Sabtu, 30 Juni 2012

USA
GUANTÁNAMO: A
DECADE OF
DAMAGE TO
HUMAN RIGHTS
AND 10 ANTI-HUMAN RIGHTS MESSAGES
GUANTÁNAMO STILL SENDS
Amnesty International is a global movement of 3 million
people in more than 150 countries and territories, who
campaign on human rights. Our vision is for every person to
enjoy all the rights enshrined in the Universal Declaration of
Human Rights and other international human rights
instruments. We research, campaign, advocate and mobilize
to end abuses of human rights. Amnesty International is
independent of any government, political ideology, economic
interest or religion. Our work is largely financed by
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Amnesty International Publications
First published in December 2011 by
Amnesty International Publications
International Secretariat
Peter Benenson House
1 Easton Street
London WC1X 0DW
United Kingdom
www.amnesty.org
Ó Copyright Amnesty International Publications 2011
Index: AMR 51/103/2011
Original Language: English
Printed by Amnesty International, International Secretariat, United Kingdom
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Table of Contents
GUANTÁNAMO: A DECADE OF DAMAGE TO HUMAN RIGHTS............................................................. 1
10 ANTI-HUMAN RIGHTS MESSAGES GUANTÁNAMO STILL SENDS ................................................... 4
ANTI-HUMAN RIGHTS MESSAGE 1 - THE WHOLE WORLD IS THE BATTLEGROUND
IN A GLOBAL WAR IN WHICH HUMAN RIGHTS DON'T APPLY………………….…….………………………5
ANTI-HUMAN RIGHTS MESSAGE 2 - HUMANE DETAINEE TREATMENT IS A
POLICY CHOICE, NOT A LEGAL REQUIREMENT……………….………………………………….…..........9
ANTI-HUMAN RIGHTS MESSAGE 3 - EVEN DETENTIONS FOUND UNLAWFUL BY
THE COURTS CAN CONTINUE INDEFINITELY………………..……………………………………..….….12
ANTI-HUMAN RIGHTS MESSAGE 4 - THE RIGHT TO A FAIR TRIAL DEPENDS ON WHERE YOU
COME FROM AND THE DOMESTIC POLITICAL TEMPERATURE SURROUNDING YOUR CASE………….…..…..18
ANTI-HUMAN RIGHTS MESSAGE 5 - JUSTICE CAN BE MANIPULATED TO ENSURE
THE GOVERNMENT ALWAYS WINS……………………………………………………………………….21
ANTI-HUMAN RIGHTS MESSAGE 6 - EXECUTION IS ACCEPTABLE -- EVEN AFTER UNFAIR TRIAL….…..……22
ANTI-HUMAN RIGHTS MESSAGE 7 - VICTIMS OF HUMAN RIGHTS VIOLATIONS
CAN BE LEFT WITHOUT REMEDY………………………………………..……………………………….25
ANTI-HUMAN RIGHTS MESSAGE 8 - LOOKING FORWARD MEANS TURNING A BLIND EYE TO
TRUTH AND ACCOUNTABILITY, EVEN IN THE CASE OF CRIMES UNDER INTERNATIONAL LAW……..….…….27
ANTI-HUMAN RIGHTS MESSAGE 9 - RESPECT FOR UNIVERSAL HUMAN RIGHTS
CAN BE DISCARDED IF THEY CONFLICT WITH 'DOMESTIC VALUES'…………………………………..……34
ANTI-HUMAN RIGHTS MESSAGE 10 - DOUBLE STANDARDS, NOT UNIVERSAL STANDARDS,
ARE THE ORDER OF THE DAY……………………………………………………………………………36
CONCLUSION: A DECADE AND COUNTING (THE COST TO HUMAN RIGHTS) ...................................... ..42
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 1 16 December 2011
GUANTÁNAMO: A DECADE OF DAMAGE TO HUMAN RIGHTS
We decided to hold detainees at a remote naval station on the southern tip of Cuba
George W. Bush, memoirs (2010)1
Less than two months passed between President George W. Bush ordering his Secretary of
Defense to find an “appropriate location” to hold foreign nationals detained in the so-called
“war on terror” and the first 20 such detainees – treated like so much human cargo – arriving
at the US Naval Base at Guantánamo Bay in Cuba on 11 January 2002.2 A decade on, it can
seem as if this ill-begotten prison was conceived and born in the blink of an eye.
Not so its demise. If it took about seven weeks to get the Guantánamo detention facility up
and running, it is now nigh on seven years since US authorities say they have been working to
shut it down.3
In his memoirs, former President Bush defends the decision to locate the detention facility at
Guantánamo but also recalls that by early in his second term beginning in January 2005 he
had recognized that the detentions had become “a propaganda tool for our enemies and a
distraction for our allies”. He subsequently worked, he said, to “find a way to close the
prison”.4 If indeed he or his administration made efforts after 2005 to close the detention
centre, they clearly ended in failure. There were some 245 detainees still held there at the
end of his presidency on 20 January 2009.5
Two days later, the newly inaugurated President Barack Obama committed his administration
to closing the Guantánamo detention facility “promptly” and at the latest by 22 January
2010. To do so, he said, would further the USA’s national security and foreign policy
interests as well as the “interests of justice”.6 He later said that Guantánamo had become “a
symbol that helped al Qaeda recruit terrorists to its cause”. The US electorate, he said, had
called for a new approach, “one that recognized the imperative of closing the prison at
Guantánamo Bay.”7
If so, the electorate has not got what it called for.
Today there are more than 150 detainees still at
Guantánamo.8 The country that was first to put a
human being on the moon apparently cannot find its
way to closing a prison its last two presidents have
said does the country serious harm. Surely this is not
rocket science, so what on earth is the problem?
The most immediate reason is that the failure of the
administration to act decisively to meet President
Obama’s January 2009 commitment on ending the
detentions at Guantánamo allowed the issue to
become mired in a domestic political impasse in
which Congress has acted against closure and the
administration has been unwilling or unable to find a
way around this. Amnesty International would suggest, however, that the roots of the problem
lie further back, in the long-standing reluctance of the USA to apply to itself international
human rights standards it so often says it expects of others. A pick and choose approach to
international law by the USA long preceded the Bush administration, but was built upon in
that administration’s policy responses to the attacks of 11 September 2001. This included
its decision to concoct a global “war” framework for its counter-terrorism policies under
which the applicability of international human rights law was wholly denied. This global war
“FROM DAY ONE, THE USA FAILED TO RECOGNIZE
THE APPLICABILITY OF HUMAN RIGHTS LAW TO
THE GUANTÁNAMO DETENTIONS. AS WE
APPROACH 11 JANUARY 2012, DAY 3,653 IN
THE LIFE OF THIS NOTORIOUS PRISON CAMP, THE
USA IS STILL FAILING TO ADDRESS THE
DETENTIONS WITHIN A HUMAN RIGHTS
FRAMEWORK. THE NOW LONG-STATED GOAL TO
CLOSE THE FACILITY WILL REMAIN ELUSIVE – OR
ACHIEVED ONLY AT THE COST OF RELOCATING
THE VIOLATIONS – UNLESS THE US GOVERNMENT
ADDRESSES THE DETENTIONS AS AN ISSUE THAT
SQUARELY FALLS WITHIN THE USA’S
INTERNATIONAL HUMAN RIGHTS OBLIGATIONS”
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 2 16 December 2011
theory – under which the Guantánamo detentions were but one outcome, though perhaps its
best-known and enduring symbol – continues to infect the body politic in the USA, to the
detriment of respect for human rights both by the USA and more generally.
Two weeks before the first detainee flight landed at Guantánamo the US Department of
Justice assured the Pentagon that holding “enemy aliens” on Cuban soil would in all
likelihood keep them away from the US federal courts. A little noted aspect of this advice was
that its authors warned that if a court was ever to scrutinize the detentions they might be
found to breach the International Covenant on Civil and Political Rights (ICCPR), which the
USA ratified in 1992.9 This passing nod to international human rights law would remain
notable by its rarity but also in the implied admission that the ICCPR could be applicable to
the detentions.10 For, even before this Justice Department memo was written the USA took
the position that the protections of the ICCPR do not reach detainees in US custody outside
mainland USA.11 It continues to do so despite the clear and unequivocal reiteration to the US
government by the expert body established under the ICCPR to monitor its implementation –
the UN Human Rights Committee – that this treaty applies to individuals held in US custody
outside the USA’s ordinary territory, and that its obligations do not simply disappear in times
of war.12
Among other things, the ICCPR prohibits torture or other cruel, inhuman or degrading
treatment or punishment, arbitrary detention (thereby prohibiting secret detention and
enforced disappearance), unfair trial, and discrimination in the application of human rights.
It also incorporates the right to remedy for victims of human rights violations. One can see
why the Department of Justice raised a red flag about the ICCPR in relation to the
Guantánamo detentions, especially given the emphasis placed on this treaty by the USA on
the international stage. The ICCPR, the Bush administration proclaimed at the United
Nations, was “the most important human rights instrument adopted since the UN Charter
and the Universal Declaration of Human Rights, as it sets forth a comprehensive body of
human rights protections.”13 Not so important, however, that the USA felt it should apply
and respect those protections for its own “war on terror” detainees.
Violations of the ICCPR and other human rights treaties came to be part and parcel of the
Guantánamo detentions. Detainees were subjected to torture or other ill-treatment either at
the prison or before they arrived there. Prolonged incommunicado detention as well as
possible enforced disappearances took place at Guantánamo as well as elsewhere in the US
detention system. For years, hundreds of Guantánamo detainees were denied their right to
have a judge rule on the lawfulness of their detention. The few that faced criminal charges
during the Bush years were not brought before any ordinary US court of law; instead, for such
prosecutions the government invented an ad hoc system of military commissions, applying
rules that fell far short of international fair trial standards.
But, some might ask, is this not an old story? Interrogations at Guantánamo have all but
ended, have they not, and anyway has not the ban on torture and other cruel, inhuman or
degrading treatment been reinforced by presidential order? The military commissions, now in
their third incarnation since 2001, are surely better than they once were, and the detainees
have had access to habeas corpus review since 2008 when the US Supreme Court finally
rejected the Bush administration’s notion that foreign nationals held at Guantánamo had no
right to challenge the lawfulness of their detentions in federal court. Are not unhelpful terms
like “alien unlawful enemy combatant” and “war on terror” now generally frowned upon by
the administration, and is “unprecedented” transparency not one of its stated priorities?14
So, after 10 years, why is Amnesty International still talking about Guantánamo as a human
rights problem?
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 3 16 December 2011
The answer is that the detentions at Guantánamo, and the wider policies and practices of
which they have been and remain a part, continue to inflict serious damage on global respect
for human rights. While Guantánamo may have dropped from the news headlines, the human
rights concerns associated with it are far from a finished story, as this report seeks to
illustrate.
