USA Guantánamo and beyond - The continuing pursuit of unchecked executive power This is one of the reasons why Amnesty International is not calling for a bipartisan commission of inquiry made up of congresspersons, favouring instead experts entirely independent of government.3 378 Again, Amnesty International stresses that, under international law, US legislators have, alongside the executive and the judiciary, an obligation to ensure that all allegations of human rights violations are fully investigated. The UN Human Rights Committee has made it clear that, for violations of the ICCPR, which the USA ratified with the "advice and consent" of the Senate in 1992 [US Constitution Article II (2)], failures to abide by the requirements of the treaty "cannot be justified by reference to political, social, cultural or economic considerations within the State". 379 Amnesty International urges Congress not to allow party politics to interfere with their obligation to ensure full accountability for past violations and to initiate all necessary legislative and oversight measures to ensure non-repetition. In its General Comment 31, the Human Rights Committee continued that state parties must “make reparation to individuals whose rights have been violated": "Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy... is not discharged... [T]he Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations" 380 The judiciary In his January 2005 ruling, Judge Leon took the view that the ICCPR does not confer privately enforceable rights on individuals. The Guantánamo detainees, he said, therefore could not rely upon the ICCPR (or the UN Convention against Torture) as a viable legal basis to support the issuance of a writ of habeas corpus". He was apparently willing to leave to others the question of torture and other cruel, inhuman or degrading treatment. One of the cases before him was of David Hicks, which raises concerns under numerous provisions of the ICCPR. This Australian detainee was captured in Afghanistan in December 2001, transferred to Guantánamo Bay in January 2002, made subject to President Bush's Military order in July 2003 (and transferred that month to Camp Echo), and charged for trial by military commission in June 2004. David Hicks has signed an affidavit which includes the following allegations: "I have been beaten before, after, and during interrogations. I have been menaced and threatened, directly and indirectly, with firearms and other weapons before and during interrogations. I have heard beatings of other detainees occurring during interrogation, and observed detainees' injuries that were received during interrogations. I have been beaten while blindfolded and handcuffed. 378 Another reason is the long-standing reluctance, within all branches of government, consistently and fully to apply international law and standards to the USA. The 9/11 Commission's report into the attacks of 11 September 2001 has been widely praised. However, concerns have been raised about whether the Commission was truly non-partisan, independent and impartial. For example, see David Ray Griffin, The 9/11 Commission Report: Omissions and Distortions. Arris Books, 2005. 379 General Comment 31. UN Doc. CCPR/C/21/Rev.1/Add. 13, 26 May 2004, para. 14. * USA Guantánamo and beyond – The continuing pursuit of unchecked executive power I have been in the company of other detainees who were beaten while blindfolded and handcuffed. At one point, a group of detainees, including myself, were subjected to being randomly hit over an eight hour session while handcuffed and blindfolded. I have been struck with hands, fists, and other objects (including rifle butts). I have also been kicked. I have been hit in the face, head, feet, and torso. I have had my head rammed into asphalt several times (while blindfolded). I have had handcuffs placed on me so tightly, and for so long (as much as 14-15 hours) that my hands were numb for a considerable period thereafter. I have had medication the identity of which was unknown to me. despite my I have been forced to run in leg shackles that regularly ripped the skin off my ankles. I have been deprived of sleep as a matter of policy. I have witnessed the activities of the Internal Reaction Force (IRF), which consists of a squad of soldiers that enter a detainee's cell and brutalize him with the aid of an attack dog. The IRF invasions were so common that the term to be "IRF'ed" became part of the language of the detainees. I have seen detainee suffer serious injuries as a result of being IRF ed I have seen detainees IRF'ed while they were praying, or for refusing medication. 