98 USA: Human dignity denied: Torture and accountability in the 'war on terror' 2.5 Access to the courts It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested, and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad US Supreme Court, 28 June 2004408 Central to the USA's “war on terror" detention policy has been to keep the detainees away from the courts. The administration chose Guantánamo precisely because it believed that “a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantánamo Bay Naval Base, Cuba," although it recognized that the issue was not "definitely resolved" in law.* It is clear that the US administration has seen its own judiciary, as well as international law, as an unwanted check on its activities. 409 A key safeguard against torture is for prisoners or others acting on their behalf to be able to invoke the power of the courts to challenge the legality of the detention and otherwise ensure the prisoner's safety. It can also serve as a safeguard against “disappearances” by asking the courts to locate a person who has “disappeared" (see Point 3). In April 2004, arguing that the courts should be kept out of the administration's "war on terror" detentions, the government assured the US Supreme Court of its commitment to humane treatment. At oral arguments in the case of Yaser Esam Hamdi, a US citizen designated as an "enemy combatant" and held in indefinite incommunicado detention without charge or trial since December 2001, Justice Stevens asked: “Do you think there is anything in the law that curtails the method of interrogation that may be employed?" The government responded that "the United States is signatory to conventions that prohibit torture and that sort of thing. And the United States is going to honour its treaty obligations". The official memorandums that have come into the public domain belie the government's assurances that it is committed to upholding international law and standards. 410 In the case of another US "enemy combatant", José Padilla, the four dissenting Justices made their feelings clear about unfettered executive power: "Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber". During oral arguments in José Padilla's case, one of the four, Justice Ginsburg 408 411 Hamdi v. Rumsfeld, No. 03-6696, decision of 28 June 2004. 409 Memorandum for William Haynes, General Counsel, Department of Defense. Possible habeas jurisdiction over aliens held in Guantanamo Bay, Cuba. From Patrick Philbin and John Yoo, Deputy Assistant Attorneys General. US Department of Justice, Office of Legal Counsel, 28 December 2001. 410 Hamdi v. Rumsfeld, oral arguments, 28 April 2004. 411 Rumsfeld v. Padilla, No. 03-1027, 28 June 2004 (Justice Stevens, dissenting). The Star Chamber was an English court created in 1487 by King Henry VII. The Star Chamber, comprising 20-30 judges, became notorious under Charles I's reign for handing down judgments favourable to the king and to Archbishop William Laud, who supported the persecution of the Puritans. It was abolished in 1641. USA: Human dignity denied: Torture and accountability in the 'war on terror' had asked the government: “So what is it that would be a check on torture? ... Suppose the executive says mild torture we think will get this information... Some systems do that to get information." The government replied: "Well, our executive doesn't...412 This answer was inaccurate. The administration has approved interrogation techniques which violate the prohibition on torture or cruel, inhuman or degrading treatment. Finding that the US courts have jurisdiction over detainees in Guantánamo, the Supreme Court in June 2004 noted that "executive imprisonment has been considered oppressive and lawless" for almost eight centuries in English law. 415 The administration's response to this ruling has been inadequate, however. By mid-October 2004, more than three months after the decision, not a single Guantánamo detainee had appeared in court. Of the 68 detainees who had so far filed appeals for access to the US courts, only a small number had spoken to their lawyers." Rather than facilitating judicial review, the administration has hastened a system of "Combatant Status Review Tribunals", administrative review bodies that determine, including on secret evidence and without legal counsel for the detainees, whether the latter are "enemy combatants" and should remain in detention.415 The Pentagon has also said that it "believes the decision does not cover detainees held in other parts of the world". 414 2.6 Recommendations under Point 2 The US authorities should: End the practice of incommunicado detention; 416 Grant the International Committee of the Red Cross full access to all detainees according to the organization's mandate; ➤ Grant all detainees access to legal counsel, relatives, independent doctors, and to consular representatives, without delay and regularly thereafter; In battlefield situations, ensure where possible that interrogations are observed by al least one military lawyer with full knowledge of international law and standards as they pertain to the treatment of detainees; Grant all detainees access to the courts to be able to challenge the lawfulness of their detention. Presume detainees captured on the battlefield during international conflicts to be prisoners of war unless and until a competent tribunal determines otherwise; Reject any measures that narrow or curtail the effect or scope of the Rasul v. Bush ruling on the right to judicial review of detainees held in Guantánamo or elsewhere. and facilitate detainees' access to legal counsel for the purpose of judicial review. 