From day one, the USA failed to recognize the
applicability of human rights law to the
Guantánamo detentions. As we approach 11
January 2012, day 3,653 in the life of this
notorious prison camp, the USA is still failing to
address the detentions within a human rights
framework. The now long-stated goal to close the
Guantánamo detention facility will remain elusive
– or achieved only at the cost of relocating the
violations – unless the US government – all three
branches of it – addresses the detentions as an
issue that squarely falls within the USA’s
international human rights obligations.
The Obama administration has said it remains
committed to closing the Guantánamo detention
facility on the grounds that it continues to
damage national security.15 What it has not
acknowledged, at least not publicly, is the
damage being done to international human rights
principles. In this regard the damage is not being
caused by the fact that the detentions take place
at Guantánamo Bay, but by the underlying
assertion by the administration that it can
continue to hold detainees indefinitely without
charge or criminal trial (or even after a detainee is
acquitted at a military commission trial), wherever
it pleases. The damage, then, will continue as
long as the actual policies and practices that Guantánamo has come to symbolize remain.
And while repetition of the promise to close Guantánamo is by now wearing thin, the failure
to meet this promise has allowed the domestic discourse to be dominated by the politics of
fear. This has made the likelihood of human rights principles being recognized and fully
respected by the USA even more remote, and fed the possibility that a future president might
expressly decide to keep the facility in operation indefinitely. At least four would-be
Republican successors to President Obama said in televised debates in November 2011 that
they would keep the Guantánamo prison open if they were to become President.16
The failure to resolve the detentions and to ensure accountability and remedy for past abuses
has also allowed the original overseers of the Guantánamo detention facility to claim what
they see as the moral high ground. In her 2011 memoirs Condoleezza Rice, National Security
Advisor at the time of the facility’s conception, recalls that there was “no disagreement”
among the Principals of the National Security Council over the decision to establish the
prison camp.17 For his part, former Secretary of Defense Donald Rumsfeld says that President
Obama “had pandered to popular misconceptions” by promising to shut the Guantánamo
facility down, and that his administration’s failure to find “a practical alternative” was one of
the signs that “on most of the big questions regarding our enemies, George W. Bush and his
administration got it right”.18 And in yet another set of memoirs, former Vice President Dick
Friday, 11 January 2002 – Washington, DC,
2.10pm Eastern Standard Time. US Department
of Defense News Briefing with Secretary of
Defense Donald Rumsfeld
Q: Mr Secretary, now that the first planeload of
detainees has landed in Cuba, how do you
respond to charges from some non-governmental
organizations that hooding, shaving, chaining,
perhaps even –
Rumsfeld: What are the words?
Q: Hooding, putting hoods on, shaving, chaining,
perhaps even tranquilizing some of these people
is violating their civil rights?
Rumsfeld: That – that’s not correct.
Q: That you’ve done it or that it violates –
Rumsfeld: That it’s a violation of their rights. It
simply isn’t.
~~
At least 12 of the 171 men still held at
Guantánamo in December 2011 were transferred
to the base on 11 January 2002. One of them –
Yemeni national Ali Hamza Ahmad Suliman al
Bahlul – is serving a life sentence after being
convicted by military commission in November
2008. None of the other 11 has been charged.
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 4 16 December 2011
Cheney maintains that “it’s not Guantánamo that does the harm, it is the critics of the
facility”, adding he is “happy to note that for President Obama the ‘imperative’ of closing
Guantánamo has evolved into the necessity of keeping it open”.19
Over a year ago, President Obama blamed the failure to close the Guantánamo detention
facility within his one-year deadline on the “difficult” politics surrounding “an issue that has
generated a lot of political rhetoric” and made people “fearful”.20 Seven months later his
Attorney General blamed members of Congress for the administration’s U-turn on the trial of
five detainees accused of involvement in the 9/11 attacks who he said would now be
prosecuted before military commissions in Guantánamo rather than in federal court in the
USA as he had announced 18 months earlier.
Under international law, domestic law and politics may not be invoked to justify failure to
comply with treaty obligations.21 It is an inadequate response for one branch of government
to blame another for a country’s human rights failure. International law demands that
solutions be found, not excuses. The US administration is currently telling the world, in
effect, “we will resolve the Guantánamo detentions when the domestic political climate is
right”. The USA has not been willing to accept such excuses from other governments seeking
to justify their systemic human rights failures, and it should not be accepted when it is put
forward by the USA.
The acceptance by the Obama administration of certain basic assumptions that have led to
10 years of military detentions at Guantánamo without fair criminal trial – that the USA is
engaged in a global, pervasive, and open-ended “war” to which human rights simply does not
apply and in which the President (and sometimes Congress) alone make the rules – has also
led to the maintenance or even expansion of policies of extrajudicial execution and sweeping
invocations of secrecy that prevent both public scrutiny of government actions and any real
chance of victims of human rights violations obtaining redress.22
10 ANTI-HUMAN RIGHTS MESSAGES GUANTÁNAMO STILL SENDS
So, as Americans, we stand for human rights
John Brennan, Assistant to President Obama for counterterrorism23
The USA speaks the language of human rights fluently on the global stage, but stumbles
when it comes to applying human rights standards to itself. The Bush administration
promised to put human rights at the centre of its counter-terrorism strategy, but singularly
failed to do so. The Obama administration has promised the same thing, but the USA
continues to fall short of this commitment, despite what were undoubtedly positive initial
steps in the right direction.24
In a key speech in March 2010 on the Obama administration’s relationship to international
law, the Department of State’s Legal Advisor suggested that “from administration to
administration, there will always be more continuity than change; you simply cannot turn the
ship of state 360 degrees from administration to administration every four to eight years, nor
should you”.25 While he cited foreign policy, can continuity of failure on human rights be so
explained away? Did the Bush administration’s detention policies have such supertanker-like
momentum that they are impossible to reverse or remedy? Or is a deeply unsettling degree of
acceptance of those human rights-hostile policies across the US political spectrum helping to
leave the USA on the wrong side of its international obligations?
Certainly it was always too simplistic to say that the US response to the atrocities of 11
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 5 16 December 2011
September 2001 was that of a unique administration to a unique event. As Amnesty
International has long stressed, the Bush administration’s “war on terror” policies were not
cut from new cloth. The choice of Guantánamo as a location for detentions, for example,
built on existing US jurisprudence restricting the applicability of the constitution in the case
of federal government actions outside the USA concerning foreign nationals. The policy of
renditions expanded upon past practice and a 1995 order signed by President Bill Clinton.
Declassified CIA interrogation training manuals from the 1960s and 1980s describe
“coercive techniques” echoing the “enhanced interrogation techniques” used by the CIA in
the secret program authorized by President Bush. The post 9/11 Justice Department
memorandums giving legal approval for such techniques drew upon the USA’s long-standing
selective approach to international law and its conditional treaty ratifications.
Notions of national history and tradition have played their role too. Reviving military
commissions in 2009, for example, President Obama emphasised that such tribunals “have a
history in the United States dating back to George Washington and the Revolutionary War”.26
President Bush had said much the same thing when calling on Congress to pass the Military
Commissions Act of 2006,27 the core provisions of which were incompatible with
international law. And executions could also be said to be a US “tradition” given their
longevity of use in the USA. The pursuit by both the administrations of death sentences
against Guantánamo detainees at military commission trials has hardly come as a bolt out of
the blue.
In his March 2010 speech at the American Society of International Law, the State
Department Legal Advisor said that, while there may be a degree of continuity between the
Bush and Obama administrations, the “most important difference between this
administration and the last” is “its approach and attitude toward international law.” With this
in mind, Amnesty International outlines 10 anti-human rights messages that the Guantánamo
detentions continue to transmit to the world. If the USA wishes to end these transmissions,
and demonstrate its commitment to human rights, it should finally bring about an end to the
practice of indefinite detention without criminal trial, disavow its doctrine of global and
pervasive war, and embrace international standards, not just in word, but in deed.
~ ANTI-HUMAN RIGHTS MESSAGE 1 ~
THE WHOLE WORLD IS THE BATTLEGROUND IN A GLOBAL WAR IN WHICH HUMAN RIGHTS DON’T APPLY
Someone had dared attack America. They were going to pay… I turned to Andy and said,
‘You’re looking at the first war of the twenty-first century’
George W. Bush28
The Bush administration responded to the attacks of 11 September 2001 by invoking the
vision of a global “war” against al-Qa’ida and other groups in which international human
rights law would not apply. The Obama administration has broadly adopted this framework,
which is indeed now largely accepted within all three branches of the US government. Since
the Bush administration “declared” the “war on terror”, the USA has backdated this “war” to
having begun prior to 9/11.29 The USA has asserted the exclusive right unilaterally to define
the “war” and to make up its rules.
On 14 September 2001, Congress passed a joint resolution, Authorization for Use of Military
Force (AUMF), by 518 votes to 1. There seemed to be considerable confusion among
legislators as to what they were voting for, including whether it amounted to a declaration of
war or not. Some referred to bringing those responsible for the attacks to “justice”, but with
little or no elaboration – and the AUMF itself makes no reference to detention or trials, or
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 6 16 December 2011
indeed to human rights. Some felt the resolution did not go far enough, others felt it went too
far; some opined that the President had all the power he needed without a resolution; others
stressed the limiting effect of the resolution. Nevertheless, legislator after legislator voted in
favour of it. The resolution stated that it authorized the president to decide who was
connected to the 9/11 attacks, who might be implicated in future attacks, and what level of
force could be used against them. At the same time, he was unconfined by any geographical
limits.30 President Bush signed the resolution into law four days later, and his administration
would subsequently exploit it to justify a range of human rights violations.31
Even with the evidence before it of how its
resolution had been used to violate human
rights on a systematic and widespread
basis, Congress continued to buy into the
global war paradigm. Indeed, at the time
of writing, it was set to re-affirm the AUMF
and the use of indefinite military detention
under it. The version of the National
Defense Authorization Act for 2012
adopted by the Senate Armed Services
Committee on 12 December 2011 stated:
“Congress affirms that the authority of the
President to use all necessary and
appropriate force pursuant to the
Authorization for Use of Military Force
includes the authority for the Armed
Forces of the United States to detain
covered persons pending disposition under
the law of war”. The “covered persons” are
broadly defined and the legislation
countenances their “detention under the
law of war without trial under the end of
hostilities authorized by the Authorization
for Use of Military Force”.33
In seeking to distance itself from its
predecessor, the Obama administration
has asserted that it does not seek to rely
on the President’s constitutional authority
as Commander-in-Chief of the Armed
Forces to justify the detentions at
Guantánamo. Instead, it has said that it is
basing its detention authority on the
AUMF. In fact, the Bush administration
had also latterly sought to justify the
detentions by reference to the AUMF. In
any event, a Justice Department
memorandum issued two weeks after the
9/11 attacks held that the AUMF cannot place “any limits on the President’s determinations
as to any terrorist threat, the amount of military force to be used in response, or the method,
timing, and nature of the response. These decisions, under our Constitution, are for the
President alone to make.”34 This memo has not been withdrawn by the Obama
administration.