381 Nevertheless. Judge Leon took the narrow view that alleged torture or ill-treatment, "though deplorable if true... does not render the custody itself unlawful”. He seemed satisfied that "safeguards and mechanisms are in place to prevent such conduct and, if it occurred, to ensure it is punished." This is not good enough. The right to judicial review of the lawfulness of one's detention is itself a safeguard against torture and ill-treatment. To deny full judicial review is to allow torturers to operate unhindered. Besides, the confidence displayed by Judge Leon is misplaced. As already stated above, the investigations and reviews that have taken place so far into allegations of torture and ill-treatment have lacked scope, reach and independence. In some cases. whistleblowers have allegedly not been taken seriously or have been subjected to pressure to stay silent. In other cases, evidence has been destroyed. 382 383 381 Rasul et al. v. Bush et al. Affidavit in support of amended complaint and applications for injunctive relief. US District Court for the District of Columbia, 5 August 2004. Declassified in November 2004. 382 For example, see Military lawyers objected to interrogation methods at Guantanamo, sources say. New York Daily News, 13 February 2005. Also, ACLU news release, 4 March 2005, reporting on newly released documents revealing that a civilian interrogator claimed he had been transferred because "I refused to conduct my interrogations inhumanely". Also, Whitewashing torture? By David DeBatto. Salon.com, 8 December 2004. Thirty-six hours after telling his commanding officer that he had witnessed five incidents of torture and abuse of Iraqi detainees. US Sergeant Frank Ford, a counterintelligence officer stationed in Samarra, was strapped to a gurney and flown out of Iraq on a military plane on the grounds that he was suffering delusions as a result of combat stress. He was ordered to undergo a psychiatric evaluation in Germany, despite a military psychiatrist's initial conclusion that he was stable. The case has subsequently come light via the Freedom of Information Act lawsuit filed by the ACLU. See Soldier who reported abuse was sent to psychiatrist, Washington Post. 5 March 2005. See also. Navy Corpsman described pressure to "keep his mouth shut”. ACLU news release. 14 December 2004. 383 A DVD called "Ramadi Madness" including scenes of soldiers kicking a handcuffed detainee who later died; degrading a dead detainee's body; and joyriding while yelling profanities at Iraqi civilians, was destroyed after the case came under investigation, according to documents released to the ACLU. USA Guantánamo and beyond – The continuing pursuit of unchecked executive power 384 In addition, safeguards are sapped of meaning in the face of a lack of political will to enforce them or a tolerance, if not endorsement, at the highest levels for treatment that violates the international prohibition on torture and other ill-treatment. The Church Report's executive summary of March 2005 concluded that "there was a failure to react to early warning signs of abuse". What it did not mention was that early and continued warnings came from non-governmental organizations, among others, but that they were ignored. Indeed, a lawsuit recently filed in US court against Secretary of Defense Donald Rumsfeld on behalf of four Iraqi and four Afghan nationals who claim they were tortured in US custody including by "severe and repeated beatings, cutting with knives, sexual humiliation and assault, confinement in a wooden box, forcible sleep and sensory deprivation, mock executions, death threats, and restraint in contorted and excruciating positions" - notes such NGO warnings. For example, it points out that Amnesty International wrote to Secretary Rumsfeld in January 2002 and again in a 61-page memorandum in April 2002, expressing its concern about the treatment of detainees in Afghanistan and Guantánamo Bay. The organization never received substantive replies to these or any other communications which have urged full investigations into cases of torture and ill-treatment and full adherence to international legal protections for detainees. Instead, Secretary Rumsfeld later authorized interrogation techniques for use at Guantánamo which violated the international prohibition on torture or other cruel, inhuman or degrading treatment. That blanket authorization of 2 December 2002 was rescinded on 15 January 2003, with the proviso that the techniques could be requested of Secretary Rumsfeld on a case-by-case basis. Also under a 16 April 2003 memorandum authorizing certain interrogation techniques recommended by the Pentagon Working Group on Detainee Interrogations in the Global War on Terrorism, Secretary Rumsfeld may also authorize unspecified and potentially unlimited "additional interrogation techniques" on a case-by-case basis. The 16 April 2003 memorandum "remains in effect today", according to the March 2005 executive summary of the Church report. In her 31 January 2005 ruling. Judge Joyce Hens Green did not turn a blind eye to the evidence of torture and ill-treatment, and put it into the context of the Combatant Status Review Tribunal (CSRT). She concluded that the CSRT "did not sufficiently consider whether the evidence upon which the tribunal relied in making its enemy combatant' determinations was coerced from the detainees". She raised the case of Australian detainee Mamdouh Habib who has alleged that he was tortured in Egypt prior to his transfer to Guantánamo. 