Newsgroup: it.politica.internazionale
Titolo: [AI]Guantanamo (lungo)1

Chiedo scusa se pubblico questo lunghissimo articolo per intero: l'ho diviso
in 4 parti, ma meritava di esser pubblicato per intero e non solo col link,
essendovi un concentrato di tutto il materiale raccolto da Amnesty su
Guantanamo.
Mi pare che sul NG molti non abbiano capito bene cosa succede lì dentro e
altrove, in carceri sempre gestite dagli USA...Se questo è il modo di
esportare la democrazia, è meglio che se ne restino a casa.
********************
UNITED STATES OF AMERICA
Guantánamo and beyond: The continuing pursuit of unchecked executive power
I used to think that America had respect for human rights when it came to
prison.
Mohammed Nechle, extrajudicially removed from Bosnia and Herzegovina by US
agents(1)
My husband is a tall man with black hair and black eyes.He is now imprisoned
in Guantánamo. We don't know why.
Wife of Mohammed Nechle, Algerian national, 2004(2)
1. Summary: The pursuit of unfettered executive power
It seems rather contrary to an idea of a Constitution with three branches
that the executive would be free to do whatever they want, whatever they
want without a check.
US Supreme Court Justice Stephen Breyer, 20 April 2004(3)
In late December 2001, a memorandum was sent from the United States Justice
Department to the Department of Defense.(4) It advised the Pentagon that no
US District Court could "properly entertain" appeals from "enemy aliens"
detained at the US Naval Base in Guantánamo Bay, Cuba. Because Cuba has
"ultimate sovereignty" over Guantánamo, the memorandum asserted, US Supreme
Court jurisprudence meant that a foreign national in custody in the naval
base should not have access to the US courts. The first "war on terror"
detainees were transferred to the base two weeks later. The memorandum
remained secret until it was leaked to the media in mid-2004 in the wake of
the Abu Ghraib torture scandal.
Not long after this leak, on 28 June 2004, the US Supreme Court ruled, in
Rasul v. Bush, that the federal courts in fact do have jurisdiction to hear
appeals from foreign nationals detained in Guantánamo Bay.(5) Yet almost a
year later, none of the more than 500 detainees of some 35 nationalities
still held in the base - believed to include at least three people, from
Canada, Chad and Saudi Arabia, who were minors at the time of being taken
into custody - has had the lawfulness of his detention judicially reviewed.
The US administration continues to argue in the courts to block any judicial
review of the detentions or to keep any such review as limited as possible
and as far from a judicial process as possible. Its actions are ensuring
that the detainees are kept in their legal limbo, denied a right that serves
as a basic safeguard against arbitrary detention, "disappearance" and
torture or other cruel, inhuman or degrading treatment. Amnesty
International believes, as explained in Section 3, that all those currently
held in Guantánamo are arbitrarily and unlawfully detained.
The administration responded to the Rasul decision by setting up Combatant
Status Review Tribunals (CSRTs), panels of three military officers, to
determine if each detainee was an "enemy combatant" as labelled. The
detainee has no access to secret evidence used against him in this process
or to legal counsel to assist him. The CSRT, meanwhile, can draw on evidence
extracted under torture or other ill-treatment in making its determinations.
The CSRTs began in July 2004 and were completed for the current detainee
population in January 2005, with the final decisions issued in late March
2005. In 93 per cent of the 558 cases, the CSRT affirmed the detainee's
"enemy combatant" status. Eighty-four per cent of the 38 cases where the
detainee was found not to be an "enemy combatant" were decided later than 31
January 2005, when a federal judge, District Judge Joyce Hens Green, found
that the CSRT process was unlawful, but before the government's appeal
against her ruling was heard (see Sections 7 and 8, and Appendix 2).
At the end of April 2005, three years and three months after "war on terror"
detentions in Guantánamo Bay began, the government filed a brief in the US
Court of Appeals arguing that Judge Green's opinion should be overturned and
that the purely executive CSRT process should be accepted as a substitute
for judicial review. The government emphasised the CSRT's "findings in favor
of 38 detainees" as a sign of a constitutionally fair system. The brief did
not point out - or explain if it was pure coincidence - that all but six of
these 38 cases had been decided after Judge Green's ruling. In any event,
the appeal brief shows an administration in unapologetic mood, in continuing
pursuit of unfettered executive authority under the President's war powers
as Commander-in-Chief of the Armed Forces, and maintaining a disregard for
international law and standards. Among the arguments in the legal brief are
that:
    a.. The US Constitution's Fifth Amendment prohibition on the deprivation
of liberty without due process of law "is inapplicable to aliens captured
abroad and held at Guantanamo Bay." This, the government argues, repeating
its pre-Rasul position, is because the "United States is not sovereign over
Guantanamo Bay". In addition, "if the courts were to second-guess an
Executive-Branch determination regarding who is sovereign over a particular
foreign territory, they would not only undermine the President's lead role
in foreign policy, but also compromise the very capacity of the President to
speak for the Nation with one voice in dealing with other governments."
    b.. Even if the Fifth Amendment did apply to foreign nationals held at
Guantánamo, the brief argues, the CSRT procedures would exceed whatever
process was due in the case of these detainees. The need for deference to
the executive on the question of the withholding of classified information
and legal counsel from the detainees is "greatly magnified here, where the
issue is not the administration of domestic prisons, but the Executive
Branch carrying out incidents of its war-making function."
    c.. According to the administration, "the determination of who are enemy
combatants is a quintessentially military judgment entrusted primarily to
the Executive Branch." The executive, the executive argues, "has a unique
institutional capacity to determine enemy combatant status and a unique
constitutional authority to prosecute armed conflict abroad and to protect
the Nation from further terrorist attacks. By contrast, the judiciary lacks
the institutional competence, experience, or accountability to make such
military judgments at the core of the war-making powers."
    d.. On the question of the Geneva Conventions, the brief argues, Judge
Green's contention that Taleban detainees picked up in Afghanistan should
have been presumed to have prisoner of war status is "inconsistent with the
deference owed to the President as Commander-in-Chief" who had unilaterally
decided otherwise.(6)
This brief is perhaps an unsurprising response from an administration whose
outgoing Attorney General decried what he characterized as "intrusive
judicial oversight and second-guessing of presidential determinations";(7)
whose Justice Department formulated the position, accepted by the White
House Counsel, that the President - who apparently believes that there are
people who are "not legally entitled" to humane treatment(8) - could
override the national and international prohibition on torture;(9) and whose
Secretary of Defense has authorized interrogation techniques that violate
international law and standards.(10) This is an administration that has
sought unchecked power throughout the "war on terror" and shown a chilling
disregard for international law. The USA's policies and practices have led
to serious human rights violations and have set a dangerous precedent
internationally.
      USA's "war on terror" detainees, April 2005
      (approximate totals/estimates)(11)
      USA: Naval Brig, Charleston, South Carolina 2 "enemy combatants"
      Cuba: Guantánamo Bay naval base 520
      (234 releases/transfers)
      Afghanistan: Bagram air base 300
      Afghanistan: Kandahar air base 250
      Afghanistan: other US facilities (forward operating bases) Unknown:
estimated at scores of detainees
      Iraq: Camp Bucca 6,300
      Iraq: Abu Ghraib prison 3,500
      Iraq: Camp Cropper 110
      Iraq: Other US facilities 1,300
      Worldwide: CIA facilities, undisclosed locations Unknown: estimated at
40 detainees
      Worldwide: In custody of other governments at behest of USA Unknown:
estimated at several thousand detainees
      Worldwide: Secret transfers of detainees to third countries Unknown:
estimated at 100 to 150 detainees
      Foreign nationals held outside the USA and charged for trial 4
      Trials of foreign nationals held in US custody outside the USA 0
      Total number of detainees held outside the USA by the US during "war
on terror" 70,000
Section 5 of the report points to an overarching war mentality adopted by
the US administration since 11 September 2001 which has led it to manipulate
or jettison basic human rights protections for detainees, including
instances of the USA refusing to recognize that United Nations human rights
experts have the mandate to raise concerns about US actions in the "war on
terror". For example, UN Special Rapporteurs have raised allegations of
extrajudicial executions by US forces, only to have the US reject such
concerns out of hand. In April 2005, the mandate of the UN Independent
Expert on the Situation of Human Rights in Afghanistan was not renewed. This
is alleged to have been the result of US government pressure. The former
postholder has said that he believes the non-renewal of his mandate was due
to the USA's dislike of his insistence that he should be allowed to visit
detainees in US custody in Afghanistan, particularly in light of allegations
of torture and ill-treatment of such detainees.
Over a year after the Abu Ghraib torture scandal broke, and as evidence of
torture and other cruel, inhuman or degrading treatment by US forces in the
"war on terror" continues to mount, not one US agent has been charged with
"war crimes" or "torture" under US law (see Section 12). In over 70 per cent
of announced official actions taken in response to substantiated allegations
of abuse, the punishment has been non-judicial or administrative. While a
small number of mainly low-ranking soldiers have been subjected to
courts-martial, members of the administration, who from the outset have
claimed that the USA treats all detainees humanely and that any abuses have
been the actions of a few aberrant soldiers, have remained free of
independent investigation despite possible criminal responsibility in
abuses. Congress has failed to initiate an independent commission of
inquiry, as Amnesty International has sought. The current Attorney General,
like his predecessor possibly involved in a conspiracy to immunize US agents
from criminal liability for torture and war crimes under US law, has not
appointed a special prosecutor to pursue this matter as Amnesty
International and others have urged.
As the culture of impunity and military leniency grows, including in cases
in which Afghan and Iraqi detainees have died as a result of abuses by US
agents (see Section 13 and Appendix 1), the administration continues to seek
to try members of the "enemy" for war crimes in front of military
commissions - executive bodies, not independent or impartial courts. It has
appealed a federal court ruling that the military commission procedures are
unlawful because the defendant can be excluded from proceedings. In Section
10, Amnesty International reiterates its total opposition to the military
commissions, which violate international fair trial standards in numerous
ways.
Only foreign nationals can be tried by military commissions, violating the
international rule that "all persons shall be equal before the courts and
tribunals".(12) However, the administration is also violating fundamental
human rights at home. As described in Section 16, a US "enemy combatant",
José Padilla, will soon enter his fourth year in untried executive detention
on the US mainland. The administration has appealed a recent federal court
ruling that he should be released. A court decision is awaited in the case
of a Qatari national who remains in military custody in South Carolina
nearly two years after he was removed from the ordinary criminal justice
system by President Bush who designated him as an "enemy combatant". Ali
Saleh Kahlah al-Marri has now been detained for almost three and a half
years, all in solitary confinement, raising serious concerns for his
well-being and providing further evidence of the US administration's
willingness to violate human rights in the name of national security.
Meanwhile, the administration is continuing to seek the execution of
Zacarias Moussaoui, so far the only person charged in the USA in relation to
the attacks of 11 September 2001. The case of this French national is
described in Section 11.
Thousands of detainees remain in US custody in Iraq - a country which
President Bush repeated on 12 April 2005 has become "a central front in the
war on terror" since the US-led invasion in March 2003.(13) Hundreds remain
in US custody in Afghanistan, with some in Bagram air base having been
detained without trial and virtually incommunicado for more than a year. The
International Committee of the Red Cross (ICRC), the only international
organization with access to some of the detainees in Afghanistan, reiterated
on 29 March 2005 that it was "increasingly concerned by the fact that the US
authorities have not resolved the question of their legal status and of the
applicable legal framework".(14) In addition, the USA is holding an unknown
number of detainees in secret incommunicado custody in unknown locations and
unknown conditions in cases that may amount to "disappearance". Evidence
that the US authorities have "outsourced" torture via secret detainee
transfers to other countries continues to come to light, as described in
Section 14.
Now, as it faces possible further setbacks in the courts, the administration
is said to be intending to outsource some of its Guantánamo detentions to
other countries. In late March 2005, a federal court issued an order
directing the government to give 30 days' notice before transferring any one
of 13 Yemeni detainees. Other judges have issued similar orders, but on 14
April 2005, a federal judge refused to issue such an order in the case of
six Bahraini nationals, and a week later another judge did the same. Section
15 of this report highlights the question of transfers from Guantánamo, and
also describes the recent case of a US national held in Saudi Arabia, Ahmed
Abu Ali. His is alleged to have been a case of an outsourced detention,
during which he was allegedly subjected to torture and ill-treatment. It
appears to have been only the threat of US court action forcing the
administration to reveal information on the case that secured the detainee's
return to the USA. In the "war on terror", it seems, the USA is prepared to
have countries it annually criticizes in its State Department human rights
reports do its dirty work for it. The judiciary and the legislature must do
all they can to assert a check on the executive.
On 6 May 2005, three and a half years late, the USA submitted its Second
Periodic Report to the Committee against Torture, the expert body
established by the UN Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) to oversee implementation of that
treaty. The USA's Initial Report to the Committee had been submitted in
October 1999, with the Committee's findings and recommendations made in May
2000.(15) On 21 May 2004, a few weeks after the Abu Ghraib scandal became
public, the Committee had asked the USA to provide it with updated
information on US detentions in Iraq as part of its Second Periodic Report.
In an Annex to this report just filed, which covers the period up to 1 March
2005, the US government provides information on detentions in Iraq,
Afghanistan and Guantánamo Bay, including the post-Rasul legal framework.
The US administration prefaces this information with the following:
    "Since the Initial Report, with the attacks against the United States of
September 11, 2001, global terrorism has fundamentally altered our world. In
fighting terrorism, the US remains committed to respecting the rule of law,
including the US Constitution, federal statutes, and international treaty
obligations, including the Torture Convention."(16)
The USA's report makes the welcome assertion, using the words of Article 2
of the CAT, that the "United States is unequivocally opposed to the use and
practice of torture. No circumstance whatsoever, including war, the threat
of war, internal political instability, public emergency, or an order from a
superior officer or public authority, may be invoked as a justification for
or defense to committing torture. This is a longstanding commitment of the
United States, repeatedly reaffirmed at the highest levels of the US
Government". This latter sentence serves as a reminder that words alone can
never be enough and that torture must be condemned in deed as well as in
word. For, at least between August 2002 and June 2004, a Justice Department
memorandum to the White House narrowing the definition of torture, arguing
that the President could authorize torture, suggesting defences for those
accused of torture, and promoting acts that amount to cruel, inhuman or
degrading treatment, represented the position of the US administration,
albeit in secret. The USA's Second Periodic Report notes that "concerns have
been generated" by the 1 August 2002 memorandum, which was withdrawn on 22
June 2004, two months after the Abu Ghraib torture evidence became public.
The USA's report to the Committee against Torture notes that the 2002
memorandum was replaced in late December 2004. As Amnesty International
points out in Section 12 below, the replacement Justice Department
memorandum, while undoubtedly an improvement on its now infamous
predecessor, has left numerous concerns unanswered and left the door open to
possible future abuses.
It is clear from the Second Periodic Report that the USA intends to adhere
to its long-standing pick-and-choose approach to international law and
standards. In its May 2000 recommendations, for example, the Committee
against Torture had urged the USA to withdraw all the conditions it had
attached to its ratification of CAT in 1994. This included the USA's
reservation to Article 16 of the treaty which calls on the State Party to
prevent cruel, inhuman or degrading treatment "in any territory under its
jurisdiction". Upon ratification, the USA had said that would be bound by
Article 16 only to the extent that it already was so bound under the US
Constitution. In its 6 May 2005 submission to the Committee against Torture,
the US administration stated that it would not withdraw this or any other
conditions attached to its ratification of the CAT, as the Committee had
requested, because "there have been no developments in the interim which
have caused the United States to revise its view of the continuing validity
and necessity of the[se] conditions".
