Presidential Executive Order Issued to Keep Guantanamo Bay Open


Yesterday, Tuesday, January 30th, 2018, the White House issued an executive order to keep Guantanamo Bay open. The stated purpose of this action is to keep America safe from terrorists through lawful detention. However, given the many court cases questioning the legality of the practices of Guantanamo Bay, the alleged lawfulness of this form of detention is legally and factually unfounded. The US Supreme Court has ruled in cases such as Boumediene v Bush that it is not within the power of the President “to switch the Constitution on or off” [para 8,9] (553 US 723, 2008).

Although the executive branch of the US federal government has the duty to ensure the protection of its citizens and has the authority to infringe individual rights to do so, under international law and constitutional law, there are limitations to these powers. For instance, there are no exceptions to the obligation to give the right to due process and to a fair trial before an impartial court or tribunal to the Guantanamo detainees. This is the legal principle known as habeas corpus, which means that by virtue of having a body, (just by being a person), a person has a legal right to due process before the law. Since opening in 2002 under the Bush administration, the practices at Guantanamo Bay have found to be in violation of habeas corpus in numerous instances.

The Obama administration had signed an executive order to close the prison in 2009 in response to these human rights violations, however, the administration never went through with this closure. Representatives of detainees of Guantanamo have brought forward claims that these tribunals relied on evidence obtained through torture and did not abide by rules of due process. This latest executive order from the Trump administration reverses the planned closure while also perpetuating incorrect interpretations of the law, that there are no human rights violations and that it is exercising its authority legally.

The US undoubtedly has a commitment to ensuring people who have or who plan to commit acts of terror on American citizens must face punishment for their crimes. However, the US cannot deny detainees the right to have a fair trial before a judge to determine their guilt. This right is not satisfied by using an ad hoc military tribunal. Without respecting this right, the practices at the Guantanamo Bay military prison are unconstitutional and are in fact illegal.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC

About the Author

Nathan Prendergast
Nathan is a second year in the JD program at the University of Windsor Faculty of Law.