Launching the State Department's latest report on human rights in other countries in March, Secretary of State Colin Powell spoke of the "steadfast commitment of the United States to advance internationally agreed human rights principles worldwideAs we lead an international campaign against terrorism, we are also working to extend the blessings of freedom at home and abroad". In a letter to a US Senator in June, the Pentagon's General Counsel stated that the administration "fully share[s] your concern for ensuring that in the conduct of this war against a ruthless and unprincipled foe, the United States does not compromise its commitment to human rights in accordance with the law".(2) In July, the Assistant Secretary of State for human rights wrote to Amnesty International: "It is the policy of the United States Government to pursue human rights and the rule of law as a central element of foreign policy. The US approach to countering terrorism does not conflict with or violate this policy".(3)
Actions, however, speak louder than words, and some of the US administration's actions since 11 September 2001 threaten to erode international law and standards forged over the past half-century or more.(4) Prior to the invasion of Iraq, diplomat John Brady Kiesling resigned from the US Foreign Service. He wrote in his resignation letter to Secretary Powell: "We are straining beyond its limits an international system we have built with such toil and treasure, a web of laws, treaties, organizations, and shared values that sets limits on our foes far more effectively that it ever constrained America's ability to defend its interests".(5)
A less than wholehearted approach to international standards on the part of the USA is not new this is a country that has been slow to commit itself to human rights treaties and has attached unprecedented conditions to some of those it has ratified.(6) Recently, however, this reluctance appears to have come closer to outright rejectionism. The USA's active opposition to the International Criminal Court is a case in point. Its worldwide campaign to have US nationals exempted from the Court's jurisdiction coincided with the US administration's own plans to try selected foreign nationals by military commissions executive bodies, not independent and impartial courts. Similarly, the USA's attempt to block the Optional Protocol to the United Nations Convention against Torture, which will establish a system of regular visits to places of detention, came at a time when the government was denying international human rights organizations access to hundreds of detainees held in its "war on terror".(7)
A report by an independent US government watchdog agency the Justice Department's Office of Inspector General published in June 2003, found there were "significant problems" in the treatment of non-US nationals detained in the initial post September 11 sweeps in the USA.(8) Hundreds of people were held, often for months, on minor visa violations in harsh conditions, and were deprived of rights including prompt access to attorneys.(9) While the US government has undertaken to reform some of its procedures in response to that report, no such scrutiny has been permitted in the case of the hundreds of non-US nationals who continue to be held outside the USA in its ongoing "war on terror".
The Department of Defence continues to hold hundreds of foreign nationals without charge or trial in the US Naval Base in Guantánamo Bay in Cuba. Many have been held there for more than a year in conditions the totality of which may amount to cruel, inhuman or degrading treatment. None was granted prisoner of war status or brought before a competent tribunal to determine this status as required by the Geneva Conventions. None has had access to any court or to legal counsel. Visits by family members have not been granted, thereby drawing relatives into the distress of this indefinite and unchallengeable detention regime. On 3 July 2003, it was announced that President Bush had named six detainees under the Military Order he signed in November 2001, making them eligible for trial by military commission. Any such trial would contravene international fair trial norms, and any executions carried out after such trials would violate minimum international safeguards applying to capital cases.
Detainees have been held incommunicado in US bases in Afghanistan. Allegations of ill-treatment have emerged. Others have been held in incommunicado US custody in undisclosed locations elsewhere in the world, and the US has also instigated or involved itself in "irregular renditions", US parlance for informal transfers of detainees between the USA and other countries which bypass extradition or other human rights protections. Two US nationals have been held incommunicado for more than a year in military custody without charge or trial in the USA, having been designated as "enemy combatants" by the executive. A third man, a Qatari national, was recently removed from the criminal justice system by presidential order just before his trial. Such resort to executive power threatens to undermine not only international law but also the US criminal justice system itself.
The US Government would seem to attach importance to how the country is perceived abroad. For example, questioned about the international fallout from the revelation that children were among the Guantánamo detainees, the Secretary of Defence replied that "I do know that we care what the rest of the world thinks".(10) In 2002, an executive order signed by President Bush established the Office of Global Communications to promote the USA's policies, including among other things, its oft-stated commitment to the rule of law, one example of what the administration calls the "non-negotiable demands of human dignity". However, respect for human rights is not a public relations exercise, and rather than responding constructively to the widespread international concern about the detainees in US custody in Guantánamo Bay and elsewhere, the administration has largely ignored or rejected it.
