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GUANTANAMO AND BEYOND: THE CONTINUING PURSUIT OF UNCHECKED EXECUTIVE

POWERS" SUBMITTED FOR THE RECORD BY CHIP PITTS, CHAIR OF THE BOARD, AMNESTY INTERNATIONAL USA

Public

amnesty international

UNITED STATES OF AMERICA

Guantánamo and beyond: The continuing

pursuit of unchecked executive power

13 May 2005

AI Index: AMR 51/063/2005

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'

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?

1. Summary: The pursuit of unfettered executive power
2. Violating human rights erodes security and trust in government
3. Guantánamo detainees – the international legal framework..
4. Hypocrisy vs. human rights
5. Human rights law rejected by a war mentality
6. Seeking to render the Rasul decision meaningless
7. A judge with security credentials takes a more critical view
8. The Combatant Status Review Tribunal – no laughing matter.
9. Administrative Review Board - more of the same.
10. Military commissions - yet more executive injustice
11. An executive in pursuit of execution – Zacarias Moussaoui.
12. Torture and ill-treatment - the executive has a case to answer
13. Deaths in custody - evidence of abuse continue to emerge
14. Secrecy – the executive's weapon of mass distraction...
15. Transfers from Guantánamo and a return from Saudi Arabia
16. Unchecked power at home - “enemy combatants” in the USA
17. Guantánamo and beyond: The lawlessness must end.
Appendix 1: Some deaths in US custody in Afghanistan and Traq.
Appendix 2: Some additional extracts of CSRT testimony.
Appendix 3: Alleged detention and interrogation practices .
Appendix 4: Recommendations: Preventing torture & ill-treatment.
Appendix 5: Selected Al documents on “war on terror” detentions..

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109 - 116- 130 - 136 - 139 · 142 - 147 - 152 - 154 - 161

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Mohammed Nechle, 19 October 2004. Nechle v. Bush. Unclassified records of Combatant Status
Review Tribunal, In the US District Court for the District of Columbia.

USA Guantanamo and beyond The contowing pursud of unchecked executive power,

1. Summary: The pursuit of unfettered executive power It seems rather contrary to an idea of a Constitution with three branches that the erecutive would be free to do whatever they want, whatever they want without a check.

US Supreme Court Justice Stephen Breyer, 20 April 2004 In late December 2001, a memorandum was sent from the United States Justice Department to thc Department of Defense. * 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 Icaked to the media in mid-2004 in the wake of the Abu Ghraib torture scandal.

Not long after this lcak, on 28 June 2004. the US Supreme Court rulcd, in Rasul v. Bush, that the federal courts in fact do have jurisdiction to hear appeals from foreign nationals detained in Guantánamo Bay · 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 arguc in the courts to block any judicial revicw 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 crucl, 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 hcard (sce 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 overtured and that thc purcly 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 bricf did not point out or explain if it was purc coincidence – that all but six of these 38 cases had been decided after Judge Green's ruling. In any event,

Rasul v. Bush, oral argument. US Supreme Court. 20 April 2004. * Memorandum for William J. Haynes, II. Gencral Counscl. Department of Defensc. Re: Possible Habeas Jurisdiction over lliens Held in Guantanamo Bay, Cuba. From Patrick F. Philbin, Deputy Assistant Attorney General and John C. Yoo, Deputy Assistant Attorney General, 28 December 2001. hulp://wwa guu edul--nsarchi NSAEBBINSAFBBI27/01.12.28.pdf. Rasul v. Bush,000 U.S. 03-334, decided 28 June 2004.

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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:
• 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 argucs, repcating 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
sovcrcign over a particular forcign territory, they would not only underminc 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."
Even if the Fifth Amendment did api 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."
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
cncmy combatant status and a unique constitutional authority to prosccutc 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."
On the question of the Genova Conventions, thc bricf argucs, 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 otherwisc.

This brief is perhaps an unsurprising response from an administration whose outgoing Attorney General decried what he characterized as “intrusive judicial oversight and secondguessing of presidential determinations";? whose Justice Department formulated the position, acccpted by the White House Counsel, that the President - who apparently believes that there are people who are “not legally entitled” to humane treatment – could override the national and interational prohibition on torture; and whose Secretary of Defense has authorized interrogation techniques that violate international law and standards. This is an administration that has sought unchecked power throughout the “war on terror" and shown a

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Al Odah et al. v. USA et al. Opening brief for the United States. In the US Court of Appeals for the
District of Columbia Circuit, 27 April 2005 (internal quotation marks omilled).
Scc, for examplc, Ashcrofi criticizes judicial oversighi, Associated Press, 13 November 2004.
President George W. Bush. Subject: Humane treatment of al Qaeda and Taliban detainees. The White
House, 7 February 2002. bttp://www.gwu.cdu-asarchiv NSAEBBANSAEBB127/02.02.07 pdf.
Memorandum for Alberto R. Gonzales, Counsel to the President. Re: Standards of Conduct for
Interrogation under 18 U.S.C. SS 2340-2340A., Signed by Assistant Allorney General Jay S. Bybee,
Office of Lcgal Counsch, US Department of Justicc, 1 August 2002,
http://www.washingtonpost.com/wp-sy/nation/documents/dojinterrogationucino20020801.pdf.

