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USA: Human dignity denied: Torture and accountability in the 'war on terror'

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representatives of human rights organizations and (in armed conflicts and other applicable situations) the ICRC is also of great importance.

The UN Commission on Human Rights has stated that “prolonged incommunicado dcicntion may facilitatc thc pcrpctration of Torlure and can in itsell constituic a form of crucl, inhuman or degrading treatment or even torture”. The Iluman Rights Committee has stated that provisions should be made against the use of incommunicado detention, and the Commillcc against Torture has called for ils climination."" The Special Rappor cur on torturc. recognizing that “torture is most frequently practised during incommunicado detention”, has also called for such detention to be made illegal.

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2.2 Access to legal counsel Allegations of torture were difficult to verify because the police and security officials

frequenıly denied detainees limely access to lauyers. US State Department 2004 human rights report, entry on Jordan

Onc of the first prisoners of the USA in its “war on tcrror” Overscas was John Walker Lindh, a US citizen captured in Afghanistan. Ilis alleged treatment – stripping, blindfolding. threats, cruel use of restraints, use of humiliating photography *l, and denial of access to legal counsel or relatives – echocs what would happen iwo ycars later in Iraq. Furthermorc, il is allcged thal the General Counsel of the Department of Defense authorized John Lindh's interrogator to "lake the gloves olt" during his interrogation,

John Lindh was taken into US custody on 1 December 2001 in Afghanistan. Interrogated repeatedly in incommunicado detention, he repeatedly asked for a lawyer.

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Resolution: 2004/41, para. 8, 19 April 2004.

Human Rights Committee General Comment 20. supra, note 188. para. 11. Committee against Torture: UN Doc. A/52/44 (1997), para. 121(d).

UN DIx. E/CV.4/2002/76, 27 December 2001, Annex 1.

For example, soldiers allegedly "blindfolded Mr Lindh, and took several pictures of Mr Lindh and themselves with Mr Lindh. In one, the soldiers scrawled 'shithead' across Mr Lindh's blindfold and posed with him." James J. Brosnahan (Lindh's lawyer). Allidavit filed in USA v. Lindh. quoled in Chain of Command, by Seymour M. Harsh. The New Yorker, 17 May 2004.

Prison interrogators' gloves came off before Abu Ghraih. New York Times. 9 June 2004. For the first six days of US custody, his wounds untreated, Lindh was held in a room with the only window blocked, “inaking it dislicull lo discern whether it was night or day". Interrogated, he asked for a lawyer but was told he would be provided with onc latur. On 7 December 2001, he was transferred to the US base at Camp Rhino, south of Kandahar. “During the flighi, he was blindfolded and bound with plastic cuffs so tight they cut off the circulation to his hands. Soldiers threatened him with death and torture. Upon arrival at Camp Rhino, Mr Lindh's clothes were cut off him, his hands and feel were again shackled, and he was bound tighiuy with duct tape to a streicher. Still blindfolded and completely naked, he was then place in a metal shipping container. Despite the extreme cold of Afghanistan nights in December, there was no heat source, lighting or insulation in the container. After some time, one blanket was placed over Mr Lindh and another was put under the stretcher." Details of

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USA: Human dignity denied: Torture and accountability in the war on terror

Finally, he alleged, "to escape the torture of his current circumstances", he agreed to answer the interrogator's questions. From 3 December, a lawyer retained by John Lindh's family Tollowing news of his arrest had requested the US authorities to stop any further interrogation, "le specially if there is any intent to use it in any subsequent legal proceedings"*** (see also Point 8.1). Moreover, communications lo Lindh from his family informing him that they had retaincd thc lawyer were allegedly not rclaycd to him.

On 14 December 2001, he was transferred to the USS Peleliu, where he reccived medical treatment. Lindh's parents wrote to him repeatedly following his arrest, including via the ICRC, but he was not allowed to receive any communications until approximately 6 January, more than a month aller he had been transferred from Alghan 10 US custody. Just over seven months after being taken into US custody, John Walker Lindh agreed in US federal court to plead guilty to carrying a weapon while serving with thc Talcban, and was sentenced to 20 years in prison. As part of the plea arrangement, he withdrew his allegations of torture and ill-treatment by the US military. If he breaks the terms of his plea agreement, "thc United States may proscculc thc dcfendant to the full cxtent of the law".

The Human Rights Commillee has stated that delained persons should have “immcdiatc access to counsel and contact with their families”. 389 The Committee against Torture has recommended "unrestricted access to counsel immediately after arrest”. The Special Rapportcur on Torlurc has stated: “In cxccptional circumstances, under which it is contended that prompt contact with a detainee's lawyer might raise genuine security concerns and where restriction of such contact is judicially approved, it should at least be possible to allow a mccling with an independent lawyer”.