However, there have been developments on this issue, with the USA's
reservation to Article 16 being linked to abuses that have been authorized
and alleged in the "war on terror", as Amnesty International pointed out in
its report, USA: Human dignity denied: Torture and accountability in the
'war on terror', issued in October 2004.(17) Indeed, in January 2005, the
then nominee for US Attorney General, Alberto Gonzales, wrote the following
among his responses to a US Senator concerned about the nominee's possible
responsibility for human rights violations in the "war on terror" and his
earlier refusal to given an unequivocal answer to the question of whether or
not it was legally permissible for US personnel to engage in cruel, inhuman
or degrading treatment "that does not rise to the level of torture":
    "[T]he only legal prohibition on cruel, inhuman or degrading treatment
comes from the international legal obligation created by the CAT itself. The
Senate's reservation, however, limited Article 16 to requiring the United
States to prevent conduct already prohibited by the Fifth, Eighth, and
Fourteenth Amendments. Those amendments, moreover, are themselves limited in
application. The Fourteenth Amendment [right to equality before the law]
does not apply to the federal government, but rather to the States. The
Eighth Amendment [prohibition on cruel and unusual punishments] has long
been held by the Supreme Court to apply solely to punishment imposed in the
criminal justice system. Finally, the Supreme Court has squarely held that
the Fifth Amendment [right to due process] does not provide rights for
aliens unconnected to the United States who are overseas. Thus, as a direct
result of the reservation the Senate attached to the CAT, the Department of
Justice has concluded that under Article 16 there is no legal obligation
under the CAT on cruel, inhuman or degrading treatment with respect to
aliens overseas".(18)
The USA's May 2005 submission to the Committee against Torture also paints a
picture of the US judicial system reasserting itself over the detentions in
Guantánamo. It notes that the habeas corpus petitions filed in federal court
involve detainees from many countries, including Yemen, Saudi Arabia,
Kuwait, Morocco, Algeria, Bahrain, Tunisia, Jordan, Sudan, Syria,
Mauritania, China, Egypt, Libya, Palestine, Chad, Qatar, Kazakhstan,
Tajikistan, Uganda, Iraq, Australia, Canada, Somalia, Turkey, Afghanistan,
Pakistan and Ethiopia. It notes that the courts have access to the CSRT
records from Guantánamo, that lawyers have been able to visit detainees in
Guantánamo,(19) and that the courts "may address allegations of mistreatment
that have arisen with respect to Guantanamo Bay."
The picture the administration provides to the Committee is far from full,
however. It does not portray the extent to which the government is resisting
due process every step of the way. By seeking the narrowest possible
interpretation of the Rasul decision, and by appealing every court ruling
that goes against it, it is ensuring that the detainees remain in their
legal vacuum. Although the government's report to the Committee notes that
about 55 habeas corpus petitions involving 153 detainees had been filed by
27 April 2005(20), it did not explain that one reason why only about a third
of those still held in Guantánamo had had petitions filed on their behalf
was because the government has placed obstacles in the way of detainees
finding lawyers to represent them and in the way of lawyers identifying the
detainees who want representation. As described in Section 6 below, there is
also evidence that Guantánamo interrogators have adopted ploys to undermine
detainee/lawyer relationships in those cases where legal representation has
been initiated.
On the question of the treatment of detainees, the USA's report to the
Committee paints a similarly one-sided picture. All "enemy combatants", it
claims, "get state-of-the-art medical and dental care". Yet, as detailed
further below, numerous detainees have alleged that the medical and dental
care provided has been slow and on some occasions withheld as part of a
punitive and coercive regime. The USA insists to the Committee that
"detainees write to and receive mail from their families and friends". Yet,
throughout the detentions, there has been evidence that this system of
communications has been slow, over-censored, and even manipulated by the
authorities to punish or coerce detainees. US habeas lawyers for some Yemeni
detainees in Guantánamo have recently revealed that their "clients report
that mail from their relatives arrives months later, if at all, and is very
heavily redacted. Often the only part that they can read is the greeting,
conclusion, and signature. In December 2004, [Abd Al Malik Abd Al Wahab]
reported that his last piece of mail he received had been five months ago -
a letter that had taken ten months to reach him. [Fellow detainee] Jamal
Mar'i
receives one out of every ten letters sent to him by his family. A recent
letter from his seven-year-old daughter referred to many other letters that
he never received." The USA's report to the Committee against Torture goes
on to assert that "enemy combatants at Guantanamo may worship as desired and
in accordance with their beliefs". As Amnesty International has detailed
elsewhere, and updates in Section 12 of this current report, there is
evidence that detainees have been subjected to religious intolerance by
their captors, and to interrogation techniques that play on their particular
religious sensitivities.(21)
In this report, illustrated with cases throughout, Amnesty International
concludes that hypocrisy, an overarching war mentality, and a disregard for
basic human rights principles and international legal obligations continue
to mark the USA's "war on terror". Serious human rights violations,
affecting thousands of detainees and their families, have been the result.
The rule of law, and therefore, ultimately, security, is being undermined,
as is any moral credibility the USA claims to have in seeking to advance
human rights in the world. Indeed, the USA's conduct threatens to legitimize
repressive conduct by other governments. With this report, the latest in a
series of papers on US conduct in the "war on terror", Amnesty International
continues to campaign for the USA to change course and bring its policies
and practices into line with international law and standards.
2. Violating human rights erodes security and trust in government
The United States strengthens its national security when it promotes. a
world in which states have governments that are responsible and obey, as it
were, the rules of the road.
US Under Secretary of Defense, February 2005(22)
The Department of Defense recently published on its website a six-page
unclassified document giving information about the Guantánamo detainees.(23)
Even providing the minimal information contained in it was an unusual step
for an administration that has been highly secretive about those held in the
naval base. The document begins with the following:
    "The US Government currently maintains custody of approximately 550
enemy combatants in the Global War on Terrorism at Guantanamo Bay, Cuba.(24)
Many of these enemy combatants are highly trained, dangerous members of
al-Qaida, its related terrorist networks, and the former Taliban regime.
More than 4,000 reports capture information provided by these detainees,
much of it corroborated by other intelligence reporting. This unprecedented
body of information has expanded our understanding of al-Qaida and other
terrorist organizations and continues to prove valuable.
    The Joint Task Force, Guantanamo Bay (JTF-GTMO) remains the single best
repository of al-Qaida information in the Department of Defense. GTMO is
currently the only DoD strategic interrogation center and will remain useful
as long as the war on terrorism is underway and new enemy combatants are
captured and sent there. The lessons learned at GTMO have advanced both the
operational art of intelligence, and the development of strategic
interrogations doctrine."
The document claims that the detainees in Guantánamo, despite most of them
having been held for more than three years, continue to provide "useful
information" to support ongoing military operations in Afghanistan. It
states that the detainees have "provided information on individuals
connected to al-Qaida's pursuit of chemical, biological, and nuclear
weapons". It claims that detainees have also provided "information about
al-Qaida operatives who remain at large as well as numerous al-Qaida,
Taliban, and anti-coalition militia members who remain active in Central
Asia, Europe, and the United States." In addition, it says that detainees
"provide information that helps sort out legitimate financial activity from
illegitimate terrorist financing information". It gives details of the sort
of skills and training that individual detainees allegedly possess:
    a.. "Many detainees have been implicated in using, constructing, or
being trained to construct IEDs [improvised explosive devices]".
    b.. "Over 25 GTMO detainees have been identified by other detainees as
being facilitators who provided money, documentation, travel, or safe
houses".
    c.. "More than 10 percent of the detainees possess college degrees or
obtained other higher education, often at western colleges, many in the
United States. Among these educated detainees are medical doctors, airplane
pilots, aviation specialists, engineers, divers, translators, and lawyers."
In addition, the Pentagon document asserts that "we know of several former
detainees from JTF-GTMO that have rejoined the fight against coalition
forces. We have been able to identify at least ten by name. Several former
GTMO detainees have been killed in combat with US soldiers and Coalition
forces." The document also lists some alleged statements and actions by
detainees which "provide valuable insights into the mindset of these
terrorists and the continuing threat they pose to the United States and the
rest of the world". It provides as an example a case of a detainee who, when
informed about the Combatant Status Review Tribunal process (see below), is
alleged to have responded, "Not only am I thinking about threatening the
American public, but the whole world". Another detainee has allegedly
repeatedly stated that "the United States government is criminals". The
document concludes with some "contrasting detainee comments", such as from a
detainee who allegedly said: "If people say there is mistreatment in Cuba
with the detainees, those type speaking are wrong, they treat us like a
Muslim not a detainee".
It is, of course, impossible to verify the claims made in the Pentagon's
document, precisely because of the secrecy and rejection of judicial or
other independent scrutiny that has marked the US administration's detention
policies and practices. It should further be noted that the document has
been issued at a time when the administration is doing all it can to
persuade the US courts to leave this policy broadly free of judicial
scrutiny. In addition, Amnesty International would make a number of points
in response to the Pentagon document.
  Ø The USA and other countries face serious security threats, including
those posed by groups determined to pursue their fight by abusing
fundamental human rights without restraint. Governments have a duty to
protect people's rights from such threats. In so doing, however, governments
must not lose sight of other human rights and of their obligation to respect
them;
  Ø Respect for human rights is the route to security not an obstacle to it.
This is recognized by the USA's own National Security Strategy, which
devotes an entire chapter to asserting that in its pursuit of security, the
USA will "stand firmly for the non-negotiable demands of human dignity",
including the rule of law. Likewise, the USA's National Strategy for
Combating Terrorism concludes that "a world in which these values are
embraced as standards, not exceptions, will be the best antidote to the
spread of terrorism";
  Ø There have been massive failures in US intelligence-gathering, both
prior to the attacks of 11 September 2001 and in the context of the stated
reasons for invading Iraq. Using detainees held indefinitely outside the
rule of law in order to attempt to make up for past intelligence failures
through prolonged interrogation is immoral, unlawful, unreliable and
counter-productive;
  Ø Throughout the "war on terror", senior members of the US administration
have shown contempt for the presumption of innocence by collectively
labelling the Guantánamo detainees as "terrorists" and "killers". The
Pentagon document persists in this attitude. This repeated contravention of
a basic principle is also dangerous for the detainees. To be labelled as a
"terrorist" is no small thing, and can put a detainee at future risk when
eventually released. Mohammad Nechle, seized by US agents in Bosnia and
Herzegovina in January 2002 and transported to Guantánamo Bay where he
remains more than three years later, has summed it up thus: "In the end the
way that this happened, the way I was brought here and the accusations that
brought against me, I feel that my future has been destroyed. A person does
not even know what to say to their kids now. That's a really big thing."
(25)
  Ø Prior to the publication of this document, scores of people had been
released from Guantánamo without charge or trial. They, too, had been
labelled by the administration as "enemy combatants" and "terrorists". On
return to their countries, the vast majority have been released. Their home
governments evidently either believed that there was no evidence against the
detainees, or that any evidence was inadequate, unreliable or inadmissible.
Yet, still, the Pentagon document asks the reader to take its claims on
trust. The problem faced by the US administration is that its record in
relation to detentions in the "war on terror" has undermined the credibility
of its assertions, whether those assertions take the form of a stated
commitment to human rights, or claims of threats averted due to intelligence
gathered through interrogation. The administration has sought, and continues
to seek, unchecked power for itself. As it has done so, violations of
fundamental human rights have occurred or been proposed, including prolonged
incommunicado, secret and arbitrary detentions, torture and other cruel,
inhuman or degrading treatment, unfair trial proceedings, detainee transfers
without protections, and denial of and resistance to judicial review.
In a recent report to the UN General Assembly, Secretary General Kofi Annan
wrote:
    "The protection and promotion of the universal values of the rule of
law, human rights and democracy are ends in themselves. They are also
essential for a world of justice, opportunity and stability. No security
agenda and no drive for development will be successful unless they are based
on the sure foundation of respect for human dignity.
    I strongly believe that every nation that proclaims the rule of law at
home must respect it abroad and that every nation that insists on it abroad
must enforce it at home.
    It would be a mistake to treat human rights as though there were a
trade-off to be made between human rights and such goals as security or
development. We only weaken our hand in fighting the horrors of extreme
poverty or terrorism if, in our efforts to do so, we deny the very human
rights that these scourges take away from citizens. Strategies based on the
protection of human rights are vital for both our moral standing and the
practical effectiveness of our actions."(26)
A much repeated but so far hollow promise of President Bush's administration
has been that the USA will adhere to fundamental principles of human dignity
and the rule of law, including in the context of the "war on terror". The
USA cannot have it both ways. It cannot speak the language of human rights
while at the same time violating human rights and disregarding international
law. Either it is for human rights in deed as well as in word, or it will
continue to be denounced as a human rights violator and, especially given
its power, reach and influence in the world, a global threat to the rule of
law and security.
Whatever the truth about the identities, motivations, associations, previous
activities of and threats posed by the detainees in US custody, none of them
fall outside the protections of international law as the US administration's
policies and practices would suggest.
3. Guantánamo detainees - the international legal framework
Conformity with international human rights and humanitarian law is not a
weakness in the fight against terrorism but a weapon, ensuring the widest
international support for actions and avoiding situations which could
provoke misplaced sympathy for terrorists or their causes. [T]he Assembly
considers that the US Government has betrayed its own highest principles in
the zeal with which it has attempted to pursue the "war on terror". These
errors have perhaps been most manifest in relation to Guantánamo Bay.
Parliamentary Assembly of the Council of Europe, 26 April 2005(27)
The international armed conflict in Afghanistan ended in June 2002.(28) When
that armed conflict ended, those who were captured by the USA during
hostilities(29) - and who the USA was obliged to treat as prisoners of war
in the absence of a determination "by a competent tribunal" that they were
not(30) - were required to be released, unless charged with criminal
offences.(31)
Civilians detained in that conflict were entitled to have their detention
("internment") reviewed "as soon as possible" by a "court or administrative
board."(32) They too were required, when that conflict ended, to be
released, unless charged with recognized criminal offences.(33)
Those detained later in Afghanistan, for reasons related to the subsequent
non-international armed conflict there(34) and transferred to Guantánamo
were required, as a minimum, to have their detention promptly, and
thereafter periodically, reviewed.(35)
Those detained in countries outside of the zones of armed conflict and
transferred to Guantánamo should always have been treated as criminal
suspects, therefore subject to international human rights law, including the
right to a prompt judicial review of the lawfulness of their detention and
to release if that detention is deemed unlawful, and if prosecuted to be
tried in proceedings which meet international standards of fairness (see
below).(36)
The USA has applied none of the above-mentioned provisions of international
humanitarian law and international human rights law in determining the
status of the Guantánamo detainees:
  Ø it has not treated those captured during the international armed
conflict in Afghanistan initially as prisoners of war, pending determination
of their status by a court;
  Ø it has not convened a court to determine whether or not persons captured
during the international armed conflict in Afghanistan are entitled to
prisoner of war status;
  Ø it has not reviewed promptly the detention of those captured during the
subsequent non-international armed conflict in Afghanistan;
  Ø it has not brought the detention of civilians promptly under judicial
review, tried or released them;
  Ø it did not, at the close of international hostilites, release the
detainees captured during hostilities, with the exception of those against
whom criminal procedures had been initiated - in fact, the USA initiated no
such procedures.
