinstatement of
habeas corpus and the rule of law.

HISTORICAL OVERVIEW
The months following 9/11 saw Congress give
President Bush almost unprecedented authority to
wage the “war on terror.” He quickly began testing
those powers—on November 13, 2001, President
Bush announced that Taliban and al Qaeda captives
would not be classified as prisoners of war, but as
“enemy combatants,” a term recognized only by the
U.S. government, and authorized their indefinite
detention. As lawyers at the Center for Constitutional
Rights realized, this meant that the Third Geneva
Convention would not be applied to detainees, and
there would be no legal guarantee of humane
treatment for the prisoners at Guantánamo Bay.
Then, on January 11, 2002, 20 detainees from the
war in Afghanistan were flown to the U.S. Naval
Base at Guantánamo Bay, Cuba, and housed in the
chillingly-named Camp X-Ray, little more than a
collection of outdoor wire mesh cages.
Quickly realizing the danger to civil liberties and the
rule of law that Guantánamo represented, CCR, on
February 19, 2002, filed Rasul v. Bush, a habeas
petition on behalf of three detainees, Australian
citizen David Hicks, and British citizens Shafiq Rasul
and Asif Iqbal. Arguing that everyone has the right to
a fair trial and due process, CCR filed the lawsuit
during a time when dissent was effectively curtailed
by the climate of patriotism fueled by fear.
The American public soon learned that even U.S.
citizens were not immune from being sent to
Guantánamo or classified as “enemy combatants.”
When the government found out Guantánamo
detainee Yaser Esam Hamdi was in fact a U.S.
citizen, they quickly transferred him out of
Guantánamo and into a jail in South Carolina on
April 5, 2002. He soon filed a writ of habeas corpus,
Hamdi v. Rumsfeld, challenging the U.S.
government’s right to hold him indefinitely, a suit
that would reach the Supreme Court in 2004. On
May 8, 2002, federal agents arrested U.S. citizen
Jose Padilla on U.S. soil and subsequently classified
him as an “enemy combatant.” Padilla would only be
formally charged with a crime three years later, in
2005.
As 2002 continued into 2003, CCR’s cases were
denied in all the courts—on March 11, 2003, the
D.C. Circuit Court of Appeals rejected CCR’s appeal
of Rasul v. Bush, concluding that detainees have no
right to challenge their imprisonment. But on
November 3, 2003, the Supreme Court agreed to
hear Rasul, the first legal challenge to the Bush
Administration’s detention policies to reach the
highest court in the land.

As the months passed and more news came out of
Guantánamo Bay detailing the circumstances and
treatment of the detainees, it became clear that the
rule of law and basic respect for human rights were
absent at Guantánamo. What initially was a fight to
guarantee that Guantánamo detainees had access to
due process and fair trials soon became intertwined
with allegations of abuse and torture.

O.K. was 15 years old when he was captured in July
2002. Military officials at Bagram treated him roughly,
despite his young age and his poor physical condition.
He was interrogated repeatedly by military officials, and
on many occasions was brought into the interrogation
room on a stretcher. On one occasion, interrogators
grabbed and pulled him, he fell and cut his left knee.
On some occasions, interrogators brought barking dogs
into the interrogation room while his head was covered
with a bag. On other occasions, interrogators threw col d
water on him. They also tied his hands above the door
frame and made him dangle painfully for hours at a
time. While his wounds were still healing, interrogators
made O.K. clean the floors on his hands and knees.
They forced him to carry heavy buckets of water, which
hurt his left shoulder where he had been shot. When he
was able to walk again, interrogators made him pick up
trash, then emptied the trash bag and made him pick it
up again. During the interrogation, he was not allowed
to use the bathroom, and was forced to urinate on
himself.
Around March of 2003, O.K. was taken out of his cell at
Camp Delta [in Guantanamo] at approximately 12:00 –
1:00 a.m., and taken to an interrogation room. An
interrogator told O.K. that his brother was at
Guantánamo, and that he should “get ready for a
miserable life.” O.K. stated that he would answer the
interrogator’s questions if they brought his brother to
see him. The interrogator became extremely angry,
then called in military police and told them to cuff O.K.
to the floor. First they cuffed him with his arms in front
of his legs. Later still, they forced him on his stomach,
bent his knees, and cuffed his hands and feet together.
At some point, O.K. urinated on the floor and on
himself. Military Police poured pine oil on the floor and
on O.K., and then, with O.K. lying on his stomach and
his hands and feet cuffed together behind him, the
Military Police dragged him back and forth through the
mixture of urine and pine oil on the floor. Later, O.K.
was put back in his cell, without being allowed a shower
or change of clothes. He was not given a change of
clothes for two days.
From the Center for Constitutional Rights’ “Report on
Torture and Cruel, Inhuman, and Degrading Treatment
of Prisoners at Guantanamo Bay, Cuba

