USA Guantanamo and beyond - The continuing pursuit of unchecked executive power 442 courts lack jurisdiction over habeas petitions filed by alien detainees held outside the sovereign territory of the United States - the US authorities had not put all their eggs in the Guantánamo basket. The month after Guantánamo started receiving detainees, Deputy Secretary of Defense Paul Wolfowitz said of the administration's detainee policy, “either we detain them ourselves or we turn them over to a court in the United States, or we turn them over to another country"." Indeed, "only" approximately 750 people have been held in Guantánamo, of whom about 520 remained in the base by 26 April 2005. In August 2004, the UN's Independent Expert on Human Rights in Afghanistan, Professor Cherif Bassiouni, called on Coalition forces in Afghanistan to grant the national human rights commission and him access to "the main detention sites, where an estimated 300-400 persons are detained". He stressed that "the lack of transparency raises serious concerns about the legality and condition of their detention". 443 In March 2005, he called on coalition forces to provide access to all facilities to the national and international monitors, including the ICRC, UN special rapporteurs, and the Afghan government. Following another visit to Afghanistan in early 2005, the UN expert issued a statement in which he expressed his grave concern “at allegations of arrest, detention and mistreatment committed by foreign forces in Afghanistan. The Independent Expert is particularly concerned at allegations of possible torture having been committed in this context". As already noted above. in April 2005. the UN Independent Expert's mandate was not renewed as a result, he believes, of US pressure. 445 444 Kamal Sadat, a reporter with the BBC World Service in Afghanistan, has said that he was detained by US forces in Khost in September 2004. He says he was hooded and flown to a US base, whose location he did not know, and where there were detainees of different nationalities. He was released without explanation three days later. He has recalled: “Every time I was moved within the base, I was hooded again. Every prisoner has to maintain absolute silence.. Prisoners were arriving and leaving all the time. There were also cells beneath me, under the ground. It was only later I learned that I had been held in Bagram. If the BBC had not intervened. I fear I would not have got There are reported to be some 400 detainees held in Pakistan at the behest of the USA. Mohammed. a former detainee allegedly held in a facility jointly run by the Pakistan intelligence services and the CIA has said: "I was questioned for four weeks in a windowless room by plain-clothed US agents. 1 didn't know if it was day or night. They said they could make me disappear.' 5447 In addition, so-called "high-value detainees" - perhaps several dozen - are allegedly being held in CIA custody in secret locations in Afghanistan and elsewhere. Not even the ICRC has access to such detainees, whose fate and whereabouts remain unknown, leaving them outside the protection of the law and placing them squarely within the scope of the UN 411 Re: Possible habeas jurisdiction over aliens held in Guantanamo Bay, Cuba, Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, US Department of Justice. 28 December 2001. 442 Deputy Secretary Wolfowitz interview with Fox News Sunday, 17 February 2005. Department of Defense News Transcript. 443 Independent human rights expert ends visit to Afghanistan. United Nations press release, 23 August 2004. 444 Report of the independent expert on the situation of human rights in Afghanistan, M. Cherif Bassiouni. UN Doc. E/CN.4/2005/122, 11 March 2005, para. 89. 415 UN Expert on Human Rights in Afghanistan ends country visit. UN press release, 10 February 2005. 'One huge US jail', The Guardian Weekend magazine (UK), 19 March 2005. 446 447 Ibid. USA Guantánamo and beyond - The continuing pursuit of unchecked executive power Declaration on the Protection of All Persons from Enforced Disappearance. As noted above, "disappearances" are a crime under international law. Yet no one has been brought to account for these "disappearances”, known in US military parlance as "ghost detainees", at least onc of whom in Iraq died in custody." 