More than 200 people have been released or transferred from the base, but
the USA was expressly acting, in this as well as in other matters, in
pursuit of it own perceived interests, rather than in compliance with its
international legal obligations. As noted further below, the USA has denied
having any such obligations regarding the detainees in Guantánamo.
In view of the above, Amnesty International believes that all those
currently held in Guantánamo are arbitrarily and unlawfully detained. It
continues to call on the USA to either:
    a.. Release and repatriate the Guantánamo detainees, subject to
international law and standards, including the prohibition of returning or
transferring a person to a country where he or she faces a risk of torture,
other ill-treatment, unfair trial, "disappearance", arbitrary detention or
the death penalty;
  or:
    a.. Prosecute those suspected of committing internationally recognizable
criminal offences(37) in proceedings that meet international standards of
fairness, and which do not include the imposition of the death penalty.
Fair trial standards
Any trials, whatever the status of the person being tried, must be carried
out in proceedings that meet international standards of fairness.(38) These
standards include:
  Ø All persons must be equal before the courts and tribunals;
  Ø Charges must be for internationally recognisable criminal offences;
  Ø Trials must commence within a reasonable time;
  Ø All persons are entitled to a fair and public(39) hearing by a
competent, independent and impartial tribunal established by law; (40)
  Ø All persons must be presumed innocent until proven guilty;
  Ø All persons must have full access to legal counsel of their own
choosing, and have adequate time to prepare their defence;
  Ø All persons must be informed promptly and in detail in a language which
they understand of the nature and cause of the charge against them;
  Ø All persons must be tried in their presence;
  Ø All persons must be able to examine, or have examined, the witnesses
against them and to obtain the attendance and examination of witnesses on
their behalf under the same conditions as witnesses against them;
  Ø No persons must be compelled to testify against themselves or to confess
guilt;
  Ø Statements or any other material obtained by torture or by cruel,
inhuman or degrading treatment or punishment must not be admissible as
evidence (except as evidence that such treatment took place);
  Ø All persons convicted of a crime must have the right to have their
conviction and sentence reviewed by a higher tribunal according to law.
Reviews must be made by competent, independent and impartial tribunals, be
genuine and go beyond formal verifications of procedural requirements.
Amnesty International believes that the death penalty must never be imposed,
as it violates the right to life and is the ultimate cruel, inhuman and
degrading punishment.
4. Hypocrisy vs. human rights
Societies that respect the rule of law do not provide the executive a
blanket authority even in dealing with exceptional situations. They embrace
the vital roles of the judiciary and the legislature in ensuring that
governments take a balanced and lawful approach to complex issues of
national interest.
United Nations High Commissioner for Human Rights, 2004(41)
On or around 29 November 2003, an unidentified shepherd was taken into
custody by US soldiers near Husaybah in Iraq. A year later, documents
obtained under a freedom of information lawsuit filed by the American Civil
Liberties Union (ACLU) and others revealed that about an hour after the man
was detained, one of the soldiers had made a video recording described as
"his own version of the MTV show 'Jackass'".(42) A little under a minute in
length, the video begins with the handcuffed detainee being asked to wave to
the camera. The soldier then turns to the camera and states, "I am going to
punch this guy in the stomach, this is Jackass Iraq". He goes to punch the
detainee who manages to avoid a direct hit, causing the soldier to respond,
"oh, he moved, hold up, he's a trickster, we need a camera man". The video
then shows "an elbow com[ing] straight down in between the detainee's
shoulder blade [sic]". It "shows the detainee's face and what appears to be
an expression of pain as he is going down to the ground.The detainee is
helped back up by [a soldier] lifting him by the flexi cuffs on his wrists.
His face is noticeably distressed."(43)
The film, variously called "Jackass Iraq", "Our first Iraqi prisoner" and
"Our Prisoner (The Smash)", was then shown widely on digital camera and
laptop computers to other soldiers. An army investigation found that "none
of the soldiers took it seriously", rejecting the notion that the detainee
was being abused. Neither of the soldiers directly involved in making the
video "thought that anything they were doing was wrong."(44) Neither, it
would seem, does the US administration believe that it has done anything
fundamentally wrong in its "war on terror" detention and interrogation
policies and practices.
In the build-up to declaring war on Iraq, the US administration cited the
Iraqi government's disregard for UN Security Council resolutions as well as
findings by UN bodies that the government of Saddam Hussein had committed
human rights violations. (45) In an address to the UN General Assembly on 12
September 2002, President George W. Bush asked: "Are Security Council
resolutions to be honoured and enforced, or cast aside without consequence?"
He continued: "We want the United Nations to be effective, and respected,
and successful. We want the resolutions of the world's most important
multilateral body to be enforced. And right now those resolutions are being
unilaterally subverted by the Iraqi regime."
The USA must look to its own conduct. Both before and since the invasion of
Iraq in March 2003, which itself was premised on flawed intelligence(46) as
well as information allegedly extracted under torture or ill-treatment,(47)
the US administration's own policies and practices in the "war on terror"
have contravened Security Council resolutions as well as recommendations of
UN experts and bodies. For example, in Resolution 1456, adopted two months
before the US-led invasion of Iraq, the United Nations Security Council
declared that "States must ensure that any measures taken to combat
terrorism comply with all their obligations under international law, and
should adopt such measures in accordance with international law, in
particular international human rights, refugee and humanitarian law".(48)
Further resolutions adopted by the Security Council and the General Assembly
since then have reminded states of this obligation.(49) The USA has failed
to amend its conduct accordingly. At the same time, it has continued to
promote itself as a global human rights champion. According to the US State
Department, launching its latest report on human rights in countries other
than the USA, "Promoting human rights is not just an element of our foreign
policy - it is the bedrock of our policy, and our foremost concern".(50)
For the past three years, the entry on Bosnia and Herzegovina in the US
State Department's annual Country Reports on Human Rights Practices has,
under the heading "arbitrary arrest, detention or exile", reported
developments in the case of "six Algerian terrorism suspects" who were
transferred "to the custody of a foreign government" in January 2002.(51)
The transfer bypassed the courts and an order of the Human Rights Chamber of
Bosnia and Herzegovina, and violated international law.(52) The US State
Department reported that in 2002 and 2003, the Human Rights Chamber ruled
that the treatment of the men had violated their treaty-based human rights,
including the right not to be arbitrarily deported in the absence of a fair
procedure. In its latest report, issued on 28 February 2005, the State
Department noted that the families of the men "transferred to a foreign
government's custody" had not yet been paid the compensation ordered by the
Human Rights Chamber.
What the State Department has so far failed to point out is that the
mysterious "foreign government" in question is that of the United States of
America. It fails to report that the men in question, extrajudicially
removed from the sovereign territory of Bosnia and Herzegovina, have for the
past three years been held in virtually incommunicado executive detention
without charge or trial in the US Naval Base in Guantánamo Bay in Cuba.
There is no mention by the State Department of the fact that the US
authorities have responded to the recent habeas corpus petitions of the men
by asserting that they have no rights under treaty or customary
international law to be able to challenge the lawfulness of their detention.
It failed to reveal that in hearings in 2004 the men were instead given a
purely executive review of their detention for which they were allowed
neither legal counsel nor access to classified evidence. At his so-called
Combatant Status Review Tribunal (CSRT) hearing in October 2004 one of the
six men, Mohammed Nechle, said:
    "We were surprised that we were handed over to the American forces that
are present in Bosnia. We were bound by our hands and our feet, and we were
treated the worst treatment. For 36 hours without food, sleep, water or
anything and we were treated the worst treatment. I used to think that
America had respect for human rights when it came to prison." (53)
The State Department also failed to report that another of the men, Mustafa
Ait Idir, alleged at his CSRT hearing in 2004 that he has been subjected to
torture or ill-treatment at Guantánamo. A lawsuit filed in US court in April
2005 alleges that the following occurred against him during a cell search:
    "The guards secured his hands behind his back and, while he was so
restrained, the guards picked him up and slammed his body and his head into
the steel bunk in his cell. They then threw him on the floor and continued
to pound his body and bang his head into the floor. The guards picked him up
again and banged his head on the toilet in his cell. The guards picked him
up again, stuffed Mr Ait Idir's face in the toilet and repeatedly pressed
the flush button. Mr Ait Idir was starting to suffocate, and he feared he
would drown. The guards then carried Mr Ait Idir outside the cell and threw
him on the ground. His hands still were manacled behind his back. They held
him down and pushed a garden hose into his mouth. They opened the spigot. As
the water rushed in, Mr Ait Idir began to choke. The water was coming out of
his mouth and nose. He could not breathe, and he could not yell to stop or
for help. The guards then took the hose out of his mouth and held it
approximately 6 to 10 inches in front of his face. He was still being
restrained. The water ran full force into his face; he could not breathe."
On another occasion, it is alleged that members of an Immediate Response
Force (IRF) at Guantánamo assaulted him:
    "While Mr Ait Idir sat on the floor as instructed, the officer sprayed
chemical irritant directly into Mr Ait Idir's face. Two or three guards
immediately entered the cell while he was lying on the floor. One forced Mr
Ait Idir's body onto the steel floor of the cell and jumped on his back,
using his knees to pound Mr Ait Idir's body into the floor. The second guard
did the same thing. While they had Mr Ait Idir pinned, the guards secured
his hands behind his back. He was carried out and thrown onto the crushed
stones that surround the cell building. While Mr Ait Idir was lying bound on
the stones, an IRF member jumped onto the side of Mr Ait Idir's head with
his full body weight, causing extreme pain. Another IRF member climbed onto
Mr Ait Idir's back, and while on his back, the IRF members twisted his
middle finger and thumb on his right hand almost to the point of breaking.
Two of his knuckles were dislocated, and he screamed in pain. His middle
finger has almost no strength now. He requested and was refused any medical
treatment for the permanent injuries inflicted by the guards.
    Upon information and belief, as a result of that beating, Mr Aid Idir
suffered a stroke. Shortly after that incident, one half of his face became
paralyzed. He was in pain. He could not eat normally; food and drink leaked
from his non-functioning mouth. Guards teased him because of his condition.
Despite visible impairment and his request to go to the hospital, he did not
receive medical treatment for ten days."(54)
The six men of Algerian origin had been arrested in October 2001 by the
Bosnian Federation police on suspicion of involvement in an alleged plot to
bomb the US Embassy in Sarajevo. On 17 January 2002, the Investigative Judge
of the Federation Supreme Court ordered their release on the basis that
there were no further grounds for their detention. Although the US Embassy
had indicated that it had evidence linking the men to al-Qa'ida networks and
substantiating the allegations of planning the embassy attacks, the US
authorities did not submit any such evidence to the Supreme Court. One of
the men, Boudella Al Haji, questioned about the alleged bombing conspiracy
at his CSRT hearing in Guantánamo on 18 October 2004, said:
    "I've been here for three years and these accusations were just told to
me. Nobody or any interrogator ever mentioned any of these accusations you
are talking to me about now. I've been here for three years, been through
many interrogations and no interrogator ever mentioned any of these
accusations, so how did they come up just now?"(55)
Another of the six men told Sabir Lahmar said the same thing at his CSRT
hearing on 8 October 2004:
    "From my first day in Cuba, I asked the interrogators to question me
regarding the bombing of the Embassy. They tried to avoid asking me
questions regarding that matter. On occasion, they told me they knew I
didn't
attempt to blow up the Embassy; they only brought me to Cuba for
information. They told me if I gave them information, they would let me go.
I refused to talk to them until they addressed the accusation of the bombing
of the Embassy. This lasted for eight months before they gave up on me
talking. I was punished and placed in solitary confinement for three
months."(56)
In similar vein, Mohammad Nechle told the CSRT on 19 October 2004:
    "We came to this place so they could interrogate us. Now I have been
here three years. Unfortunately I thought the case was about an American
embassy and up until now, no one has directed one question towards me
regarding this case. Believe me, I came to this place as a mistake and I
think that I was wronged. It was unfair to me. I have a clear conscience
that I am not part of these terrorist organizations. I am not afraid of
anything because I am not a terrorist. If you interrogated me for 20 years
you would find that I am Mohammed Nechle."
In March 2005, the Bosnia and Herzegovina Council of Ministers sent an
official request to the USA calling for the release of the detainees. The US
Secretary of State reportedly responded in a letter indicating that the men
would not be released as the US authorities needed to investigate them
further. It remains to be seen how the State Department will report on these
developments in its next human rights publication.
As this case suggests, three and a half years into its broadly-defined "war
on terror", the United States administration is still seeking - and
assuming - carte blanche to detain without judicial review any foreign
national it broadly defines as an "enemy combatant", regardless of where
outside the USA the detention takes place, and regardless of whether the
person seized was directly involved in any armed hostilities. According to
the administration, such a detainee can be detained without charge or trial
until it, the executive, determines that he or she has no "intelligence
value" or poses no threat to the USA or its allies, or until the end of the
"war", which, even if recognized, could occur after a detainee's natural
lifespan.
Meanwhile, the USA criticizes other countries for their failure to comply
with international human rights law and standards. For example, the State
Department's latest entry on human rights in North Korea includes the
following under the heading "arbitrary arrest or detention":
    "There are no restrictions on the ability of the Government to detain
and imprison persons at will and to hold them incommunicado. Family members
and other concerned persons reportedly find it virtually impossible to
obtain information on charges against detained persons or the length of
their sentences. Judicial review of detentions does not exist in law or
practice".
Iran is likewise criticized by the USA for the lack of a time limit, in
practice, on incommunicado detention and the absence of "any judicial means
to determine the legality of detention". In similar vein, Myanmar (Burma) is
brought to task by the US State Department for its record of arbitrary
arrest and incommunicado detention facilitated by the fact that "there is no
provision in the law for judicial determination of the legality of
detention".
Amnesty International welcomes the State Department reports in principle.
Under the Universal Declaration of Human Rights, countries are required to
"promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective
recognition and observance". A government makes a mockery of this
commitment, however, when it violates the same rights it says it expects
others to respect.(57) Moreover, such an approach undermines the whole
system of legal protections. Why should any other government not then follow
the example set, especially if that example is being set by one of the most
powerful and influential countries in the world?
The US Supreme Court's ruling in Rasul v. Bush on 28 June 2004 that the
federal courts have jurisdiction to consider habeas corpus appeals from
foreign detainees held in Guantánamo Bay raised hopes that, at a minimum,
judicial review of the lawfulness of these detentions, and eventually the
detention of foreign nationals held in incommunicado or secret detention
elsewhere outside US sovereign territory, would occur forthwith. These hopes
have been put on hold in the face of an executive arguing for the courts to
effectively empty the Rasul decision of any real meaning.
In January 2005, two federal judges issued the first interpretations of the
Rasul ruling when they responded to habeas corpus petitions from Guantánamo
detainees, some of whom by now had been held for three years without charge
or trial. One of the judges ruled in favour of the government, while the
other showed respect for the fundamental human rights of the detainees (see
further below). The administration is appealing to have the conflict between
the two rulings resolved in its favour. Its refusal to recognize
international law and standards relating to detention is keeping the
detainees in their legal limbo and their families in distress. Even if the
government eventually loses again in the US Supreme Court, such a ruling may
not occur until some time in 2006, and only then would judicial review on
the merits begin.