An interagency review of the Guantánamo detentions ordered by President Obama in January
‘November 20, 2001 is the last time I saw my mother and
my family.’
On 20 November 2001, Mohamedou Ould Slahi was asked
by security officials in his home city of Nouakchott,
Mauritania, to come to the Intelligence Bureau, which he
did. He has been in detention without charge or trial ever
since.
“I stayed in jail in Mauritania for approximately one week.
During that time, Mauritanian [redacted] did not question
or interrogate me. Eventually, [redacted] told me I was
going to be turned over to Jordan. I was shocked and I
asked him, ‘Why?’… [Redacted] said it was not his
decision and that the Americans had told the Mauritanian
government to send me there. I asked him why the
Mauritanian government was not protecting me. He said
that the Americans would hurt my country if the
Mauritanian government did not follow strictly their
instructions. I argued that if the Americans have anything
on me they should take me to America, [redacted]. At that
time (November 2001), there was no Guantánamo Bay.
Thus, on November 20, 2001, I was sent to Jordan. I was
imprisoned and interrogated there for eight months…
During the eight months I spent in Jordan, I was always in
isolation. The prison was horrible… I was never allowed to
see the representatives of the International Committee of
the Red Cross (ICRC), who were visiting the prison every
two weeks...”32
On 19 July 2002, Mohamedou Slahi was transferred to
Bagram, where he has said he was subjected to illtreatment
and threats of torture. On 5 August 2002, he
was transferred to Guantánamo where he was held as an
“enemy combatant” and subjected to ill-treatment and
where he remains today, held under the “law of war”, as
unilaterally asserted by the USA.
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 7 16 December 2011
2009 concluded a year later that there were 48 detainees who could neither be released nor
tried by the USA. They were “unanimously approved for continued detention under the
AUMF”.35 Forty-six of the 48 remain in detention, as two Afghan nationals who are believed
to have been in this category have since died (see text box, page 20).36 The administration
has also asserted the right to return detainees acquitted at trial to indefinite detention under
the ‘law of war’ (see below). Thus indefinite military detention without criminal trial of
detainees has been retained, as a continued sweeping invocation of the international law of
armed conflict, to justify measures taken outside of any specific armed conflict and that are
fundamentally incompatible with the ordinary systems of criminal justice operating in a
framework of international human rights. The now long-term corrosive effect of misapplying
the laws of war to matters of an essentially criminal nature only continues to eat away at
broader respect for human rights by the USA in its counter-terrorism efforts.
It bears repeating that among those still held
in Guantánamo on “law of war” grounds
include people taken into custody far from
any battleground as traditionally understood,
and not in the territory of a state at war with
the USA.
Mauritanian national Mohamedou
Ould Slahi was arrested by local
authorities in Mauritania in
November 2001, transferred to
Jordan for eight months, then
handed over to US custody in
Afghanistan in July 2002 and
transferred to Guantánamo on 5
August 2002.
In January 2002, Algerian
national Belkacem Bensayah was
handed over to US custody by
authorities in Bosnia and
Herzegovina. He has been in
Guantánamo since 20 January
2002.
In early 2002, Yemeni national
Zakaria al-Baidany, also known as
Omar Muhammed Ali al
Rammah, was taken into custody
in or around Duisi in the Pankisi
Gorge area of Georgia. According
to a leaked Pentagon document,
he was taken into custody by
“Georgian authorities”,
handcuffed, put in a vehicle,
“taken to a parking lot where he
was transferred to another car
and then taken to a warehouse
where he stayed for four days.
After the four days, detainee was
driven to another location where he was examined and later taken to an airport
Amin al-Bakri is a Yemeni national believed to have been in
US custody for nearly nine years without charge or trial.
According to an amended habeas corpus petition filed in US
District Court in April 2011, he was abducted by US agents in
Bangkok on 30 December 2002 when on his way to the airport
to fly back to Yemen after a trip to Thailand. His family did
not know his whereabouts or whether he was alive or dead
until months later when they received a postcard in his
handwriting, via the ICRC, from the US detention facility at
Bagram airbase in Afghanistan. According to the petition,
prior to his transfer to Bagram he had been held for around
six months in secret CIA custody at undisclosed locations and
subjected to torture and other abuse. Today, Amin al-Bakri is
held at the US Detention Facility in Parwan (DFIP) on the
Bagram air base.37
The US military has confirmed that “a Yemeni citizen whose
name is the same as or reasonably similar to [Amin al-
Bakri’s] is being detained at DFIP”. It maintains that his
detention has been found lawful by an executive body – the
US military Detainee Review Board (DRB).38 The Obama
administration argues that even if a DRB recommends a
detainee’s release, as has been alleged it did in Amin al-
Bakri’s case in August 2010, “the decision whether to accept
the DRB’s recommendation is entirely committed to the
discretion of the Executive and necessarily involves complex
diplomatic, political, and national security considerations…
These considerations are not within the province of the
judicial branch”.39 As is the case with the Guantánamo
detentions, the Obama administration has since January 2010
been operating a moratorium on returns of detainees to
Yemen.
The Obama administration is seeking to have Amin al-Bakri’s
habeas corpus petition dismissed without review of its merits
on the grounds that the District Court does not have
jurisdiction to consider it. In 2009, a District Court judge
ruled that Amin al-Bakri and two other non-Afghan nationals
held on Bagram airbase should have access to the US courts
to be able to challenge the lawfulness of their detention. The
Obama administration appealed and won a ruling from the
Court of Appeals for the DC Circuit in 2010 overturning the
decision. Rather than go to the Supreme Court, US lawyers for
the detainees returned to the District Court with new
information. The Obama administration is arguing that the
new information makes no difference and that “the Court of
Appeals’ prior conclusion that habeas does not extend to
Bagram remains accurate today”.40 Litigation is continuing.
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and put on a plane. When detainee landed, an American interrogator told him he
was in Afghanistan. Detainee was held in the Afghan National Directorate of
Security Prison Number Two for one year.” He was transferred to Bagram air base
on 9 April 2003 and to Guantánamo on 9 May 2003.
Yemeni national Tofiq Nasser Awad al Bihani was arrested in late 2001 or early
2002 by Iranian police in a marketplace in Zahedan, Iran. After several weeks in
Iranian custody, he was transferred to detention in Afghanistan. He was handed
over to US custody in Bagram in December 2002, before being transferred to
Guantánamo on 6 February 2003.41
Yemeni national Hussain Salem Mohammed Almerfedi was arrested in Tehran,
Iran in early 2002, before begin transferred in March or April 2002 to custody in
Afghanistan. After being held in Afghan custody in Kabul for about 10 weeks, he
was transferred to US military custody in Afghanistan on or around July 2002
before being transferred to Guantánamo on 9 May 2003.
Saudi Arabian national Ahmed al-Darbi was arrested by civilian authorities in
Baku, Azerbaijan, in June 2002, handed over to US custody and transported to
Guantánamo on 5 August 2002.
Pakistani national Saifullah Paracha was seized in Bangkok, Thailand, in July
2003 by US agents, hooded, handcuffed, and thrown into the back of a vehicle.
He was held for over a year in Bagram before being transferred to Guantánamo on
19 September 2004.
Fourteen detainees transferred on 4 September 2006 from the CIA’s secret
detention program to military custody in Guantánamo, where 13 of them remain,
had originally been detained in Thailand, United Arab Emirates, Djibouti and
Pakistan. Somali national Hassan Ahmed Guleed, for example, was arrested in his
home by local authorities in Djibouti in March 2004. Malaysian national
Mohammed Farik Bin Amin was arrested in June 2003 as he came out of a
bookshop in Bangkok, Thailand. Libyan national Mustafa Faraj al-Azibi was
arrested by Pakistan Special Forces in Mardan, Pakistan, on 2 May 2005. He was
transferred to US custody on 6 June 2005.
Kenyan national Mohammed Abdulmalik was arrested in February 2007 by police
in Kenya before being handed over “to the Americans, who took me to Djibouti,
Bagram, Kabul and Guantánamo Bay”.42 He remains in Guantánamo, without
charge or trial, more than four and a half years after he was taken there on 23
March 2007.
While the Obama administration has not itself transferred any detainees to Guantánamo and
has said it will not, it not only uses the global war paradigm as the legal framework for
existing detentions there, but also beyond.43 Somali national Ahmed Abdulkadir Warsame
was detained by US forces in the Gulf of Aden on or about 19 April 2011, for example, and
was apparently held in secret detention for at least two weeks and incommunicado for at
least six weeks before he was transferred to New York in early July 2011 and charged with
terrorism-related offences. The US authorities responded to Amnesty International’s concern
about his pre-transfer treatment by saying that “the US Government has consistently asserted
that it is at war with al Qaida and its associated forces, and that it may take all lawful
measures, including detention, to defeat the enemy”.44
The Obama administration has said that its authority to detain individuals in Afghanistan is
based on the AUMF. In September 2011 about 2,100 detainees were being held in the US
Detention Facility in Parwan (DFIP) on the Bagram air base, more than twice as many as were
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being held there a year earlier.45 The detainees include three non-Afghan nationals for whom
US lawyers have filed habeas corpus petitions and whom a District Court judge said in 2009
should have access to the US courts to be able to challenge the lawfulness of their detention.
The Obama administration maintained that they should not have such access and won a
ruling from the Court of Appeals in 2010 overturning the District Court decision (see box).46
In each of the cases, the government has sought to replace judicial review with executive
discretion, saying that military Detainee Review Boards in Bagram had determined that the
detainee is “lawfully detained pursuant to the Authorization for Use of Military Force, as
informed by the law of war”.47
The USA’s global war paradigm is an unacceptably unilateral and wholesale departure from
the very concept of the international rule of law generally, and the limited scope of
application of the law of armed conflict in particular, as it has existed to date. The negative
consequences for human rights of the USA’s double-barrelled assault (‘Human Rights do not
apply in War’; ‘Everywhere is War’) are immense. The message sent is that a government can
ignore or jettison its human rights obligations and replace them with rules of its own
whenever it deems the circumstances warrant it. This is entirely inconsistent with the USA’s
stated promise “to strengthen our own system of human rights protections and encourage
others to strengthen their commitments to human rights”.48
~ ANTI-HUMAN RIGHTS MESSAGE 2 ~
HUMANE DETAINEE TREATMENT IS A POLICY CHOICE, NOT A LEGAL REQUIREMENT
Generations of Americans have understood that torture is inconsistent with our values
President Barack Obama, 24 June 201149
At a press conference on 14 November 2011, President Obama was asked for his response to
the fact that some of his would-be successors were defending “waterboarding”, a torture
technique that is effectively a form of mock execution by interrupted drowning.50 During a
televised debate between Republican Party presidential contenders the previous evening,
Herman Cain had said “I don’t see that as torture, I see it as an enhanced interrogation
technique,” while Michelle Bachmann asserted that the technique was “very effective”. Both
said that if they became President they would authorize the use of waterboarding.51 President
Obama responded:
“They’re wrong. Waterboarding is torture. It’s contrary to America’s traditions. It’s
contrary to our ideals. That’s not who we are. That’s not how we operate. We don’t
need it in order to prosecute the war on terrorism.”52
On one level, President Obama’s response is to be welcomed, not least given that his
predecessor had specifically authorized use of this torture technique. On another level,
however, it fell short. He failed to acknowledge that torture is a crime and that governments
have an obligation to bring anyone responsible for torture to justice. Coupled with the USA’s
failure to bring to account those who authorized or used torture and other cruel, inhuman or
degrading treatment, including at Guantánamo, his answer left the impression that he agreed
that acceptance or rejection of torture, and the decision about what to do with those
responsible for it, is ultimately a question of domestic policy, tradition, and ideals alone.