Early on, Secretary of Defence Rumsfeld dismissed concern about the Guantánamo detainees as "based on the shrill hyperventilation of a few people who didn't know what they were talking about."(11) Later, the White House spokesman dismissed Amnesty International's concern about the detainees as "without merit"(12). Such officials are at the same time rejecting the concerns of numerous organizations, courts, experts, and members of other governments. They include the former and current United Nations (UN) High Commissioners on Human Rights, the UN Working Group on Arbitrary Detention, the UN Special Rapporteur on the independence of judges and lawyers, the Inter-American Commission on Human Rights, the European Parliament(13), the Parliamentary Assembly of the Council of Europe,(14) and the International Committee of the Red Cross. The UK High Court last November described the situation of the Guantánamo detainees as "objectionable" and "in apparent contravention of fundamental principles recognizedby international law".(15) A resolution in the UK Parliament described the detentions as "arbitrary and therefore unlawful".(16)
According to Secretary Powell, "no country is exempt from scrutiny, and all countries benefit from constant striving to identify their weaknesses and improve their performance in this less-than-perfect world."(17) The US administration is not displaying an openness to such scrutiny, however. Not only is it seeking to keep the courts out of the equation, but international bodies too. In an opinion on the Guantánamo detainees, the UN Working Group on Arbitrary Detention wrote that it "deplores the lack of co-operation" of the US in responding to issues raised.(18) In July 2003, the UN Special Rapporteur on the independence of judges and lawyers had still not received a response from the USA to the urgent appeal he sent on 16 November 2001 relating to the Military Order that President Bush had signed three days earlier. Asked about this, the Rapporteur replied: "The Bush administrationhas not been very responsive to criticisms, and they have become a little intolerant to criticisms about themselves, but they are very free to criticize other governments when they violate human rights norms."(19)
Amnesty International has been denied access to Bagram Air Base and to Guantánamo Bay. Its concerns about raised in numerous communications have remained largely unanswered. These are not signs, at least in regard to the USA's own behaviour, that "the Bush administration is working in cooperation with governments, intergovernmental organizations, non-governmental groups and individuals to help bring human rights performance into compliance with international norms", as Secretary of State Powell asserted last year.(20)
Inside the USA, the damage being done to the country's reputation abroad has been noted. The New York Times has described the plight of the Guantánamo detainees as a "scandal" which must be redressed. "Whoever they are, their treatment should be a demonstration of America's commitment to justice, not the blot on its honor that Guantánamo has become."(21) Similarly, the Chicago Tribune has argued that "the image of the US holding hundreds of people for however long it wants without charge, trial or explanation violates the American tradition of justice. At this point Guantánamo seems to be tarnishing the image of the US, not protecting its security".(22) Newsday described the detainees as being "trapped in a twilight zone where their arbitrary designation as 'enemy combatants' affords them zero legal rights", a situation which "undermines the United States' reputation as a nation of laws".(23)
Secretary Powell seems to have come closer than some other administration officials to recognizing the damage being done to the reputation of the USA by its treatment of the detainees. In a reportedly "strongly worded" letter to Secretary of Defence Rumsfeld on 14 April 2003, citing complaints from the governments of eight allied countries whose nationals were among the prisoners, he wrote that the situation threatened to undermine international security co-operation.(24) Five weeks later Secretary Powell said that "Secretary Rumsfeld and I have been discussing how to expedite the movement of people out of Guantánamo" and had just concluded agreements with two countries, one of which was Saudi Arabia. He said that "we are working on all the other countries now, in an aggressive way, to see if we can clear up these cases, particularly if they involve people who are young".(25)
On 12 June 2003, the Swedish Foreign Minister met with Secretary Powell, and reiterated that it was unacceptable that Swedish national Mehdi Muhammed Ghezali was in Guantánamo without charge or trial after more than a year. She said that the Secretary of State "gave his word to engage in this particular case himself, which I see as positive." She warned against expecting an immediate solution, however, as Secretary Powell "is not the sole influential voice in the Bush administration".(26) A month later, the US Ambassador at Large for War Crimes Issues, Pierre-Richard Prosper, said that Mehdi Ghezali was not one of the prisoners slated for release in the near future.(27) Earlier, a US official had been reported as saying that the Swedish government's criticism of the USA had not helped the prisoner's situation.(28)
The revelation on 3 July that two UK nationals were among the first six detainees to be named by President Bush as eligible for trial by military commission caused a furore in the UK. A statement was issued that President Bush and Prime Minister Blair were "confident that their experts will be able to agree on a solution that satisfies the mutual interests of the US and UK".(29) It was later announced that the US had agreed, among other things, that the death penalty would not be pursued in the cases of the UK nationals and an Australian national, although the possibility of trial by military commission still loomed.(30) The Spanish government expressed the hope that it could obtain guarantees for its national and be able to get him "out of the legal limbo he has been in for the past year-and-a-half".(31)
Governments should work in the interests of their nationals, but human rights are universal and non-negotiable the fate of any detainee should not be dependent on alliances between countries. Governments should speak out firmly against all violations, including if an ally is the violator. As the President of the Council of Europe's Parliamentary Assembly has said: "In the US military base on Cuba, hundreds of persons, including some children, are being detained without being charged of crimes or recognised as prisoners of war. The US authorities have created a status of "unlawful combatant" in order to deprive these detainees of many of the basic guarantees provided by international law and the US constitution. For many, including in the US, this practice qualifies as unlawful and we cannot remain silent the defence of human dignity and the rights of all persons must be an essential part of our effort to eradicate terrorism around the globe."(32)
The USA has said that while it "will constantly strive to enlist the support of the international community in this fight against a common foe", it will "not hesitate to act alone".(33) To many observers, a unilateralist approach has seemed on occasion since 11 September 2001 to trample on the views of the international community, including in regard to the detention of those now held in US custody in Guantánamo and elsewhere.
The USA has contravened international law and standards in its treatment of detainees in its declared "war on terror" and it is setting a dangerous example in so doing. Double standards must end. International standards must be respected. As Secretary Powell said, states which demonstrate a high degree of respect for human rights are the most likely to contribute to international security and well-being. The US government from the White House to the Pentagon, from the Department of State to the Department of Justice, from the Central Intelligence Agency to the Department of Homeland Security should apply that thinking to its own conduct in relation to all those that come into its custody, at home or abroad.
A broad and open-ended "war"
The struggle against global terrorism is different from any other war in our history.
United States National Security Strategy, September 2002(34)
The US administration has responded to the atrocities of 11 September 2001 by characterizing its response as a "war". Its "war on terror" has indeed already seen two international armed conflicts the invasions of Afghanistan and Iraq but it has also consisted of an ongoing law enforcement effort at home and abroad. While the Justice Department continues to conduct investigations into "terrorism" within the criminal justice system, the US government has at the same time pursued a parallel system in which the executive has sweeping powers to detain, interrogate, charge or try suspects. Amnesty International believes that the executive has gone too far in this regard, arbitrarily framing a major part of the law enforcement effort in terms of war, and circumventing fundamental human rights safeguards in the process.
Symptomatic of this approach has been the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism signed by President Bush two months after the 11 September attacks. This provides for the trial by military commission or indefinite detention without charge or trial of anyone suspected of being or having knowingly harboured either a member of al-Qa'ida or someone who has "engaged in, aided or abetted, or conspired to commit, acts of international terrorism". (35) It is broad in scope and open-ended.