Judicial review of the lawfulness of detentions is a fundamental safeguard
against arbitrary detention, torture and ill-treatment, and "disappearance".
Unsurprisingly, then, with the US courts having been kept out of reviewing
the cases for more than three years, there is evidence that all these
categories of abuse have occurred at the hands of US authorities in the "war
on terror". Indeed, Amnesty International believes that abuses have been the
result of official policies and policy failures and linked to the executive
decision to leave detainees unprotected by not only the courts, but also by
the prohibition on torture and other cruel, inhuman or degrading treatment
as defined under international humanitarian and human rights treaties
binding on the USA. The US administration still does not believe itself
legally bound by the Geneva Conventions in relation to the detainees in
Guantánamo, Afghanistan and in secret locations, by customary international
law, or by the human rights treaty prohibition on the use of cruel, inhuman
or degrading treatment in the case of foreign detainees in US custody held
outside of US sovereign territory. Nor has it expressly abandoned the notion
that the President may in times of war ignore all the USA's international
legal obligations and order torture, or that torturers may be exempted from
criminal liability by entering a plea of "necessity" or "self-defence" (see
below).
Neither, apparently, does the administration consider itself bound by the
international prohibition against transferring or returning anyone to a
country where they may face torture or other cruel, inhuman or degrading
treatment. Indeed, there is evidence that the USA has turned this
prohibition on its head and "outsourced" torture. It is alleged that
countries with a record of torture - as documented by the US State
Department annually - have been specifically selected to receive certain
"war on terror" detainees for interrogation. A recent report quotes a former
counterterrorism agent as saying that after 11 September 2001, "Egypt,
Jordan, Malaysia, Thailand, Indonesia, Pakistan, Uzbekistan and even Syria
were all asked to make their detention facilities and expert interrogators
available to the US".(58)
Numerous detainees are alleged to have been threatened by US interrogators
that they will be sent to such countries. For example, Yemeni Guantánamo
detainee Abd Al Malik Al Wahab has allegedly been threatened with transfer
to Egypt or Jordan where, he says he was told by interrogators, "they will
torture you".(59) A Bahraini detainee in Guantánamo has alleged that he was
told that he would be "sent to a prison where he would be raped", and
another Bahraini alleged that he was threatened with being sent to a prison
that "would turn him into a woman".(60) Threatening to transfer a detainee
to a third country that he is "likely to fear would subject him to torture
or death" is one of the interrogation techniques recommended by the
Pentagon's
Working Group report on interrogations in the "war on terror", dated April
2003, which remains operational.(61) Set along side this, the State
Department annual report risks becoming a dual-purpose manual - promoting
human rights on the one hand, while providing ideas for US interrogators on
how to abuse them on the other. An FBI document from December 2004,
originally classified as secret for 25 years but released under a freedom of
information request in early 2005, included reference to the following
observation by FBI agents in Guantánamo Bay: "Agents have seen documentary
evidence that a detainee was told that his family had been taken into
custody and would be moved to Morocco for interrogation if he did not begin
to talk" (see section 12 below).
The latest State Department report entry on Sweden notes that "the 2001
repatriation of two Egyptians gained attention during the year as the result
of allegations that the deportees were subjected to torture in Egypt". It
further notes "calls for a parliamentary inquiry into the legality of the
deportations.and alleged improper cooperation with a foreign country in the
deportations". What the State Department again fails to record is that the
"foreign country" in question was the USA.
The two Egyptians were seized by Swedish security police in Stockholm on 18
December 2001, handed to CIA agents at Bromma airport and flown to Egypt on
board a US-registered Gulfstream jet. According to a Swedish police officer
who was present at the deportations, "the Americans they were running the
whole situation".(62) The detainees had their clothes cut from them by the
masked US agents, were reportedly drugged, made to wear diapers and
overalls, and were handcuffed, shackled, hooded, and strapped to mattresses
on the plane. The alleged torture they subsequently faced in Egypt included
electric shocks. While the State Department's entry on Sweden notes that a
parliamentary investigation into these events was opened in 2004, its
entries on other European countries fail to record that similar
investigations were being conducted elsewhere. In Italy and Germany, for
example, officials were investigating allegations that individuals were
seized and secretly flown by US agents to Egypt and Afghanistan where they
were allegedly subjected to torture and other cruel, inhuman or degrading
treatment (see Section 14).
Next year, in its report on human rights in 2005, the State Department will
be able to report that on 22 March 2005, the Chief Parliamentary Ombudsman
in Sweden, having reviewed the Swedish government's role in the transfer to
Egypt of the two detainees, concluded that the treatment of the two men by
the US agents "must be considered to have been inhuman and thus
unacceptable". He was highly critical of the home authorities, saying that
"the Swedish Security Police lost control of the situation at the airport
and during the transport to Egypt. The American security personnel took
charge. Such total surrender of power to exercise public authority on
Swedish territory is clearly contrary to Swedish law".(63) His words are
echoed in those of a Guantánamo detainee taken from Gambia by US agents in
late 2002 and still in the US Naval Base in Cuba more than two years later.
He told his Combatant Status Review Tribunal in September 2004, "in Gambia,
the Americans were running the show.The US was there and in charge from day
one. They were not very respectful to the Gambians".(64)
International complicity in apparently unlawful activities in the context of
the "war on terror" has had other manifestations. In November 2002, for
example, with Yemen's cooperation, the USA killed six people in a car in
Yemen in what appear to have been extrajudicial executions (see also Section
5). (65) They were targeted because Abu Ali al-Harithi and the other five
occupants of the car were alleged members of al-Qa'ida.(66) A little over a
year earlier, the US State Department had said of Israel's resort to
targeted killings:
    "We remain opposed to targeted killings. We think Israel needs to
understand that targeted killings of Palestinians don't end the
violence.."(67) "We have long made very clear - we have made known the US
Government's opposition to the policy and practice of targeted killings, and
we are going to continue to urge the Israelis to desist from this
policy."(68)
The killing of the six people in Yemen was not mentioned in the Yemen entry
in the State Department's human rights report covering 2002 (or 2003 or
2004). Rather than ordering a thorough, prompt and impartial investigation
into the killings, as required under international standards,(69) senior US
officials instead adopted a celebratory stance. US Deputy Secretary of
Defense Paul Wolfowitz described the killings as "a very successful tactical
operation, and one hopes each time you get a success like that, not only
have you gotten rid of somebody dangerous, but to have imposed changes in
their tactics and operations and procedures".(70) Secretary Rumsfeld
responded to questions about the attack by saying that "it would be a very
good thing if [Abu Ali al-Harithi] were out of business".(71) Today, the
White House website notes the killings under "accomplishments" in "waging
and winning the war on terror". (72) A few weeks after the killings,
President Bush later said "you can't hide from the United States of America.
You may hide for a brief period of time, but pretty soon we're going to put
the spotlight on you, and we'll bring you to justice. We're working with
friends and allies around the world. And we're hauling them in, one by one.
Some have met their fate by sudden justice; some are now answering questions
at Guantánamo Bay. In either case, they're no longer a problem to the United
States of America and our friends."(73)
In the "war on terror", allies and enemies have been defined in broad and
malleable terms by the USA.(74) One of those held under the catch-all label
of "enemy combatant" in Guantánamo is Omar Deghayes, who was born in Libya
but fled to the United Kingdom (UK) as a child refugee after his father was
allegedly tortured and killed. He has alleged that at least four other
governments have been involved in his detention, torture or ill-treatment.
He was detained in Pakistan in April 2002, and alleges that the authorities
there told him he was being held at the behest of the USA. He has said that
he was tortured and ill-treated by government agents in Pakistan, including
by "systematic beatings", having his head pushed under water "until I was
almost drowned", stress positions, being subjected to electric shocks from a
hand-held device, possibly a stun weapon, and being put in a room which was
"all painted black and white, with dim lights" in which there were "very
large snakes in glass boxes". He said that he was threatened with being left
in the room with the snakes let out of the boxes. He has also alleged that
he was interrogated by British and US intelligence officers in Pakistan
during a period when he was further ill-treated. He has stated that, once
transferred to US custody in Afghanistan, he was subjected to food
deprivation, stripping, beatings, hooding, shackling, and forced kneeling,
and in Guantánamo that he was subjected to solitary confinement and brutal
cell extractions (see Section 12).(75)
Omar Deghayes has also claimed that he was twice interrogated by Libyan
agents in Guantánamo, on 9 and 11 September 2004. He alleged that the US
military authorities took him to an interrogation room with the
air-conditioning on maximum and left him there for several hours, shackled
and freezing cold. Eventually, at around midnight on 9 September 2004, four
Libyan agents and three US personnel in civilian clothes entered the room.
He was interrogated for around three hours by the Libyan agents, and again
two days later. The agents allegedly made veiled threats of violence and
death against him if he should ever be returned to Libya, and showed him
pictures of severely beaten Libyan dissidents.
Amnesty International has since been informed that on 8 September 2004, the
day before Omar Deghayes says he was first interrogated by Libyan agents, a
US-registered Gulfstream jet, registration N8068V, flew direct from Tripoli
in Libya to Guantánamo Bay. The same plane has allegedly been used in secret
transfers of detainees, including the above case of the two Egyptians
deported from Sweden in December 2001 to alleged torture in Egypt (also see
Section 14). Was it carrying Libyan agents this time? Did such agents
interrogate other Libyan nationals held in Guantánamo, of whom there are at
least two?
The State Department's latest human rights report notes that allegations of
torture in Libya "were difficult to corroborate because many prisoners were
held incommunicado"; so, too, in the case of detainees in US custody in
Guantánamo, Afghanistan and elsewhere (Omar Deghayes' allegations have only
emerged since a lawyer gained access to him in 2005). In May 2004, Amnesty
International raised allegations that a Chinese government delegation had
visited Guantánamo in September 2002 and participated in interrogations of
Chinese ethnic Uighur detainees held there. It is alleged that during this
time, the detainees were subjected to intimidation and threats, and to
interrogation techniques such as environmental (temperature) manipulation,
forced sitting for many hours, and sleep deprivation, some of which was on
the instruction of the Chinese delegation.(76) There has been no
satisfactory response to these allegations from the US government, whose
State Department annually criticizes the Chinese authorities for failing to
take "sufficient measures to end [torture and ill-treatment]".
Amnesty International and other international human rights organizations
continue to be denied access to the detainees in Guantánamo, exactly what
the US State Department criticizes the Chinese authorities for. In its
latest report, the Department noted that the UN Working Group on Arbitrary
Detention was given access to some detention facilities in China during
2004. Not so in the case of the USA, which has denied the Working Group and
other UN experts access to its "war on terror" detainees and has rejected
their criticisms of the USA's treatment of the detainees (see below).
While torture and ill-treatment are facilitated by the absence of external
scrutiny that characterizes secret or incommunicado detention, such
conditions can in themselves amount to such treatment and also be used to
coerce detainees into making "confessions" or other statements against
themselves or others. Evidence extracted under torture or other coercion -
the reliability of which will always be suspect - can be admitted by the
Combatant Status Review Tribunals and Administrative Review Boards -
executive bodies that, respectively, determine whether each Guantánamo
detainee is an "enemy combatant" and then, annually, whether he remains a
security risk or of intelligence value.
Similarly, the rules for US military commissions - set up under a
presidential Military Order to "try" only foreign nationals - do not exclude
the use of evidence extracted under torture or other coercion, in violation
of international standards against torture and ill-treatment and for fair
trial.(77) These military commissions are executive bodies - not independent
or impartial courts - whose rules are determined by the executive, whose
personnel are selected by the executive, and whose final decisions the
executive vets, including whether a condemned defendant lives or dies. Time
spent in executive detention as an "enemy combatant", however long, is not
to be considered as time already served if an individual is sentenced to a
term of imprisonment by a military commission. In the event of an acquittal,
it is the executive who will decide whether to release the detainee or place
him or her back in indefinite detention as an "enemy combatant".
President George W. Bush - under whose "wartime" powers as
Commander-in-Chief of the Armed Forces all this is being justified - said of
the Guantánamo detainees shortly after making six of them the first to be
eligible for trial by military commission that "the only thing I know for
certain is that these are bad people".(78) It seems that, according to this
administration, "bad people", as determined by the President, have no
rights. Thus, the Military Order under which the commissions are set up
states that no one held under it will "be privileged to seek any remedy or
maintain any proceeding" in any US, foreign, or international court. It
states that it "is not intended to and does not create any right, benefit,
or privilege, substantive or procedural, enforceable at law or equity by any
party, against the United States, its departments, agencies or other
entities, its officers or employees, or any other person".(79) This is
repeated in the instructions for the military commissions themselves, which
also add that: "alleged non-compliance with an Instruction does not, of
itself, constitute error, give rise to judicial review, or establish a right
to relief for the Accused or any other person." (80) As the American College
of Trial Lawyers wrote in March 2003: "It appears that the content of the
[Military] Order and the [military commission] Procedures, particularly the
exclusion of US citizens from their reach and the placement of the detainees
at Guantanamo, were carefully designed to evade judicial scrutiny and to
test the limits of the President's constitutional authority."(81) More than
two years later, the administration is still engaged in this bid for
unchecked executive power.
Surely such executive excess would be condemned by the USA if it were
happening in another country? In its latest human rights report, for
example, the State Department's entry on Syria contains the following under
"Denial of Fair Public Trial":
    "The Constitution provides for an independent judiciary; however, the
Supreme State Security Court (SSSC), in dealing with cases of alleged
national security violations, was not independent of executive branch
control. The SSSC did not observe the constitutional provisions safeguarding
defendants' rights. In April 2001, the UN Commission on Human Rights stated
that the procedures of the SSSC are incompatible with the provisions of the
International Covenant on Civil and Political Rights, to which the country
is a party".
The USA has also been criticized by the UN for its plans for trials by
military commissions which would violate fair trial rights under
international standards.(82) The criticism has not only been international.
In November 2004, a US federal judge ruled that, at least in one respect,
the rules of the US military commissions were unlawful. Specifically, he
noted, "The accused himself may be excluded from proceedings. and evidence
may be adduced that he will never see." The judge pointed out that "such a
dramatic deviation" from the US constitutional right to a fair trial "could
not be countenanced in any American court", and added that the right to
trial "in one's presence" is "established as a matter of international
humanitarian and human rights law".(83)
In its most recent human rights report, as in previous reports, the State
Department criticized Libya's special revolutionary or national security
courts, such as the People's Court, noting that trials in these bodies
"often are held in secret or even in the absence of the accused." The State
Department will be able to report next year that, in a historic ruling on 12
January 2005, Libya's parliament abolished the People's Court. Amnesty
International has welcomed this development as an important step forward for
human rights in Libya. There has been no such move on the USA's military
commissions, however. The administration has appealed the judge's ruling,
which it has characterized as "an extraordinary intrusion into the
Executive's
power". (84)
It was the case of a Libyan national held in Guantánamo Bay, Faren Gherebi,
which led the US Court of Appeals for the Ninth Circuit to issue the
following rejection of the US administration's theory that it possesses
"unchecked authority". The court said that "even in times of national
emergency - indeed, particularly in such times - it is the obligation of the
Judicial Branch.to prevent the Executive Branch from running roughshod over
the rights of citizens and aliens alike". It continued:
    "Under the government's theory, it is free to imprison Gherebi
indefinitely along with hundreds of other citizens of foreign countries,
friendly nations among them, and to do with Gherebi and these detainees as
it will, when it pleases, without any compliance with any rule of law of any
kind. Indeed, at oral argument, the government advised us that its position
would be the same even if the claims were that it was engaging in acts of
torture or it was summarily executing the detainees. To our knowledge, prior
to the current detention at Guantanamo, the US government has never before
asserted such a grave and startling proposition."(85)
By the end of April 2005, Faren Gherebi remained in custody in Guantánamo
Bay in essentially unchanged conditions.(86) Despite the US Supreme Court's
Rasul ruling, and widespread international condemnation, including from its
allies as well as from UN experts and bodies, the US administration
continues to cling to policies that deny fundamental human rights. It has
not expressly and for all agencies rejected interrogation techniques that
violate the prohibition on torture or ill-treatment. It has not rejected the
use of secret or incommunicado detention. It has not rejected the use of
military commissions. It maintains its attachment to the denial of the full
rights of habeas corpus to hundreds of foreign detainees.