Action memo. For Secretary of Defense, from William J. Haynes, General Counsel. CounterResistance Techniques. 27 November 2002. Approved by Secretary of Defense Donald Rumsfeld, 2 Dcccmber 2002. http://www.dçfçnsclink.mil/ncws/Jun2004/d20010622doc3.pdf.

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Guantanamo and devond

The copline pursukol mphecked executive power

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.

an

USA's “war on terror detainees, April 2005

Scction 5 of the report

points to overarching war (approximate tatutsfestimates)"

mentality adopted by the US USA: Naval Brig. Charleston, 2 “enemy combatants”

administration since 11 September South Carolina

2001 which has led it to manipulate

or jettison basic human rights Cuba: Guantánamo Bay naval 520

protections for detainccs, including base

instances of the USA refusing to (234 rclcascs/transfers)

recognize that United Nations

human rights experts have the Afghanistan: Bagram air base 300

mandate to raise concerns about US Afghanistan: Kandahar air base 250

actions in the "war on terror". For

cxamplc, UN Spccial Rapportcurs Afghanistan: other US facilities Unknown: estimated at

have raised allegations of (forward operating bases) scores of detainees cxtrajudicial cxccutions by US

forces, only to have the US reject Iraq: Camp Bucca

6.300

such concerns out of hand. In April

2005, the mandatc of the UN Iraq: Abu Ghraib prison

3.500

Independent Expert on the Situation

of Human Rights in Afghanistan Iraq: Camp Cropper

110

was not rcnewed. This is alleged to

have been the result of US Iraq: Other US facilities

1.300)

government pressure. The former

postholder has said that hc bclicvcs Worldwidc: CIA facilitics, Unknown: cstimatcd at

the non-renewal of his mandate was undisclosed locations

40 detainees

due to the USA's dislike of his Worldwidc: In custody of other

insistence that he should be allowed

Unknown: cstimated at governments at behest of USA several thousand

to visit detainees in US custody in detainees

Afghanistan, particularly in light of

allcgations of torture and illWorldwide: Secret transfers of Unknown: estimated at treatment of such detainees. detainees to third countries 100 to 150) detainees

Over a year after the Abu

Ghraib torture scandal broke, and as Foreign nationals held outside

evidence of torture and other cruel, the USA and charged for trial

inhuman or degrading treatment by Trials of foreign nationals held 0

US forces in the “war on terror in US custody outside thc USA

continues to mount, not onc US

agent has been charged with “war Total number of detainees held 70.000

crimes” or “torture" under US law outside thc USA by the US

(sce Section 12). In over 70 per cent during war on terror“

of announced official actions taken
in
response

to substantiated allegations of abuse, the punishment has been non-judicial or administrative. While a small

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Sourccs: US to expand prison facilities in Iraq. Washington Post, 9 May 2005; Detainee transfer announced, Departnent of Defense News Release. 26 April 2005: ICRC operational update. International Committee of the Red Cross. 29 March 2005; Department of Defense Briefing on Detention Operations and Interrogation Techniques, US Department of Defense, 10 March 2005; Rule change lets CLA freely send suspects abroad 10 jails. New York Times, 6 March 2005.

USA cuantanamo and nevond The contruido pursuit of enchecked executive power

However,

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 abuscs have been the actions of a few abcrrant 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 Attorncy 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 lcnicncy 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 - cxccutive bodics, 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 rcitcratcs its total opposition to the military commissions, which violate international fair trial standards in numerous ways.

Only forcign nationals can be tried by military commissions, violating the international rule that “all persons shall be equal before the courts and tribunals”. !2 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 “cncmy 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 tcrror" since the US-led invasion in March 2003." Hundreds remain in US custody in Afghanistan, with some in Bagram air base having been detained without trial and virtually incommuni

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 thc qucstion of their Icgal status and of the applicable legal framework”. !* 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 “outsourccd" torture via sccrct detaincc 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

12

13

Article 14(1), International Covenant on Civil and Political Rights, ratified by the USA in 1992.
President discusses war un terror. Fort Hood, Texas. 12 April 2005.
ICRC opcrational updatc, 29 March 2005.

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