The Pentagon's instructions for the military commissions extend the concept of armed conflict to include single hostile acts or attempted acts, or conspiracy to carry out such acts, a definition so broad that it could encompass many acts that would normally fall under the jurisdiction of the normal criminal justice system. The instructions specifically state: "This element does not require a declaration of war, ongoing mutual hostilities, or confrontation involving a regular national armed force. A single hostile act or attempted act may provide sufficient basisso long as its magnitude or severity rises to the level of an "armed attack" or an "act of war", or the number, power, stated intent or organization of the force with which the actor is associated is such that the act or attempted act is tantamount to an attack by an armed force. Similarly, conduct undertaken or organized with knowledge or intent that it initiate or contribute to such hostile act or hostilities would satisfy therequirement".(36)
On 3 July 2003, it was announced that President Bush had named the first six detainees to fall under the provisions of the Order. None of them or anyone else named under the Order, whether tried or untried, will be "privileged" to seek, or have anyone seek on their behalf, in any court anywhere in the world, any remedy for any human rights violation that may have occurred against them, whether at the time of their arrest, during their detention, or during their trial by military commission. It is an attempt at unchallengeable executive power.
Following the naming of the six detainees under the Military Order, the United Nations Special Rapporteur on the independence of judges and lawyers stated that "in proceeding to apply these drastic measures to counter terrorism, the United States Government is seen defying United Nations resolutions, including General Assembly resolution A/RES/57/219 of 18 December 2002 and Security Council resolution S/RES/1456 of 20 January 2003".(37) The Rapporteur pointed out that these resolutions "reiterate very clearly that counter-terrorism measures must comply with international human rights law, humanitarian law and refugee law. It was the US that went to war with Iraq for breach of a Security Council resolution, and here we find the US blatantly defying these resolutions which they were party to."(38)
Despite framing its response in the language of "war", the US administration has taken a selective approach even to the laws of war. It was quick to demand full adherence to the Geneva Conventions for the protection of its own captured soldiers after it invaded Iraq in March 2003. It was equally swift to apply a less stringent approach to its own conduct in the case of the Bagram and Guantánamo detainees, many of whom were taken into US custody in the context of the international armed conflict in Afghanistan, but none of whom was granted prisoner of war status or brought before a competent tribunal to determine status, as the Geneva Conventions require.(39) The International Committee of the Red Cross (ICRC), the authoritative interpreter of the provisions of the Conventions, disagrees with the US position on the detainees.(40) The United Kingdom Government also disagrees. The UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs said of the USA's approach to the Geneva Conventions in regard to the Guantánamo detainees: "It is something that we have discussed with the United States, and frankly, we disagree with them about it."(41)
Instead of applying the Geneva Conventions in full, the US executive has chosen to drop hundreds of those it has detained in Afghanistan and elsewhere into a legal black hole, outside the sovereign territory of the United States, out of the reach of the courts, under the label "enemy combatant". According to the Pentagon "enemy combatant status may be used to describe an individual who, under the laws and customs of war, has become a member of or associated himself with hostile enemy forces, thereby attaining the status of a belligerent".(42) Again, the rules for military commissions apply a broad definition of the term "enemy"(43)
The administration's "war" scenario has also brought with it a disturbing attitude to the use of lethal force, or what President Bush has termed "sudden justice".(44) In this context, broad definitions of "armed conflict" and "enemy" raise concern. In April 2003, for example, the USA responded to the concern of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions that the killings in November 2002 of six men in a car in Yemen, blown up by an allegedly CIA-controlled Predator unmanned aerial vehicle, may have been extrajudicial executions. The US Government disagreed that "military operations against enemy combatants could be regarded as extrajudicial executions", 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".(45)
In Amnesty International's view, it is not at all clear why the laws of war would apply to this situation. Under existing international humanitarian law, it is not possible to have an international armed conflict between a state on the one hand and a non-state actor on the other, should the armed group not form part of the armed forces of a Party to the Geneva Conventions. The Geneva Conventions apply to situations of "armed conflict which may arise between two or more of the High Contracting Parties".(46) There is no armed conflict between the USA and Yemen, and the Yemeni authorities cooperated in the air strike.(47) In addition, there is no internal armed conflict between the government of Yemen (with the support of US forces) and al-Qa'ida. Accordingly, the proper standards applicable to this situation were law enforcement standards. The USA and Yemen should have cooperated to try to arrest these suspects rather than kill them. Rather than opting for killing them by remote control, lethal force should have been used only as a last resort.(48) 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.
As in the case of those killed in the car in Yemen, the US Government apparently takes the position that international human rights law and standards do not apply to detainees whom it has designated as "enemy combatants". For example, it holds that the mandate of the UN Working Group on Arbitrary Detention "does not include competence to address the Geneva Conventions of 1949 or matters arising under the law of armed conflict". What is more, it "disagrees with the conclusions reached by the Working Group that the individuals detained at Guantánamo are entitled to a review of the lawfulness of their detention". The USA maintains that there is "broad authority under the laws and customs of war to detain enemy combatants, without any requirement to bring criminal charges while hostilities last".(49) This situation may stretch far into the future. Despite "successes in Afghanistan and around the world", the US authorities said in late April 2003, "the war is far from over".(50) On 3 July, a senior Pentagon official stated that "the war on terrorism is open-ended".(51)
In some cases where detainees have been under the jurisdiction of the normal criminal justice system, the executive has stepped in to remove them. Jose Padilla, a US citizen arrested in May 2002 on alleged suspicion of conspiracy to detonate a radioactive "dirty bomb" in a US city, was originally held in the custody of the Justice Department and given access to an attorney. However, in June 2002 he was transferred to military custody after President Bush designated him as an "enemy combatant". Since then, he has been held in solitary confinement without charge or trial, and without access to an attorney or to his family in a navy jail in South Carolina. On 24 June 2003, President Bush declared Qatar national Ali Saleh Kahlah al-Marri to be an "enemy combatant" shortly before he was due to go to trial, and he too was transferred from Justice Department to Pentagon custody in South Carolina.