Indeed the administration appears to view its problem as one of presentation
rather than substance. In 2002, the White House announced that it would set
up the Office of Global Communications in part to counter perceptions around
the world that that "the United States is arrogant, hypocritical,
self-absorbed, self-indulgent, and contemptuous of others".(87) Amnesty
International pointed out that in the area of human rights, at least, the US
administration would need to "move beyond public relations and into
substantive change if it wished to improve its reputation abroad."(88) Two
and a half years later, the organization regrets that the same advice is
still valid.
The Director of the Defense Intelligence Agency pointed out to the Senate
Armed Services Committee in March 2005 that: "Multiple polls show favourable
ratings for the United States in the Muslim world at all-time lows. A large
majority of Jordanians oppose the War on Terrorism, and believe Iraqis will
be 'worse off' in the long term. Across the Middle East, surveys report
suspicion over US motivation for the War on Terrorism. Overwhelming
majorities in Morocco, Jordan, and Saudi Arabia believe the US has a
negative policy toward the Arab world."(89)
The US State Department has said that "it's obvious that the American image
in the world has suffered", and has pointed to the need for "a more
effective portrayal of the United States".(90) On 14 March 2005, announcing
the nomination of Karen Hughes as Under Secretary of State for Public
Diplomacy and Public Affairs, Secretary of State Condoleezza Rice noted that
"too few in the world. know of the value we place on international
institutions and the rule of law". The nominee herself stated her commitment
to "share our country's good heart and our idealism and our values with the
world", and to "always do my best to stand for what President Bush has
called the non-negotiable demands of human dignity", including "the rule of
law", "limits on the power of the state", and "equal justice".(91) She faces
an uphill task in the absence of substantive change in her government's
policies, which tell a different story.
The State Department's annual criticisms of the human rights records of
other countries will inevitably lead to accusations of double standards and
be drained of moral power as long as the USA fails to put its own house in
order. Why, for example, should the Cuban authorities respond constructively
to the State Department's criticism that in 2004 Cuba "did not permit
independent monitoring of prison conditions by international or national
human rights monitoring groups", or that members of the Cuban security
forces "sometimes beat and otherwise abused" detainees and prisoners? After
all, in the southeast corner of Cuba, the US government continues to operate
a military detention camp in which detainees have been kept virtually
incommunicado without charge or judicial review for more than three years.
With international human rights monitors denied access, evidence that
detainees held in the base have been subjected to torture and ill-treatment
continues to mount.
As the new Under Secretary of State for Public Diplomacy and Public Affairs
pointed out, President Bush has repeatedly professed the USA's commitment to
the "non-negotiable demands of human dignity", including the rule of law,
limits on the power of the state, and equal justice. Such promises, however,
have been rendered meaningless by the USA's conduct towards detainees held
in the "war on terror". The executive must change its policies, not the way
that it presents them. At the same time, the judiciary and the legislature
must provide the necessary check on the executive.
    "The rule of law and separation of powers not only constitute the
pillars of the system of democracy but also open the way to an
administration of justice that provides guarantees of independence,
impartiality and transparency. [Judicial] monitoring should not be perceived
as part of an institutional rivalry between the judicial, executive and
legislative powers, but acts as a means of containing any authoritarian
excesses and ensuring the supremacy of the law under all circumstances.[T]he
desire to restrict or even suspend this judicial power would be tantamount
to impairing the independence of justice".(92)
5. Human rights law rejected by a war mentality
America is a nation at war. At the direction of the President, we will
defeat adversaries at the time, place, and in the manner of our choosing.
Our strength as a nation state will continue to be challenged by those who
employ a strategy of the weak using international fora, judicial processes,
and terrorism.
US National Defense Strategy, March 2005(93)
In the early hours of 10 December 2003, human rights day, a 20-year-old
Iraqi youth heard a knock on the door of his home in Mosul. He later
recalled through an interpreter:
    "I was studying in the morning because I am a student. It was around
05.00. It was a Wednesday. There was a knock at my door so I answered it.
American soldiers came in and took me outside and arrested me. They told me
they were there for my father. They also arrested my brother and my father.
I complained because my father is old and my brother is sick. My brother has
many physical problems. My mother was crying."
In a handwritten statement, among documents released under the ACLU's
freedom of information lawsuit, he told army investigators how he came to
have a broken lower jaw:
    "After that, they tied my brother and father and my hands and took us to
their quarters. There, they put bags on our heads and took us to a room
which contains a vocal device (so big recorder) and rised its voice so
loudly and started torturing us with many kinds of torture like stand and
sit down, pour cold water on our bodies at night and beat us during the day
and didn't give us food and even water except one time for two days. (The
period of our torture).
    During the time of torture, the bag was on my head, when one of the
soldiers drew me till I came near the wall, then he kicked me a very strong
kick on my face even my teeth were broken. Also my down jaw broke (several
fractures). After I've injured, they took me to another room and told me to
say that I've fallen down and no one beated me. Then they transferred me
from Mosul to Baghdad without treatment of my wounds."
An army investigator concluded that the detainee's jaw had been broken as
the result of an "intentional act". A factor that contributed to the injury
was a detention regime in the US facility where abuses were systematic -
detainees were physically exercised to the point of exhaustion, subjected to
sleep deprivation, physical assault, loud music blasted from metre-high
loudspeakers, and hooding. "There is evidence", the investigator wrote, that
military intelligence personnel and/or translators "engaged in physical
torture of the detainees".(94)
In its October 2004 report on torture and accountability in the "war on
terror", Amnesty International concluded that senior US military and
civilian officials had set a climate, both through words and actions,
conducive to torture and ill-treatment.(95) Indeed, one of the members of
the Independent Panel to Review Department of Defense Detention Operations
(Schlesinger Panel), which reported in August 2004, suggested that a degree
of responsibility "for the confusion about permissible interrogation
techniques extend[s] all the way up the chain of command to include the
Joint Chiefs of Staff and the Office of the Secretary of Defense". (96)
Evidence of a permissive climate contributing to abuses is provided among
documents released in April 2005 to the ACLU.
In November 2003, a US army Staff Sergeant received a letter of reprimand
for failing to "properly supervise detainee interrogation operations" at a
US detention facility in Tikrit, Iraq, in which detainees had been
abused.(97) In rebutting the reprimand, the Staff Sergeant suggested that at
least one of the soldiers in question had committed abuses believing that
such actions would be approved of by those higher up the chain of command:
    "I firmly believe that [redacted] took the actions he did, partially,
due to his perception of the command climate of the division as a whole.
Comments made by senior leaders regarding detainees such as 'They are not
EPWs [enemy prisoners of war]. They are terrorists and will be treated as
such' have caused a great deal of confusion as to the status of the
detainees. Additionally, personnel at the [Interrogation Control Element]
regularly see detainees who are, in essence, hostages. They are normally
arrested by Coalition Forces because they are family members of individuals
who have been targeted by a brigade based on accusations that may or may not
be true, to be released, supposedly, when and if the targeted individual
surrenders himself. I know that [redacted] has himself witnessed senior
leaders at briefings, reporting that they have taken such detainees, with
the command giving their tacit approval. In hindsight, it seems clear that,
considering the seeming approval of these and other tactics by the senior
command, it is a short jump of the imagination that allows actions such as
those committed by [redacted], to become not only tolerated, but encouraged.
This situation is made worse with messages from higher echelons soliciting
lists of alternative interrogation techniques and the usage of phrases such
as '.the gloves are coming off'. (98)
Such a tone has been set by senior US officials. Members of the
administration, including the President as Commander-in-Chief, have
repeatedly referred to detainees as "terrorists" and "killers". This stance
has been adopted throughout the military chain of command, and throughout
the "war on terror". (99) Other officials have referred to "the gloves
coming off". (100)
Meanwhile, hostage-taking by US troops in Iraq reportedly occured a year and
a half after the Staff Sergeant wrote the above reference to such abuses. On
2 April 2005, two Iraqi women, Salima al-Batawi and her daughter Aliya
al-Batawi, were allegedly taken hostage by US soldiers who were looking for
their male relatives. The two women were held for six days without charge in
a US detention facility after being seized at their home in Baghdad. A note
allegedly left on the gate of their home by the soldiers threatened that the
women would remain in detention unless a male relative gave himself up.
Although military personnel claimed that the women were detained as
suspected insurgents in their own right, after her release Salima al-Batawi
was quoted as saying that she had been told that she would be detained until
her sons gave themselves up.(101) International humanitarian and human
rights law prohibits the taking of hostages and arbitrary detentions.(102)
In a keynote address to the International Summit on Democracy, Terrorism and
Security, in Madrid, Spain, on 10 March 2005, UN Secretary General Kofi
Annan pointed out that "international human rights experts, including those
of the UN system, are unanimous in finding that many measures which States
are currently adopting to counter terrorism infringe on human rights and
fundamental freedoms." He continued:
    "Human rights law makes ample provision for counter-terrorist action,
even in the most exceptional circumstances. But compromising human rights
cannot serve the struggle against terrorism. On the contrary, it facilitates
achievement of the terrorist's objective - by ceding to him the moral high
ground, and provoking tension, hatred and mistrust of government among
precisely those parts of the population where he is most likely to find
recruits. Upholding human rights is not merely compatible with successful
counter-terrorism strategy. It is an essential element".(103)
A month earlier, on 4 February 2005, six United Nations human rights
experts - whose mandates include torture, "disappearances", arbitrary
detention, the independence of judges and lawyers, and health, had expressed
"serious concerns" about the USA's "war on terror" detainees. and reiterated
that:
    "the right and duty of all States to use all lawful means to protect
their citizens against death and destruction brought about by terrorists
must be exercised in conformity with international law, lest the whole cause
of the international fight against terrorism by compromised". (104)
In his report of March 2005, the UN's Independent Expert on the Situation of
Human Rights in Afghanistan, M. Cherif Bassiouni, wrote of the reports of
abuses by Coalition forces in Afghanistan that he had received from victims,
the Afghan Independent Human Rights Commission and others. The alleged
abuses include: "forced entry into homes, arrest and detention of nationals
and foreigners without legal authority or judicial review, sometimes for
extended periods of time, forced nudity, hooding and sensory deprivation,
sleep and food deprivation, forced squatting and standing for long periods
of time in stress positions, sexual abuse, beatings, torture and use of
force resulting in death".(105) The UN Independent Expert continued:
    "When these forces directly engage in practices that violate or ignore
international human rights and international humanitarian law, they
undermine the national project of establishing a legal basis for the use of
force. The impact of abusive practices and the failure to rectify potential
problems create a dangerous and negative political environment that
threatens the success of the peace process and overall national
reconstruction."(106)
Professor Bassiouni's mandate as UN independent expert on Afghanistan was
not renewed at the UN Commission for Human Rights in April 2005. In an
interview with the BBC on 25 April, he suggested that one reason for this
was because of his "insistence that I should be allowed to go to the Bagram
and Kandahar military bases as well as the 14 other firebases in which the
US by its own regulations detains people for up to 14 days without even
allowing the ICRC to see them." He reiterated that he had "interviewed a
number of persons who have indicated that they had been arbitrarily
arrested, that they had been tortured" by US forces in Afghanistan. The
reason his mandate had not been renewed, he suggested, was not because
"anybody felt the job was done", but because of US government pressure not
to renew. The interview continued:
    Q. Let's be clear about this, what you are suggesting is that an
independent human rights monitor mandated by the UN in Afghanistan has been
prevented from doing that job because, you say, the Americans didn't want
you, to put it bluntly, poking your nose into what they were getting up to
in various camps where they were holding detainees.
    A. That is correct. In fact what my report does not contain is an
exchange of correspondence I've had with the US ambassador to Geneva. in
which he basically says the United Nations mandate does not include going
into areas where American bases are. He takes the position that the American
bases there are above and beyond the reach of the law.(107)
Whether or not it was US pressure that led to the UN expert's mandate not
being renewed - at the time of writing, information received by Amnesty
International indicates that it was - an overarching war mentality adopted
by the US administration since 11 September 2001 has led it to manipulate or
jettison basic human rights protections for detainees. As noted further
below, this has included instances of the USA refusing to recognize that UN
human rights experts have the mandate to raise concerns about US actions in
the "war on terror" on the grounds that the detentions are controlled by the
law of armed conflict rather than human rights law. At the same time, the US
administration has adopted its own unilateral interpretation of
international humanitarian law.
Indeed, "following the events of September 11, 2001, a new category of
detainee, enemy combatant (EC), was created for personnel who are not
granted or entitled to the privileges of the Geneva Convention [sic]".(108)
In its broadly-defined global "war", the administration has defined "enemy
combatant" broadly:
    "Any person that US or allied forces could properly detain under the
laws and customs of war. For purposes of the war on terror an enemy
combatant includes, but is not necessarily limited to, a member or agent of
Al Qaeda, Taliban, or another international terrorist organization against
which the United States is engaged in an armed conflict."(109)
Not only are these so-called "enemy combatants" denied the protections of
the Geneva Conventions, they are also denied the protections of
international human rights law because the US administration considers that
they are held exclusively under "the laws and customs of war", regardless of
where in the world they were taken into custody.
The leading authority on provisions of international humanitarian law, or
the law of war, is the ICRC which has stated:
    "Irrespective of the motives of their perpetrators, terrorist acts
committed outside of armed conflict should be addressed by means of domestic
or international law enforcement, but not by application of the laws of war.