The administration of President George W. Bush took the decision to deny not only human
rights protections, but also the basic protections of international humanitarian law (the laws
of armed conflict), including under the Geneva Conventions, to detainees in US military
custody outside the USA, including in relation to the conflict in Afghanistan. President Bush
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suggested in the same policy memorandum of 7 February 2002 that there were detainees
who were “not legally entitled” to humane treatment. The Department of Justice advised the
CIA that it could use “enhanced interrogation techniques” in its secret detention program
operated under presidential authority so long as the program was not conducted in the USA
and would not be used “against United States persons”.53 In his 2010 memoirs, former
President Bush asserted that he personally approved the use of “enhanced interrogation
techniques”, including waterboarding, against detainees in secret custody. “Damn right”, he
recalls as his response to the CIA Director’s request in 2003 for such authorization in the
case of Khalid Sheikh Mohammed.54 At an undisclosed location prior to being brought to
Guantánamo, this detainee was subjected, among other things, to some 183 applications of
“waterboarding”.55
In his 2010 memoirs, former President Bush defended the decision to locate the detention
facility at the Guantánamo naval base. Holding “captured terrorists on American soil”, he
said, “could [have] activate[d] constitutional protections they would not otherwise receive,
such as the right to remain silent”.56 The consequence of this policy decision was
predictable, indeed deliberate. For example, Mohamed al-Qahtani – held in US military
custody in a location, Guantánamo, that was “outside the sovereign territory of the United
States”57 – was subjected to torture and other ill-treatment when he “remained silent” in the
face of standard interrogation methods (see below).
No one has been brought to justice for these and other acts of torture by the USA that have
been publicly admitted and documented. So long as that is still the case, the problem of
torture remains a festering injustice, with Guantánamo at the centre. Khalid Sheikh
Mohammed and Mohamed al-Qahtani are among the detainees remaining in Guantánamo
today. There is as little prospect as there has ever been of seeing Khalid Sheikh Mohammed
and others brought to justice before ordinary criminal courts for their alleged involvement in
the 9/11 or other attacks; instead, they are charged for unfair trial by military commission
(see below). Mohamed al-Qahtani – who has been in US military custody since late December
2001 and at Guantánamo since 13 February 2002 – is held indefinitely without any criminal
trial after charges against him were dropped in 2008 on the grounds that he had indeed been
tortured, as found by the official then in charge of the military commission proceedings at
Guantánamo.
The Obama administration has broken from the interrogation policies pursued by the USA
during the early Bush years and has made a clear commitment to ending the practice of
torture.58 But questions remain as to whether this is a permanent break. Just as it was
presidential orders that set the policy lead on detainee treatment in the years after 9/11,
today also the policy has been set by presidential order. While interrogation policy now more
closely approaches international law on detainee treatment, the question as to what happens
when a President with a different approach takes office remains an open one. The door to US
torture remains far from being firmly closed and bolted shut.
Clearly, the absolute illegality of torture or that a technique such as waterboarding amounts
to torture are not accepted facts across the political classes in the USA, as a number of
Republican presidential contenders and members of Congress have recently illustrated.59 In
addition to those already mentioned, for example, would-be Presidents Mitt Romney and Rick
Perry have said that they support the use of “enhanced interrogation techniques”, and
refused to reject waterboarding outright.60 Another candidate, Newt Gingrich, said to an
audience in South Carolina on 29 November 2011:
“Waterboarding is by every technical rule not torture. [Applause] … It’s not — I’m not
saying it’s not bad, and it’s not difficult, it’s not frightening. I’m just saying that under
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the normal rules internationally it’s not torture. I think the right balance is that a
prisoner can only be waterboarded at the direction of the president in a circumstance
which the information was of such great importance that we thought it was worth the risk
of doing it…”61
Members of the previous administration – including the former President and Vice-President
– have also voiced their continuing support for conduct that constitutes torture and enforced
disappearance. In the aftermath of the killing of Osama bin Laden by US forces in Pakistan
in May 2011, a former US Attorney General from the Bush administration, Michael Mukasey,
claimed that “the intelligence that led to bin Laden” began with “a disclosure from Khalid
Sheikh Mohammed (KSM), who broke like a dam under the pressure of harsh interrogation
techniques that included waterboarding… That regimen of harsh interrogation was used on
KSM after another detainee, Abu Zubaydah, was subjected to the same techniques”.
Reviving such an interrogation program would be “a fitting way to mark the demise of Osama
bin Laden”.62 Noting that the USA looks set to resume the use of “enhanced” interrogation
techniques “if a Republican assumes the presidency in January 2013”, a former Bush
speechwriter has argued that while “it would be illegal for a foreign adversary to waterboard a
US soldier” because “American troops are lawful combatants”, this would not be so for
“terrorists”. The latter, he says, are “unlawful combatants” whom the USA “may lawfully
coerce…to provide information about imminent terrorist attacks.”63
Repetition by former or current officials of the mantra that the USA’s use of secret detention
and “enhanced” interrogation “saved lives” has undoubtedly been effective in reducing
domestic US public and political calls for accountability, but whether or not their claims are
true64, such rationalizations for these crimes under international law have been expressly and
formally rejected by the world community. Whether in times of peace or time of war or threat
of war, whether in normal conditions or under a state of emergency that threatens the life of
the nation, violations of the prohibitions of enforced disappearance, torture and other illtreatment
are absolutely forbidden.65 Whether torture or enforced disappearance are effective
or not in obtaining useful information has expressly been made irrelevant to the question of
whether they are lawful – they never are – or whether an individual responsible for these
crimes is to be investigated or prosecuted.
Former Secretary of Defense Rumsfeld has said that “the way the administration reached
decisions on detainee policy was generally consistent with a predisposition to protect the
historic powers of the presidency”.66 For a former head of the Office of Legal Counsel at the
US Department of Justice, “on issue after issue” in “the war on terrorism”, the Bush
administration erred “because it was too committed to expanding the President’s
constitutional powers”.67 From Amnesty International’s perspective, domestic interpretations
of presidential power become a matter for concern if they are incompatible with international
law. Under the Bush administration this was the case; the question is, what about today?
In June 2011, President Obama issued a statement to mark the 24th anniversary of the entry
into force of the UN Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (UNCAT). “As a nation that played a leading role in the effort to
bring this treaty into force”, he said, “the United States will remain a leader in the effort to
end torture around the world and to address the needs of torture victims… We also remain
dedicated to supporting the efforts of other nations, as well as international and
nongovernmental organizations, to eradicate torture through human rights training for security
forces, improving prison and detention conditions, and encouraging the development and
enforcement of strong laws that outlaw this abhorrent practice.”68 Notable by its absence was
any explicit reference by the President to UNCAT’s requirements on accountability for torture
and other ill-treatment.
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In 2003, 2004 and 2005, President Bush had also issued proclamations to mark the UNCAT
anniversary. In the first, he called on all governments to join the USA in “prohibiting,
investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel
and unusual punishment”.69 In the second, he promised that the USA would “investigate and
prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in
all territory under our jurisdiction”.70 In the third, he reaffirmed the USA’s “commitment to
the worldwide elimination of torture” and “to building a world where human rights are
respected and protected by the rule of law.”71 At the times he issued these statements, the
CIA was operating a secret detention program under presidential authorization and President
Bush himself had authorized interrogation techniques against detainees held in this program
that amounted to torture and other cruel, inhuman or degrading treatment.72
Clearly words are not enough. Nor was ending such ill-treatment the only thing the Obama
administration was legally obliged to do upon entering office. Amnesty International would
agree with the US lawyer involved in seeking redress for abuses at Guantánamo when he
wrote in November 2011:
“What the Bush administration experience showed was not that torture never works, but
that the impulse to torture is ever present. Torture is always seen as a sad necessity,
imposed with increasing frequency and brutality as panic and frustration increase. The
would-be torturer invokes the scenario of the ticking time bomb, but given the power to
torture, officials begin to see ticking time bombs everywhere, perhaps especially if they
believe they have been right once before…
The Obama administration can’t just say, ‘Trust us.’ Its challenge was not only to stop
the American government from torturing detainees, but to institutionalize the legal
infrastructure that would prevent the resumption of torture”.73
History repeats itself when its lessons are ignored. President Obama’s missed deadline of 22
January 2010 for closure of the Guantánamo detention facility has passed into history. It has
been replaced with no firm date or plan for closure and the prospect of a new US President
embracing the Guantánamo detention facility as a permanent fixture now looms. In similar
vein, without the necessary investigations, prosecutions, reparations, transparency and
legislation, President Obama’s executive order of 22 January 2009 prohibiting long-term
secret detention and “enhanced interrogation techniques” may yet come to be seen as no
more than a paper obstacle if and when any future US President decides that torture or
enforced disappearance are once again expedient for national security.
~ ANTI-HUMAN RIGHTS MESSAGE 3 ~
EVEN DETENTIONS FOUND UNLAWFUL BY THE COURTS CAN CONTINUE INDEFINITELY
The government has represented that it is continuing diplomatic attempts to find an
appropriate country willing to admit petitioners, and we have no reason to doubt that it is
doing so. Nor do we have the power to require anything more
US Court of Appeals for the DC Circuit, February 200974
Over a year and a half ago, a US federal judge ordered the release of Mohamedou Ould Slahi,
a Mauritanian national who by then had been held at Guantánamo without charge or trial for
eight years. The District Court judge had just conducted a habeas corpus hearing, a
procedure by which courts review the lawfulness of any deprivation of liberty. Mohamedou
Ould Slahi’s detention was unlawful, the judge concluded, adding that “a habeas court may
not permit a man to be held indefinitely upon suspicion, or because of the government’s
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prediction that he may do unlawful acts in the future…”75 The Obama administration
disagreed and appealed. Today, Mohamedou Slahi remains in Guantánamo, where he has
been held since August 2002 after being taken into custody in Mauritania in late 2001 and
secretly transferred to detention in Jordan and then Afghanistan before being brought to the
US naval base in Cuba.