The very existence of a "parallel" system has a corrosive effect on the criminal justice system. The prospect of possible designation as "enemy combatant" and of transfer to indefinite detention without trial may coerce defendants into plea arrangements, as has already been alleged.(52) Some could find themselves penalized for pursuing their rights, for example to cross-examine witnesses. The administration may yet transfer Zacarias Moussaoui, a French national facing conspiracy charges in connection with the September 11 attacks, out of the criminal justice system and into military custody and possible trial by military commission if the federal courts rule against the government on the question of defence witnesses. Such a transfer would be another blow to the integrity of the criminal justice system.
Captured in Afghanistan, Yaser Hamdi was detained at Guantánamo until it emerged that he had US citizenship, at which point he was moved to military custody on the mainland. Over a year after the end of the international armed conflict in Afghanistan, he remained in untried military custody without access to counsel. In July 2003, the Fourth Circuit Court of Appeals rejected an appeal for the full court to reconsider an earlier decision of a panel of three of its judges allowing the government to continue the detention. A dissenting judge deplored the decision not to rehear the case. Judge Motz said that the original panel decision had marked "the first time in our history that a federal court has approved the elimination of protections afforded a citizen by the Constitution solely on the basis of the Executive's designation of that citizen as an enemy combatant, without testing the accuracy of that designation".(53)
John Walker Lindh, a US national captured in Afghanistan at the same time as Yaser Hamdi, was allowed a lawyer and was brought before a federal district court for trial. In the event, a plea arrangement was struck, in which the state agreed to forego the right to treat Lindh as an unlawful enemy combatant in return for a guilty plea. A year later, Yaser Hamdi remains in untried military detention as an "enemy combatant". Why were the two treated differently? In a country where race continues to play a role in the criminal justice system, such inconsistency may lead to speculation that the difference was that one was a middle class white Californian, and the other a young man born in the USA to Saudi parents. In any event, the Human Rights Committee, the body established by the International Covenant on Civil and Political Rights to oversee its implementation, has stated that in relation to the right to liberty, "arbitrariness" must not be equated simply to "against the law", but that it should be interpreted more broadly, to include notions of inappropriateness, injustice and lack of predictability.(54) The Washington Post has suggested that "there has to be some principle that guides these decisions other than what move best serves the government's interests at any given moment. Otherwise the law becomes a mere instrument of arbitrary state power".(55)
On 30 January 2003, UK national Richard Reid was sentenced to life imprisonment in US District Court for attempting to detonate explosives on an American Airlines flight from Paris to Miami in December 2001. Sentencing him, the judge told the defendant: "There is all too much war talk here... Here in this court, where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice, you are not an enemy combatant. You are a terrorist. You are not a soldier in any war you are a terroristBecause we all know that the way we treat you, Mr Reid, is the measure of our own liberties." Judge William Young reiterated in conclusion that "all this war talk is way out of line".
Former US Assistant Secretary of State for human rights under the last administration, Harold Koh, has said: "We undermine our own credibility with the rest of the world when we commit human rights abuses at home in the name of fighting a war against terrorism." By resorting to practices the USA has previously criticized in other countries, he says, "we encourage other countries to commit similar abuses in the name of fighting terrorism, and undermine our own ability to protest when they do".(56)
The question of torture and ill-treatment
Notorious human rights abusers, including, among others, Burma, Cuba, North Korea, Iran, and Zimbabwe, have long sought to shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors.
President George W. Bush, 26 June 2003.(57)
Since the attacks of 11 September 2001, there has been concern that the aggressive response of the US Government might include resort to the torture or ill-treatment of suspects taken into custody in the context of the "war on terror". This concern has been heightened by the denial of access to international human rights organizations to the hundreds of detainees held in Guantánamo Bay, Afghanistan and elsewhere, notwithstanding the access granted to the International Committee of the Red Cross,(58) and by comments such as that made by the former chief of the Central Intelligence Agency's Counterterrorist Center, Cofer Black, who told members of Congress in September 2002 that while "operational flexibility" was "a highly classified area", he would confirm that "there was before 9/11 and after 9/11" and that "after 9/11 the gloves come off".(59)
The USA has variously used hooding, blindfolding, handcuffing, and shackling of detainees in Iraq, Afghanistan, and Guantánamo. Ill-treatment of detainees reported to Amnesty International delegates in Iraq include prolonged sleep deprivation, prolonged restraint in painful positions, sometimes combined with exposure to loud music, prolonged hooding, and exposure to bright lights. The organization has reported on this separately.(60)
A man interviewed by Amnesty International in Kandahar province in Afghanistan recalled how he was one of 34 members of the Afghan army taken into custody by US forces on 17 March 2002. Abdullah stated that the men's hands were tied behind their back with plastic zip ties, and that they were taken to the US base in Kandahar. There, he said, they were lined up and ordered to lie down on the gravel, where they lay for several hours. He said that during this time, he was kicked in his ribs. He said that all the men had hoods placed over their heads and were searched by dogs; the men were shaved of all their facial and body hair. Abdullah said that he was shaved by a woman. He alleged that during interrogation, he was handcuffed, his feet were tied together, and a hood was placed over his head.
In an interview on 30 July 2003, Afghan national Alif Khan told Amnesty International that he was held in US custody in Bagram Air Base for five days in May 2002. He said that he was held in handcuffs, waist chains, and leg shackles for the whole time, subjected to sleep deprivation, denied water for prayer and ablution, and interrogated once or twice a day. He was kept in a cage-like structure with eight people, and no speaking was allowed between the detainees. Alif Khan said that he was then transferred to Kandahar Air Base where he was held for 25 days. Again he was held in handcuffs, shackles and waist chains, for most of the time. Although he was allowed to sleep, he said that there were many interruptions, including for interrogations twice or three times every day, and by the constant noise of aircraft. He added that he was subjected to daily intimate body searches, in what he described to Amnesty International as being "searched from both sides". Another former Bagram detainee, Sayed Abbasin, has told Amnesty International that he was made to kneel for hours and also subjected to sleep deprivation and prolonged shackling. Others have made similar allegations.