In an August 1, 2002, legal memorandum, the Justice
Department concluded that the U.S. government was
permitted to techniques that are commonly
recognized as torture as an interrogation method. To
avoid U.S. and international laws prohibiting torture,
the memo sharply narrowed the definition of what
constitutes torture, stating that interrogators can cause
severe pain before it is classified as “torture.” Bodily

torture, the memo stated, “must be equivalent in
intensity to the pain accompanying serious physical
injury, such as organ failure, impairment of bodily
function, or even death,” leaving a host of tactics that
would not now technically be classified as torture.
For psychological methods to rise to the level of
mental torture, the psychological harm must last
“months or even years.”
Along with memos greenlighting “torture-lite”
interrogation methods, allegations of prisoner abuse
began to come to light. On March 9, 2004, three
British detainees, two of whom were petitioners in
Rasul v. Bush, were released from Guantánamo and
wrote a 150-page report that described in detail the
abuse and humiliation they and their fellow detainees
suffered at the hands of prison guards at the base.
This, in conjunction with the torture that occurred at
Abu Ghraib prison in Iraq, began to paint a picture of
systemic detainee abuse.
Meanwhile, the legal battle continued. On June 28,
2004, CCR won a historic victory before the Supreme
Court, as the justices ruled 6-3 in Rasul v. Bush that
detainees can legally challenge their detention in
federal courts. The same day, the justices ruled in
Hamdi v. Rumsfeld that U.S. citizens cannot be held
without due process of law.
Following the Supreme Court rulings, CCR quickly
organized a network of hundreds of attorneys to
represent other Guantánamo detainees in habeas
proceedings. Habeas petitions were soon filed on
behalf of many detainees, and lawyers began, finally,
to meet with their clients at Guantánamo Bay. On
August 30, 2004, the Center for Constitutional
Rights’ Gitanjali Gutierrez became the first civilian
lawyer allowed into Guantánamo.
In response to the Rasul and Hamdi rulings, in the
summer of 2004 the Pentagon announced that it
would create Combatant Status Review Tribunals
(CSRT’s) to determine whether detainees are in fact
enemy combatants or continue to pose a threat to the
U.S.. Many lawyers and human rights activists have
asserted that the CSRT’s are a sham proceeding,
flawed by their very nature– the detainees are not
permitted to have their lawyers present and do not
have access to the evidence being used against them,
some of which may have been obtained through
torture – and designed in practice and effect only to
justify the continuing indefinite detention of most
detainees.
The Bush Administration continued its attempts to
erode detainees’ rights in Congress. Signed into law
by President Bush on December 30, 2005, the
Detainee Treatment Act (DTA) purportedly protected
detainees from abuse, but also attempted to undo

Rasul and eliminate detainees’ rights to file habeas
corpus petitions.
The government’s attempt to circumvent the
Supreme Court rulings with the DTA, CSRT’s, and
military commissions was dealt a setback on June
29, 2006, when the Supreme Court ruled in Hamdan
v. Rumsfeld that those military commissions violate
U.S. and international law. Accepting the arguments
put forth in amicus briefs by the Center for
Constitutional Rights, Common Article 3 of the
Geneva Conventions, the Justices stated, did apply to
Guantánamo detainees.
Again attempting to undo a Supreme Court decision
favorable to detainees, the Bush administration had
Congress pass the Military Commissions Act (MCA)
in September and signed it into law on October 17,
2006. The MCA attempts to corrode habeas corpus
even further by proclaiming that non-citizens
anywhere in the world, including legal immigrants
detained in the U.S., can be picked up and held
indefinitely without charge or a fair hearing to
challenge their detention. Nor do people have to be
labeled an enemy combatant for them to be held, they
may merely be “awaiting” a designation..
Five years after the first detainees were sent to
Guantánamo, CCR continues to lead the movement
for reinstatement of the rule of law and against
torture at Guantánamo, at Bagram Airbase in
Afghanistan, at Abu Ghraib and elsewhere in Iraq
and around the world..
Cases such as Al Odah v. United States are
challenging the continuing denial of habeas corpus to
Guantánamo detainees and contesting the Military
Commissions Act of 2006.