Under the USA’s global war framework,
the Obama administration argued that
Mohamedou Slahi’s detention is lawful.
There was no requirement under the
AUMF, the US Department of Justice
lawyers argued, that Slahi had to have
“personally engaged in combat” and it
was also of “no moment” that he was
transferred to US custody “in a location
other than Afghanistan”. The
President’s detention authority under
the AUMF, it continued, “is not limited
to persons captured on a ‘battlefield’ in
Afghanistan” and to argue otherwise
would “cripple the President’s
capability to effectively combat al-
Qa’ida”.77 In November 2010, the Court
of Appeals vacated the District Court
ruling and sent the case back for further proceedings on the question of whether Mohamedou
Slahi was “a part of” al-Qa’ida at the time he was taken into custody despite his claim to
have by then severed all ties to the group.78 A new habeas corpus hearing may be held
sometime in 2012. By then Mohamedou Slahi will have been in custody without charge or
trial for over a decade.
Would the USA accept such treatment of detainees by other governments? In a human rights
assessment of Peru published in 2001, for example, the USA criticized the authorities there:
“Detainees have the right to a prompt judicial determination of the legality of their
detention and adjudication of habeas corpus petitions; however, according to human
rights attorneys, judges continued to deny most requests for such hearings. In Lima and
Callao, detainee petitions for habeas corpus are restricted severely, because under a
1998 executive branch decree issued as part of the war on crime, only two judges are
able to hear such petitioners, instead of the 40 to 50 judges in previous years, thereby
significantly delaying justice.”79
The essence of habeas corpus proceedings has for centuries been that government authorities
are required to bring an individual physically before the court and demonstrate that a clear
legal basis exists for their detention. Normally, if the government is unable to do so promptly,
the court is to order the individual released.80 A court’s power to obtain the immediate
release of an unlawfully held individual must be real and effective and not merely formal,
advisory, or declaratory.81 This is the bedrock guarantee against arbitrary detention (reflected
in article 9(4) of the ICCPR, for example). If it is not fully respected by the government and
courts in every case, the right to liberty and the rule of law are more generally undermined.
Guantánamo was chosen as a location for detentions in order to bypass this principle. By the
time that the US Supreme Court ruled, in Boumediene v. Bush, that the Guantánamo
detainees had the constitutional right to challenge the lawfulness of their detention in habeas
“Four independent UN experts welcome the announcement by
President-elect Barack Obama to close the Guantánamo Bay
detention centre… The experts state that ‘The regime
applied at Guantánamo Bay neither allowed the guilty to be
condemned nor secured that the innocent be released.’ It also
opened the door for serious human rights violations. In
addition to being illegal, detention there was ineffective in
criminal procedure terms… At the same time they urge that
in closing the Guantánamo Bay detention centre and secret
facilities, the US government fully respect its international
human rights obligations…The experts also stressed that
those detainees facing criminal charges must be provided
fair trials before courts that afford all essential judicial
guarantees. They emphatically reject any proposals that
Guantánamo detainees could through new legislation be
subjected to administrative detention, as this would only
prolong their arbitrary detention.”
UN News Release, 22 December 200876
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corpus petitions filed in federal court, detainees had been held there, not for a few days, but
for six and a half years. Three and a half years since the 2008 Boumediene ruling, the notion
that the detainees can obtain the “prompt” habeas corpus hearing ordered by the Supreme
Court has long since evaporated, and in the name of its global “war”, the USA continues to
flout the requirement that any deprivation of liberty be subject to effective control by
independent courts.
Even now, it can be years before a
Guantánamo detainee gets a hearing
on the merits of his habeas corpus
challenge. Once he does receive a
hearing, he will find that domestic law
– under a global war paradigm largely
accepted by the federal judiciary – has
placed substantial obstacles in the way
of him winning a court ruling that his
detention is unlawful. Even if he meets
that obstacle in the District Court in
Washington, DC, the government may
turn to the Court of Appeals for the DC
Circuit, which will not only mean the
detention will continue while that
court is briefed and its decision
awaited, but also likely result in
government victory if the record so far
is any guide. By early December 2011,
the Court of Appeals had issued 16
decisions – ruling against the detainee
in 12 cases and sending the other four
cases back to the District Court for
further proceedings.
Russian national Ravil Mingazov has
been held in Guantánamo since 2002,
after being taken into custody by
Pakistani authorities in Faisalabad
earlier that year. In April 2010, four
and a half years after a habeas corpus
petition was filed on his behalf, a
hearing was held in US District Court
on the merits of his petition. The judge
ruled that his detention was unlawful
and ordered his release. A year and a
half later, Ravil Mingazov remains in
Guantánamo. The Obama
administration appealed the ruling to
the Court of Appeals for the DC
Circuit, and then obtained a stay of that appeal while it returned to the District Court with
“new” evidence to try to persuade the Court to overturn its 2010 ruling. Ravil Mingazov’s US
habeas lawyer wrote in September 2011:
“The longer Ravil Mingazov and other detainees sit languishing in Guantánamo as their
cases gradually make their way through the courts (only to face near inevitable denial of
From Iran to Afghanistan to Guantánamo
December 2001/January 2002 – Yemeni national Hussain Salem
Mohammad Almerfedi is arrested by Iranian police in Tehran
March/April 2002 – Transferred to Afghanistan, held in Kabul
July 2002 – Transferred to US custody in Bagram
9 May 2003 – Transferred to Guantánamo
28 June 2004 – US Supreme Court rules in Rasul v. Bush that the US
courts can consider habeas corpus petitions for Guantánamo detainees
7 July 2004 – Pentagon announces formation of Combatant Status
Review Tribunal (CSRT) for Guantánamo detainees to “contest their
enemy combatant status”. The CSRTs will comprise panels of three US
military officers. The detainee will not have access to a lawyer for this
15 December 2004 – CSRT affirms Almerfedi as “enemy combatant”
16 August 2005 – Habeas corpus petition filed in District Court on
behalf of Hussain Salem Mohammed Almerfedi
5 June 2006 – In response, Bush administration files CSRT decision in
District Court and argues that Almerfedi is lawfully held under the
President’s war powers
12 June 2008 – US Supreme Court rules in Boumediene v. Bush that
the Guantánamo detainees have right to a “prompt” hearing to
challenge the legality of their detention in US District Court
5 January 2010 – A few days after a failed attempt to bomb a
commercial airliner over Detroit, and the suspect’s alleged links to
extremists in Yemen, President Obama announces a moratorium on all
returns of Yemeni nationals held at Guantánamo to Yemen
3/4/5 March 2010 – Hearing on the merits of Almerfedi’s habeas
corpus petition held in District Court
8 July 2010 – “After carefully considering the accuracy, reliability, and
credibility of all of the evidence presented… in the context of the
evidence as a whole, the extensive legal briefs submitted by the
parties, and the arguments presented by counsel during the three-day
merits hearing”, District Court rules that the government has not
shown “by a preponderance of the evidence” that Hussain Almerfedi
was a “part of” al-Qa’ida. He rules the detention unlawful, and orders
the detainee’s release
3 September 2010 – Obama administration announces it will appeal
the District Court ruling
9 November 2010 – Administration files motion asking District Court
to stay its order on the government to “take all necessary and
appropriate steps to facilitate the release of [Almerfedi] forthwith”
while its appeal is pending
4 March 2011 – District Court judge denies the government’s motion
10 June 2011 – US Court of Appeals for DC Circuit reverses District
Court’s ruling and rules that Hussain Almerfedi can be detained
5 December 2011 – US Supreme Court grants Hussain Almerfedi’s
motion to file under seal a petition asking the court to review his case
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the writ from the DC Circuit), the more credibility the US judicial system loses… I
wonder how many times I will have to explain to Ravil, that despite the Supreme Court’s
mandate to promptly process detainees’ habeas claims, the president’s promise to close
the prison and his [Ravil’s] own victory in federal court, it is more likely than not that we
will meet again in three months in this overly air-conditioned cell on a steamy island very
far away from his elderly mother, his loving wife and his growing son that Ravil last saw
eight years ago when he was a baby”.82
A recent ruling by the DC Circuit Court of Appeals has raised the bar even higher for the
Guantánamo detainees seeking to challenge the lawfulness of their detention. The decision
came in the case of Yemeni national Adnan Farhan Abdul Latif, who has been in US custody
without charge or criminal trial for a decade. He was seized by Pakistani police in December
2001 near Pakistan’s border with Afghanistan, handed over to US custody at the end of that
month and transferred to Guantánamo on 17 January 2002. He has been held in the base
ever since, with his mental and physical health causing considerable concern along the way.
In a meeting with his habeas lawyer in Guantánamo on 10 May 2009, Adnan Abdul Latif cut
one of his own wrists. He had previously made a number of suicide attempts. Writing to his
lawyer from isolation in Guantánamo’s Camp 5 in March 2010, he said that his
circumstances make “death more desirable than living”. In a meeting with his lawyer on 25
October 2011, he reported suffering from chronic back pain, and complained of headaches,
heartburn, and a sore throat. He has been waiting for years for a hearing aid for deafness in
his left ear resulting from a car accident in Yemen in 1994.
In June 2010, eight and a half years after Adnan Abdul Latif was taken into custody, and two
years after the Supreme Court’s Boumediene ruling, a District Court judge held a hearing on
the merits of his habeas corpus petition (originally filed in 2004). Adnan Abdul Latif
maintained that he travelled to Pakistan in August 2001 to seek medical treatment for the
injuries he sustained as a teenager in his 1994 car accident, and that he had travelled to
Afghanistan in pursuit of this medical care before fleeing the US bombing of Kabul in late
2001. The US government alleged that he was recruited by al Qa’ida to travel to Afghanistan
and that he trained and fought with the Taleban. In July 2010, District Court Judge Henry
Kennedy ruled that the government had not proved its theory by “a preponderance of the
evidence” and held that Adnan Abdul Latif’s detention was unlawful.
The Obama administration appealed. The case turned on a classified intelligence report,
which Judge Kennedy had found insufficiently reliable to base the detention upon. The
government argued that he had failed to properly assess Adnan al Latif’s credibility and had
been wrong in its assessment of the reliability of the intelligence report. On 14 October 2011
– nearly a decade after Adnan al Latif was taken into custody – a divided panel of the Court
of Appeals ruled 2-1 in favour of the government, overturning Judge Kennedy’s order.