In December 2002 the Washington Post, citing interviews with "several former intelligence officials and 10 current US national security officials including several people who witnessed the handling of prisoners", alleged that detainees in Bagram had been subjected to "stress and duress" techniques during CIA interrogation.(61) US military officials in Afghanistan have since been quoted confirming the use of these techniques, and former prisoners have also alleged their use. The techniques alleged include prolonged standing or kneeling, hooding, blindfolding with spray-painted goggles, being kept in painful or awkward positions, sleep deprivation, and 24-hour lighting. The deaths in Bagram of two detainees in circumstances suggesting that they may have been beaten (see below), the incommunicado detention of numerous detainees in undisclosed locations, and reports that the US has transferred some detainees to countries known to practice torture, have fuelled the concerns.
The US authorities have consistently stressed that the detainees in their custody are being treated humanely placing particular emphasis on the provision of appropriate food and medical care. US officials have also given assurances that detainees will be treated humanely during interrogations. In June 2002, for example, Colonel Donald Woolfolk, the Deputy Commander of the Joint Task Force 170 at Guantánamo Bay, gave a written assurance that the USA "does not employ any corporal means of coercion to gain information from persons being interrogated. Rather, the United States has adopted a humane approach to interrogation that relies upon creating an atmosphere of dependency and trust between detainees and the intelligence gathering staff assigned to that detainee."(62) In March 2003, the White House spokesman said that: "The standard for any type of interrogation of somebody in American custody is to be humane and to follow all international laws and accords dealing with this type of subject. That is precisely what has been happening, and exactly what will happen".(63)
In a letter to Senator Patrick Leahy on 25 June 2003, Pentagon General Counsel William Haynes wrote that government policy was to "comply with all of its legal obligations in its treatment of detainees, and in particular with legal obligations prohibiting torture".(64) He added that detainees would be treated and interrogated in a manner that is "consistent with" the constitutional prohibition on cruel and unusual punishment, and that "credible allegations of illegal conduct by US personnel will be investigated and, as appropriate, reported to proper authorities". Finally, he wrote that the USA would not transfer anyone to a country where they may face torture, and if necessary would seek assurances from the receiving country that torture would not be used against the transferred individual. He added that the USA would "take steps to investigate credible allegations of torture and take appropriate action if there were reason to believe that those assurances were not being honoured".
Amnesty International has welcomed the Pentagon's assurances. However, the organization's concerns about the past, present and future treatment of detainees in the "war on terror" have not been assuaged. For example, does the US administration consider the allegations made to Amnesty International and others, for example, in the Washington Post in December, to have been unfounded? If not, what investigations have been conducted and with what results? What specific measures is the government taking to ensure that all its agents comply with national and international law and standards for the humane treatment of detainees? How thorough and impartial are the investigations into allegations of ill-treatment? More broadly, are there specific interrogation techniques or conditions of detention that the US Government considers to be acceptable that would be contrary to the international prohibition on cruel, inhuman or degrading treatment or punishment?
This latter question is relevant because of the USA's approach to Article 16 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention against Torture") which requires governments to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture". When the USA ratified the Convention in 1994, it lodged a reservation to Article 16 to the effect that it agreed to be bound by the prohibition on cruel, inhuman or degrading treatment only to the extent that this term matched the constitutional ban on "cruel and unusual" punishments. In effect, the reservation can severely limit US obligations under the Convention, and could apply to any US laws or practices which may breach international standards for humane treatment but are allowed under the US Constitution. The US entered an identical reservation to Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which the Human Rights Committee, the body established by the ICCPR to oversee its implementation, has stated is "contrary to the object and purpose of the treaty" and which it has urged the US to withdraw.(65) In 2000, the Committee against Torture, similarly established to oversee implementation of the Convention against Torture, said that the US reservation violated that treaty and had the effect of limiting its application. It called on the USA to withdraw it.(66) The Pentagon's letter of 25 June 2003 not only makes no reference to the Committee's position, but underlines the US position that its Constitution will take precedence over international law.
This is important because the USA has shown a tendency to condone some treatment of prisoners that diverges from what is widely considered acceptable among the international community of states.(67) For example, some 70,000 prisoners in the USA are held in super-maximum security facilities in conditions solitary confinement and reduced sensory stimulation which the UN Committee against Torture, has referred to as "excessively harsh".(68) The USA has not acted upon the Committee's finding in this regard. (69)
In the current context, Amnesty International considers that the totality of the conditions in which most of the Guantánamo detainees have been held, including the indefinite, prolonged and isolating nature of the detentions, can amount to cruel, inhuman and degrading treatment. Prolonged incommunicado detention, an abuse to which detainees held in Bagram Air Base and at undisclosed locations have been subjected, not only facilitates torture but can also itself constitute a form of cruel treatment. The Committee against Torture has expressly held that restraining detainees in very painful positions, hooding, threats, and prolonged sleep deprivation are methods of interrogation which violate the prohibition on torture and cruel, inhuman or degrading treatment. (70)
There appear to be differing views within the US Government as to what constitutes torture or ill-treatment. In a meeting with the Danish Section of Amnesty International on 11 March 2003, for example, the US Ambassador at Large for War Crimes Issues, Pierre-Richard Prosper, expressed his doubts that sleep deprivation could be categorized as torture. Yet the State Department's entries on Pakistan, Saudi Arabia, Libya, Jordan and Turkey in its latest human rights report, for example, list sleep deprivation among the torture methods used. Now the US is alleged to have used sleep deprivation against "war on terror" detainees.
Even if the "stress and duress" techniques alleged to have been used in Bagram and elsewhere would be prohibited under existing US case law, and even if the detainees are protected by a policy to treat them in a manner that is consistent with constitutional definitions of "cruel and unusual", as the Pentagon's letter of 25 June states, it should be remembered that none of the detainees in Guantánamo, Afghanistan or held at undisclosed locations, has access to any US court to be able to challenge the circumstances of their arrest, the conditions of their detention or their treatment during interrogation. The one US national who has had access to the courts and alleged ill-treatment by US agents during his capture in and transfer from Afghanistan has since withdrawn those allegations as part of a plea arrangement made with the government. John Walker Lindh alleged that he was subjected to cruel use of shackling and handcuffing, blindfolding, and that he was bound naked to a stretcher in a shipping container without light or heat for two or three days. (71) He alleged that he was threatened with death and torture. Under his plea agreement, he "puts to rest his claims of mistreatment by the United States military, and all claims of mistreatment are withdrawn."(72)
The detainees held in Guantánamo, Bagram and elsewhere are at the mercy of the executive, or rather the executive's interpretation of what protections the Constitution demands and the USA's international obligations require. President Bush recently asserted that the USA is "committed to the worldwide elimination of torture" and is "leading this fight by example".(73) Yet, under the Military Order he signed in November 2001 providing for trial by military commission and indefinite detention without trial, any foreign national named under the Order is explicitly "not privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding brought on the individual's behalf, in (i) any court of the United States or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal".(74) In other words there will be no judicial redress for any detainee named under the Military Order who may have been abused on arrest or during detention.
