International Law: Analysis of Guantanamo Bay and the Patriot Act

This essay analyzes the application of international law, particularly in the context of the Guantanamo Bay detention camp and the US Patriot Act. The introduction discusses the evolving nature of warfare and the relevance of the maxim "In times of war the law falls silent," setting the stage for a...Read More

INTERNATIONAL LAW

Introduction
With the advancement in terms of the globalisation, international trade, and the co-
dependency of the nations, there is a significant change in the connotation of the war.
However, the saying that “In times of war the law falls silent,” still holds relevancy to certain
extent. Though in some of the interpretations the maxim means that in the event of on enation
being threatened, the legal provisions cannot prevent a nation from defending itself. In simple
words, the survival of the war is the prime objective and the law cannot prevent any country
from preventing itself. The aim of the following work is to analyse the above mentioned
saying in context of the existence of Guantanamo Bay Detention Camp and the Patriot Act.
The existence of both the camp and the act is often questioned in context of the advanced
human rights, and hence both of them would be explored in detail. The report would end with
the conclusion on the discussion.
Analysis
It is significant to note that there are several international laws that are aimed at preserving
the human rights and the limitation of the effects of the armed conflicts on the international
level. The Customary International Humanitarian Law as composed of the Geneva
Convention (1949) and the various other treaties at the state and the international level is one
such law1. However, the fact that the Guantanamo Bay detention camp and the Patriot Act,
and others are still into existence leads to the observation that in situations of the war, the
humanitarian laws still fall short.
Guantanamo Bay detention camp
Guantanamo Bay detention camp is a military prison based at Guantanamo Bay Naval Base,
USA. The detention camp is often referred to as the symbol of the abuse, injustice and the
extreme violation of the human right principles. The prison is meant to detain the individuals
that are suspected to be engaging in the anti-American terrorist activities2. Originally the
prison was established to detain the Muslim militants that were held from the areas of Iraq
war, Afghanistan and the likewise areas by the US Forces. However, the operation of the
1 "What Is International Humanitarian Law?", International Committee Of The Red Cross, 2020,
https://www.icrc.org/en/document/what-international-humanitarian-law.
2 Elise Swain, "It’S Still Open: Will The Guantánamo Bay Prison Become A 2020 Issue?", The Intercept, 2019,
https://theintercept.com/2019/03/03/guantanamo-bay-carol-rosenberg-intercepted/.

prison is controversial because in addition to the detention, the prisoners are subjected to the
torture and barbaric activities. It is essential to note that the Federal Laws are well equipped
and comprehensive to address the terrorist activities or the attempts to infiltrate the
international security. Nevertheless, the individuals are detained in the said camp instead of
the fair trial based on the reliable evidences as contained in the criminal justice system of the
country3. The said prison is one of the most costly prisons worldwide and the recent data
shows that the cost of maintenance of such prison is $ 13 million per year per prisoner to the
tune of 40 prisoners4. If the aim of such prison is to enhance security of the nation, instead of
such prison and maintenance that too without a guarantee of trial such an amount can be
invested to strengthen the military forces even more. The camp has been subjected to varied
criticisms from the organisations including International Committee of the Red Cross, Human
Rights Watch, and others. In past, there have been instances when the prisoners have engaged
themselves into hunger strikes as a means of protest to their living conditions and detention.
It is to be noted that the territory of the prison belongs to Cuba, yet US military has a control
over it. On one instance in the year 2013, the Foreign Minister of Cuba, Bruno Rodriguez had
written to the United Nations, stating that around it is been ten years since one hundred and
sixty six persons have been prisoned in the detention. These prisoners are not been given
guarantees of trial or the right to legal defence. Accordingly, the prison should be stud down
and the territory be returned to Cuba5. This is in addition to the attempts of the ex-president
of the country USA, Mr Barack Obama which led to the reduction in the number of detainees
by transferring to their countries or freeing them. However, he had promised post his election
as a president that the prison would be closed within a year6. The fact that the prison is till in
the operation and even the US President could not shut it down completely highlights the
inefficient law provisions and powers against such a military prison. In addition to that, in a
recent incident an executive order was signed by current President US Trump for the
indefinite continuance of the said camp.
US Patriot Act
3 "Guantánamo Bay Detention Camp", American Civil Liberties Union, 2020,
https://www.aclu.org/issues/national-security/detention/guantanamo-bay-detention-camp.
4 "The Cost Of Running Guantánamo Bay: $13 Million Per Prisoner", Nytimes.Com, 2019,
https://www.nytimes.com/2019/09/16/us/politics/guantanamo-bay-cost-prison.html.
5 "Background On Guantanamo Bay Prison", Human Rights First, 2018,
https://www.humanrightsfirst.org/resource/background-guantanamo-bay-prison.
6 "Guantánamo Bay: 14 Years Of Injustice", Amnesty.Org.Uk, 2018, https://www.amnesty.org.uk/guantanamo-
bay-human-rights.