'Terrorism' is a phenomenon. Both practically and legally, war cannot be
waged against a phenomenon, but only against an identifiable party to an
armed conflict. For these reasons, it would be more appropriate to speak of
a multifaceted 'fight against terrorism' rather than a 'war on
terrorism'.What
is important to know is that no person captured in the fight against
terrorism can be considered outside the law. There is no such thing as a
'black hole' in terms of legal protection."(110)
Yet, in seeking to have the post-Rasul habeas corpus petitions of Guantánamo
detainees dismissed, the executive has rejected the notion that the
detainees have any rights under human rights treaty law or customary
international law:
    "Customary law is constantly evolving, thus implying that states can
modify their practices to adapt to new or unanticipated circumstances or
challenges. Even if customary international law proscribed 'prolonged
arbitrary detention', it is not at all clear that petitioners' detention
fall within this rubric. The detention here is not arbitrary, but based on
the Military's determination that petitioners are enemy combatants. The
treaties cited by petitioners as evidence of customary international law do
not appear to deal with wartime detentions of this type, but rather with
criminal-like matters, and petitioners cite no clear evidence of a
consistent and widespread norm, followed as a matter of legal obligation,
that detention of enemy combatants in a worldwide war against a terrorist
organization is improper."(111)
Such an argument, if accepted, would give a government - any government - a
blank cheque to ignore its obligations under international law for any
situation that it defined as a "war", "new" or "unanticipated" or for any
person that it defined as the "enemy". In this case, it follows President
Bush's assertion that the "war against terrorism ushers in a new paradigm
[which] requires new thinking in the law of war".(112) As revealed by a
series of previously secret government documents, the thinking that has been
done has been of a sort that looks to manipulate and bypass the USA's
fundamental international legal obligations. Thus, whatever "new thinking"
has been done, the result has been old abuses, abuses which when committed
by other countries warrant an entry in the US State Department annual human
rights report.
For itself, the US administration maintains that the President's war powers
as Commander-in-Chief of the Armed Forces provide the executive with a clear
mandate to run this broadly-defined "war on terror" without judicial
interference or external scrutiny. Whatever the case may be under the US
Constitution - the administration has sought to rely on US jurisprudence
restricting the applicability of the Constitution in the case of federal
government actions outside the USA concerning foreign nationals(113) - the
fact is that there is no such potential leeway under international law.(114)
The administration is even still engaged in an attempt to extend
presidential authority to seizing US citizens in civilian settings on US
soil and subjecting them to indefinite military detention without criminal
charge or trial.(115) José Padilla, a US citizen arrested at Chicago airport
in 2002 on the suspicion of planning to detonate a radioactive "dirty" bomb
in the United States, was removed from the criminal justice system a month
later under an executive order signed by President Bush labelling Padilla as
an "enemy combatant". Since then he has been held in indefinite military
custody without charge or trial (see further below). On 28 February 2005, a
federal judge ruled in José Padilla's case, concluding that "this is a law
enforcement matter, not a military matter". The judge said that "[t]here
were no impediments whatsoever to the Government bringing charges against
him for any one or all of the array of heinous crimes that he has been
effectively accused of committing." He continued:
    "The civilian authorities captured [Padilla] just as they should have.
At the time that [Padilla] was arrested.any alleged terrorist plans that he
harbored were thwarted. From then on, he was available to be questioned -
and was indeed questioned - just like any other citizen accused of criminal
conduct. This is as it should be. There can be no debate that this country's
laws amply provide for the investigation, detention and prosecution of
citizen and non-citizen terrorists alike." (116)
The executive disagreed, and immediately annouced its intention to appeal
the order to release José Padilla from military custody. The administration
appears to lack confidence in both its laws and its courts. At the same
time, it is showing scant regard for international law and standards in its
"war on terror".
The UN Independent Expert on the Protection of Human Rights and Fundamental
Freedoms while Countering Terrorism, Robert K. Goldman, wrote in his recent
report to the UN Commission on Human Rights: "However States conceive of the
struggle against terrorism, it is both legally and conceptually important
that acts of terrorism not be invariably conflated with acts of war". He
continued:
    "If committed during an armed conflict, such acts may constitute war
crimes. However, when such acts take place during peacetime or an emergency
not involving hostilities, as is frequently the case, they simply do not
constitute war crimes, and their perpetrators should not be labelled, tried
or targeted as combatants. Such situations are governed not by international
humanitarian law, but by international human rights law, domestic law and,
perhaps, international criminal law...
    Human rights law does not cease to apply when the struggle against
terrorism involves armed conflict. Rather, it applies cumulatively with
international humanitarian law... Despite their different origins,
international human rights law and humanitarian law share a common purpose
of upholding human life and dignity."(117)
Human dignity has fallen victim to the USA's "war on terror" detention and
interrogation regime, as the administration has not only rejected
international human rights law, but also adopted a selective disregard for
international humanitarian law, despite being a state party to the principle
treaties of both strands of law, and thereby obliged to apply their
provisions. This was made clear as the first prisoners arrived at Guantánamo
Bay on 11 January 2002, when Secretary of Defense Donald Rumsfeld said: "We
have indicated that we do plan to, for the most part, treat [the prisoners]
in a manner that is reasonably consistent with the Geneva Conventions, to
the extent they are appropriate, and that is exactly what we have been
doing." [emphasis added].(118) Such a policy is clearly "vague and lacking",
to use the words of the panel appointed by Secretary Rumsfeld to revew the
Pentagon's detention operations.(119)
Such vagueness opens the door, whether inadvertently or by design, to
torture and other cruel, inhuman or degrading treatment. For example, the
Third and Fourth Geneva Conventions allow a maximum of 30 days isolation of
a detainee as punishment for a disciplinary offence. The US authorities,
including as authorized by Secretary Rumsfeld, have used isolation as an
interrogation technique across its theatres of operation. In Afghanistan,
techniques included "isolating people for long periods of time".(120) The
ICRC found that the US authorities were using "excessive isolation" in
Guantánamo for not cooperating in interrogations.(121) In at least two cases
of Guantánamo detainees, Salim Ahmed Hamdan and Moazzam Begg, the isolation
was for a year or more. Yet Major General Geoffrey Miller, former commander
of Guantánamo detentions, has said: "We're enormously proud of what we had
done at Guantánamo, to be able to set that kind of environment where we were
focused on gaining the maximum amount of intelligence. But we detained the
people in a humane manner, in accordance with the Third and Fourth Geneva
Conventions."(122) This is not the case. Indeed, even in Iraq, where the USA
held that it was adhering to the Geneva Conventions, interrogators resorted
to the systematic use of isolation to obtain detainee co-operation.(123)
On 7 February 2002, it was announced that President Bush had determined that
the Geneva Conventions applied to the conflict with the Taleban. However, at
the same time it was made clear that no detainee, whether a suspected member
of the Taleban or of al-Qa'ida, would be granted prisoner of war status or
in cases of doubt presumed to be prisoners of war unless or until a
"competent tribunal" determined otherwise, as required by Article 5 of the
Third Geneva Convention.(124) In a unilateral executive decision, the
President had determined that there would be no doubt in any case. This
decision followed advice that not applying the Geneva Conventions would make
future prosecutions of US agents for war crimes less likely.(125)
Allegations of torture and ill-treatment in secret and incommunicado
detention have followed. No US agent has so far been charged with war crimes
or torture under the USA's War Crimes Act or Anti-Torture Act.
President Bush's memorandum of 7 February 2002, originally classified as
secret for 10 years, was made public on 22 June 2004 in the wake of the
revelations about torture and ill-treatment of detainees in US custody in
Abu Ghraib prison in Iraq. In this memorandum, not only did the President
determine that neither Taleban nor al-Qa'ida detainees captured in the
international armed conflict in Afghanistan would be eligible for prisoner
of war status, but also that common Article 3 to the Geneva Conventions -
which prohibits, among other things, torture, cruel, humiliating and
degrading treatment - did not apply to either category of detainee. The
protections of common Article 3 "constitute a minimum yardstick" reflecting
"elementary considerations of humanity", according to the International
Court of Justice(126), and "are generally accepted throughout the world as
customary international law," according to the USA's bi-partisan
Congressional commission into the attacks of 11 September 2001.(127)
However, the current administration takes a dismissive approach to customary
international law, which it believes is not binding on the President in the
context of the "war on terror".(128) This would appear even to contradict
the USA's own March 2005 National Defense Strategy, which asserts that
states "must exercise their sovereignty responsibly, in conformity with the
customary principles of international law".(129)
Trials by military commissions - executive bodies viewed within the
administration as "entirely the creatures of the President's authority as
Commander-in-Chief"(130) - are currently on hold following the decision of a
federal judge. In Hamdan v. Rumsfeld in November 2004, Judge James Robertson
examined President Bush's 7 February 2002 decision on the non-applicability
of the Geneva Conventions to detainees picked up in Afghanistan. Judge
Robertson rejected the administration's assertion that the presidential
determination was "not reviewable":
"Notwithstanding the President's view that the United States was engaged in
two separate conflicts in Afghanistan (the common public understanding is to
the contrary), the government's attempt to separate the Taliban from al
Qaeda for Geneva Conventions purposes finds no support in the structure of
the Conventions themselves, which are triggered by the place of the
conflict, and not the particular faction a fighter is associated with. Thus
at some level - whether as a prisoner-of-war entitled to the full panoply of
Convention protections or only under the more limited protections afforded
by Common Article 3 - the Third Geneva Convention applies to all persons
detained in Afghanistan during the hostilities there".(131)
The government had also argued to Judge Robertson that even if the Third
Geneva Convention could theoretically apply to an individual captured in
Afghanistan, members of al-Qa'ida did not fulfil the criteria for prisoner
of war status under Article 4 of the treaty because of their failure to
carry arms openly or operate according to the laws and customs of war. The
President had determined that this was the case, and such determinations are
due "extraordinary deference", according to the government. However, Judge
Robertson said that the President is not a "tribunal". Moreover, the
Combatant Status Review Tribunal (see further below) was not established to
address the issue of prisoner of war status, and was therefore not the
"competent tribunal" envisaged by the Third Geneva Convention. Until or
unless such a tribunal decides otherwise, Judge Robertson wrote, the
Guantánamo detainee whose petition was before him should be presumed to be a
prisoner of war and treated as such.(132)
Judge Robertson rejected the government's argument that common Article 3 to
the Geneva Conventions does not apply, citing among other things the
International Court of Justice's opinion (above). He continued that the
government's position was one "that can only weaken the United States' own
ability to demand application of the Geneva Conventions to Americans
captured during armed conflicts abroad". Judge Robertson noted evidence that
other governments had already begun to use the example being set by the
USA's
Guantánamo policy to justify their own repressive conduct.
Finally, the government had argued that any provisions of the Geneva
Conventions were not enforceable in US court as the treaty was not
"self-executing", that is that does not give rise to private cause of action
in the US courts in the absence of specific implementing legislation.
However, Judge Robertson took issue with this:
    "Because the Geneva Conventions were written to protect individuals,
because the Executive Branch of our government has implemented the Geneva
Conventions for fifty years without questioning the absence of implementing
legislation, because Congress clearly understood that the Conventions did
not require implementing legislation except in a few specific areas, and
because nothing in the Third Geneva Convention itself manifests the
contracting parties' intention that it not become effective as domestic law
without the enactment of implementing legislation, I conclude that, insofar
as it is pertinent here, the Third Geneva Convention is a self-executing
treaty."
The government responded that Judge Robertson's decision "should not be
followed because it not only failed to accord the deference that is due to
the President's interpretation of the Conventions, it cannot withstand
scrutiny".(133) The administration is seeking to have the ruling overturned
by a higher court.
The US administration is not only resisting domestic judicial scrutiny of
its actions in Guantánamo, but is rejecting the findings of international
expert bodies. In 2002, the UN Working Group on Arbitrary Detention
challenged President Bush's 7 February 2002 prisoner of war determinations.
The Working Group pointed out that the authority competent to make such
determinations "is not the executive power but the judicial power". It went
on to assert that in cases where POW status was not recognized by a
competent tribunal, the "situation of the detainees would be governed by the
relevant provisions of the [International] Covenant [on Civil and Political
Rights] and in particular by articles 9 and 14 thereof, the first of which
guarantees that the lawfulness of a detention shall be reviewed by a
competent court, and the second of which guarantees the right to a fair
trial".(134)
The USA responded that the Working Group did not have the mandate to
consider whether the Guantánamo detentions were arbitrary, on the grounds
that the detentions were controlled by the laws of armed conflict and not
human rights law.(135) The USA further asserted to the Working Group on
Arbitrary Detention that "enemy combatants are not entitled to be released
or to have access to court or counsel".(136) The Working Group responded
that it was concerned that the "war on terror" was being "invoked to set
aside certain norms of international law, particularly those on the
guarantees available to supected terrorists in detention". It continued:
    "The Working Group is even more concerned that, in the context of the
fight against terrorism, classified information and the protection of
national security are often put forward as grounds for refusing to
cooperate, and that its competence to judge the lawfulness of the detention
of suspected terrorists is challenged on the pretext that the Group's
mandate does not cover situations of armed conflict.
    The Working Group stresses that it attaches particular importance to the
existence and effectiveness of international controls over the legality of
detention. In its experience, the right to challenge the legality of
detention is one of the most effective means of preventing and combating
arbitrary detention. As such, it should be regarded not as a mere element in
the right to a fair trial but, in a country governed by the rule of law, as
a personal right which cannot be derogated from even in a state of
emergency."(137)
The Chairperson-Rapporteur of the Working Group on Arbitrary Detention is
one of the four UN experts for whom access to US "war on terror" detainees
has been requested by the UN. A joint statement issued by a group of UN
experts on 25 June 2004 noted "recent developments that have seriously
alarmed the international community with regard to the status, conditions of
detention and treatment of prisoners in specific places of detention". The
statement called for four UN experts to be allowed to visit detainees held
in Iraq, Afghanistan and Guantánamo Bay.(138) On 9 November 2004, the US
government responded that it was unable to grant the request. Instead it
offered to provide the UN experts with a briefing in Washington, DC. The
experts only agreed to such a briefing, in Geneva, to the extent that it
would be a preliminary step in preparation for their requested access to the
detainees.(139) On 4 April 2005, a meeting took place in Geneva between US
officials and three UN Special Rapporteurs.(140)
While the executive has assumed sweeping powers to detain, interrogate,
charge or try suspected "terrorists" or their associates, at the same time
its "war" scenario has also brought with it a disturbing attitude to the use
of torture and other cruel, inhuman or degrading treatment (see Section 12)
as well as to the use of lethal force.(141) The relatively low value that
appears to have been placed by the US administration on the lives of
Afghanistan and Iraq citizens killed by US forces in the past three years -
as demonstrated by the failure to thoroughly investigate or even quantify
such casualties - is exemplified by an incident in Yemen on 3 November 2002,
when six men were killed in a car, blown up by missiles fired from a
CIA-controlled Predator unmanned aerial vehicle.(142) One of the people in
the car was alleged to be a senior member of al-Qa'ida, Abu Ali al-Harithi,
and the strike was carried out with the cooperation of the Government of
Yemen. In Amnesty International's view, the USA and Yemen should have
cooperated to try to arrest the suspects in the car rather than kill them.
Rather than opting for killing them by remote control, lethal force should
have been used only as a last resort.(143) To the extent that the US
authorities deliberately decided to kill, rather than attempt to arrest
these men, their killing would amount to extrajudicial executions.
    "Governments shall prohibit by law all extra-legal, arbitrary and
summary executions and shall ensure that any such executions are recognized
as offences under their criminal laws, and are punishable by appropriate
penalties which take into account the seriousness of such offences.