386 Like many others, he chose not to attend the hearing. His "Personal Representative" told the CSRT that "all the information that he has given up prior to talking ACLU news release, 4 March 2005. Photographs and video images depicting abuses in Afghanistan were destroyed to avoid "another public outrage" following the Abu Ghraib scandal. Afghan photos sparked inquiry. Los Angeles Times, 18 February 2005. See also case of the death of Nagem Sadun Hatab, in which physical evidence was destroyed. Page 149, USA: Human dignity denied, supra, notc 17. 384 Arkan Mohammad Ali, Thahe Mohammed Sabbar, Sherzad Kamal Khalid, Ali H., Mehboob Ahmad, Said Nabi Siddiqi, Mohammed Karim Shirullah and Haji Abdul Rahman v. Donald H. Rumsfeld. Complaint for declaratory relief and damages. In the United States District Court for the Northern District of Illinois. March 2005. 385 "If. in your fi.e. Commander. US Southern Command's] view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detaince". Memorandum for Commander. US Southern Command: Counter-Resistance Techniques in the War on Terrorism. 16 April 2003, available at http://web.defenselink.mil/news/Jun 2004/d20040622doc9.pdf. 386 See, for example, USA: Guantánamo – An icon of lawlessness, Al Index: AMR 51/002/2005, 6 January 2005, http://web.amnesty.org/library/Index/ENGAMR510022005. USA: Guantánamo and beyond – The continuing pursuit of unchecked executive power 387 to me on 17 September 2004 was under duress". The Personal Representative also relayed that Mamdouh Habib considered that conditions in Camp 5 of Guantánamo Bay, "where the lights are on and the fans run constantly is a form of torture”. The CSRT determined on 22 September 2004 that he was an "enemy combatant" He was transferred to Australia four months later, on 28 January 2005, and released. Judge Green noted that “Mr Habib is not the only detainee before this Court to have alleged making confessions to interrogators as a result of torture" and that evidence had been introduced indicating that “abuse of detainees occurred during interrogations not only in foreign countries but also in Guantánamo itself. She highlighted recently revealed claims of such abuse made by an FBI agent: "On a couple of occassions (sic). I entered interview rooms to find a detainee channed hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defacated (sic) on themselves and had been left there for 18, 24 hours or more. On one occassion (sic), the air conditioning had been turned down so far and the temperature was so cold in the room. that the barefooted detainee was shaking with cold. When I asked the MPs what was going on I was told that interrogators from the day prior had ordered this treatment, and the detainee was not to be moved. On another occassion (sic), the AC had been turned off. making the temperature in the unventilated room probably well over 100 degrees. The detainee was almost unconscious on the floor with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night. On another occassion (sic), not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor. The executive 388 If the executive has nothing to hide and nothing to fear from a full independent investigation into the USA's policies and practices on detentions and interrogations in the "war on terror", then it should support such an inquiry. In addition, the US Department of Justice is the executive authority with the power to initiate procedures to enforce the War Crimes Act and the Anti-Torture Act, both passed in 1996. The Attorney General is the Justice Department's chief office-holder. So far no one has been charged under these acts. The only person so far prosecuted by the Justice Department for alleged "war on terror" abuses - a civilian contractor working with the CIA charged with assaulting an Afghan detainee who died in custody - was not charged under either act. The Justice Department failed to clarify to Amnesty International why not. 389 Amnesty International is concerned by prima facie evidence that senior members of the US administration, including President Bush and Secretary of Defense Rumsfeld, have authorized human rights violations including "disappearances" and torture or other cruel, inhuman or degrading treatment. In addition, senior officials, including the current and previous Attorneys General, may have been involved in a conspiracy to give immunity to US agents. most specifically members of the CIA, from prosecution for torture or war crimes under US law. For example, both former Attorney General John Ashcroft and current 390 38" Habib v. Bush CSRT unclassified factual returns, In the US District Court for the District of Columbia. 