One practice that facilitates torture is incommunicado detention, as has been recognized by the Human Rights Committee,(75) the UN Commission on Human Rights,(76) the UN Special Rapporteur on Torture,(77) and the Inter-American Commission on Human Rights.(78) In its most recent report on human rights in Libya, the US State Department noted that "reports of torture were difficult to corroborate because many prisoners were held incommunicado". Its entry on Egypt notes that "incommunicado detention is authorized for prolonged periods and frequently accompanied allegations of torture". Detainees undergoing interrogation in Bagram Air Base are alleged to have been held in prolonged incommunicado detention and subjected to cruel treatment. Other detainees held in undisclosed locations have been denied access to the outside world. The USA cannot claim to be leading the struggle against torture by example, when the example it is setting is one of using prolonged incommunicado detention. Transparency, access and accountability are the most effective measures against torture and ill-treatment. The US should employ these measures and truly lead by example.
Bagram interrogation without adequate protection
It's important for all nations, throughout the world, to treat any prisoners well. And that is something the United States always expects, and the United States always does.
White House Press Secretary, Ari Fleischer, 7 May 2002.(79)
In May 2003, a former Guantánamo detainee who had been sent back to Afghanistan, recalled to Amnesty International the 40 days he had spent in US custody in Bagram Air Base in mid 2002 before his transfer to Cuba. Afghan national Sayed Abbasin said that he had not been hit by anybody, but that he had been forced to stand, sit and kneel. He described how being forced to kneel for four hours a day felt worse than being beaten. He says that a year later he still has knee problems. He described a regime of sleep deprivation 24-hour lighting and guards banging on cells and shouting to keep detainees awake. As noted above, in July 2003 former Guantánamo detainee Alif Khan made similar allegations to Amnesty International about his treatment in Bagram and Kandahar bases. A local human rights worker alleged in March 2003 that 20 former Afghan detainees had said that they were forced to strip and made to sit and kneel naked in awkward positions for hours during questioning in Bagram.(80) In an interview with Amnesty International on 29 July 2003 in Kabul, Taj Mohammad recalled what his brother Wazir, now in Guantánamo, had written a year earlier in a letter sent from the Bagram detention facility via the International Committee of the Red Cross (ICRC): "Here is no human rights. We are suffering, our condition is too bad".(81)
The Bagram facility apparently holds no more than 100 detainees at any one time.(82) Prior to their transfer to Cuba, many of the detainees now in Guantánamo were held in Bagram or Kandahar bases (the detention facility at the latter has since been closed), and there too they were denied access to lawyers, families, or the courts. It has been alleged that even the ICRC has not had access to all Bagram detainees, including to those held for up to two weeks.(83) Detainees in Bagram reportedly referred to by the US as "people under control" rather than detainees are alleged to have been subjected to prolonged standing or kneeling, hooding, blindfolding with blacked-out goggles, being kept in painful or awkward positions, sleep deprivation, and 24-hour lighting.(84)
Two detainees died at Bagram Air Base in December 2002 in suspicious circumstances. It is reported that neither had been seen by the ICRC. In March 2003, US military officials were reported to have confirmed that autopsy reports in the cases of Dilawar, a 22-year-old Afghan man, and Mullah Habibullah, aged about 30, gave cause of death as "homicide" and that "blunt force injuries" were found in both cases. By late June 2003, the Pentagon's investigation into the deaths was "still in progress", (85) and was believed to be ongoing in early August. Amnesty International awaits the full publication of the results of the investigation. Earlier events in Afghanistan left the organization unpersuaded that the US Government was serious about conducting thorough and impartial investigations into allegations of ill-treatment committed by its agents.(86) Amnesty International expects the USA to now apply the stringent standards of investigation to the deaths in Bagram that it expects of other countries.(87) The organization has also called for an investigation into the death in custody of another Afghan man in a US holding facility in Asadabad, Kunar province, around 22 June 2003.(88)
Two former detainees reportedly held in Bagram base at the same time as at least one of the prisoners who died there have alleged that they and others were made to stand naked, hooded and shackled, and were kept standing for hours at a time. One of them said that he had spent 16 days in the interrogation section of the facility, standing for 10 of them until his legs became so swollen that the shackles cut into his ankles, severely restricting the blood flow.(89) He and others said that they were kicked and shouted at by US guards to keep them awake while standing or during interrogation.(90) Other detainees have made similar allegations, including being subjected to humiliating taunts and verbal abuse by women soldiers.
Colonel Roger King, the chief US military spokesman in Bagram, confirmed that "we do force people to stand for an extended period of timeDisruption of sleep has been reported as an effective way of reducing people's inhibition about talking or their resistance to questioning." He was reported as saying that a "common technique" was to maintain 24-hour illumination in cells or to wake inmates up every 15 minutes to disorient them. Forced standing, he said, could also be used to punish any inmate who spoke to another.(91) Lt. Gen. Daniel K. McNeill, Commander of Joint Task Force 180 in Afghanistan, also acknowledged that prisoners had been subjected to forced prolonged standing in Bagram.(92)
In its entries on Pakistan, Saudi Arabia, Libya, Turkey, and Egypt, in its latest human rights report, the US State Department variously lists the following methods among under torture and other cruel, inhuman or degrading treatment: prolonged isolation, sleep deprivation, the forced spreading of the legs with bar fetters, detainees being "forced constantly to lie on hard floors", forced prolonged standing, and detainees being stripped and blindfolded and doused with cold water. However, at least one detainee released from Bagram has alleged that he was ordered to strip and then had a bucket of ice-cold water thrown over him. The detainee told Associated Press that "I couldn't say anything. I was so frightened. I didn't know what they would do next".(93)
On 18 April 2003, Amnesty International's request to visit detainees held in Bagram Air Base in Afghanistan was rejected in a letter from the Pentagon. The letter explained that "access to detainees is provided to the International Committee of the Red Cross, and on a case-by-case basis to selected government officials". The letter asserted that the detainees "continue to be treated humanely".(94) A request made by an Amnesty International researcher in Kabul in late July 2003 to be allowed to meet officials in Bagram Air Base remained unanswered.