Exceptional circumstances including a state of war or threat of war,
internal political instability or any public emergency many not be invoked
as a justification of such executions. Such executions shall not be carried
out under any circumstances including, but not limited to, situations of
internal armed conflict, excessive or illegal use of force by a public
official or other person acting in an official capacity or by a person
acting at the instigation, or with the consent or acquiescence of such
person, and situations in which deaths occur in custody. This prohibition
shall prevail over decrees issued by governmental authority."(144)
On 17 September 2001, President Bush is reported to have signed an executive
order giving the CIA broad new authorities, including the use of lethal
force, in the "war on terror".(145) In January 2003, the UN Special
Rapporteur on extrajudicial, summary or arbitrary executions described the
CIA killings in Yemen as "truly disturbing" and "an alaming precedent",
adding that in her opinion "the attack in Yemen constitutes a clear case of
extrajudicial killing".(146) In April 2003, the US authorities responded to
the UN Special Rapporteur, disagreeing that "military operations against
enemy combatants could be regarded as extrajudicial executions", and adding
that the "conduct of a government in legitimate military operations, whether
against Al Qaida operatives or any other legitimate military target, would
be governed by the international law of armed conflict." It concluded that
"enemy combatants may be attacked unless they have surrendered or are
otherwise rendered hors de combat", and that any "Al Qaida terrorists who
continue to plot attacks against the United States may be lawful subjects of
armed attacks in appropriate circumstances". It stated that the mandate of
the Special Rapporteur does not extend to "allegations stemming from any
military operations conducted during the course of an armed conflict with Al
Qaida", and that both the Special Rapporteur and the UN Commission on Human
Rights lack competence "to address issues of this nature arising under the
law of armed conflict".(147)
In December 2004, the new Special Rapporteur on extrajudicial, summary or
arbitrary executions followed up on this issue. He stated:
    "Empowering Governments to identify and kill "known terrorists" places
no verifiable obligation upon them to demonstrate in any way that those
against whom lethal force is used are indeed terrorists, or to demonstrate
that every other alternative had been exhausted. While it is portrayed as a
limited 'exception' to international norms, it actually creates the
potential for an endless expansion of the relevant category to include any
enemies of the State, social misfits, political opponents, or others. And it
makes a mockery of whatever accountability mechanisms may have otherwise
constrained or exposed such illegal acts under either humanitarian or human
rights law."(148)
An earlier case of a possible extrajudicial killing left unpunished occurred
on 28 August 2002, when US soldiers shot dead an Afghan man near Lwara,
southeast of Kabul. The soldiers involved claimed that Mohammad Sayari was
shot after he lunged for a weapon. The case remained out of the public
domain until redacted documents were released in late 2004 under a freedom
of information request (see Section 12). These reveal that an investigator,
who in August 2002 had only recently arrived at the US base at Lwara, was
called upon to respond to the shooting. In a sworn statement given to
investigators with the US Army Criminal Investigation Command (CID) on 9
October 2002, he described finding Mohammad Sayari's body:
    "His right hand and arm were near his head and in his right hand,
clenched in a fist, were prayer beads.(149) There was massive trauma to his
head that appeared to be the exit wound caused by a bullet... Th[e] splatter
pattern, I felt, was consistent with the person laying in the prone and the
bullet path coming from an angle that was slightly behind and from the left
side of the body. Additionally, I noticed approximately 5 small bullet entry
holes on the back of the shirt. I became nervous at this time realizing that
the man had been shot in the back."
The investigator said that during his subsequent time in Lwara, he would
"hear small pieces of information that described the attitudes" of the
Special Forces unit implicated in the case, which he concluded to be a unit
"operating without any oversight". He said that the unit was described as
the "door kicker types", and recalled how one of its members described to
him how to use mock executions as an interrogation technique when detaining
groups of people. The investigator also said that he heard comments that led
him to believe that one of the soldiers implicated in the shooting "wanted
to kill a local Afghan before he left Afghanistan to return to the US". The
investigator further alleged to the CID investigators that he was told by an
officer with the Special Forces unit to delete certain photographs that he
had taken at the scene of the shooting. The investigator said that "it was
obvious to me that he didn't want the pictures to exist". He also feared
reprisals for his investigation, concluding from the unit's "actions.that
they would not threaten me, they would kill me". His sworn statement
contains the following exchange with CID investigators:
    Q: What do you think were the circumstances of Sayari's death?
    A: I believe Sayari to have been executed.
    Q: Why do you think they executed Sayari?
    A: How do you say just for the fun of it? I think that members of the
team felt that the Afghan life was less than human.
The CID investigation into the killing, completed in May 2003, concluded
that there was probable cause to believe that five soldiers had committed
crimes, and recommended their prosecution for conspiracy, murder,
dereliction of duty and obstruction of justice. Their recommendations were
forwarded to the US Army Special Forces Command in Fort Bragg, North
Carolina. There, the decision was taken not to prosecute. One of the
soldiers received a letter of reprimand and no action was taken against the
other four.(150)
The Special Rapporteur on extrajudicial, summary or arbitrary executions
noted that the USA's position in response to the November 2002 Yemen
killings (and again when the USA rejected the Special Rapporteur's concerns
about reports of the use of excessive force against civilians in Iraq)(151)
would appear to suggest that (i) extrajudicial, summary or arbitrary
executions, falling within the Special Rapporteur's mandate, can take place
only in situations where international human rights law applies; and (ii)
where humanitarian law is applicable, it operates to exclude human rights
law. The Special Rapporteur pointed out that such an analysis is not
supported by general principles of international law:
    "It is now well recognized that the protection offered by international
human rights law and international humanitarian law are coextensive, and
that both bodies of law apply simultaneously unless there is a conflict
between them. In the case of a conflict, the lex specialis should be applied
but only to the extent that the situation at hand involves a conflict
between the principles applicable under the two international legal
regimes."(152)
Thus, the Special Rapporteur concluded, echoing the language of the Human
Rights Committee, "the two bodies of law are in fact complementary and not
mutually exclusive".(153) He stressed that "efforts to eradicate terrorism
must be undertaken within a framework clearly governed by human rights law
as well as international humanitarian law, and that executions occurring in
the context of armed conflict that violate that framework fall squarely
within the remit of the Special Rapporteur".
The fact that it was a CIA-controlled Predator drone that was used to blow
up the vehicle in Yemen can now be set against what has since been learned
about the CIA's role in torture and ill-treatment of "war on terror"
detainees, and what appears to have been efforts within the administration
from early in the "war on terror" to immunize CIA personnel from possible
future prosecutions for torture and war crimes (see below). It has recently
been alleged that under a series of "findings" and executive orders signed
by President Bush, the Pentagon's role in covert military activities will be
expanded and the CIA's role downgraded. Under this scenario, it is alleged,
congressional oversight of military covert operations will be minimal or
absent. A former high-level intelligence official is quoted as saying: "The
Pentagon doesn't feel obligated to report any of this to Congress. They
don't
even call it 'covert ops' - it's too close to the CIA phrase. In their view,
it's 'black reconnaissance'. Do you remember the right-wing execution squads
in El Salvador? We founded them and we financed them. The objective now is
to recruit locals in any area we want. And we aren't going to tell Congress
about it." Avoiding congressional oversight, according to comments
attributed to a Pentagon adviser, "give[s] power to Rumsfeld - giving him
the right to act swiftly, decisively, and lethally. It's a global free-fire
zone".(154)
Responding to an earlier article (which he said he had not read), Secretary
of Defense Donald Rumsfeld described the allegations about the "Salvador
Option" as "nonsense" and "simply fanciful".(155) Amnesty International is
not in a position to substantiate the allegations or dismiss them. However,
it points out that the record of the US administration during the "war on
terror" means that its assurances must be treated with caution. On 26 June
2003, for example, President George W. Bush proclaimed to the world that
"the United States is committed to the worldwide elimination of torture and
we are leading this fight by example". At the time he made this
proclamation, a now notorious 1 August 2002 Justice Department memorandum
had been the US administration's position, albeit in secret, for almost a
year and would be so for another year. This memorandum advised on how US
interrogators could escape criminal liability for torture, on how to narrow
the definition of torture, on how officials could get away with using cruel,
inhuman or degrading treatment that purportedly fell short of torture, and
on how the President could override international or national prohibitions
on torture.(156)
Another administration document originally classified for 10 years, but made
public in June 2004 in the wake of the Abu Ghraib scandal, is the Pentagon
Working Group Report on Detainee Interrogations in the Global War on
Terrorism, dated 4 April 2003 and believed to still be operational, states:
"The United States has maintained consistently that the Covenant does not
apply outside the United States or is special maritime and territorial
jurisdiction, and that it does not apply to operations of the military
during an international armed conflict".(157)
The International Court of Justice (ICJ) has explicitly rejected the notion
that the International Covenant on Civil and Political Rights (ICCPR) only
applies in peacetime:
    "... [T]he protection of the International Covenant of Civil and
Political Rights does not cease in times of war, except by operation of
Article 4 [derogation in a time of national emergency]. Respect for the
right to life is not, however, such a provision. In principle, the right not
arbitrarily to be deprived of one's life applies also in hostilities. The
test of what is an arbitrary deprivation of life, however, then falls to be
determined by the applicable lex specialis, namely, the law applicable in
armed conflict which is designed to regulate the conduct of
hostilities."(158)
The ICJ has recently restated this, namely that "the protection offered by
human rights conventions does not cease in case of armed conflict."(159)
In 2001, the Human Rights Committee, the expert body established by the
ICCPR to oversee its implementation, issued an authoritative interpretation
of rights under states of emergency (General Comment 29).(160) Under Article
4 of the treaty, states may derogate from certain obligations under certain
very strict and narrow conditions (the USA, which ratified the ICCPR in
1992, has not announced any such derogation). The Committee stressed that
"even during an armed conflict measures derogating from the Covenant are
allowed only if and to the extent that the situation constitutes a threat to
the life of the nation"(161) - in other words, human rights law applies
during times of armed conflict even though rules of international
humanitarian law become applicable at such a time.
Article 4.2 of the ICCPR states that, in any event, there can be no
derogation from certain provisions, including Article 6 (right to life) and
Article 7 (prohibition on torture or other cruel, inhuman or degrading
treatment or punishment). In its General Comment 29, the Human Rights
Committee stressed that the category of peremptory norms extends beyond the
list of non-derogable provisions contained in Article 4, including the right
of all persons deprived of their liberty to be treated with humanity and
with respect for the inherent dignity of the human person. The Committee
further stated that
    "the principles of legality and the rule of law require that fundamental
requirements of fair trial must be respected during a state of emergency.
Only a court of law may try and convict a person for a criminal offence. The
presumption of innocence must be respected. In order to protect
non-derogable rights, the right to take proceedings before a court to enable
the court do decide without delay on the lawfulness of detention, must not
be diminished by a State party's decision to derogate from the
Covenant."(162)
Within months of the Human Rights Committee's comment, the USA had
transferred the first detainees to Guantánamo in conditions of transfer and
detention that shocked international opinion and violated the prohibition on
cruel, inhuman or degrading treatment. Judicial review was denied, with the
USA arguing that foreign nationals captured and held outside US sovereign
territory had no rights. Secret memorandums were drafted within the US
administration arguing that torture could be authorized by the President and
that a wide array of interrogation techniques that amounted at least to
cruel, inhuman or degrading treatment could be used without making the
interrogator criminally liable under US law. In violation of the presumption
of innocence, detainees were repeatedly labelled as "killers" and
"terrorists" by the US administration. President Bush signed a military
order providing for trials by military commissions - not independent and
impartial courts of law, but executive bodies. This is serial international
law-breaking.
Three months before the US Supreme Court handed down its ruling that the
federal courts could consider appeals from the Guantánamo detainees, the
Human Rights Committee issued its authoritative interpretation of the
general obligations that the ICCPR imposes on states which are party to it
(General Comment 31).(163) It made clear that the obligations of the ICCPR
are "binding on every State Party as a whole" including all branches of
government - executive, legislative and judicial - and all levels of
government - national, regional or local.(164) It emphasised that each State
Party must respect and ensure the rights in the Covenant to anyone "within
the power or effective control of that State Party, even if not situated
within the territory of that State Party". (165) Where there are
inconsistencies between domestic law and the ICCPR, the domestic law must be
changed "to meet the standards imposed by the Covenant's substantive
guarantees". No domestic political, social, cultural or economic
considerations can be used to justify failure to comply with this
obligation.(166)
General Comment 31 shows that the US administration was ignoring its
international obligations when it argued to the US Supreme Court in the
Rasul case that "the ICCPR is inapplicable to conduct by the United States
outside its sovereign territory".(167) Yet some 10 months after the Supreme
Court decision, the US administration is still attempting to keep its
detention regime in Guantánamo and elsewhere as free from judicial or other
external scrutiny as it can on the basis that foreign nationals captured and
held outside sovereign US territory have no rights under national or
international law.
6. Seeking to render the Rasul decision meaningless
Petitioners could not be more wrong. On a fundamental level, petitioners'
objection to the Executive's power to capture and detain alien enemy
combatants in foreign territory during ongoing hostilities is flatly
inconsistent with the historical understanding of the President's role as
Commander in Chief of the Armed Forces
US Justice Department, legal brief, October 2004(168)
It has been said that a week is a long time in politics.(169) It seems that
the same could be said about the law, or at least judicial interpretations
of it. In the space of two weeks in January 2005, two diametrically opposed
responses to the same question of law were handed down by judges on the same
federal court in Washington, DC. The first displayed a troubling degree of
deference to the executive's attempts to ignore its human rights
obligations, while the second showed a welcome respect for human rights. The
US administration supports the former ruling and rejects the latter. It
should change direction.
Each of the two judges in question - Judge Richard Leon and Judge Joyce Hens
Green of the District Court for the District of Columbia - was faced with
petitions from detainees labelled as "enemy combatants" and held in
indefinite executive detention in Guantánamo. The petitions were asking the
judges to issue writs of habeas corpus so that the detainees could challenge
the lawfulness of their detention, a basic protection under international
law against arbitrary arrest, torture and "disappearance", also explicitly
provided in the US Constitution (Article 1, Section 9)(170). The petitions
had been filed following the US Supreme Court's decision of 28 June 2004,
Rasul v. Bush, which held that the federal courts "have jurisdiction to
consider challenges to the legality of the detentions of foreign nationals
captured abroad in connection with hostilities and incarcerated at
Guantánamo Bay".(171) The decision was widely welcomed as a first step to
restoring the rule of law to Guantánamo, but the US administration has
sought to drain it of real meaning, and to keep any review of the detentions
as narrow and as far from a judicial process as possible.(172)
For this, the US Supreme Court bears some responsibility. Judge Green, for
one, "would have welcomed a clearer declaration in the Rasul opinion
regarding the specific constitutional and other substantive rights" of the
detainees.(173) However, the executive is not forced to adopt a regressive
interpretation of narrowly-defined Supreme Court opinions. A government, not
least one which promotes itself as a progressive force for human rights,
should do all it can to ensure that its conduct conforms to domestic and
international law without waiting for the courts to order it to do so.
Regrettably, in its "war on terror" detention policy, the US administration
has opted for executive fiat over the rule of law and hypocrisy over human
rights. Even the current Attorney General has admitted that the US
administration's post-Rasul stance would be unlikely to "meet international
scrutiny".(174)
In a press release issued immediately after the Rasul ruling, the US Justice
Department interpreted it as holding that "individuals detained by the
United States as enemy combatants have certain procedural rights to contest
their detention".(175) The Department's use of the word "procedural", rather
than "substantive", is telling. It would later argue in the DC District
Court that the Guantánamo detainees had no grounds under constitutional,
federal or international law on which to challenge the lawfulness of their
detention. In other words, according to the administration's Kafkaesque
vision for Guantánamo, the Rasul ruling should be interpreted as mandating
no more than a purely procedural right - the detainees could file habeas
corpus petitions, but only in order to have them necessarily dismissed. Any
further action would be an "unprecedented judicial intervention into the
conduct of war operations, based on the extraordinary, and unfounded,
proposition that aliens captured outside this country's borders and detained
outside the territorial sovereignty of the United States can claim rights
under the US Constitution".(176) This was the same position the
administration had adopted before the Rasul ruling.