412 Rumsfeld v. Padilla, oral arguments, 28 April 2004. 413 Rasul v. Bush, No. 03-334, decision of 28 June 2004. 414 US stymies detainee access despite ruling, lawyers say. Washington Post, 14 October 2004. 415 USA: Administration continues to show contempt for Guantánamo detainees' rights. AI Index: AMR 51/113/2004, 8 July 2004. http://web.amnesty.org/library/Index/ENGAMR$11132004 Supreme Court affirms right to detain enemy combatants, American Forces Information Service, news article, 29 June 2004. 416 100 USA: Human dignity denied: Torture and accountability in the 'war on terror' Point 3 - No secret detention In some countries torture takes place in secret locations, often after the victims are made to "disappear". Governments should ensure that prisoners are held only in officially recognized places of detention and that accurate information about their arrest and whereabouts is made available immediately 10 relatives, lawyers and the courts. Effective judicial remedies should be available at all times to enable relatives and lawyers to find out immediately where a prisoner is held and under what authority and to ensure the prisoner's safety. 3.1 Secrecy nurtures torture and "disappearance" There was a debate after 9/11 about how to make people disappear. On 13 April 2004 in Yemen, Walid Muhammad Shahir Muhammad al-Qadasi spoke with Amnesty International in a cell in the Political Security Prison in Sana'a. He had recently been returned from detention in Guantánamo Bay. Ile recalled how he had been arrested in Iran in late 2001 and detained there for about three months before being handed over with other detained foreign nationals to the authorities in Afghanistan who in turn handed them over to the custody of the US. There they were kept in a prison in Kabul. "The Americans interrogated us on our first night which we coined as the black night'. They cut our clothes with scissors, left us naked and took photos of us before they gave us Afghan clothes to wear. They then handcuffed our hands behind our backs, blindfolded us and started interrogating us. The interrogator was an Egyptian. He asked me about the names of all members of my family, relatives and friends. They threatened me with death, accusing me of belonging to al-Qa`ida. They put us in an underground cell measuring approximately two metres by three metres. There were ten of us in the cell. We spent three months in the cell. There was no room for us to sleep so we had to alternate. The window of the cell was very small. It was too hot in the cell, despite the fact that outside the temperature was freezing (there was snow), because the cell was overcrowded. They used to open the cell from time to time to allow air in. During the three-month period in the cell we were not allowed outside into the open air. We were allowed access to toilets twice a day; the toilets were located by the cell.” Walid al-Qadasi said that the prisoners were only fed once a day and that loud music was used as "torture". He said that one of his fellow detainees went insane. Walid al-Qadasi was eventually transferred to Bagram, where he faced a month of interrogation. Then his head was shaved, he was blindfolded, made to wear car mulls and mouth mask, handcuffed, shackled, loaded on to a plane and flown out to Guantánamo. There, he said he was held in solitary confinement for the first month of what would become a two 417 Quoted in Harsh CTA methods cited in top Qaeda interrogations. New York Times, 13 May 2004. USA: Human dignity denied: Torture and accountability in the 'war on terror' 101 year detention in the Naval Base. He said he was drugged for his transfer back to Yemen in April 2004. Walid al-Qadasi's allegations depict a detention regime that violates many human rights standards secret transfer and detention, no access to legal counsel, relatives or to a court, and cruel prison conditions and torturous treatment. As a former Commissioner of the US Immigration and Naturalization Service, James Ziglar, said in 2003: "The more secret government is, the more likely you're going to have abuses - there's no question about it".41% In October 2003, the American Civil Liberties Union and other US organizations filed a Freedom of Information Act (1'OIA) request seeking information on the treatment and interrogation of detainees in US custody, and the transfer of detainees to countries known to use torture. Eleven months later, US District Judge Alvin Hellerstein noted that the government had, "with small exception", produced no information. He wrote that "[m]erely raising national security concerns cannot justify unlimited delay", and that the "glacial pace" of the government's response “shows an indifference to the commands of FOIA, and fails to afford accountability of government that the act requires." Judge Hellerstein stated: “No one is above the law: not the executive, not the Congress, and not the judiciary." He ordered the government to produce or identify all the relevant documents by 15 October 2004, 419 Secrecy surrounding detentions is dangerous for the prisoner, distressing for relatives. and detrimental to the rule of law. Secrecy has been an overarching characteristic of the US administration's detention policy in the “war on terror". Even at acknowledged US detention locations, such as Guantánamo Bay, Bagram air base, and Abu Ghraib, the US has not made public the identities or precise numbers of people whom it has held and is holding there. This denial of information has increased the suffering of relatives and obstructed efforts to ensure the humane treatment of the detainees. 