Amnesty International has called for a full, impartial inquiry into the treatment of detainees in Bagram Air Base and for the findings to be made public. The organization has received information indicating that conditions in the facility have recently improved. Even if this were the case, it would not absolve the authorities from investigating any past abuses that may have occurred and from bringing to justice anyone responsible for torture or ill-treatment. In addition, no statements extracted under torture or ill-treatment should be used as evidence in any proceedings, except in prosecuting the alleged torturer. Anyone who is found to have been tortured or ill-treated should have access to full reparation, including fair and adequate compensation and rehabilitation. If anyone is found to have died as a result of torture, his or her dependants would be entitled to compensation.(95)
Guantánamo a regime cruel in its totality
We have made it clear to the Americans that many aspects of what has gone on at Guantánamo are not acceptable. We shall continue to do so.
United Kingdom government minister, Chris Mullin(96)
More than 650 people remain held without charge or trial in the US Naval Base in Guantánamo Bay in Cuba. They are from around 40 countries, and reportedly include nationals of Afghanistan, Algeria, Australia, Azerbaijan, Bahrain, Belgium, Canada, China, Denmark, Egypt, France, Iran, Iraq, Jordan, Kazakhstan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Qatar, Russia, Saudi Arabia, Spain, Sweden, Turkey, Uganda, United Kingdom, Uzbekistan and Yemen. Many of the detainees have been held in the base for well over a year. None has had access to any court, to a lawyer, or to family members. The military has not made public the precise numbers, identities or nationalities of the prisoners. Sporadic transfers to, and releases from, the base continue. On 18 July 2003, for example, the Pentagon announced the release of 27 detainees, believed to be 16 Afghan nationals and 11 Pakistan nationals, and the arrival of approximately 10 new inmates.(97)
Above the main gate of the Naval Base detention facility is a large sign bearing the slogan of Joint Task Force Guantánamo, the military unit which is "responsible for the detention and interrogation of enemy combatants apprehended by [the Department of Defence] and other US government agencies as a result of the ongoing Global War on Terrorism."(98) The slogan reads: "Honor Bound to Defend Freedom". Amnesty International believes, however, that in the name of "freedom" and national security, international standards are being undermined in this detention camp. Criticism of the administration's policy is widespread. The Economist, for example, has called for the facility to be dismantled. It has said that the treatment of the detainees is "unworthy of a nation which has cherished the rule of law since its very birth, and represents a more extreme approach than it has taken even during periods of all-out war. It has alienated many other governments at a time when the effort to defeat terrorism requires more international co-operation in law enforcement than ever before".(99)
Many of the Guantánamo detainees were taken into custody in the context of the international armed conflict in Afghanistan. None of these detainees has been granted prisoner of war status or brought before a "competent tribunal" to determine his status, as required by Article 5 of the Third Geneva Convention. The US government has insisted that tribunals only need be convened in the event of doubt, and that it has no doubt about the non-POW status of the detainees. The UN Working Group on Arbitrary Detention has noted that "the authority which is competent to determine prisoner-of-war status is not the executive power, but the judicial power."(100) The International Committee of the Red Cross has "repeatedly urged" the US to clarify "the legal status of each interneeon an individual basis".(101) Its exhortations have not been acted upon.
Common Article 3 of the Geneva Conventions requires that anyone taken into detention in the context of an armed conflict "shall in all circumstances be treated humanely". Among other things, this Article prohibits "outrages upon personal dignity, in particular, humiliating and degrading treatment". This protection is also contained in Article 75 of the first Additional Protocol to the Geneva Conventions, which reflects customary international law.
The first prisoners, transferred in groups of around 30 from Afghanistan on 20-hour flights in conditions of sensory deprivation and heavy use of restraints, arrived in Guantánamo Bay on 11 January 2002. The Pentagon released a photograph of detainees in orange jumpsuits, kneeling before US soldiers, shackled, handcuffed, and wearing blacked-out goggles over their eyes and masks over their mouths and noses, causing substantial international concern.(102) Released prisoner Sayed Abbasin has recalled: "I arrived tied and gagged; it was the act of an animal to treat a human being like that. It was the worst day of my life".(103) He said that he had not been told why he was being transferred or where he was being taken to, in violation of Article 75(3) of the first Additional Protocol, which states that "any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken."
Another former Guantánamo detainee, Muhammad Naim Farooq, in an interview for Amnesty International in Zurmat, Afghanistan, on 5 August 2003, also said that he had not been told where he was being taken, or why, when he was transferred to Cuba in mid-2002. He said: "We didn't know where we were going. We were without hope because we were innocent. I was very sad because I could not see my children, family and friends. But what could we do? Yes, we got enough food but what does this mean? My mother lost her eyesight while I was there".
Muhammad Naim Farooq recalled that the tightness of his handcuffs during the transfer injured his wrists, and that many of his co-detainees were crying "because of pain" or because they were "getting mad". Fellow Afghan national and released Guantánamo detainee Alif Khan told Amnesty International in an interview in Kabul in July 2003 that he had been given two injections, one in each arm, for his transfer to Cuba in June 2002. He said that he did not know what they were, but referred to experiencing "a kind of unconsciousness".
