Prisoners departing from Guantánamo Bay can now take artwork with them when they leave due to a recent policy change by the US Defense Department.
As a result of the new policy, detainees can take “a practicable quantity of their art” when they leave. However, the Defense Department still considers the artworks “property of the US government,” Pentagon spokesman Lt. Col. Cesar H. Santiago told ARTnews told the New York Times by email.
On Friday, Santiago told ARTnews in an email that “the practicable quantity is determined on a case-by-case basis based on the requirements of the transfer.” But there is still a lot unknown about the policy. The Pentagon did not reply to a request for clarification from ARTnews if the artwork will be allowed to be sold in the future to private collectors or museums, when exactly the new policy was or will be adopted, and what would happen to the artwork made by detainees still in the facility.
The ban on the release of artwork was implemented by the Trump administration in late 2017 after an art exhibit in New York featured work by detainees from the detention facility. “Ode to the Sea: Art from Guantánamo” featured landscapes, flowers, still life studies, model ships, and other subjects by current and former Guantánamo detainees. The exhibition received press coverage in national media outlets and its website offered an email address for people “interested in purchasing art from these artists.”
The Defense Department responded to the 2017 exhibition by declaring the artwork made by detainees to be government property. A Pentagon spokesman said officials “were not previously aware that detainee artwork was being sold to third parties.”
Lawyers that spoke to ARTnews said the claim that the artwork by Guantánamo detainees is government property is “unsupported by law or practice” and “completely false”.
“They do not have the right to assert ownership under copyright law,” said Alka Pradhan, human rights counsel for detainee Ammar al-Baluchi, accused of conspiring in the attacks on September 11.
Pradhan also clarified that “high-value” detainees like her client already couldn’t financially benefit from exhibits or sales of their art work. However, the ban also meant the artworks made by these high-value detainees couldn’t be publicly exhibited at all, a right granted to US inmates sentenced to death.
Currently, there are 20 detainees cleared for release, out of 34 currently at Guantánamo Bay. Concern about the ownership and public accessibility of artwork made by Guantánamo Bay prisoners was also the subject of a letter sent to Secretary of State Antony J. Blinken last year, written by two rapporteurs for the United Nations. They expressed concern about allegations that “appear to contravene the rights to free artistic expression”.
Prior to the Pentagon’s declaration in 2017, Guantánamo Bay had allowed attorneys for the detainees to take artwork away from the US naval base after a 2-week security screening for classified information – like the name of a guard or the layout of a camp. Some of the detained prisoners that had been transferred to other locations had also been allowed to take their art with them.
Erin L. Thompson, co-curator of “Ode to the Sea: Art from Guantánamo”, said she felt a mixture of happiness and anger at the news of the ban being lifted. “I know how meaningful it will be for these men, but it is so infuriating that it has taken so long,” she told ARTnews.
“The fact that the art can now leave means that we will understand Guantanamo better. It is so incredibly difficult to get an idea of what life is like inside of Guantanamo, thanks to the control over all the sources of information by the authorities. So any little bit is valuable.”
Thompson, who is also an assistant professor at the John Jay School of Criminal Justice and a lawyer, said the use of the word “practicable” was likely intended to limit what a prisoner could declare as art. However, the kind of art supplies inside Guantánamo Bay already limited many drawings and paintings to legal sized sheets of paper.
“I don’t really understand what the concern is to limit it to that rule, aside from just being one final ‘We’ll show you that we’re the ones in power,'” she said.
Pradhan and Thompson emphasized how art had an immense personal value to many of the detainees for helping them manage their mental health.
“This is how they survive,” Thompson said. “This is what they made out of nothing to keep themselves safe. Some had been saying that they even though they were cleared for a release, they wouldn’t leave unless they could take their art with them.”
Some of the detainees that had been released were also able to sell their art works. “We’re not talking millions of dollars, but when you’re trying to start your life over again, after 20 years of unjustified detention, every little bit helps,” Thompson said.
The detainees’ identities as artists also had immense personal value. “Several have told me that it’s important for them to be thought of by the wider world as something other than terrorist or other than suspect or other than victim,” she said.