Constitutional Law Copyright Law

Defense Dep’t Says US Gov’t Not Guantanamo Detainees Own Art Detainees Created

The Dept of Defense changed a policy this month affecting the 41 remaining detainees at Guantanamo Bay Naval Base, known as Gitmo. The DOD ruled that detainees did not possess the artwork they created while detained and could not display it publicly or sell it. Art classes started at Gitmo “in the later years of the Bush administration as commanders explored ways to distract detainees who had spent years in single-cell lockups from getting into clashes with the guards,” according to Carol Rosenberg of the Miami Herald who along with Elena Goukassian of first reported on the story. As the article reports, the program appeared successful, and even US military personnel were impressed. Detainees began sending works they’d created as presents to their lawyers and families — after close inspection and screening for subliminal messages, of course.

Rosenberg’s article sites an ongoing exhibition of Guantanamo artwork at CUNY’s John Jay College of Criminal Justice, Ode to the Sea (which has gotten international media attention), as the impetus to the Pentagon’s latest decision. On the exhibition’s website, there is an email address listed for those interested in purchasing work. Rosenberg cites a Pentagon spokesperson concerned about “where the money for the sales is going.”

Erin Thompson, associate professor of art crime at John Jay College and one of three curators who organized Ode to the Sea, told Hyperallergic that of the eight artists featured in the exhibition, four are former prisoners, and only their work is for sale. Furthermore, no one from the Pentagon even tried to contact her to ask about sales, even though her email address is plainly listed on the exhibition’s website.

Muhammad Ansi, “Untitled (Crying Eye)” (2016), work on paper

The Guantanamo Bay detention camp is a United States military prison located within the Guantanamo Bay Naval Base, in Cuba. The prison was established by President George W. Bush’s administration in 2002 during the “War on Terror.” During President Barack Obama’s administration, the number of inmates was reduced from about 245 to 41;most former detainees were freed and transferred to other countries. According to many including the ACLU, Amnesty International and this author, the prison is an affront to basic US Constitutional principles, with some individuals held without bail or trial for over a decade. The DOD and the DOJ argue of course that since it is outside the country and since these are “military detainees” and not criminally accused, the US Constitution does not apply to them.


And that argument provides DOD justification for their policy change relating to the artwork created by detainees while detained. US Copyright laws do not apply in Guantanamo unfortunately and for inmates in the United States, the Federal Bureau of Prisons has an Art and Hobbycraft policy that permits prisoners to give away their art to authorized visitors; to mail artwork to relatives or certain approved visitors at the inmate’s expense; and to sell them through a hobbycraft sales program with prices set by a prison committee. But a US warden can limit the number of pieces and inmates are not allowed to take all of their art with them when they are released. The remaining pieces get destroyed.

This recent change in policy should not come as a surprise for observers of this Administration whose mean-spiritedness is evident in every corner and every decision. John Jay is home to the Prison-to College-Pipeline, a program where incarcerated men in NY State prisons get the opportunity to start college in their facilities and then get automatic admission to John Jay when they are released. The P2CP has been tremendously successful and has grown every year and is now spreading into various other countries. It has shown the value of giving those in prison an outlet for education, art and literature. The Art Program in Guantanamo serves a similar purpose and depriving the residents of the moral and intellectual property rights in their works and depriving them of the ability to create art and share it makes Gitmo and even darker place and serves no legitimate purpose.

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