Guantánamo Lawyer Discusses Detainees’ Rights to Their Art

Last fall, an exhibition of artwork made by current and former prisoners at Guantánamo Bay drew widespread attention to the existence of an art program at the US’s most controversial detention facility. Less than a month after Ode to the Sea opened at CUNY’s John Jay College of Criminal Justice, the Pentagon made the decision to deny detainees ownership over their own creative works, effectively making it impossible for artwork to leave the base. Now, lawyers representing the prisoner artists are taking action.

Last month, four lawyers representing Guantánamo detainees (a few of whom had pieces in CUNY’s exhibition) wrote a letter to Secretary of Defense James Mattis. The letter, emailed to Hyperallergic in late January, expresses “support of the long-established policy — which allowed for the release of art to detainees’ counsel, their families, and the public — as one that demonstrably benefits our detainee-clients, the detention authority, and the public at large.”

Protesting the ban on art leaving the base, the lawyers argue that the new regulations are counter-productive, as the art program has historically helped Guantánamo function more smoothly and made authorities’ jobs easier. “The benefits of art classes for prison populations, and for detaining authorities, have been widely researched and documented,” they write. “For example, a literature review of studies on the topic found such benefits as greater emotional self-regulation and self-discipline. The validating effect of being seen through one’s own artwork can hardly be overstated. Thus, art programming has been positively correlated with improved inmate behavior.” The letter further attests that the new policy is illegal under copyright law.

Last week, Hyperallergic sent a few email questions to Shelby Sullivan-Bennis, one of the aforementioned lawyers, who represents three detainees, two of whom — Khalid Qasim and Ahmed Rabbani — had work displayed in Ode to the Sea. Sullivan-Bennis’ answers, edited for clarity, appear below, followed by the full text of the letter sent to Secretary James Mattis.

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Elena Goukassian: Just to make sure I understand this correctly, the art programs are still happening at Guantánamo, right? It’s just that the artwork is now owned by the federal government, so prisoners can’t send anything to their friends or family? Or has the art program been cancelled outright?

Shelby Sullivan-Bennis: Art classes continue but the rules surrounding how much art can be created, worked on at one time, and disseminated have changed. Most importantly for the men, “transfers of detainee made artwork have been suspended pending a policy review.”

EG: How do your clients feel about not owning their artwork anymore? Had they been sending things to their friends and family? Are they less likely to make things now that they know the work will be taken away?

SSB: They were never able to send art to friends or family, unfortunately, but only give it to lawyers (with the exception of photocopies of art on 8-x-11 sheets that was sent with family mail).

In a word, they were devastated to hear that their art couldn’t leave the prison. For some, that was its express purpose. For others, they realized the importance of its outside recognition only once it was taken away. Of my three clients, only one continues to attend art class, and it’s intermittently.

My understanding is that the attendance of the class and production of art has all but ceased. Guantánamo is a secret prison that holds men who are always, almost exclusively defined by what they are alleged to have done and the torture they’ve suffered as a result. Showing the world what Guantánamo really is, and who they are, what their thoughts and dreams are, and that they are men and not monsters — that was the purpose of having the world see their art.

Beyond that, it was self-edifying to acquire a skill the world regarded as valuable, and more, to be lauded for it, for anything. It gave them hope of employment post release; it gave them an outlet for emotions, something to focus on, a forum in which to tell their stories, and so on.

EG: Have you had conversations with the guards at Guantánamo about the art program?

SSB: I know Khalid [Qasim] always asked guards what they thought of his art, and he would tell me repeatedly how impressed they were. He valued their opinion, I think, because he values everyone’s opinion, and also because everyone’s education and lived experience varies, so he wanted to know what each person, no matter who, interpreted his art to mean.

EG: Have you heard back from anyone yet about your letter? Do you expect to anytime soon? What do you think the response will be? And if nothing happens, is there more legal recourse, maybe through the copyright law you mention in the letter?

SSB: We have not and we do not expect to [hear back], given the response rate of all of our other communications with camp authorities. If they don’t respond and don’t alter the policy, the lawyers of artist clients will certainly be considering legal recourse, but we have high hopes that the camp administration will re-instate its [previous] policy, as GTMO is a land of arbitrary rules, none of which is long-lasting.

EG: Generally speaking, since you’ve been working with Guantánamo detainees, what kind of differences have you seen at the prison over time? In how they administer Guantánamo, how they treat detainees, etc.?

SSB: Every six or nine months, there’s a guard rotation, so what I have observed is that these very young men go through a training (one might rudely term it “brainwashing”) that indoctrinates a regimen of treatment designed to consider the detainees superhuman in strength and subhuman in spirit.

They are harsh to them and terrified of them until they learn that they, too, are just men and that most of them, old and frail, just want to go home. One of the saddest things a client said to me recently was from Abdullatif Nasser, who was cleared for release and scheduled to go home to Morocco right before Obama left office. He said that he was planning to wait a few months to ask the guard force for help with something in his cell, because he was scared that they would handle him harshly in response. He said, “They don’t know us yet, it’s too dangerous, it’s okay.” He had accepted that he had to wait to be realized as a human being.