Even when access to Icgal counsel is arguably impractical in battleliсld siluations, military lawyers can still be made available to monitor interrogations as a safeguard against torture or ill-treatment. In the first Gulf War, military lawyers were reportedly present in every US detention facility, and could monitor any interrogation from behind a one-way mirror and intervene if misconduct occurred. Neither the interrogator nor the detainee knew if any particular session was to be monitored in this way. Ilowever, according to senior military lawyers, this practice has been curlailed by the current administration. 389

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Lindh's case are taken from documents siled in USA v. Lindh, Criminal No. 02-37-A, in the US Districi
Court for thc Eastcm District of Virginia, unless otherwise stated.

Letter from James J. Brosnahan to Colin Powell, Secretary of State; John Ashcroft, Automey
General; Donald Rumsfeld, Secretary of Defense: Cieorge Tenet, Director of the Central Intelligence
Agency, Robert McNamara, General Counsel to the Central Intelligence Agency. 3 December 2001.

N55/40, para. 472.
N54/44. para. 51.

N56/156. para. 39(1). Principle 17 of the UN Body of Principles states: “A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent autorily prompily aller arrest and shall be provided with reasonable facilities for exercising il.”

A Prison Beyond the Law, by Joscph Margulics. Virginia Quarterly Revicw, July 2004. “[According to] senior JAG (Judge Advocate General] officers ... the prior practice of having JAG officers monitor interrogations in the field for compliance with law and regulations had been curtailed

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2.3 Access to doctors

The complicity of US military medical personnel during abuses of detainees in Iraq,

Afghanistan, and Guantánamo Bay is of great inporiance to human righus, medical ethics, and military medicine... An inquiry into the behaviour of medical personnel in places such as Abu Ghraib could lead to valuable reforms wishin mulitary medicine.

UK medical journal, 21 August 2004

Amnesty International believes that detainees should have access to independent doctors as soon as possible after arrest. Doctors must in no way participate in any torture or ill-treatment and must expose any such treatment of which they become aware.

International standards require detainees and prisoners to be given or offered a medical examination as promptly as possible alter they have been taken into custody. 591 They also call for medical personnel to advise on basic prison conditions, such as food, light. ventilation and hygiene." The evolution of international standards relating to the medical care of detainees and prisoners has also been paralleled by the elaboration of ethical principles for health professionals in their relations with detainees. In particular, principles adopted by the UN General Assembly in 1982 state:

It is a gross contravention of medical ethics, as well as an olsence under applicable international instruments, for health personnel, particularly physicians, to engage. actively or passively, in acts which constitute participation in, complicity in, incitemeni 10 or altempis 10 conunii toriure or other cruel, inhuman or degrading treatment or punishment.

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at the direction of senior officials." Human rights standards applicable 10 the United States' interrogation of detainees. Supplementary repori, 4 June 2004. Association of the Bar of the City of New York. Page 12, n. 22. The Army Inspector General "did not observe a dedicated judge advocate for interrogation operations”. Detainee Operations Inspection, 21 July 2004, supra note 27, page 15.

Ahu Ghraib: its legacy for military medicine. Steven H. Miles. The Lancet, Vol. 364. Number 9435.

Rule 24 of the UN Standard Minimum Rules for the Treatment of Prisoners states: “The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary”. The UN Human Rights Commillee has emphasized the need to have detainees “examined hy an independent doxtor as soon as they are arrested (and) after cach pxriod of questioning". UN Dox. N52/40 (1998). para. 109, referring to Switzerland. The Special Rapporteur on torture has stated: “At the time of arrest, a person should undergo a medical inspection, and medical inspections should be repealed regularly and should be compulsory upon transfer to another place of delenlion." UN Doc. E/CN. 4/2002776, 27 December 2001. Annex 1.

Rule 26. UN Standard Minimum Rules.

Principle 2. Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Derainees against Torture and Other Cruel, Inhuman er Degrading Treatment or Punishment. Adopted by General Assembly resolution 37/194 of 18 December 1982. The World Medical Association (of which the American Medical Assoxiation is a member) provides for similar strictures in its Declaration of Tokyo (1975). Paragraph 1 specifies: “The doctor shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman

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The same safeguards also state that it is a contravention of medical ethics for health personnel to apply their knowledge and skills in order to assist in the interrogation of detainccs “in a manner that may adverscly allcci” thcir physical or mental hсalth. Thcy must not certify or participate in the certification of the fitness of detainees for “any form of trealment or punishment that may adversely affect their physical or mental health”. Also they must not participate in any procedure for restraining a detaincc cxccpt under strictly mcdical criteria as being necessary for safety reasons and harmless to the detainee's physical or mental health. There “may be no derogation from the foregoing principles on any grounds whatsoever, including public emergency”. • According to a leaked military document, the ICRC raised allegations in a meeting

with the Guantánamo authorities in October 2003 that interrogators at the base had
had access to the medical files of detainees, that the files were “being used by
interrogators to gain information in developing an interrogation plan", and "that there
is a link between the interrogation team and the medical team”. Major General Miller,
the camp commander, rejected the allegations."
Thc 12 October 2003 interrogation policy in Iraq listed “diciary manipulation”, “sleep
management”, and “sensory deprivation", as techniques that could be authorized as
long as they were “monitored by medics" (see page 70-71);

