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USA Guantanamo and beyond - The continuing pursuit of unchecked executive power

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Military commission proceedings against two UK nationals were suspended following the widespread public concern in the UK that followed their naming under the Military Order in July 2003.2 From facing the possibility of being charged with war crimes and tried by military commission with the power to sentence them to death, the two detainees in question, Feroz Abbasi and Moazzam Begg, were transferred to the UK in January 2005 and released. Their cases further illustrate how the US has detained people, indefinitely and in cruel conditions, against whom whatever evidence it has is considered by other governments to be inadequate, unreliable or inadmissible even for a simple felony, let alone war crimes. It also suggests a political as well as an additionally arbitrary aspect to the detention - namely that any detainee's treatment depends upon the response and influence of his home government.

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Human rights are the "equal and inalienable rights of all members of the human family" All detainees must be treated in accordance with international law and standards rather than such treatment being dependent on the relationship their government has with the detaining power. The UK government, and all other governments, regardless of whether they have nationals in Guantánamo, should press the USA to abandon military commissions. Their opposition should be based on their own respect for international law and standards of justice and commitment to see universal application of such standards. For example, governments of countries that have ratified the Geneva Conventions (currently numbering over 190) are under obligation not only to themselves "respect" them, but also to "ensure respect" for them. If they believe that the military commissions do not meet Geneva Convention requirements, then they must actively oppose them, regardless of whether they have nationals facing trial by such commissions. Similarly, all states which are members of the UN are obliged under the Charter of the United Nations "to promote universal respect for, and observance of, human rights and freedoms", and must actively oppose the military commissions, as well as indefinite executive detention without trial.

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The UK parliamentary Foreign Affairs Committee has concluded that the UK government's position on the detentions at Guantánamo Bay - namely that it will only assist UK nationals detained there, not UK residents let alone detainees of other nationalities - "does not sit easily with its human rights commitments, not least its claim to "speak loudly and clearly on the international stage" against abuses. The Foreign Affairs Committee concluded that:

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"now that the British nationals have been released from detention at Guantánamo Bay, the Government need no longer keep its diplomacy quiet in the interests of increasing leverage over individual cases. We recommend that the Government make strong representations to the US administration about the lack of due process and

According to the Pentagon, President Bush decided on 18 July 2003 "to discuss and review potential options for the disposition of British detaince cases and not to commence any military commission proceedings against British nationals pending the outcome of those meetings [with the UK authorities]". DoD statement on British detainee meetings. Department of Defense news release, 23 July 2003. 245 Universal Declaration of Human Rights, preamble. According to the US Department of State, “the protection of fundamental human rights was a foundation stone in the establishment of the United States over 200 years ago. Since then, a central goal of US foreign policy has been the promotion of respect for human rights, as embodied in the Universal Declaration of Human Rights. The United States understands that the existence of human rights helps secure the peace, deter aggression, promote the rule of law, combat crime and corruption, strengthen democracies, and prevent humanitarian crises. http://www_state.gov/g/drl/br/.

246 Article I common to the four Geneva Conventions (1949). See similarly Article 1 of Protocol I Additional to the Geneva Conventions (1977).

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Human Rights Annual Report 2004. House of Commons Foreign Affairs Committee, March 2005, para 78, page 28.

USA Guantánamo and beyond - The continuing pursuit of unchecked executive power

oppressive conditions in Guantánamo Bay and other detention facilities controlled by the US in foreign countries” 248

Unlike Feroz Abbasi and Moazzam Begg, the other four detainees named as eligible for trial by military commission in July 2003, were charged in 2004 by the US authorities and are facing trial by military commission. They are Yemeni nationals Salim Ahmed Hamdan and Ali Hamza Ahmed Sulayman al Bahlul; Ibrahim Ahmed Mahmoud al Qosi, a Sudanese national, and David Matthew Hicks, an Australian. Either their governments' persuasiveness over, or access to, the US authoritics is less than that of the UK government, or they have no qualms about abandoning their nationals to the possibility of life imprisonment or execution following unfair trials.249

Amnesty International reiterates that the proposed trials by military commission executive bodies set up to obtain the conviction of foreign nationals on lower standards of evidence than would hold in the US courts - would flagrantly violate international fair trial standards and result neither in justice being done nor being seen to be done. It is particularly shocking that people could face execution after such trials.

The commissions entirely lack independence from the executive.

The right to counsel of choice and to an effective defence is severely restricted.
The defendant can face secret evidence which he will be unable to rebut.
The defendant can be excluded from certain parts of the proceedings.

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The commission rules can admit evidence extracted under torture or other coercion. ➤ There will be no right of appeal to an independent and impartial court.

Only foreign nationals are eligible for such trials, violating the prohibition on the discriminatory application of fair trial rights.

A US citizen, whether soldier or civilian, charged with a similar crime would not face trial by military commission, and would have the right to appeal to higher courts of law.