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Below is the text of the letter sent to Defense Secretary James Mattis. Click here to download the pdf, including footnotes, of the Guantánamo Bay letter.

Dear Secretary Mattis and Rear Admiral Cashman:

In light of the recent announcement from the detention facility at the U.S. Naval Station at Guantánamo Bay, Cuba that “transfers of detainee made artwork have been suspended pending a policy review,” the undersigned counsel write in support of the long-established policy—which allowed for the release of art to detainees’ counsel, their families, and the public—as one that demonstrably benefits our detainee-clients, the detention authority, and the public at large.

Over the last decade, the detention camp administration itself has been the strongest proponent of the detainee art program’s positive impact. Camp commanders and staff have extolled the facility’s most popular program as “beneficial to everyone,” explaining that it “provides a creative outlet,” “keeps [the detainees’] minds occupied” and is also “good for the guard force [, making] everyone’s life better while we’re all operating here together.” Guantánamo prison authorities have further acknowledged that art “provides intellectual stimulation” for the benefit of the individual, and contributes to the overall maintenance of “a peaceful environment.” The detention camp administration has itself staged prisoner art shows at Guantánamo for visiting delegations of dignitaries, observers, and reporters.

Moreover, the U.S. government’s own Periodic Review Board has repeatedly recognized that detainees’ development of artistic skills, and the prison administration’s recognition and appreciation of those skills, have a positive impact on detainees and are a positive indicator of personal growth. In one case, a detainee’s Personal Representative from the Periodic Review Secretariat expressly stated that “the change in [the detainee] came from taking art classes.” In its final determination, the Periodic Review Board cited this detainee’s participation in art classes as a factor in its decision to clear him for transfer.

The benefits of art classes for prison populations, and for detaining authorities, have been widely researched and documented. For example, a literature review of studies on the topic found such benefits as greater emotional self-regulation and self-discipline. The validating effect of being seen through one’s own artwork can hardly be overstated. Thus, art programming has been positively correlated with improved inmate behavior.

The Federal Bureau of Prisons fully agrees with the utility of maintaining both prison-based art programming and a well-monitored system of releasing this art to the world. Indeed, the Bureau’s internal guidelines actually require detainees to either give away or sell their artwork. It is important to add that Guantánamo prison authorities operate a well-established system for vetting the art, such that there is no reasonable security justification for preventing the art’s transmission.

A decision to forbid any detainee art from being transferred out of Guantánamo would not reflect well on the Defense Department’s operations there. In fact, news of the policy review has already added fuel to criticisms regarding the lack of transparency of operations and lack of access to the detainees. Instead, the Defense Department should continue to embrace its art program at Guantánamo and the resulting detainee artwork shared outside the prison, and avoid any appearance of stifling it.

Finally, the sequestration or (as has been reported) destruction of detainee art would run afoul of U.S. copyright law. The U.S. Constitution’s Copyright Clause recognizes that copyright protection is designed “to promote the Progress of Science and the useful Arts,” which the Founders acknowledged serve an important public good. Under the U.S. Copyright Act (17 U.S.C. § 101 et seq.), this protection includes the artist’s exclusive right to publicly display, reproduce, prepare derivative works from, and distribute copies of his art work (17 U.S.C. § 106). As citizens of countries belonging to the leading international copyright law treaty, the detainees are entitled to all of the benefits under U.S. copyright law accorded to American citizens. The detention facility’s sequestration of detainee art would prevent the detainees, without good cause, from exercising their lawful exclusive rights under the Copyright Act.

In addition, the Copyright Act expressly gives artists the right to prevent the destruction of their work. See 17 U.S.C. § 106A(a)(3)(B) (“the author of a work shall have the right to prevent any destruction of a work of recognized stature.”). This right is a part of the Visual Artist Rights Act (“VARA”), which amended the Copyright Act in 1990 to furnish artists with certain protections previously established under the Berne Treaty. The purpose of this right is to protect the sanctity of the personality that the artist injects into his work and to preserve the artwork’s integrity, for the benefit to the public. The forced destruction of detainee art would directly
violate this statute.

We urge you to consider these points as part of your review and to reinstate the policy as it previously stood.

Sincerely,

Beth D. Jacob
Counsel for Moath al-Alwi, Ahmed Rabbani, & Omar al-Rammah

Pardiss Kebriaei
Aliya Hana Hussain
Center for Constitutional Rights
Counsel for Sharqawi al-Hajj

Ramzi Kassem
Main Street Legal Services, Inc. CUNY School of Law
Counsel for Moath al-Alwi

Shelby Sullivan-Bennis
Katherine Taylor Reprieve
Counsel for Haroon Gul, Khalid Qasim, & Ahmed Rabbani