The majority ruled that “in Guantánamo habeas proceedings a rebuttable presumption of
regularity applies to official government records, including intelligence reports like the one at
issue here”. The dissenting judge accused his two colleagues of “mov[ing] the goal posts” by
“imposing this new presumption”, and arguing that it “comes perilously close to suggesting
that whatever the government says must be treated as true”. He noted that the intelligence
report in question was “produced in the fog of war by a clandestine method that we know
almost nothing about” which was “prepared in stressful and chaotic conditions, filtered
through interpreters, subject to transcription errors, and heavily redacted for national security
purposes”.83
At the meeting with his lawyer in Guantánamo 11 days after the Court of Appeals ruling on
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his case, Adnan Abdul Latif said “I am a prisoner of death”.84 It remained to be seen at the
time of writing whether his case will be taken up by the US Supreme Court to elaborate on its
Boumediene ruling, which had left it to the District Court in the first instance to decide the
scope of habeas corpus in the Guantánamo context, and which the DC Circuit Court of
Appeals has arguably gutted. In 2010, the Supreme Court rejected all seven petitions that
had been presented to it from Guantánamo habeas corpus cases that had been through the
Court of Appeals.
At the time of writing, Yemeni
national Musa’ab al Madhwani, who
has been held in Guantánamo for over
nine years without charge or trial, was
seeking review of his case by the US
Supreme Court. His habeas corpus
petition had been denied by the
District Court in January 2010,
although the judge said that he was
“not convinced” that the detainee
was a threat to US national security,
given the absence of evidence that he
had either “fired a weapon in battle”
or “planned, participated in, or knew
of any terrorist plots”. Today, he
remains in detention under the
AUMF, the District Court’s ruling
affirmed by the Court of Appeals in
May 2011. In October 2011, a
petition was filed in the US Supreme
Court asking it to take his case. The
petition argues that in trying to
implement the 2008 Boumediene
ruling, “the courts (and in particular
the District of Columbia Court of
Appeals) have resorted to virtually
complete deference to Executive
discretion… Fundamental questions
of national importance pertaining to
limits on executive power and
application of notions of due process
to the detainees at Guantánamo are
raised by this and other such cases”.
Even if the government had decided not to appeal Judge Kennedy’s ruling, Adnan Abdul Latif
might still be in Guantánamo today. He is a Yemeni national and the administration is still
operating a moratorium on transfers of detainees to Yemen announced by President Obama
on 5 January 2010 based on an assessment of the security situation in Yemen. Only one
Yemeni has been transferred to Yemen since then; Mohamed Mohamed Hassan Odaini was
released from Guantánamo on 13 July 2010, six weeks after a District Court judge made a
particularly emphatic ruling that there was “no evidence” that this detainee had any
connection to al-Qa’ida. He berated the government for keeping “a young man from Yemen in
detention in Cuba from age eighteen to age twenty-six”, which had done “nothing to make
the United States more secure”, but simply kept Mohamed Odaini “from his family” and
denied him “the opportunity to complete his studies and embark on a career”.85
Some decisions of the DC Circuit Court of Appeals
11 March 2003 – Upholds District Court ruling that it has no
jurisdiction to hear habeas corpus petitions from foreign nationals held
in Guantánamo. Reversed by Supreme Court in 2004 (Rasul v. Bush)
15 July 2005 – Reverses District Court ruling that the Bush military
commissions were unlawful. The Court of Appeals rules that Congress
authorized the commissions. Reversed by Supreme Court in 2006
(Hamdan v. Rumsfeld)
20 February 2007 – Rules that the Military Commissions Act of 2006
has stripped courts of jurisdiction to hear habeas corpus petitions from
Guantánamo detainees and that they have no constitutional rights.
Reversed by Supreme Court in 2008 (Boumediene v. Bush)
18 February 2009 – Reverses District Court ruling ordering the release
into the USA of 17 Uighur detainees held in Guantánamo. Rules that
“the government has represented that it is continuing diplomatic
attempts to find an appropriate country willing to admit petitioners, and
we have no reason to doubt that it is doing so. Nor do we have the power
to require anything more.” (Kiyemba v. Obama)
24 April 2009 – Upholds District Court ruling that claims by former
Guantánamo detainees seeking redress for unlawful detention and
torture were not based on rights that were “clearly established” at the
time they were detained and “the doctrine of qualified immunity shields
government officials from civil liability” (Rasul v. Myers)
21 May 2010 – Reverses District Court ruling that non-Afghan detainees
held in US custody in Bagram, Afghanistan, can challenge the
lawfulness of their detention (Maqaleh v. Gates)
18 January 2011 – Upholds District Court ruling that specific details of
the detention and interrogation in secret CIA custody of 14 detainees
transferred in September 2006 to Guantánamo are exempt from
disclosure under freedom of information legislation (ALCU v. DoD)
14 October 2011 – Vacates District Court ruling that Adnan Abdul
Latif’s detention is unlawful. Rules that in Guantánamo habeas cases,
there must be a ‘presumption of regularity’ applied to official
government records, including the intelligence report the District Court
found to be an unreliable basis for Latif’s detention. (Latif v. Obama)
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 17 16 December 2011
There are 90 Yemenis still in Guantánamo, including one who is serving a life sentence after
being convicted by military commission in 2008. The administration has taken the position
that 26 of the other 89 should continue to be held indefinitely without charge or trial under
the AUMF. Five others have been referred for prosecution. The remaining 58 detainees, the
administration asserts, could be released if the security conditions in Yemen improve or an
“appropriate” third country option becomes available. About half of these detainees would be
prioritized for transfer over the other half, based on differing threat assessments attached to
them by the administration.86 The administration has not said which Yemenis fall into which
group (apart from those facing or convicted under military commission trials), so it is not
known which of the categories it has put Adnan Abdul Latif in.
Today, Abu Zubaydah would appear to be one of the 48 Guantánamo detainees whom the
administration said in 2010 it intends to hold indefinitely without criminal trial. However,
this has not been confirmed, and even Abu Zubaydah’s habeas corpus lawyers – who have top
secret security clearance – have not been told whether their client is one of the four dozen.87
No date has been set for a hearing on the merits of his challenge to the lawfulness of his
detention, and numerous motions brought by his lawyers since the Boumediene ruling remain
unadjudicated. Abu Zubaydah’s habeas corpus petition was filed over three years ago and it
is now almost a decade since he was taken into US custody and subjected to systematic
human rights violations, including the crimes under international law of torture and enforced
disappearance, for which no one has been held to account (see below).
It might be considered unlikely that Abu
Zubaydah’s habeas corpus challenge will
ultimately be successful, given the detention
authority claimed by the administration and
endorsed by the courts in other cases. But
even if his challenge were to be successful,
where would he go? He is a stateless
Palestinian. The Obama administration has
shown itself willing to continue indefinitely
holding at Guantánamo individuals whose
detention has been ruled unlawful by the
courts but for whom no “diplomatic”
arrangement for their release has been found.
It has found support for this from the Court of
Appeals for the DC Circuit. The latter has
ruled that in the case of a Guantánamo
detainee who wins a ruling that his detention
is unlawful, the District Court cannot compel
the government to release him as long as it is
making good faith “diplomatic attempts to
find an appropriate country” willing to admit him.89 That country will never be the USA itself,
given continuing US government policy – endorsed by the Court of Appeals – not to do what it
asks other countries to, namely to receive released detainees (see message 10 below).
In his order of 21 July 2010 in Adnan Abdul Latif’s case, for example, Judge Kennedy had
ordered the government to “take all necessary and appropriate diplomatic steps to facilitate
Latif’s release forthwith”. The record from previous such rulings, and the administration’s
response to them, show that this amounts to a request to the executive, not an order. Even
when courts have ruled a Guantánamo detainee’s detention unlawful and the government has
not appealed, release has neither been prompt nor guaranteed.
"[T]he primary purpose of the habeas corpus writ is
the physical production of the person concerned
before the court… [W]hile it is important not to be
seduced by romantic notions or purple prose, it
remains the fact that habeas corpus has been
described as 'perhaps the most important writ known
to the constitutional law of England, affording as it
does a swift and imperative remedy in all case of
illegal restraint or confinement', and as 'the most
efficient protection yet developed for the liberty of the
subject'."
Lord Neuberger of Abbotsbury, Master of the Rolls,
England and Wales Court of Appeal (Civil Division), in
the case of a detainee held in US custody at Bagram.
Pakistani national Yunus Ramatullah was taken into
custody by UK forces in Iraq in February 2004, handed
over to US custody, and transferred to Afghanistan. He
has been held in Bagram since June 2004.88
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 18 16 December 2011
An executive order signed by President Obama on 7 March 2011 explicitly envisages the
possibility of continued detention for months if not years after such a ruling. Under the order,
an executive review body is to conduct an annual review of “the status of transfer efforts for
any detainee whose petition for a writ of habeas corpus has been granted by a US Federal
court with no pending appeal and who has not been transferred”.90 President Obama’s order
can only have yet further corrosive effect on the fundamental role the fairness protections of
the criminal justice system play in upholding the right to liberty.
~ ANTI-HUMAN RIGHTS MESSAGE 4 ~
THE RIGHT TO A FAIR TRIAL DEPENDS ON WHERE YOU COME FROM AND THE DOMESTIC POLITICAL
TEMPERATURE SURROUNDING YOUR CASE
Quite frankly, when were here almost two years ago in this case, we weren’t going to be here
in two years because this place, the detention facility, was going to be closed down. Now we
are here.
Military judge, Guantánamo Bay, 9 November 201191
Asked about how he saw his role in ensuring a fair trial in the case before him, a military
judge presiding over a pre-trial military commission hearing conducted at Guantánamo on 9
November 2011, US Army Colonel James Pohl, noted that “one might say there may be
certain gaps that are not present in other more developed systems”.92
If the use of coercive interrogations conducted out of sight of independent judicial scrutiny,
legal counsel and other fundamental safeguards for detainees was at the heart of the USA’s
detention experiment conducted at Guantánamo and beyond, trials by military commission
were conceived as part of the experiment, even before the detentions began at Guantánamo.
A forum for trials was developed that was vulnerable to political interference and could
minimize independent external scrutiny of detainee treatment. Further, contrary to
international guarantees of equality before the courts and to equal protection of the law, the
system was applied on prohibited discriminatory grounds: US nationals accused of identical
conduct would continue to receive the full fair trial protections of the ordinary US criminal
justice system while non-nationals could be deprived of those protections on the basis of
their national origin alone.
In a speech on 21 May 2009, former Vice President Cheney recalled that after Pakistani
national Khalid Sheikh Mohammed was arrested in Pakistan in March 2003, “American
personnel were not there to commence an elaborate legal proceeding, but to extract
information from him”.93 By “elaborate legal proceeding”, the former Vice President
apparently meant an ordinary criminal trial. The detainee was not brought to trial in a US
federal court (where he had previously been indicted), but instead put into secret CIA custody
for the next three and a half years during which time he was subjected to enforced
disappearance, torture and other cruel, inhuman or degrading treatment, including 183
applications of “waterboarding” in March 2003.94
The US Supreme Court Hamdan v. Rumsfeld ruling in 2006 overturning President Bush’s
system of military commissions was seen by the administration as a threat to the CIA’s secret
detention program and the wall of impunity built around. The administration moved Khalid
Sheikh Mohammed and 13 other CIA detainees to Guantánamo and exploited their cases to
obtain passage of the Military Commissions Act of 2006. Legislate for military commissions,
President Bush told Congress, and the USA can bring the perpetrators of the 9/11 attacks to
justice.95 Congress passed the Act, authorizing military commissions that were a very close
relative to the ones blocked by the Hamdan ruling a few months earlier.