As well as the four detainees already charged, another nine detainees have been determined by President Bush to be subject to the Military Order, but had not been charged by

248 Ibid, para 79.

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For example, the Australian government "welcomed" the news that David Hicks had been "included in the first list of detainees from Guantanamo Bay to be eligible for United States Military Commission trials. David Hicks Eligible for US Military Commission Trial, Joint Media Release issued by the Australian Attorney-General and Minister of Foreign Affairs. 6 July 2003. More recently, it has been reported that there is growing unease within the Australian government, although not about the military commissions per se. One official is quoted as saying "We are very frustrated. The process is taking much longer than people might reasonably have expected. We don't want this guy [David Hicks] in limbo forever". Australia uneasy about US detainee case. New York Times, 10 April 2005.

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USA: Presidential order on military tribunals threatens fundamental principles of justice. Al Index: AMR 51/165/2001. 15 November 2001, http://web.amnesty.org/library/Index/ENGAMR511652001. Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantanamo Bay, AI Index: AMR 51/053/2002, April 2002,

http://web.amnesty.org/library/Index/ENGAMR510532002. USA: The threat of a bad example Undermining international standards as "war on terror" detentions continue. AI Index: AMR 51/114/2003, August 2003, http://web.amnesty.org/library/Index/ENGAMR511142003, USA: A deepening stain on US justice, AI Index: AMR 51/130/2004, August 2004, http://web.amnesty.org/library/Index/ENGAMR511302004.

Guantanamo and beyond - The continuing pursuit of uncheck

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executive power

early April 2005. 251 One of these nine detainees has been transferred to his country of nationality and released. His identity, or the identity of the other eight and whether they are held in Guantánamo, remain unknown. Another reason why the administration may be delaying charging them or any others is because it is waiting for resolution of the litigation over the legality of these commissions in the US federal courts. In November 2004, the postRasul petition for a writ of habeas corpus filed with District of Columbia District Judge James Robertson on behalf of Salim Ahmed Hamdan, challenging the lawfulness of the US administration's plans to try this Yemeni detainee, led to the suspension of the military commissions.

Judge Robertson reasoned that Salim Ahmed Hamdan captured during the international armed conflict in Afghanistan, should have been presumed to be a prisoner of war until a "competent tribunal" determined otherwise, as required under Article 5 of the Third Geneva Convention (see above). The judge pointed out that as a presumed prisoner of war, Hamdan could not be tried by a military commission; under Article 102 of the Third Geneva Convention "a prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power". US forces would normally be tried by court martial under the Uniform Code of Military Justice (UCMJ). “The Military Commission is not such a court", stressed Judge Robertson; "Its procedures are not such procedures”.

Judge Robertson ruled that, even if a "competent tribunal" determined that Salim Ahmed Hamdan was not a prisoner of war, he could not be tried by military commission because their rules were unlawful. Specifically, the treatment of classified or otherwise "protected" information did not meet the necessary standards. Judge. Robertson pointed out that in front of a military commission,

"The accused himself may be excluded from proceedings... and evidence may be adduced that he will never see (because his lawyer will be forbidden to disclose it to him). Thus, for example, testimony may be received from a confidential informant, and Hamdan will not be permitted to hear the testimony, see the witness's face. or learn his name. If the government has information developed by interrogation of witnesses in Afghanistan or elsewhere, it can offer such evidence in transcript form. or even as summaries of transcripts. The [commission authorities] may receive it in evidence if it meets the reasonably probative' standard but forbid it to be shown to Hamdan."

Judge Robertson 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" 253 However, he said that he needed to look no further

251 Presidential military order applied to nine more combatants. Department of Defense news release. 7 July 2004.

252 USA's Second Periodic Report to the UN Committee against Torture, 6 May 2005, supra note 16. Annex 1.

253 Including under Article 14 of the International Covenant on Civil and Political Rights and Article 75 of Protocol Additional I to the Geneva Conventions. The latter has long been considered by the USA to reflect customary international law, but the current administration, as part of its pursuit of unfettered executive power and disregard for international law, has refused to accept the applicability of this norm The Pentagon's Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, 4 April 2003. available at http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf, states that among the international instruments not binding on the USA is Article 75 of the First Additional Protocol to the Geneva Conventions, overturning the USA's long-held recognition of the “fundamental guarantees" of Article

USA Guantánamo and beyond - The continuing pursuit of unchecked executive power

than to the fact that, at least in this critical respect, the rules for the military commissions were contrary to, or inconsistent with, the requirements for US courts-martial which allow the defendant to be present in all proceedings except during the panel's deliberation and vote.

Judge Robertson emphasized that this issue was far from hypothetical, pointing out that Salim Ahmed Hamdan had already been excluded from parts of the commission panel selection process and that the government had already indicated that he would be excluded from two days of his trial during which the prosecution would present evidence against him.