448 Tanzanian national and alleged al-Qa'ida operative Ahmed Khalfan Ghailani is a recent case of an individual who may have "disappeared" in US custody. He is reported to have been arrested in July 2004 in Gujrat. Pakistan, in a joint US/Pakistan operation. After his arrest, he was held at an undisclosed location and would be interrogated "to our satisfaction before handing him over to the US for the trial", according to a quote attributed to Pakistan's Interior Minister. US agents were said to be participating in the interrogation." In January 2005, a Pakistani security official was quoted as saying that Ahmed Khalfan Ghailani “was turned over to our American friends months ago." Asked where the detainee had been taken, the official replied “We have no idea, and as a matter of fact we don't ask such questions. Ghailani's whereabouts remain unknown. ,,451 449 5:450 Another recent case of someone who is alleged to have "disappeared", possibly in US custody, is that of Mohammad Naeem Noor Khan, a Pakistan national who was arrested in July 2004 in Lahore, Pakistan. He was taken into custody by the Pakistan authorities on behalf of the USA. His interrogation reportedly provided the CIA with a "rich lode of information". Naeem Noor Khan's current whereabouts are unknown. Similarly, Libyan national and alleged senior al-Qa`ida operative Abu Faraj al Libbi, was detained in Pakistan on or around 2 May 2005 by Pakistan forces aided by US intelligence. He was reportedly being interrogated by US and Pakistan agents at an undisclosed location at the time of writing. 452 He was feared to be at risk of torture and other ill-treatment and transfer to and "disappearance" in US custody. 453 454 The whereabouts of some other individuals taken into US custody, or detained with US involvement, have remained unknown for more than three years. In its recent report to the UN Commission on Human Rights, the UN Working Group on Enforced or Involuntary Disappearances stated that it was "deeply concerned by the reports of the USA's use of secret detentions. It reminded the US government that secret detention facilities are "typically associated with the phenomenon of disappearance". Article 10 of the UN Declaration on the Protection of All Persons from Enforced Disappearance which states: 455 "Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention... Accurate information on the detention of such persons and their place or places of detention, including transfers, shall be made promptly available to their family members, their counsel or to any other persons having a legitimate interest in the information unless a wish to the contrary has been 118 Manadel al-Jamadi, see page 148 of USA: Human dignity denied, supra, note 17. 449 450 Pakistan Holds Top Al Qaeda Suspect, Washington Post. 30 July 2004. 451 'One huge US jail'. The Guardian Weekend magazine (UK). 19 March 2005. 452 US agents attend grilling of bin Laden lieutenant. Reuters, 6 May 2005, 454 453 Amnesty International Urgent Action, http://web.amnesty.org/library/Indev/ENGASA330072005. See pages 111-114, USA: Human dignity denied, supra, notc 17. See also, for example: Syria: "Disappearance" of Muhammad Haydar Zammar, AI Index: MDE 24/016/2005, 6 April 2005, http://web.amnesty.org/library/Index/ENGMDE240162005. 455 UN Doc. E/CN.4/2005/65. Question of enforced or involuntary disappearances. Report of the Working Group on Enforced or Involuntary Disappearances, 23 December 2004. para. 364. USA Guantánamo and beyond - The continuing pursuit of unchecked executive power manifested by the persons concerned... An official up-to-date register of all persons deprived of their liberty shall be maintained in every place of detention.....“ 457 4456 The Church Report summary of March 2005 concludes that "to the best of our knowledge, there were approximately 30 'ghost detainees', as compared to a total of over 50.000 detainees in the course of the Global War on Terror, as if this relatively small percentage of "ghost detainees" together with the claim that the practice of DoD [Department of Defense] holding 'ghost detainees' has now ceased", should assuage concern. It does not. Firstly, even a single case of "disappearance" is a gross violation of international law and standards. Secondly, not only are the whereabouts of numerous detainees still unknown, no one has been brought to account for past cases. For example, there has been no reason given as to why Secretary Rumseld's admitted authorization for hiding at least one such detainee in Iraq should not be considered to have been a "disappearance" or an otherwise illegal secret detention and should not lead to a criminal investigation. Yet as already stated, the Church investigation did not even question Secretary Rumsfeld and the Schlesinger Panel chair considers Secretary Rumsfeld's conduct to have been "exemplary". Mohamedou Ould Slahi, a Mauritanian national arrested in Mauritania in December 2001, is alleged to have been secretly transferred to Jordan for interrogation before being eventually brought to Guantánamo, where he remains.458 Jamal Mari, a Yemeni national, was arrested in Pakistan in late 2001. While held in Pakistan, he was allegedly interrogated several times by US intelligence agents. He was subsequently taken by plane to Jordan and held in an intelligence facility there. He has said that he was hidden from the ICRC for about a month - thus "disappearing" in custody for that period. He alleged that when the ICRC visited, he was taken down to the basement, but one time the detaining authorities forgot to take him down. The ICRC delegates were surprised to find him in the facility. His family then received a message from him via the ICRC. Jamal Mari was subsequently sent to Guantánamo Bay. In September 2004, at his CSRT