2003

2002

2001

LEGAL TIMELINE
Sept. 18, 2001

Congress approves a resolution giving President Bush authority to use “all necessary
and appropriate force” against al Qaeda forces

Nov. 13, 2001

President Bush issues an executive order authorizing detention of “enemy combatant”
non-US citizens

Jan. 11, 2002

20 prisoners sent to Guantánamo Bay from Afghanistan. They are housed outdoors in
wire cages.

Jan. 27, 2002

Vice President Dick Cheney calls the detainees “the worst of a very bad lot. They are
very dangerous. They are devoted to killing millions of Americans.”

Feb. 19, 2002

CCR files Rasul v. Bush, a habeas petition, in D.C. District Court on behalf of David
Hicks, Shafiq Rasul and Asif Iqbal

Feb. 27, 2002

In the first of many organized protests, detainees go on hunger strike to protest a rule
against wearing turbans

Apr. 5, 2002

Detainee Yaser Esam Hamdi is discovered to be a U.S. citizen and moved from
Guantánamo to a military prison in South Carolina

June 11, 2002

Yaser Esam Hamdi files a writ of habeas corpus challenging his detention

Mar.11, 2003

D.C. Circuit Court of Appeals rejects CCR’s appeal in Rasul v. Bush, ruling that
detainees have no legal rights in the United States

Nov. 10, 2003

Supreme Court agrees to hear Rasul v. Bush

Mar. 9, 2004

2004

June 28, 2004

2005

July 7, 2004

Shafiq Rasul and Asif Iqbal, two of the petitioners in Rasul v. Bush, are sent back to
Britain and subsequently allege they were tortured and abused while detained
Supreme Court rules 6-3 in Rasul v. Bush that detainees can challenge their detention in
federal courts. On the same day, Supreme Court rules in Hamdi v. Rumsfeld that the
government cannot detain U.S. citizens without due process of law
Pentagon creates Combat Status Review Tribunals (CSRT’s) to review detainees’
“enemy combatant” status

Aug. 30, 2004

CCR attorney Gitanjali Gutierrez is the first civilian lawyer to meet detainees at
Guantánamo

Nov. 10, 2005

Senate votes 49-42 to approve the Detainee Treatment Act (DTA), which attempts to
strip detainees of the right to file habeas corpus petitions

Dec. 30, 2005

DTA is signed into law by President Bush

June 10, 2006

Three detainees die at Guantanamo

2006

June 29, 2006
Sept. 6, 2006
Oct. 17, 2006

Supreme Court rules in Hamdan v. Rumsfeld that military commissions violate U.S. and
international law, and that Common Article 3 of the Geneva Conventions applies to the
detainees
President Bush announces that 14 detainees from C.I.A. secret black sites have been
transferred to Guantánamo
President Bush signs the Military Commissions Act (MCA) into law. The MCA
attempts to make possible the permanent detention and torture of even legal U.S.
residents, as long as they are classified as “enemy combatants”

RELEASED DETAINEES MORE LIKELY TO RECEIVE FAIR T REATMENT FROM
OTHER COUNTRIES THAN FROM U.S.
Background
The past five years have seen the Bush administration make every attempt to circumvent and thwart the principle
that all people—including Guantánamo detainees—deserve fair trials and due process of law and have seen the U.S.
government condone the use of torture as an interrogation method.
A comparison of the treatment of former prisoners during their detainment versus the treatment they have been
given upon return to their home countries shows that the detainees often receive fairer treatment and, in many
instances, more due process at home than at Guantánamo. At the same time, the U.S. has sent people back to
countries where they face torture and persecution.

Treatment
received at
Guantánamo

Home
Country

Saudi
Arabia

By the
Numbers

 136 detainees
since 2002
 53 have been
released

While imprisoned at
Guantánamo Bay,
Cuba, many of the
detainees are:
 never formally
charged with a
crime;
 never given a
fair hearing
before a neutral
decisionmaker;
 physically and
mentally
abused and
tortured;
 held in solitary
confinement;
 often denied
needed medical
treatment; and
 prevented from
practicing their
religion.