3xx http://www.aclu.org/torturefoia/released/FBI 121504.5053.pdf 189 See pages 159-160, USA: Human dignity denied, note 17, supra. 390 At the same time, the USA has an active campaign of opposing the International Criminal Court (ICC). The Bush administration has stated that it does not intend to ratify the Rome Statute of the ICC, and has been pressurizing governments around the world to enter into impunity agreements which commit them not to surrender to the ICC any US nationals accused of genocide, crimes against USA: Guantánamo and beyond - The continuing pursuit of unchecked executive power Attorney General Alberto Gonzales advised President Bush that not applying Geneva Convention protections to detainees captured in Afghanistan would make future prosecutions for war crimes under US law more difficult. It is alleged also that Alberto Gonzales. in his role as White House Counsel. requested the now infamous 1 August 2002 Justice Department memorandum on torture following a request from the CIA for legal protections for its interrogators. 391 That memorandum. which Alberto Gonzales "accepted" as a "good-faith effort", represented the position of the executive branch until it was withdrawn in late June 2004. If it were not for leaks, including of the Abu Ghraib torture photographs, it has to be considered likely that the memorandum would still be secret and still represent the position of the administration to this day. Instead, a replacement was issued on 30 December 2004, shortly before Alberto Gonzales was to come before the Senate Judiciary Committee to face questioning on his nomination to the post of US Attorney General." 392 393 While the replacement memorandum is an undoubted improvement on its predecessor. many of the contents of the original memorandum live on in the Pentagon's Working Group Report on Detainee Interrogations in the Global War on Terrorism, dated 4 April 2003, which has not been withdrawn or replaced. In addition, the December 2004 memorandum does not address some of its predecessor's contents, such as the assertion that the President can authorize torture and that there can be various defences against criminal liability for torture. To address such questions, the new memorandum asserts, is "unnecessary", as the President has stated that the USA will not engage in torture. This omission is regrettable, as this is a time for closing all loopholes, not leaving open the possibility for future abuse. The only position consistent with the absolute prohibition in international law on torture and its status as an international crime, regardless of the rank or position of the perpetrator, would have been to state unequivocally that no one, the President included, has the right or the authority to torture detainees or to order their torture and that anyone, the President included, who does so will have committed a crime. Instead, by relying solely on the President's words, the 2004 memorandum actually reinforces the position of its August 2002 predecessor that it is entirely up to the President to decide on these matters. The 2004 memorandum cites as an example of President Bush's opposition to torture his statement on the occasion of UN International Day in Support of Victims of Torture in June 2004, in which he stated that the USA will not tolerate torture. We will investigate and prosecute all acts of torture." Firstly, the President made a similar statement a year earlier, at which time the August 2002 memorandum was still secret and in force. Secondly, the President apparently believes that there are people who are not legally entitled to humane treatment", as he stated in a memorandum of 7 February 2002 which remains in force. Thirdly, as noted above, not a single person has been prosecuted for "torture" under the Anti-Torture Act, and the investigations into allegations of torture and other cruel, inhuman or degrading treatment have lacked independence, scope and reach. As humanity or war crimes. The US Department of Defense's March 2005 National Defense Strategy stresses that "legal arrangements should.....provide legal protections for our personnel through Status of Forces Agreements and protections against transfers of US personnel to the International Criminal Court." 391 See USA: Human dignity denied. note 17. supra. 392 That memo represented the position of the executive branch at the time it was issued": and: “It represented the administrative branch position”. “I accepted the August 1, 2002, memo”. Alberto Gonzales, White House Counsel, in response to oral questions from Senator Patrick Leahy and Senator Edward Kennedy and written questions from Senator Richard Durbin during the US Attorney General nomination hearings before the Senate Judiciary Committee. January 2005. 393 Daniel Levin, Acting Assistant Attorney General, Memorandum for James B. Comey, Deputy Attorney General. Re: Legal standards applicable under 18 U.S.C. §§ 2340-2340A, 30 December 2004, http://www.usdoj.gov/olc/dagmemo.pdf. |