At the same time, the administration has done nothing to facilitate the
Guantánamo detainees' access to legal counsel so that they can file
petitions to challenge the lawfulness of their detention. Efforts by US
lawyers to gain access to, or information about, the detainees in order to
be able to assist them in filing habeas corpus petitions if the detainee so
chooses, have been stymied by the administration.(177)
Moreover, in the cases where individuals do have lawyers for their habeas
corpus appeals, there is concern that the authorities have tried to
undermine the relationships between detainees and their counsel. For
example, a lawyer representing Kuwaiti detainees has alleged that the
interrogators in Guantánamo "have engaged in practices to destroy the trust
of the Kuwaiti nationals in us as their lawyers". During his visits to the
base, at least two of the detainees have told him that interrogators have
told them not to trust their lawyers, including "because they are Jewish".
One of the detainees said that an interrogator had told him that he would be
tortured if he was returned to Kuwait. When he replied that his lawyer had
assured him that this would not happen, "the interrogator laughed and said
'don't trust your lawyers'. She also said "did you know your lawyers are
Jews?'" Another of the Kuwaiti detainees said that he, too, had been told by
his interrogator: "Your lawyers are Jews. How could you trust Jews?" A
Yemeni detainee has reported that another detainee had a "lawyer" who made
him multiple visits. The "lawyer" subsequently turned up in military
uniform. Detainees are reported to have become suspicious of civilian
attorneys, suspecting that they may be military personnel in disguise. Some
have said that since lawyers have started visiting the base, punishments for
those detainees with lawyers have increased. A Yemeni detainee has alleged
that after a visit from his US habeas lawyer in November 2004, he was
immediately subject to interrogation. Another Yemeni has alleged that after
a visit, all his items were removed from his cell and he was forced to wear
only shorts for a month.
In addition, it would appear that the detaining authorities have offered
little or no practical advice to the detainees about how they might go about
seeking a lawyer. Official advice has been limited to telling the detainees
that they can file petitions in federal court (while at the same time the
government has argued in court that any such petitions should be necessarily
dismissed). By 3 May 2005, only 168 named detainees (including at least 11
since released or transferred out of Guantánamo) had had petitions filed on
their behalf in the US courts (in 61 petitions). By that date there were
approximately 520 detainees held in the base. In a bid to reach all the
detainees, lawyers have filed a habeas corpus petition for "John Does Nos
1-570" to include "every detainee being held at Guantánamo whom the United
States has not officially confirmed to be in its custody by disclosing his
or her identity and who has not yet filed a petition for a writ of habeas
corpus", and to include detainees held by any agency.(178) At the time of
writing, the government was seeking to have this petition dismissed.
In its post-Rasul news release, the Justice Department added that it would
review the decision in order to determine how to "modify existing processes
to satisfy the Court's ruling". Clearly, the administration was in no mood
for a clean start if all it wanted to do was to "modify existing
processes" - after all, what "process" was there to be modified for a
detainee held indefinitely without charge or trial, access to legal counsel,
relatives or the courts? International human rights law - under which each
and every Guantánamo detainee has the right to full judicial review of his
detention and to release if that detention is unlawful - demanded a U-turn
in policy, not tinkering around its edges.(179)
Nevertheless, having argued for two and a half years to keep the Guantánamo
detainees out of the reach of the courts, the administration was unwilling
to abandon its quest. Ten days after the Rasul ruling, the Department of
Defense announced the formation of the Combatant Status Review Tribunal
(CSRT) to "serve as a forum for detainees to contest their status as enemy
combatants".(180) The term "enemy combatant" - which as noted above was
invented by the USA for the "war on terror" - is defined broadly for the
CSRT.(181) In one of the subsequent CSRT hearings, the following exchange
took place between the President of the three-military officer panel and the
detainee, Bisher al-Rawi, an Iraqi national/UK resident:
    Detainee: I still don't fully understand the actions I have committed,
to be classified as an enemy combatant. I have read the definition of 'enemy
combatant' several times. I find it to be very vague and to have many
meanings. I would like to fully understand this, so I can defend myself.
    Tribunal President: As you have heard from the Oath we took, we are to
apply our common sense, our knowledge, our sense of justice to this
definition and to you, in order to come to a conclusion as to whether you
have been properly classified as an enemy combatant or not. That is what we
are going to do today. We are going to go over the evidence that the
government provided. You are going to see the unclassified portion. I am
going to make an assumption at this point that there is classified evidence
you won't be able to read."(182)
The Pentagon asserted that the CSRT's procedures were intended to "reflect
the guidance the Supreme Court provided" in Rasul v. Bush coupled with
another ruling issued on the same day, Hamdi v. Rumsfeld.(183) The latter
decision concerned Yaser Esam Hamdi, a US citizen captured in the armed
conflict in Afghanistan and held without charge or trial as an "enemy
combatant" on the US mainland (see further below). The plurality in the
split Hamdi decision said that "due process demands that a citizen held in
the United States as an enemy combatant be given a meaningful opportunity to
contest the factual basis for that detention before a neutral
decisionmaker". The Hamdi plurality held that "the threats to military
operations posed by a basic system of independent review are not so weighty
as to trump a citizen's core rights to challenge meaningfully the
Government's
case and to be heard by an impartial adjudicator".
With this reference to "military operations" in mind, it should be stressed
that the CSRT was not devised to conduct battlefield determinations of the
status of detainees. It was devised more than two years after detentions
began, for use thousands of miles away from the point of capture, regardless
of whether that capture occurred on the battlefield of an international
conflict long since over or on the street of a city in a country not at war
in the first place.
Meanwhile, in Afghanistan, were some detainees have been US custody for more
than a year, not even the CSRT process is being applied. Once detainees in
the custody of the US Department of Defense in Afghanistan are designated as
an "enemy combatant", they have an initial review of that status by a
Commander or designee within 90 days of being taken into custody. After
that, "the detaining combatant commander, on an annual basis, is required to
reassess the status of each detainee. Detainees assessed to be enemy
combatants under this process remain under DoD control until they no longer
present a threat."(184)
The administration's penchant for secrecy and disregard for the fundamental
rights of detainees was again on display in the rules for the Combatant
Status Review Tribunal, as Amnesty International pointed out at the time
they were announced.(185) The detainees would have no access to legal
counsel (only to a "personal representative" - a military officer) or to
classified evidence to assist them in the CSRT process, yet the burden was
on the detainee to disprove his "enemy combatant" status:
    "Following the hearing of testimony and the review of documents and
other evidence, the Tribunal shall determine in closed session by majority
vote whether the detainee is properly detained as an enemy combatant.
Preponderance of the evidence shall be the standard used in reaching this
determination, but there shall be a rebuttable presumption in favour of the
Government's evidence".(186)
The presumption by the CSRT that the detainee is an "enemy combatant" is
clear from some of the transcripts of the hearings. For example, Bisher
al-Rawi asked why he had to wear shackles for his hearing. The Tribunal
President responded:
    "You are classified as an enemy combatant against the United States
until we make a determination otherwise. I treat all enemy combatants fairly
but the same. I won't allow anyone in here without the shackles. I am
treating you like I treat everyone else."(187)
The CSRT - a panel of three "neutral" military officers - was "free to
consider any information it deems relevant and helpful", including "hearsay
evidence, taking into account the reliability of such evidence in the
circumstances". Evidence extracted under torture or other coercion was not
excluded. As the Principal Deputy Associate Attorney General of the US
Justice Department argued to Judge Richard Leon:
    "If in fact information came to the CSRT's attention that was obtained
through a non-traditional means, even torture by a foreign power, I don't
think that there is anything in the due process clause [of the US
Constitution], even assuming they were citizens, that would prevent the CSRT
from crediting that information for purposes of sustaining the enemy
combatant class[ification]".(188)
The Justice Department's representative said that this would also be the
case if the torture was carried out by US agents, adding that "we don't
think anything qualifying remotely as torture has occurred at Guantánamo".
In other words, the CSRT process would presume that "evidence" extracted
under torture is genuine and accurate, and it would be up to the detainee,
with no legal assistance, to refute it. Even without the allegations of
torture and ill-treatment that have been raised in the context of the
interrogation process in Guantánamo, as well as in Afghanistan, the totality
of the detention conditions themselves - harsh, indefinite, and isolating -
may amount to cruel, inhuman or degrading treatment in violation of
international law. These conditions themselves may be coercive, and feed
into the CSRT process. For example, the CSRT determined that Faruq Ali Ahmed
was an "enemy combatant" based on the testimony of a fellow detainee who
according to Faruq Ali Ahmed's "personal representative" "with some
certainty... has lied about other detainees to receive preferable treatment
and to cause them problems while in custody". Faruq Ali Ahmed testified to
the CSRT that he was in Afghanistan to teach the Koran to children. His
"personal representative" said that had the CSRT dismissed the fellow
detainee's evidence as unreliable, "then the position we have taken is that
a teacher of the Koran (to the Taliban's children) is an enemy combatant
(partially because he slept under a Taliban roof)".(189)
The 7 July 2004 order establishing the CSRT was intended "solely to improve
management within the Department of Defense concerning its detention of
enemy combatants at Guantanamo Bay Naval Base, Cuba, and is not intended to,
and does not, create any right or benefit, substantive or procedural,
enforceable at law, in equity, or otherwise by any party against the United
States.".(190) Guantánamo began receiving "war on terror" detainees
following legal advice from the Justice Department that "a district court
cannot properly entertain an application for a writ of habeas corpus by an
enemy alien detained at Guantánamo Bay Naval Base, Cuba."(191) The Rasul
ruling showed otherwise, but the administration has refused to admit that
this legal advice, like the legal advice on torture contained in other
previously secret administration memorandums, disregarded international law
and fundamental human rights standards. The CSRT process is an improvised
minimalist response to the US Supreme Court's rulings designed to keep the
lawfulness of the detentions away from judicial or other external scrutiny
for as long as possible.
The CSRT Order added that nothing contained in it should be construed to
"limit, impair, or otherwise affect" the President's Commander-in-Chief
powers. This has been reflected in the subsequent statistics. On 29 March
2005, the authorities announced that they had completed all the CSRTs for
the current detainees in Department of Defense custody in Guantánamo.
  Ø Of the 558 CSRT decisions finalized by 29 March 2005, all but 38 (93 per
cent) affirmed that the detainee was indeed an "enemy combatant" as broadly
defined by the Order.
  Ø Amnesty International's review of 60 cases filed in the DC District
Court by April 2005 reveals that most were decided inside a single day, and
that in all 58 cases which gave the voting details, the CSRT panel was
unanimous in finding the detainee to be an "enemy combatant". These 58 cases
were all finalized in late 2004.
  Ø Eighty-four per cent of the cases (32 out of 38) where the detainee was
found not to be an "enemy combatant" were decided later than 1 February
2005, after Judge Joyce Hens Green ruled that the CSRT process was
inadequate and unconstitutional, but before the appeal against her decision
was heard. In its 27 April 2005 brief appealing to the US Court of Appeals
for the District of Columbia Circuit to overturn Judge Green's ruling, the
government emphasised these 38 cases as a sign of a constitutionally fair
system. The brief did not point out - or explain whether it was pure
coincidence - that all but six of them had been decided after Judge Green's
finding that the CSRT process was unlawful.(192)
  Ø This sudden and marked increase in findings that a detainee was no
longer an "enemy combatant" also coincided with a period during which the
Pentagon was said to be looking to reduce the number of detainees held in
the base in the wake of the administration's losses in the courts, including
by "outsourcing" detentions to other countries (see Section 15).
Creating procedures that bypass international norms and avoiding judicial
scrutiny for its actions should be unacceptable to any government which
believes that fundamental human rights principles are non-negotiable, as the
USA claims to. As Judge Green said in her recent ruling on the Guantánamo
detainees:
    "Of course, it would be far easier for the government to prosecute the
war on terrorism if it could imprison all suspected 'enemy combatants' at
Guantanamo Bay without having to acknowledge and respect any constitutional
rights of detainees. That, however, is not the relevant legal test...
Although this nation unquestionably must take strong action under the
leadership of the Commander in Chief to protect itself against enormous and
unprecedented threats, that necessity cannot negate the existence of the
most basic fundamental rights for which the people of this country have
fought and died for well over two hundred years."
For consistency's sake, it had been agreed to have a single judge, Judge
Joyce Hens Green, a senior judge appointed to the court in 1979, resolve
issues common to the Guantánamo cases.(193) Thus, when the government filed
its motion to dismiss the petitions for a writ of habeas corpus, the motion
being common to all the cases, other judges on the court transferred this
issue to Judge Green. However, Judge Richard Leon declined to participate in
this arrangement. He subsequently became the first judge to issue a ruling
interpreting the Rasul decision.(194) He sided with the government and
dismissed the petitions.
On 19 January 2005, just over three years after the Guantánamo detentions
began, Judge Leon in essence determined that whereas under the Supreme Court
ruling Guantánamo detainees have the right to petition federal courts for a
habeas corpus writ, they nevertheless do not have the right to obtain such
writs. He ruled that there was "no viable legal theory" by which he could
issue writs of habeas corpus to foreign detainees held without charge or
trial in the naval base. In Judge Leon, appointed to the court by President
George W. Bush in 2002, the administration found an ally for its position
that the "war on terror" is a global armed conflict and that under the
President's Commander-in-Chief powers, individuals broadly defined as "enemy
combatants" could be picked up by the USA anywhere in the world and be
subjected to executive detention for the duration of the "war". He agreed
with the government that the detainees have no rights under constitutional
law to challenge the lawfulness of their detention because they are
non-resident foreign nationals captured abroad and held in a naval base
whose "ultimate sovereignty" was Cuba's.(195) Similarly, he concluded that
they had no rights under federal or international law. He seemed satisfied
to give the government the benefit of the doubt on the question of torture
and ill-treatment, despite the mounting evidence of such abuses by US forces
in the "war on terror". He maintained a similar blind faith in the CSRT
process. Amnesty International concluded that Judge Leon placed too much
trust in the executive and not enough in the rule of law and fundamental
human rights principles which the USA is obliged to uphold.(196)

Chiedo scusa se pubblico questo lunghissimo articolo per intero:
Non ti scuso.  Hai postato KB e KB di merda senza nemmeno fornire il
link.
-Stefano


Miriam, se avessi bisogno d'aiuto dopo la grande delusione
di cui porterai sicuramente i segni addosso per tutta la vita,
per non aver ottenuto le scuse di questo fesso, conta pure su di me. 

tcrpdmzzt ha scritto:


....e su di me. Io perň mi fido di quello che vorrai scrivere come
riassuntino brevissimo: so che non č corretto, ma non leggerň mai un
articolo cosě lungo, anche se me lo sono copincollato sul pc:-)))
gus
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Ma hai avuto cura di eliminare le parti oscurate ?