Kuwait

Bahrain

1

 12 detainees
since 2002
 8 have been
released

 6 detainees
since 2002
 4 have been
released

Treatment Released
Detainees Receive in
Home Country

Examples

 Upon their arrival in Saudi
Arabia, they are allowed to
see their families, and they
receive medical care.
 They receive trials.
 If convicted, they complete
their sentences and are then
released.1

Saudi foreign minister Prince
Saud al-Faisal has said, “They
will be incarcerated and
checked, and we’ll see what the
proof against them is. If the
proof against them justifies trial,
they will be put on trial. If they
are proved guilty, they will be
incarcerated. If they are proved
innocent, they will be let out.”2

 They are charged with
crimes by the Kuwaiti
government.
 Six of the eight were
released on bail. 3 The two
most recently released
detainees remain in jail
pending a decision on
charges being filed.
 They receive trials in Kuwaiti
courts.
 If they are acquitted, they
are released.
 The Bahraini government
has made clear that if the
U.S. government provides
any evidence that Bahraini
detainees committed crimes,
such evidence would be
evaluated to determine
whether charges would be
brought under Bahraini law.
 All of the former detainees
were released immediately
after returning to Bahrain
and not charged with any
crime.

“Saudi frees 18 former Guantánamo detainees,” The Washington Post, December 26, 2006
“U.S. to Turn Over 16 Saudis From Guantánamo to Riyadh,” The New York Times, May 18, 2006
3
“5 from Guantánamo Get Bail in Kuwait,” The New York Times, March 6, 2006
4
“Court acquits former Guantánamo prisoner,” Kuwait Times, July 25, 2005
2

Nasser Al-Mutairi was released
from Guantánamo in early 2005
and upon his return to Kuwait
was charged with carrying out
hostile acts against a friendly
nation. He was first acquitted, a
decision which the government
later appealed, and then was
finally acquitted by Kuwait’s
highest court.4

The four released detainees
have lived in freedom with their
families since returning to
Bahrain. Each of them is
attempting to rebuild his life: for
example, three have returned to
college; two have gotten
married; one has had a child;
and one has reopened his
business.

5

Myth

Fact

1

Detainees are the “worst of the worst”
terrorist members of al Qaeda.

A February 2006 report by Seton Hall professor Mark Denbeaux and
attorney Joshua Denbeaux found that 55 percent of the detainees were
determined by the government to have committed no hostile acts against
the United States or its coalition allies. The report also stated that only 8
percent of the detainees were classified by the government as al Qaeda
fighters. 5

2

They have given the government valuable
intelligence.

Guantánamo officials have admitted that less than one in four detainees
has any intelligence value.

3

Their detainment contributes to national
security.

Anger abroad over treatment of detainees is high and has led to
heightened anti-American sentiment and fewer intelligence contacts.6

4

They’re not tortured or abused and are
treated humanely.

Numerous reports have found that U.S. government officials at
Guantánamo use interrogation tactics that are tantamount to torture.
These include methods such as physical beatings; extreme temperature
changes; prolonged stress positions; sleep deprivation; withholding
medical care; sexual abuse; and religious and cultural abuse. 7

5

The rule of law exists at Guantánamo.
Combatant Status Review Tribunals and
Annual Review Boards ensure that detainees
are imprisoned only if they are security
threats.

CSRT’s in essence are a sham —detainees cannot have lawyers present
and do not have access to the evidence being used against them,
evidence which may have been obtained by torture.

6

The military commissions at Guantánamo
would provide more fairness than is required
under the Geneva Conventions.

Common Article 3 of the Geneva Conventions prohibits “the passing of
sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.”

7

Living conditions at Guantánamo are humane

This is true for only a handful of prisoners, while the vast majority of
detainees live in stark, mind-numbing conditions.8

8

Detainees receive good medical care at
Guantánamo.

Serious medical conditions often go untreated, and detainees who have
been physically abused sometimes go days without treatment. In
addition, the mental health of many detainees is precarious.

9

The U.S. honors the detainees’ rights to
practice their religion.

There has been no imam at prayer since the removal of Chaplin James
Yee. The detainees are also frequently provoked during prayer times. In
addition, religious abuse is an express interrogation tactic approved by
the Defense Secretary.

10

TOP 10 MYTHS ABOUT GUANTÁNAMO BAY, CUBA

The U.S. wants to transfer detainees to the
custody of other countries, but no country will
take them.

Countries are willing to accept detainees but many are not willing to
unlawfully detain them, as the U.S. is requesting they do.

Denbeaux, Mark and Denbeaux, Joshua. “Report on Guantánamo Detainees: A Profile of 517 Detainees through Analysis of Department of
Defense Data,” February 2006
6
“Afghans Protest Against U.S. Actions at Guantánamo Bay Prison,” http://www.pbs.org/newshour/bb/asia/jan-june05/afghanistan_5-13.html,
May 13, 2005
7
Center for Constitutional Rights. “Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantánamo Bay, C uba.”
July 2006
8
“Toilet Paper, Sheets Rationed at Guantánamo Bay,” http://www.abcnews.go.com/WNT/story?id=2125839&page=1, June 27, 2006