88 USA: Human dignity denied: Torture and accountability in the 'war on terror' however, referred to, let alone publicly protested, the fact that some of the information may have been extracted under torture or other cruel, inhuman or degrading treatment of individuals held in secret locations (scc Point 3.2). The most recent version (1992) of the US Army Intelligence Interrogation Field Manual (I'M 34-52) is instructive in this regard. It states: "Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear." There have also been reports that the "success" of this interrogation policy has been far more limited than the government claims. There is evidence of widespread arbitrary arrests conducted on the basis of poor intelligence. l'or example, the Afghanistan Independent Human Rights Commission has recently told Amnesty International that the US forces in Afghanistan appear to remain susceptible to manipulation by local tribal affiliations and interests in detaining people on the basis of false or malicious intelligence. US military intelligence officers told the ICRC that "in their estimate between 70 per cent and 90 per cent of the persons deprived of their liberty in Iraq had been arrested by mistake". 368 In similar vein, “dozens of high-level military, intelligence and law-enforcement officials in the United States, Europe and the Middle East said that contrary to the repeated assertions of senior administration officials, none of the detainees at the United States Naval Basc at Guantánamo Bay ranked as leaders or senior operatives of Al Qaeda”. 369 Effective intelligence-gathering is a long-term task, not something that should be beaten or coerced out of a selection of people a government broadly defines as the enemy. A former intelligence officer familiar with the Guantánamo intelligence regime has said: “The quality of the screening, the quality of the interrogations and the quality of the analysis were all very poor. Efforts were made to improve things, but after decades of neglect of human intelligence skills, it can't be fixed in a few years.' 370 In the end, however, the absolute prohibition of torture and cruel, inhuman or degrading treatment in international law rests firmly on moral grounds. It is about what sort of society we aim to build. Ariel Dorfman's country, Chile, suffered gross human rights violations on and following 11 September 1973, the day of the coup that brought Augusto Pinochet to power. Dorfman has written: better judge the credibility of the detainees and clarify ambiguities in the reporting. We were told that our requests might disrupt the sensitive interrogation process." Chapter 5. 9/11 Commission report. 368 ICRC report. February 2004. supra, note 77. 369 US said to overstate value of Guantánamo detainees. New York Times, 21 June 2004. Similarly, an interrogator has said that "there are a large number of people at Guantánamo who shouldn't be there". How expert gets detainees to talk. The Capital Times (Wisconsin), 16 August 2004 370 Lieutenant Colonel Anthony Christino III, quoted in: US said to overstate value of Guantánamo detainees. New York Times, 21 June 2004. USA: Human dignity denied: Torture and accountability in the 'war on terror' 89 "Torture is not a crime committed only against a body, but also a crime committed against the imagination. It presupposes, it requires, it craves the abrogation of our capacity to imagine someone else's suffering, to dehumanise him or her so much that their pain is not our pain. It demands this of the torturer, placing the victim outside and beyond any form of compassion or empathy, but also demands of everyone else the same distancing, the same numbness, those who know and close their eyes, those who do not want to know and close their eyes, those who close their eyes and ears and hearis. 371 President Bush has said that "the United States will continue to take seriously the need to question terrorists who have information that can save lives. But we will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to climinate il everywhere. Amnesty International believes that the USA has failed to live up to these words in the "war on terror". 1,372 A government's condemnation of torture and other cruel, inhuman and degrading treatment must mean what it says. If it genuinely opposes torture and ill-treatment, it must act accordingly. From this simple proposition, all 11 other points of Amnesty International's 12Point Program for the Prevention of Torture by Agents of the State follow. 1.5 Recommendations under Point 1 The US authorities should: ➤ Provide a genuine, unequivocal and continuing public commitment to oppose torture and cruel, inhuman or degrading treatment under any circumstances, regardless of where it takes place, and take every possible measure to ensure that all agencies of government and US allies fully comply with this prohibition; Review all government policies and procedures relating to detention and interrogation to ensure that they adhere strictly to international human rights and humanitarian law and standards, and publicly disown those which do not; ➤ Make clear to all members of the military and all other government agencies, as well as US allies, that torture or cruel, inhuman or degrading treatment will not be tolerated under any circumstances; ➤ Commit to a program of public education on the international prohibition of torture and ill-treatment, including challenging any public discourse that seeks to promote tolerance of torture or cruel, inhuman or degrading treatment. 371 372 Are there times when we have to accept torture? By Ariel Dorfman. The Guardian, 8 May 2004. President's statement, 26 June 2004, supra, note 4. 90 USA: Human dignity denied: Torture and accountability in the 'war on terror' Point 2 - Ensure access to prisoners Torture often takes place while prisoners are held incommunicado – unable to contact people outside who could help them or find out what is happening to them. The practice of incommunicado detention should be ended. Governments should ensure that all prisoners are brought before an independent judicial authority without delay after being taken into custody. Prisoners should have access to relatives, lawyers and doctors without delay and regularly thereafter. 