In the “war on terror", sleep deprivation, stress positions, hooding, stripping, and the cruel use of restraints are among the practices employed against detainees. Hakkim Shah, a 32-year-old Afghan farmer was reportedly subjected to torture and ill-treatment in the US air base in Bagram. Ile said that he was held naked for 16 days in an upstairs room in the facility, hooded, shackled, and forced to stand by being secured to the ceiling. After 10 days, his legs reportedly became so swollen that the shackles cut off the blood supply and he could no longer stand. According to the allegations, doctors eventually removed the shackles and he was allowed to sit.

The final report of the Pentagon Working Group suggests the potentially institutionalized involvement of medical personnel in interrogation techniques that violate international standards: “The use of exceptional interrogation techniques should be limited 10... when the detainee is medically and operationally evaluated as suitable."-3971

Drawing on

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or degrading procedures, whatever the offence of which the victim of such prowodurc is suspected, accursed or guilty, and whatever the victim's belief or motives, and in all situations, including armed conflict and civil strife."

Principles 4 (a), 4(b), 5 and 6. Principles of Medical Ethics, supra, note 393. 195 Memorandum for Record. ICRC Meering uith MG Miller on 9 0610?, supra, noto 52. The principle of confidentiality of medical information should not be overturned when a person enters prison. The European Commitee for the Prevenuon of Torture has repeatedly stated in relation to detainees that 'the confidentiality of medical data is to be strictly observed”. See e.g. Keport on initial visit to me Czech Republic (1997), CPT/Inf (99), para. 32; Report to the Government of the Slovak Republic on the visit to Slovakia. CPT/Inf (2001) 29 (2001), para. 35.

New charges raise questions on ahuse in Afghan prisons. New York Times, 16 September 2004, Pentagon Working Group Report, 4 April 2003, supra, note 56.

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this, a 12 October 2003 US interrogation policy in Iraq noted that stress positions, dietary manipulation and sleep management could be used as interrogation techniques if “monitored by mcdics” (scc page 70). Thc assumption that doctors will participate in worlurc or crucl inhuman or degrading treatment, which defies the age-old ethical requirement that doctors act only with their patient's health and well-being in mind, was also apparent in a military memorandum requesting approval for various interrogation techniques at Guantánamo Bay in late 2002. One of the techniques requested was "exposure to cold weather or water (utih appropriate medical monitoring)" – (emphasis added). "* The request passed various levels of authority, including the General Counsel to the Secretary of Defense who suggested that it was legally available although not warranted on a blanket basis at that time.

The totality of the conditions at Guantánamo Bay have had a seriously adverse effect on the psychological hсalth of many of the delainccs held therc, according to the ICRC, the only independent organization to have had access to the detainees. Relevant professional and ethical standards make clear that the mental health professionals at the prison camp should raisc thc detention conditions and their cllccts on prisoners wilh the authoritics. Amnesty International is not aware that they have done so, and points out that they are not independent

instead, like the detaining force, they are employed by the military. The Department of Desense has disclosed that there have been over 30 suicide attempts among the detainees. It has been reported that a decrease in the rate of suicide attempts is the result of the military psychiatrists reclassifying such attempts as “manipulative self-injurious behaviour", and that the lolal of suicidc allcmpls under the old classilication is now over 70."

The final report of the Pentagon Working Group on “war on lettor” interrogations states that US legislation criminalizing torture committed outside the USA "does not preclude any and all use of drugs”. The withholding of health care and the use of forcible injections without the detainee knowing what he is being injected with has been alleged.

Abu Zubaydah, who had been shot in the groin during his arresh, was allegedly denied
painkillers to obtain his cooperation during interrogation (see Point 3.2).
Alif Khan told Amnesty International in July 2003 that he had been given two
injections, one in each arm, for his transfer from Afghanistan to Guantánamo. Ile said
that he did not know what they were, but relerred to experiencing "a kind of
unconsciousness". Tormer Guantánamo detainee Mehdi Ghezali told Amnesty
International in July 2004 that “even if prisoners didn't want any injections they wae
forced to rcccive them. Certain prisoners were beaten bclorc thcy wcrc injected."

The lorlurc at Abu Ghraib was reporicd 10 US army investigalors hy a soldier, nou a doctor. The lay report found that medical personnel “may have been aware of detainee abuse at Abu Ghraib and failed to report it". The report called for an inquiry into this specific issue. Reported incidents implicating medical personnel include:

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Memorandum for Commander, Joint Task Force 170. Subject: Request for approval of CounterResistance strategics. 11 October 2002. http://www.dcfensclink.mil/news/Jvu2004/1200406220v3.pdf

Action memo. Signed by Secretary Rumsfeld, 2 December 2002, supra, note 49.
David Rose, Vanity Fair, January 2004.

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