420 The US authorities have pursued an approach of giving only approximate numbers of detainees being held at Guantánamo. This lack of precision raises the possibility that individual detainees could be moved to and from the Naval Base, or between different US agencies, without any public knowledge of such transfers, as they would not be reflected in the approximate numbers of detainees announced by the Pentagon. On 24 November 2003, the Department of Defense announced that 20 unidentified detainees had been released from Guantánamo three days earlier and "approximately 20" more, also unidentified, had been transferred to the base two days after that, leaving 418 Quoted in America's secret prisoners, Newsweek, 18 June 2003. 419 American Civil Liberties Union, et al. v. Department of Defense. et al. Opinion and Order 04 Civ. 4151, US District Court. Southern District of New York. 15 September 2004. The judge added that: “If the documents are more of an embarrassment than a secret, the public should know of our government's treatment of individuals captured and held abroad." 120 For example, following the transfer of 10 detainees from Afghanistan to Guantánamo in September 2004, the Pentagon reported that this left "approximately 549" detainees at the base. It added that "because of operational and security considerations, no further details can be provided". Department of Defense News Release, 22 September 2004. 102 USA: Human dignity denied: Torture and accountability in the 'war on terror' 421 “approximately 660” detainees in custody in Guantánamo. On 15 March 2004, the Department announced that there were “approximately 610" detainees in the base, that is, 50 fewer than four months carlier. 422 Between the two announcements, however, the Pentagon had disclosed the release or transfer to other countries of only 43 Guantánamo detainees - 26 Afghan and Pakistan nationals423; three child detainees (believed to be Afghan nationals) 424; a Spanish national 425; a Danish national 426; seven Russian nationals" ; and five British nationals 28. In other words, “approximately” seven detainees were unaccounted for in the official announcements of releases and transfers from the base. 427 The UN Special Rapporteur on torture has said: “It should not be possible for persons to be handed over from one police or security agency to another police or security agency without a judicial order. Where this happens, the officials responsible for the transfers should be held accountable under the criminal law".429 Over two and half years after detentions began in Guantánamo, a chief spokesperson for the Pentagon was unable to answer why the administration had not released the identities of those held in the Naval Base, saying "I do not know why we haven't done more to announce names". 430 A US military spokesperson suggested that the reason for continuing secrecy about detainees held in Afghanistan was to protect their right to privacy under the Geneva Conventions, another illustration of a government's self-serving approach to international law. In August 2004, the UN Independent Expert on Afghanistan, Professor M. Cherif Bassiouni, said that the US was holding 300 to 400 people at Kandahar and Bagram air bases. Except for visits by the ICRC to the extent that they have been allowed - the 421 432 431 Transfer of Guantanamo detainees complete. Department of Defense News Release, 24 November 2003. 422 Transfer of Afghani and Pakistani detainees complete. Department of Defense News Release, 15 March 2004. 423 Ibid. 424 Transfer of juvenile detainees completed. Department of Defense News Release, 29 January 2004. Transfer of detainee complete. Department of Defense News Release, 13 February 2004. 425 426 Transfer of detainee complete. Department of Defense News Release, 25 February 2004. 427 428 429 430 Transfer of detainees complete. Department of Defense News Release, 1 March 2004. Transfer of British detainees complete. Department of Defense News Release, 9 March 2004. Lawrence Di Rita, Principal Deputy Assistant Secretary of Defense for Public Affairs, Defense Department operational update briefing. 8 July 2004. 432 431 "It's the coalition's continued policy to treat persons under confinement in the spirit of the Geneva Conventions. Part of that spirit is to ensure that the persons under confinement are not subject to any kind of exploitation. It is the coalition's position that allowing media into the facilities would compromise that protection“. US military vows to keep Afghan jails secret. Reuters, 4 June 2004. On Kandahar, the ICRC has written: "The ICRC visited the US detention facility in Kandahar from December 2001 when it opened until its closure in June 2002. It requested renewed access to the detention place in early June after it resumed its function as a recognised US facility to helped persons deprived of freedom. The first ICRC visit to Kandahar detention facility took place in late June 2004." Operational update, 26 July 2004. It is not known how many detainees were held at Kandahar between June 2002 and June 2004, when the ICRC was not visiting. |