hearing in Guantánamo three years after his detention, he said: 459 "[T]hey apprehended me on September 23rd 2001. They didn't capture me, but some people simply kidnapped me while I was asleep. I was captured with a Pakistani cook. There was nobody else with us. An American interrogator interrogated me, then we were given to Pakistan... They did not release me. They turned me over to the United States. They took me from Pakistan to Jordan... The United States is the one who took me to Jordan... I am not an enemy combatant, I am a sleeping combatant because I was sleeping in my home... How can you call a person an enemy combatant when you're sleeping in your own home and somebody comes to your home and takes you somewhere and you don't know where that is?” Another Yemeni national, Mohammed Mohammed Hassen, was arrested with about 10 other people in a house in Faisalabad, Pakistan, near the Salafia University where he was studying. He was taken to Lahore, where he was allegedly interrogated by US agents over a period of two to three days. He was then moved to Islamabad, where he was held for two months and interrogated once by US agents. He was subsequently taken to the airport by 156 Declaration on the Protection of All Persons from Enforced Disappearances, adopted by UN General Assembly resolution 47/133 of 18 December 1992. 457 General Paul Kern, who oversaw the earlier Fay investigation told the Senate Armed Services Committee on 9 September 2004 that the there might have been as many as 100 "ghost detainees" in Iraq. 158 Omar Deghayes, unclassified information, 30 March 2005. Also, see page 34, USA: The threat of a bad example, http://web amnesty.org/library/Index/ENGAMR511142003. USA Guantánamo and beyond - The continuing pursuit of unchecked executive power Pakistani agents and handed over to their US counterparts. Handcuffed and hooded, he was put on a plane and flown to Afghanistan, where he was held in Bagram and Kandahar air bases before being transferred to Guantánamo. The others with whom he was originally detained were also allegedly on the same plane to Cuba. 460 Reports that the CIA has operated a secret facility in Guantánamo, coupled with the Pentagon's refusal to release identities or to give anything but approximate totals for the numbers of people held in the base, raise fears of secret transfers to and from it and the possibility that there have been people held for interrogation there who would fall into the category of "disappeared" under international standards. It is not known exactly how many detainees have been held in Guantánamo who were not in the custody of the Department of Defense. On 29 March 2005, the US Secretary of the Navy Gordon England announced that Combatant Status Review Tribunals had been completed "for all of the DoD detainees at Guantánamo", and was unable to give an absolute assurance that this was all the detainees held at the base." 462 461 Amnesty International raised concern in November 2001 that, in the context of the "war on terror", the USA might expand its existing practice of "renditions" or secret detainee transfers. In April 2002, the organization urged the US administration not to "undermine the rule of law by promoting or participating in 'renditions' of suspects" following evidence that such secret transfers had occurred." 46 In August 2003, the organization raised more cases of renditions.*** In October 2004 it did so yet again, noting evidence that on 17 September 2001 President Bush had signed a Memorandum of Notification granting "exceptional authorities" to the CIA in the "war on terror", and also that he authorized the CIA to set up 460 On 26 April 2005, the Pentagon announced that the transfer of two detainees to Belgium left "approximately 520” detainees in Guantánamo. This is the same figure it gave on 19 April 2005, when it announced the transfer of 18 detainees out of the base to Afghanistan and Turkey. Prior to that, on 12 March 2005, the Pentagon said that the transfer of three detainees to Afghanistan, Maldives and Pakistan left "approximately 540 detainees" in Guantánamo. This is exactly what it said five days earlier on 7 March, when announcing the transfer of three detainees to France. Prior to that, the last figure it gave was "approximately 545" when it announced on 28 January 2005 that the transfer of Mamdouh Habib to Australia left "approximately 545" detainees in the base. This was the same figure it gave a few days earlier after four British detainees were returned to the UK on 25 January. The imprecision of the Pentagon's figures, and the failure to give the identities of the detainees, allows the possibility that individual detainees could be transferred to and from the base without being reflected in the figures. Sec Human Dignity Denied, pages 101-102, supra, note 17. 