For the first three and a half months, the Guantánamo detainees were held in the small wire-mesh cages of Camp X-Ray. Together with the conditions of transfer, this caging called into question not only the USA's respect for Common Article 3, but also its adherence to Article 10 of the International Covenant on Civil and Political Rights, which states that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person". The Human Rights Committee has stated in its authoritative interpretation of Article 10: "Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable ruleThis rule must be applied without distinction of any kind".(104) The detainees' treatment would appear to give the lie to the USA's assertion that it "will champion the cause of human dignity and oppose those who resist it".(105)
A newly-built more permanent prison, Camp Delta, replaced Camp X-Ray from 28 April 2002. A medium-security facility inside Camp Delta, Camp 4, with a capacity of around 160 and a less harsh regime, became fully operational on 2 April 2003. In this facility, for example, the prisoners live communally, wear white clothes rather than the orange jumpsuits, and have more exercise time and other benefits. Camp 4, which the military admits differs "substantially" from the rest of Camp Delta, is where prisoners have been held for up to several months in preparation for their release. According to the military, this facility is for those detainees "who are considered less of a security risk to guards and other detainees, and who have been cooperative in the interrogation process." (106) The latter could suggest that even the US authorities consider the conditions in Camps 1 to 3 to be potentially coercive. Another facility, Camp Iguana, has been established for child detainees.
Most of the detainees, however, remain held in the maximum-security blocks of Camp Delta which have a capacity of over 800. The cells of Camp Delta are even smaller than was the case in Camp X-Ray. Camp Delta's cells measure six feet eight inches by eight feet (2.03 metres by 2.44 metres), compared to the eight feet by eight feet of Camp X-Ray's cells.(107) Detainees are held in these small cells for up to 24 hours a day.(108) One of the aspects of their treatment that has caused particular international disquiet is their lack of out-of-cell exercise time. The UK Government, for one, has said that it has pressed for adequate exercise for the detainees.(109) For many months, the detainees were given as little as 15 minutes of exercise time once or twice a week. According to the military, this has recently been upgraded to 30 minutes from three to seven times per week in wire-fenced concrete areas of about 25 feet by 30 feet. (110) This would still fall short of international standards. Article 38 of the Third Geneva Convention and Article 94 of the Fourth Geneva Convention provide, respectively, for prisoners of war and interned civilians to be afforded adequate outdoor exercise. Under the Third and Fourth Geneva Conventions, even detainees under disciplinary proceedings must have access to at least two hours outdoor exercise every day.(111) International human rights standards require that all prisoners have "at least one hour of suitable exercise in the open air daily if the weather permits".(112)
The detainees' right to be presumed innocent, and treated as such, unless and until they are convicted in a fair trial, has been flouted by an administration which has repeatedly labelled them as "terrorists". Vice President Dick Cheney, for example, has characterized the detainees as "the worst of a very bad lot. They are very dangerous. They are devoted to killing millions of Americans."(113) The detainees have been denied legal counsel despite being thus labelled and even though the repeated hours-long interrogations to which they have been subjected have had possible prosecutorial, as well as intelligence-gathering, implications, as US officials have stated on various occasions.(114) Secretary of Defence Rumsfeld recently said that one of the reasons the processing of the prisoners was taking so long was because "some of the agencies are focusing on law enforcement. What have these people done wrong that might lead to a law enforcement action in our country or another country?"(115)
Those interrogated include children and the elderly. Amnesty International has expressed concern about the well-being of Haji Naim Kuchai, a 65-year-old Afghan elder transferred to Guantánamo Bay in March 2003 after having been held at an undisclosed location for the previous three months. He is diabetic and had to wear a surgical belt following the removal of one of his kidneys.(116) An Afghan man released in October 2002, said to be in his 70s, recalled hours-long interrogations in Guantánamo Bay.(117) Another released prisoner told Amnesty International in May 2003 that the interrogations were "like torture".
As with the other detainees, Afghan national Muhammad Naim Farooq had been repeatedly interrogated in US custody in Afghanistan prior to his transfer to Guantánamo Bay. In his interview for Amnesty International in August 2003, he said that he was interrogated immediately after his arrival in Guantánamo Bay, but that he was not questioned again for another three months He was then interrogated monthly, for between 30 minutes and three hours. After several months he was told that his interrogations were over. However, he was still not released for another three months.
Muhammad Naim Farooq had been transferred to Guantánamo from Kandahar Air Base in Afghanistan in mid-2002. Before his transfer he said that he was told that he would soon be released. He said that he had been told the same thing when he was transferred to Kandahar, bound and blindfolded, from Bagram Air Base where he had spent a month after his arrest. In the event, he was held in Kandahar for four months and in Guantánamo for close to a year. Muhammad Naim Farooq suggested that the authorities should not tell prisoners that they will be released and then hold them for months longer. He said that many detainees "lost their nerves" because of this.
Amnesty International considers that the totality of the Guantánamo regime including the prolonged and indefinite nature of the detentions can amount to cruel, inhuman or degrading treatment. The organization recalls what the Deputy Commander of Camp X-Ray said, more than a year ago: "Consider yourself being locked up 24 hours a day; getting out once in a while very, very little getting out. Not knowing what's going to happen, probably not even knowing why you're here. I think it would frighten anybody".(118) Despite the opening of the medium security facility for pre-release inmates and a few dozen releases, little has changed.
In the context of the interrogations, the possibility of trials by military commission with lower standards of evidence than apply in normal US courts, raises concern about the potentially coercive nature of the conditions. Principle 21 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states: "It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person". Agreements to plead guilty, too, could possibly be coerced by this treatment. The rules for the military commissions under the November 2001 Military Order, provide that plea arrangements have to be approved by the Secretary of Defence, or his designee, the authority ultimately responsible for the conditions under which the detainees are being held.(119) Such officials are evidently fully supportive of the detention regime in Guantánamo Bay.
Media interviews with prisoners released from Guantánamo in April and May 2003 generally painted a picture of minimal direct physical ill-treatment, but some returnees spoke of humiliation and a regime quick to punish. Most were interviewed following their return to Afghanistan in conditions, including continuing incarceration in Kabul, |