2.1 Incommunicado detention facilitates torture [P]rolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment or even torture. UN Commission on Human Rights, April 2004' 373 On 28 May 2004, Amnesty International issued an urgent appeal on behalf of Mohammad Jassem 'Abd al-'Issawi, a 43-year-old Iraqi civil engineer believed to be in detention in the High Security section of Abu Ghraib prison. He was reportedly kicked and punched by the US soldiers who arrested him on 17 December 2003. Since then, he had not had access to his family, to legal counsel, or to the ICRC. 374 375 The US military has taken more than 50,000 people into custody during its military operations in Afghanistan and Iraq. In Afghanistan, the US has operated approximately 25 detention facilities, and in Iraq another 17. It has held people in Guantánamo and in undisclosed locations. Lawyers, relatives, and human rights organizations have systematically been denied access to detainees. While the ICRC has had access to some detainees, this cannot be considered enough under the circumstances (see Point 4). For example, the ICRC has had access to detainees held in the US air base in Bagram in Afghanistan, but not immediately after their arrest." 'In Afghanistan, the ICRC has only had access to Bagram and Kandahar and none of the numerous "forward collection points", more remote US temporary holding facilities in other locations. In both Afghanistan and Iraq, detainees have been held at such facilities for far longer than the 12-24 hours allowed under army doctrine. Some detainees have been held for one or two months at “forward collection points"." Hundreds of detainees have been held incommunicado without charge or trial between ICRC visits to Guantánamo Bay. 376 377 Because of its urgency as a safeguard against torture, Amnesty International and international law and standards hold that relatives, lawyers and independent doctors should have access to detainees without delay and regularly thereafter. Access by others such as 373 Resolution: 2004/41, para. 8, 19 April 2004. 374 http://web.amnesty.org/library/Index/ENGMDE140272004. Ile is no longer held incommunicado. 375 Schlesinger report, page 11, see supra, note 30. 376 ICRC Operational update, 26 July 2004. 377 Detainee Operations Inspection. Department of the Army Inspector General, 21 July 2004, page 28. USA: Human dignity denied: Torture and accountability in the 'war on terror' 91 representatives of human rights organizations and (in armed conflicts and other applicable situations) the ICRC is also of great importance. 378 The UN Commission on Human Rights has stated that "prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, 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 Committee against Torture has called for its climination.379 The Special Rapporteur on torture, recognizing that "torture is most frequently practised during incommunicado detention", has also called for such detention to be made illegal. 2.2 Access to legal counsel 380 Allegations of torture were difficult to verify because the police and security officials frequently denied detainees timely access to lawyers. US State Department 2004 human rights report, entry on Jordan One of the first prisoners of the USA in its “war on terror" overseas was John Walker Lindh, a US citizen captured in Afghanistan. Ilis alleged treatment - stripping, blindfolding, threats, cruel use of restraints, use of humiliating photography, and denial of access to legal counsel or relatives - echoes what would happen two years later in Iraq. Furthermore, it is alleged that the General Counsel of the Department of Defense authorized John Lindh's interrogator to "take the gloves off" during his interrogation." 382 John Lindh was taken into US custody on 1 December 2001 in Afghanistan. Interrogated repeatedly in incommunicado detention, he repeatedly asked for a lawyer. 378 Resolution: 2004/41, para. 8, 19 April 2004. 379 Human Rights Committee General Comment 20, supra, note 188. para. 11. Committee against Torture: UN Doc. A/52/44 (1997), para. 121(d). 380 381 UN Doc. E/CN.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). Affidavit filed in USA v. Lindh, quoted in Chain of Command, by Seymour M. Hersh. The New Yorker, 17 May 2004. 382 Prison interrogators' gloves came off before Abu Ghraib. New York Times. 9 June 2004. 383 383 For the first six days of US custody, his wounds untreated, Lindh was held in a room with the only window blocked, “making it difficult to discern whether it was night or day". Interrogated, he asked for a lawyer but was told he would be provided with one later. On 7 December 2001, he was transferred to the US base at Camp Rhino, south of Kandahar. "During the flight, 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 feet were again shackled, and he was bound tightly with duct tape to a stretcher. Still blindfolded and completely naked, he was then placed 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 92 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 following news of his arrest had requested the US authorities to stop any further interrogation, "[e]specially if there is any intent to use it in any subsequent legal proceedings” (see also Point 8.1). Moreover, communications to Lindh from his family informing him that they had retained the lawyer were allegedly not relayed to him. 384 On 14 December 2001, he was transferred to the USS Peleliu, where he received 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 after he had been transferred from Afghan to 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 the Taleban, 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, "the United States may prosecute the defendant to the full extent of the law". 385 The The Human Rights Committee has stated that detained persons should have "immediate access to counsel and contact with their families". The Committee against Torture has recommended "unrestricted access to counsel immediately after arrest".386 Special Rapporteur on torture has stated: "In exceptional 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 meeting with an independent lawyer”.” 387 Even when access to legal counsel is arguably impractical in battlefield situations, 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. However, according to senior military lawyers, this practice has been curtailed by the current administration." 388 389 Lindh's case are taken from documents filed in USA v. Lindh, Criminal No. 02-37-A, in the US District Court for the Eastern District of Virginia, unless otherwise stated. 384 Letter from James J. Brosnahan to Colin Powell, Secretary of State; John Ashcroft. Attorney General; Donald Rumsfeld, Secretary of Defense; George Tenet, Director of the Central Intelligence Agency; Robert McNamara, General Counsel to the Central Intelligence Agency. 3 December 2001. 385 N/55/40, para. 472. 386 N/54/44. para. 51. 387 N/56/156, para. 39(f). 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 authority promptly after arrest and shall be provided with reasonable facilities for exercising it." A Prison Beyond the Law, by Joseph Margulies. Virginia Quarterly Review, July 2004. 388 389 "[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 |