461 Defense Department Special Briefing on Combatant Status Review Tribunals, US Department of Defense News Transcript, 29 March 2005. Asked whether the CIA's practice of holding "ghost detainees" in Guantánamo had ended and whether the approximately 540 people officially reported as held at the base were all those currently held, the Navy Secretary said: “As far as I know, that's all the people in Guantánamo. I mean, I have no other data. As far as I know, that's the total number". The CIA's practice of holding “ghost detainees" has been so secretive that other parts of government have been kept in the dark. In Iraq, for example, the detention of three Saudi nationals as "ghost detainees" was apparently unknown even to the State Department, the US Embassy in Saudi Arabia, and Ambassador Paul Bremer, who headed the Coalition Provisional Authority at the time. See page 103, USA: Human dignity denied. supra, note 17. 462 USA: No return to execution - The US death penalty as a barrier to extradition, Al Index: AMR 51/171/2001, November 2001, pp. 16-24, http://web amnesty org/library/Index/ENGAMR511712001. 463 Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay. http://web.amnesty.org/library/Index/ENGAMR510532002. 461 See pages 29-32, 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 Guantánamo and beyond - The continuing pursuit of unchecked executive power 465 secret detention facilities outside the USA and to use harsh interrogation techniques. Amnesty International has never had a reply from the US authorities to its concerns. For example, it has yet to receive a response to the letter it sent to the CIA, President Bush, Secretary Powell, and Secretary Rumsfeld in August 2004 on the case of Khaled El-Masri, a German national allegedly transferred from Macedonia to incommunicado detention and illtreatment in Afghanistan in carly 2004. Amnesty International raised with the authoritics what Khaled El-Masri had said happened to him after he had been taken off a coach on 31 December 2003 as he was travelling into Macedonia and held there for the next three weeks. "On 23 January, he was told that he would be taken to the airport to fly back to Germany. Blindfolded and handcuffed, he states that he was taken to a car and driven to a location where he heard aeroplanes. He alleges that he was taken to a room, beaten and stripped of his clothes by having them cut from his body. When he refused to take off his underwear, he says he was beaten again at which point he undressed completely. He says he heard the sound of a camera taking pictures of him naked. At this point his blindfold was taken off and he says he saw six masked men dressed in black. Khaled El Masri states that he was given a diaper and blue track suit to wear, that his hands and feet were tied and that he was taken to a plane. In the plane, he alleges that he was thrown to the ground and tied to chains fixed at the sides of the aircraft. He states that he was blindfolded, hooded and made to wear earplugs and headphones. He claims to have been given an injection in each shoulder. He states that the plane took off at around 9pm on the evening of 23 January 2004. He says that he was given no reason for his arrest and detention at any time. 9.466 It has since been reported by NBC News that Khaled El Masri was kept in secret detention in the "Salt Pit" in Kabul, even after the CIA realized it had the wrong man in a case of mistaken identity." 467 468 Khaled El Masri's allegations mirror what has happened to others, for example, Australian national Mamdouh Habib, who was allegedly transferred from Pakistan with US involvement to Egypt where he was allegedly subjected to severe torture, Similarly, in a handwritten letter to the Combatant Status Review Tribunal, dated 8 December 2004, Pakistan national Saifullah Paracha wrote of his abduction by US agents in Thailand and his transportation to Afghanistan where he was held for more than a year before being transferred to Guantánamo where he remains: 465 "I reached Bangkok International Airport on July 06, 2003 and at the airport I was illegally and immorally arrested – back hand leg cuffed, black big mask on my head up to neck, was thrown on floor of station wagon facing down. I am heart patient. diabetic high blood pressure skin disorder, gout; it could have been fatal, there was no human consideration at all. From airport I was taken to unknown place for few days and kept eyes covered, ears cover, handcuffed, leg cuffed. After few day I The President's central policy memorandum of 7 February 2002 noting that the USA's values "call for us to treat detainees humanely, including those who are not legally entitled to such treatment" (however inadequate the protection it provided). did not apply to the CIA or other non-military personnel. See pages 107-116 of USA: Human dignity denied, supra, note 17.. 466 Letter to the CIA and members of the US administration from Amnesty International Secretary General Irene Khan, 20 August 2004. Letters were also sent to the authoritics in Afghanistan and Macedonia. 163 CLA accused of detaining innocent man. MSNBC.com, 21 April 2005. 468 See USA: Guantánamo -- an icon of lawlessness, AI Index: AMR 51/002/2005, 6 January 2005, http://web amnesty.org/library/Index/ENGAMRS10022005. |