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 19 16 December 2011
Over five years later, Khalid Sheikh
Mohammed and four other detainees
whom the USA has charged with
involvement in the 9/11 conspiracy –
all of whom have been in US custody
for more than eight years – have still
not been brought to trial. Domestic
politics have intervened to deny
them “the elaborate legal
proceeding”, the fair trial, they are
due under international law. Now,
despite a change to an
administration claiming a new
approach to international law, they
still face unfair trial by military
commission.
There were, briefly, indications that
the Obama administration would
bring the men to a fair trial in a
regular criminal court. On 13
November 2009, Attorney General
Holder announced that the five
detainees – Khalid Sheikh
Mohammed, Walid bin Attash, Ramzi
bin al-Shibh, ‘Ali ‘Abd al-‘Aziz and
Mustafa al Hawsawi – would be
transferred from Guantánamo for
prosecution in ordinary federal court,
“before an impartial jury under longestablished
rules and procedures”.
Since then nothing has changed with
the federal courts. They remain open
for business and with the capacity
and experience to conduct such
trials. What has changed is the
domestic political temperature.
Attorney General Holder’s
announcement served to test the
political waters, which were found to
be hot. In the absence of a prompt
and decisive move to actually
implement the transfer of the men to
the USA, the plan to use the civilian
courts for their prosecution became
the subject of fierce political
controversy in the USA. The Obama administration hesitated – for month after month – and
then backtracked. On 14 April 2010, the Attorney General told the Senate Judiciary
Committee that the administration was reviewing the question of where to prosecute the five
detainees, with a decision expected in a “number of weeks”.
A year rather than weeks later, on 4 April 2011, Attorney General Holder announced that the
five men would be charged for trial by military commission. He had previously noted that the
A third of a life spent in US military custody
21 July 2002 – During a night raid in Milani, Khost province, US forces
take Afghan national Obaydullah, then aged about 20, from his home on
suspicion of being a member of an al-Qa’ida bomb cell after mines were
found outside the family compound. He is taken for interrogation at
Chapman Airfield in Khost. After 36 hours he is transferred to Bagram
airbase
28 October 2002 – Transferred to Guantánamo
September 2004 – Affirmed as an “enemy combatant” by CSRT. He tells
CSRT that after his arrest, US forces “put a knife to my throat, tied my
hands and put sandbags on my arms. At the airport in Khost I was
walked around all night with the sandbags on my arms. They took me to
Bagram where the interrogation and punishment increased”, allegedly
including beatings, stress positions, sleep deprivation, and threats.
12 June 2008 – US Supreme Court rules that the Guantánamo detainees
have right to a “prompt” hearing to challenge the legality of their
detention in US District Court
7 July 2008 – Obaydullah’s abeas corpus petition filed in District Court
9 September 2008 – Obaydullah charged for trial by military commission
12 November 2008 – Government moves to have Obaydullah’s habeas
corpus petition dismissed or stayed until after his trial and any appeals
2 December 2008 – District Court stays of habeas corpus proceedings
20 January 2009 – Obama administration takes office, and obtains 120-
day stay of military commission cases, to review Guantánamo detentions
24 February 2009 – Lawyers seek to have the habeas corpus stay lifted
13 March 2009 – Obama administration opposes defence motion,
arguing that “although military commission proceedings are currently not
moving forward”, the charges against Obaydullah “remain pending”
22 April 2009 – District Court denies defence motion to lift stay
15 May 2009 – President Obama announces that military commissions
further delayed as administration seeks to reform the commission system
9 July 2009 – Obaydullah’s lawyers renew their motion to have the stay
on habeas corpus proceedings lifted. Administration opposes the motion
6 August 2009 – District Court refuses to lift stay. Case appealed
6 January 2010 – Obama administration tells Court of Appeals for DC
Circuit that “the Attorney General has determined that prosecution in a
military commissions is appropriate” for Obaydullah
18 June 2010 – Court of Appeals sees “no reason sufficient to justify
denying Obaydullah the ‘prompt habeas corpus hearing’ he is entitled to
17 August 2010 – Defence file motion in District Court seeking
government information on the source, credibility, and nature of
intelligence that led to the raid on Obaydullah’s home eight years earlier.
The administration opposes the motion, and the District Court denies it.
30 September/1 October 2010 – Habeas corpus merits hearing held.
19 October 2010 – District Court rules that Obaydullah’s detention is
lawful under the AUMF. In a classified memorandum issued a month
later, the judge notes that the “Government’s case in large part rests on
the pre-raid intelligence reports that link Obaydullah to an al Qaeda
bomb cell”, and that the government “has not disclosed the source” of
this intelligence. The judge ruled that there was enough evidence to
warrant a finding that “more likely than not” the detainee had been part
of an al-Qa’ida bomb cell.
7 June 2011 – The military commission charges sworn against
Obaydullah on 9 September 2008 are dismissed without prejudice
21 October 2011 – Unclassified version of Obaydullah’s petition to Court
of Appeals seeking reversal of the District Court’s denial of habeas
corpus filed
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Index: AMR 51/103/2011 Amnesty International 20 16 December 2011
military commissions did not have the same “time-tested track record of civilian courts.”96
Why then, would the US authorities risk prosecuting anyone, let alone in one of the highest
profile cases in decades, in an essentially untested tribunal the international reputation of
which was so tainted, which lacked the institutional independence of the ordinary federal
judiciary, and which by any measure failed to include the full range of fair trial procedural
guarantees recognized as necessary in trials before the ordinary courts?
The UN Human Rights Committee
has stated, on the right to a fair trial
under article 14 of the ICCPR, that
the trial of civilians (anyone who is
not a member of a state’s armed
forces) by special or military courts
must be strictly limited to
exceptional and temporary cases
where the government can show that
resorting to such trials is “necessary
and justified by objective and serious
reasons”, and where “with regard to
the specific class of individuals and
offences at issue the regular civilian
courts are unable to undertake the
trials”.97 The US government cannot
point to any such rationale. It can
only point to domestic politics.
The military commissions are not by
any measure tribunals of
demonstrably legitimate necessity,
but creations of political choice.
Further, especially given the
continuing failure of the USA to
meet its obligations of independent
investigation, accountability, justice,
and effective remedy, for the now
well-documented allegations of
torture and other ill-treatment,
enforced disappearance, and other
similar human rights violations
against the individuals selected for
trial by military commission, the
military commissions cannot be
divorced from the unlawful detention
and interrogation regime for which
they were developed.
Former Secretary of Defense Rumsfeld, responsible under President Bush’s military order of
13 November 2001 to find a location to hold detainees and set up military commissions to
try a selection of them has written that, “after flirting with trying captured terrorists in
civilian courts of law”, the Obama administration had “changed course in response to a
growing public outcry”. Today, he says, “military commissions – patterned on those
established under the Bush administration – continue to be used to try terrorists”.98
The current incarnation of the military commissions are indeed modelled on the Bush
version, and although some improvements were made under the revised MCA passed in
Guantánamo: Ten years, eight deaths, six convictions
November 2001 – President Bush orders his Secretary of Defense
to find an “appropriate location” to hold detainees and to
establish military commissions to try some of them
January 2002 – First detainees transferred to US Naval Base at
Guantánamo Bay in Cuba
June 2006 – Three detainees, two Saudi Arabians and one
Yemeni, die at Guantánamo, reportedly by suicide
June 2006 – US Supreme Court overturns Bush military
commission system. System revived under Military Commissions
Act (MCA) signed into law by President Bush in October 2006
April 2007 – Having pled guilty, Australian national David Hicks
is sentenced to seven years in prison, six years and three months
of which is suspended under the terms of a pre-trial agreement
which sees him transferred to Australia
May 2007 – Saudi Arabian detainee dies, reportedly by suicide
December 2007 – Afghan detainee dies, reportedly of cancer
August 2008 – Yemeni detainee Salim Ahmed Hamdan is
sentenced to 66 months in prison, all but five of which
suspended. He is transferred to Yemen in late 2008
November 2008 – Yemeni detainee Ali Hamza al Bahlul
sentenced to life imprisonment under the MCA of 2006
June 2009 – Yemeni detainee dies, reportedly by suicide
October 2009 – President Obama signs Military Commissions
Act of 2009, with provisions for revised military commissions
August 2010 – Sudanese national Ibrahim al Qosi sentenced to
14 years under MCA of 2009. In exchange for his guilty plea, all
but two years of his sentence suspended
October 2010 – Canadian national Omar Khadr sentenced to 40
years in prison, limited to eight years under a pre-trial plea
arrangement, and possible return to Canada after a year. He was
15 when taken into US military custody in Afghanistan in 2002
February 2011 – An Afghan detainee dies, reportedly of natural
causes
February 2011 – Sudanese detainee Noor Uthman Muhammed
sentenced to 14 years in prison under the MCA 2009, all but 34
months suspended under the terms of a guilty plea and promise
to cooperate in future proceedings
May 2011 – An Afghan detainee dies, reportedly by suicide.
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 21 16 December 2011
2009, they do not meet international fair trial standards.
The Obama administration has been in office for three years. It has brought only one
Guantánamo detainee for trial in federal court (albeit one more than occurred under the Bush
administration).99 Regardless of the failings of the previous administration, the USA’s failure
to ensure within a reasonable time fair trials or release of other detainees is unacceptable,
and violates the right to trial without undue delay. A fully functioning civilian judicial system,
with the experience, capacity and procedures to deal with complex terrorism prosecutions,
was available from day one.
The commissions, like Guantánamo, send the message that the USA is not committed to
universal human rights, and that international fair trial standards can be jettisoned on the
basis of the national origin of the defendant, the USA’s global war framework, or the
domestic political temperature generated by any particular case.
~ ANTI-HUMAN RIGHTS MESSAGE 5 ~
JUSTICE CAN BE MANIPULATED TO ENSURE THE GOVERNMENT ALWAYS WINS
Those whom we have good evidence against will get fair trials; those we have weak evidence
against we’ll give less fair trials; those we have no evidence against, we’ll just keep them
locked up in preventive detention without any trial at all. In other words, we’ll fit the process
to the result and in effect have kangaroo justice
Chairman of the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 2009100
The Obama administration’s decision to retain military commissions is part of a continuing
approach that seems aimed at keeping the government’s thumb firmly placed on its side of
the scales of justice, with decisions made on detainees taken according to which avenue is
deemed most likely to achieve government “success”, or minimize domestic political fallout,
rather than adhering to principles of equality, due process and human rights.