One of the yet another international law that is subjected to the criticisms is the USA Patriot
Act as was established in the year 2001. The prime aim of the law is to establish sufficient
surveillance in the country in context of the country’s security post the 09/11 terrorist
attacks7. However, there are several parts of the acts that are consistently being criticised.
One example of such a provision is the “National Security Letters program as contained in
the section 206 of the act.” According to the said provision, the government can ask for the
telecommunication records of any individual or an entity from the telecommunication
companies and the former would not be required to obtain initial permissions from the
surveillance court8. This is serious violation of the basic human right of privacy and thus the
said provision has been condemned often. This is because in the opinion of the critics, there is
no single record of the case where the telephonic conversations have contributed to the
terrorism related investigations. Two of the yet another sections of the act subjected to
criticism are the Sec. 203(b) and (d). The sections allow for the sharing of information from
the criminal probes with the intelligence agencies and also the other arms of the government.
The criticism of such wall being diluted is that the databases of the citizens who are not the
targets of the criminal investigations would also be shared with intelligence agencies. It has
been warned by varied researchers that the language of the act is too loose and broad which
encourages unlimited information sharing and thus can be misused. The fact that such type of
sharing is not limited to terrorism which is the main subject of the law highlights the
inefficiencies and irregularities. The yet another questionable section is that of the Sneak &
Peek” Warrants as contained in the section 213. This provision allows the authorities to enter
the business place or the homes even without the immediate notification of the target of the
probe. This means that such a provision can be used even against the citizens in case of the
minor crimes and not just the terrorist activities. The section 206 related to the “roving
wiretaps” leads to the erosion of the basic constitutional rule of particularization whereby the
government without any permission from the court can intercept conversations9. Thus, the
discussion of the Patriot Act highlights that there are numerous provisions in the act that can
be used against citizens of the country as well and are not just limited to the terrorists, thereby
highlighting the privacy issues.
7 Jim Sensenbrenner, "This Abuse Of The Patriot Act Must End | Jim Sensenbrenner", The Guardian, 2013,
https://www.theguardian.com/commentisfree/2013/jun/09/abuse-patriot-act-must-end.
8 Dara, Lind. "Everyone's Heard Of The Patriot Act. Here's What It Actually Does.". Vox, 2015.
https://www.vox.com/2015/6/2/8701499/patriot-act-explain.
9 "Myths And Realities About The Patriot Act", American Civil Liberties Union, 2020,
https://www.aclu.org/other/myths-and-realities-about-patriot-act.

Conclusion
The discussions conducted in the previous parts aid to conclude that while there are varied
range of international human rights laws, the same are not enough in the context of the war
and are often misused by the authorities. The work involved the analysis of the two key
legislations in the US that are often condemned as the same have significant shortfalls as
mentioned in the previous parts. While the Guantanamo Bay detention camp has been critics
for the inhumane and violent activities along with the unfair trial measures, the US Patriot
Act has been criticised for an overall broad coverage of the act which undermines the basic
human rights of privacy of the citizens. The varied sections have been cited of the US Patriot
Act to highlight the irregularities in the same. In addition, the criticisms of the detention
camp have been presented in the form of the inability to shut it down even after the
involvement of the ex- president himself and the government of Cuba. Thus, a conclusion is
reached that the fact that many such legislations are in existence in different countries as
means of “defending the country’s security,” highlight that the other laws fall short in the
times of war and the actions taken are as per the discretion of the governments.

Bibliography
"Background On Guantanamo Bay Prison". Human Rights First, 2018.
https://www.humanrightsfirst.org/resource/background-guantanamo-bay-prison.
"Guantánamo Bay Detention Camp". American Civil Liberties Union, 2020.
https://www.aclu.org/issues/national-security/detention/guantanamo-bay-detention-camp.
"Guantánamo Bay: 14 Years Of Injustice". Amnesty.Org.Uk, 2018.
https://www.amnesty.org.uk/guantanamo-bay-human-rights.
"Myths And Realities About The Patriot Act". American Civil Liberties Union, 2020.
https://www.aclu.org/other/myths-and-realities-about-patriot-act.
"What Is International Humanitarian Law?", International Committee Of The Red Cross,
2020, https://www.icrc.org/en/document/what-international-humanitarian-law.
Dara, Lind. "Everyone's Heard Of The Patriot Act. Here's What It Actually Does.". Vox,
2015. https://www.vox.com/2015/6/2/8701499/patriot-act-explain.
Jim Sensenbrenner, "This Abuse Of The Patriot Act Must End | Jim Sensenbrenner", The
Guardian, 2013, https://www.theguardian.com/commentisfree/2013/jun/09/abuse-patriot-act-
must-end.
Swain, Elise. "It’S Still Open: Will The Guantánamo Bay Prison Become A 2020 Issue?".
The Intercept, 2019. https://theintercept.com/2019/03/03/guantanamo-bay-carol-rosenberg-
intercepted/.
"The Cost Of Running Guantánamo Bay: $13 Million Per Prisoner". Nytimes.Com, 2019.
https://www.nytimes.com/2019/09/16/us/politics/guantanamo-bay-cost-prison.html.