Judge Robertson abstained on the question of whether such a trial would violate common Article 3 of the Geneva Conventions which prohibits trials by any tribunal other than "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples". However, as Judge Robertson noted elsewhere in his opinion, the International Court of Justice has said that the protections of common Article 3 "constitute a minimum yardstick" reflecting "elementary considerations of humanity”. Amnesty International would also submit that the fair trial guarantees provided in the International Covenant on Civil and Political Rights (ICCPR), ratified by 154 countries including the USA, and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), ratifed by 139 countries including the USA, reflect judicial guarantees recognized as indispensable by civilized peoples". The military commission process does not meet these standards.

The question of coerced evidence is significant, both for the rights of persons being tried and for its wider implications. Fair trial standards require the exclusion as “evidence” in any proceedings of any statement where there is knowledge or belief that it has been obtained as a result of torture or other cruel, inhuman or degrading treatment or punishment. While the military commission rules give the defendant the right not to testify at trial, and for no adverse inference to be drawn from such a decision, the rules also state that this "shall not preclude admission of evidence of prior statements or conduct of the accused." This violates Article 14 of the ICCPR, which provides the defendant the right "not to be compelled to testify against himself or to confess guilt". Article 15 of the of the CAT states:

"Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”.

Other coercive techniques - cruel, inhuman or degrading interrogation methods or detention conditions - are also internationally illegal and statements extracted as a result of them should be inadmissible in court. Article 12 of the UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states that:

“Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as

75 as reflecting customary international law (see footnote 128 and 137 in USA: Restoring the rule of law: The right of Guantánamo detainees to judicial review of the lawfulness of their detention. Al Index: AMR 51/093/2004, June 2004, http://web.ainnesty.org/library/Index/ENGAMR510932004. Article 75 prohibits, inter alia, physical and mental torture, outrages upon personal dignity, in particular humiliating and degrading treatment, as well as trial by any tribunal other than “an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure. While not expressly referring to the right to appeal to a higher tribunal, it states that "no provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law”. Consistent with the Human Rights Committee's General Comment 31, then, this would include the provisions of the ICCPR, which does include such right to appcal.

USA Guantanamo and beyond - The continuing pursuit of unchecked executive power

evidence against the person concerned or against any other person in any proceedings."

The Human Rights Committee has stated that "it is important for the discouragement of violations under article 7 [which prohibits torture and other cruel, inhuman or degrading treatment or punishment] that the law must prohibit the admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment. Committee has also stated that "confessions obtained under duress should be systematically excluded from judicial proceedings"."

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254 The

Again, this concern is more than mere speculation. Salim Ahmed Hamdan, for example, detained in Afghanistan and transferred to Guantánamo, has told his military lawyer that in US custody in Afghanistan he was "beaten, that he was held for about three days in a bound position, cold... dragged, kicked, punched." Lieutenant Commander Charles Swift, who describes the allegations as "credible", added that “two prisoners had been beaten to death and died during their interrogations. Everyone in the prison camp knew about it and decided, ‘hey, not for me. I'll tell them anything they want to hearTM” 256

In Guantánamo, after being charged, Salim Ahmed Hamdan was transferred to Camp Echo, the part of the detention facility used to house detainees facing trial by military commission. The military has claimed that detainees at Camp Echo are not in solitary confinement", 257 However, Salim Ahmed Hamdan was held for almost a year in solitary confinement in Camp Echo:

"Since December 2003 Mr Hamdan has been confined alone in a cell, in a house that is guarded by a single non-Arabic-speaking guard. A translator is rarely available. He receives 60 minutes of exercise outdoors three times a week, only at night... Mr Hamdan has described his moods during his period of solitary confinement as deteriorating, and as encompassing frustration, rage (although he has not been violent). loneliness, despair, depression, anxiety, and emotional outbursts. He asserted that he has considered confessing falsely to ameliorate his situation.

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Ten months after Salim Ahmed Hamdan was moved to Camp Echo, and less than one working day before his conditions of detention were to be challenged in Judge Robertson's court, the government informed the judge that the detainee had been moved out of isolation out of Camp Echo and into a pre-commission wing of Camp Delta, the main prison camp. This attempt to avoid judicial scrutiny did not stop Judge Robertson noting that the "the government is capable of repeating" its use of solitary confinement which had so far "evaded review". He ordered that Salim Ahmed Hamdan be moved back to the general population

254 General Comment 20, para 12.

255 Concluding Observations of the Human Rights Comité, Georgia. UN Doc: CCPR/C/79/Add.75, para. 26 (5 May 1997). Guidelines 15 and 16 of the UN Guidelines on the Role of Prosecutors state: "Prosecutors shall give due attention to the prosecution of crimes committed by public officials. particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law...": "When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods.... they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice".

256 Is wrture a good idea? Dispatches. Channel 4 TV (UK), 28 February 2005.

25? Fact sheet: Camp Echo and Camp Five. Updated: Junc 2004. JTF Public Affairs.

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Swift v. Rumsfeld. Declaration of Daryl Matthews. M.D., Ph.D., US District Court, Western District of Washington, 31 March 2004.

259 Hamdan v Rumsfeld, Memorandum Opinion, US District Court for the District of Columbia, 8 November 2004.

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