“Whenever feasible”, the Guantánamo detainees whom the administration
decides it cannot release or transfer to the custody of other governments will be
tried in federal court on the US mainland (although, many in Congress are trying
to eliminate this option altogether);101
Where the administration deems this not feasible – it currently considers this to
be the case across the board as a result of Congress blocking the transfer of
detainees to the US mainland – it will turn to military commissions at
Guantánamo with institutions and procedures that fall far short on respect for fair
trial rights;
In the case of acquittal by military commission (or presumably after a sentence
has been served by a detainee convicted by such tribunals), the administration
reserves the right to return the detainee to indefinite detention under the “law of
war”. It has recently indicated that it also reserves the right to do this after an
acquittal in federal District Court in the USA.102
Where no trial is deemed possible – which the administration concluded in 2010
was the case for 48 Guantánamo detainees – indefinite detention without any
prospect of criminal trial in any form is the order of the day.103
Detainees have access to habeas corpus, but if a judge orders release on the
grounds that the detention is unlawful, this can still mean indefinite detention,
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possibly for years, if the government says it is unable to find any country willing
to take the detainee (because the USA continues to refuse to allow any
Guantánamo detainee to be released into the USA).
In March 2009, President Obama said that some of the detainees held at Guantánamo “will
be difficult to try…because of the manner in which evidence was obtained. So there’s a
clean-up operation that has to take place, and that’s complicated”.104 A few weeks later, he
referred to the “messy situation” of the Guantánamo detentions: “We’ve got a lot of people
there who we should have tried early, but we didn’t. In some cases, evidence against them
has been compromised. They may be dangerous, in which case we can’t release them.”105
The Obama administration
undoubtedly faced the serious
consequences of unlawful policies
pursued by its predecessor.
Whatever measures the
administration takes, however,
detainees should not pay for the
error of the USA’s ways. Any
“clean-up” should not amount to a
cover-up of any human rights
violations that have been
committed. Neither should it place
any obstacle in the way of remedy
for detainees unlawfully treated, or
release of detainees unlawfully
held whom the USA does not
intend promptly to charge.
No government should be
permitted to diminish the quality
of justice to compensate for its
own past injustices, even if that injustice took place under a previous executive and
legislature. The human rights violations of the past cannot provide any valid excuse for
further disregard of human rights in the present. Clearly among the detainees still held at
Guantánamo there are individuals who should face prosecution – indeed who should have
been charged and brought to trial years ago. Any Guantánamo detainee who cannot be
brought to fair trial should be released. This is true whether the government does not have
enough evidence to bring a prosecution or whether the evidence the government does have
has been rendered inadmissible in a fair trial by the way in which it was obtained, for
example through torture or other ill-treatment. If a person is released and subsequent
surveillance and investigation generates sufficient evidence that the person is then engaging
in criminal activity, he can still be brought to justice in a fair trial.
~ ANTI-HUMAN RIGHTS MESSAGE 6 ~
EXECUTION IS ACCEPTABLE – EVEN AFTER AN UNFAIR TRIAL
I don’t think it will be offensive at all when he’s convicted and when the death penalty is
applied to him
President Obama, November 2009
When Attorney General Holder announced in November 2009 that five Guantánamo
16 January 2002 – Washington, DC, US Department of Defense
News Briefing with Secretary of Defense Donald Rumsfeld
Rumsfeld: We are also currently holding 50 detainees in
Guantánamo Bay, Cuba, and we expect a third plane of 30
detainees to arrive there later this afternoon.
Q: Have you begun questioning yet the detainees in Gitmo,
and are you close to charging any of them?
Rumsfeld: I'm trying to think who's there now. It keeps
changing. We've been sending 10, 20 or 30 in periodically. I
do not believe that formal interrogation has continued in
Guantánamo Bay. The preliminary interrogations took place
in the locations where the detainees had previously been in
custody, essentially Kandahar and Bagram, but also some
other places. And I don't believe they've started down there.
And we have not made any decisions with respect to
disposition of the ones that are currently in Guantánamo, to
my knowledge.
~~
Nine of the 171 men still held at Guantánamo in December
2011 were transferred to the base on 16 January 2002. By
December 2011, none of these nine had been charged.
USA: Guantánamo – A decade of damage to human rights.
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detainees accused of involvement in the attacks of 11 September 2001 would be transferred
to the US mainland and prosecuted in federal court there rather than by military commission
in Guantánamo, he said he wanted “to assure the American people” of something in
particular – namely that the government would still seek to have the men executed. “I fully
expect to direct prosecutors to seek the death penalty against each of the alleged 9/11
conspirators”, he said.106 Not long afterwards, asked about the views of those offended by the
prospect of the trial of Khalid Sheikh Mohammed being conducted in federal court where the
constitutional protections afforded to US citizens would apply, rather than before a military
commission, where they would not, President Obama responded: “I don’t think it will be
offensive at all when he’s convicted and when the death penalty is applied to him”.107
Since then, the Obama administration has done a U-turn on the trial forum, but is
maintaining an unbending inclination for the death penalty in these cases. As if the human
rights violations committed at and beyond Guantánamo over the past decade were not bad
enough, another violation of international law is now on the cards in relation to the
Guantánamo detentions – execution after unfair trial by military commission.
The UN Human Rights Committee has emphasised that fair trial guarantees are particularly
important in cases leading to death sentences, and that any trial not meeting international
fair trial standards that results in a death sentence would constitute a violation of the right to
life under the ICCPR. Military commissions do not meet these standards.
It comes as no surprise that the USA intends to seek the death penalty in these Guantánamo
trials, not only because judicial killing remains a part of the US policy and legal landscape,
but also because the notion of “justice” has taken many rights-violating forms in what the
Bush administration dubbed the “war on terror”.
Nine years ago, in November 2002, ‘Abd Al Rahim al-Nashiri was handed over to US custody
by authorities in the United Arab Emirates where he had been arrested a few weeks earlier.
President Bush – asked about the significance of the arrest – responded that “we did bring to
justice a killer”.108 He subsequently added: “We’re making progress on this war against
terror. Sometimes you’ll see the progress, and sometimes you won’t. It’s a different kind of
war. The other day, we hauled a guy in named al-Nashiri.”109 “He’s not a problem anymore.
[Laughter] One by one, we’re bringing them to justice.”110 A few days earlier, on or around 27
November 2002, 12 days into his interrogation in secret CIA custody at an undisclosed
location, ‘Abd al-Nashiri was subjected to “waterboarding”. His “enhanced” interrogation
continued until 4 December 2002, the day after President Bush spoke of having brought him
to “justice”.111
In the same month that ‘Abd al-Nashiri was being tortured in secret CIA custody, an alleged
senior member of al-Qa’ida, Abu Al al-Harithi, and five other men were killed in a car in
Yemen by a CIA-controlled Predator drone missile strike. The UN Special Rapporteur on
extrajudicial, summary or arbitrary executions described the incident as constituting “a clear
case of extrajudicial killing”.112 The US government disagreed, arguing that the killings were
lawful under the law of armed conflict and that the Special Rapporteur’s mandate did not
extend to military actions conducted during “the course of an armed conflict with al
Qa’ida”.113 A few weeks after the killings, President Bush asserted that “you can’t hide from
the United States of America. You may hide for a brief period of time, but pretty soon we’re
going to put the spotlight on you, and we’ll bring you to justice”, adding that some people
“were now answering questions at Guantánamo Bay”, while others had “met their fate by
sudden justice”, that is, had been killed.114
Eight years later, in his announcement that a team of US Special Forces had entered
Pakistan and killed Osama bin Laden, President Obama said that “justice has been done”.115
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He repeated this in a television interview two days later.116 That “justice” was done by killing
Osama bin Laden on sight was the common refrain from various US officials.
Since the attacks of 11 September 2001, Amnesty International has called for those
responsible for this crime against humanity to be brought to justice, in accordance with
international human rights and humanitarian law, and for retaliatory injustices to be
resisted.117 For Amnesty International, this has always explicitly meant bringing the
perpetrators before properly constituted independent and impartial courts for criminal trial in
fair proceedings, without recourse to the death penalty, a punishment the organization
unconditionally opposes in every case and every country. The limited explanations to date by
US authorities, to the media and in response to written queries from Amnesty International,
about the killing of Osama bin Laden and the legal framework under which it was conducted,
and the refusal of US authorities to conduct an independent investigation into the death,
leave little option but to conclude that the killing was a violation of international law in which
the opportunity to bring Osama bin Laden to justice before courts of law was thereby
extinguished.118
‘Abd al Rahim al-Nashiri, taken into custody
rather than being subjected to what President
Bush dubbed “sudden justice”, was
transferred to Guantánamo in September
2006 after nearly four years in secret
detention. In 2008, the Bush administration
charged him for trial by military commission
and was intending to seek the death penalty
against him. The trial had not happened by
the time President Bush left office, but the
Obama administration has revived its
predecessor’s lethal pursuit, re-charging ‘Abd
al Rahim al-Nashiri in April 2011 for trial by
military commission, with the convening
authority in September 2011 authorizing the
death penalty as a sentencing option if the
prosecution obtains a conviction at the trial.
That trial is currently due to begin in late
2012, by which time ‘Abd al-Nashiri will
have been in US custody for a decade.
For much of the world, the death penalty is
incompatible with fundamental notions of
justice. Today, 139 countries are abolitionist
in law or practice. The Obama administration
has responded to calls from such countries
for the USA to join them in abandoning the
death penalty as merely indicative of policy
difference.121
While it is true that international human
rights law, including article 6 of the ICCPR,
recognizes that some countries retain the
death penalty, this acknowledgment of present reality should not be invoked “to delay or to
prevent the abolition of capital punishment”, in the words of article 6.6 of the ICCPR. The
UN Human Rights Committee, the expert body established under the ICCPR to monitor its
22 January 2002 – Washington, DC, US Department
of Defense News Briefing with Secretary of Defense
Donald Rumsfeld
“And let there be no doubt, the treatment of the
detainees in Guantanamo Bay is proper, it's
humane, it's appropriate, and it is fully
consistent with international conventions. No
detainee has been harmed, no detainee has been
mistreated in any way. And the numerous
articles, statements, questions, allegations, and
breathless reports on television are undoubtedly
by people who are either uninformed,
misinformed or poorly informed.”
~~
At least 32 of the 171 men still held at
Guantánamo in December 2011 were transferred
to the base before 22 January 2002.
On 2 December 2002, Secretary Rumsfeld
approved, “as a matter of policy”, a number of
“counter-resistance” techniques for use in
interrogating detainees at Guantánamo, including
stress positions, sensory deprivation, prolonged
isolation, the use of 20-hour interrogations,
hooding during transportation and interrogation,
stripping, forcible shaving, and “using detainees
individual phobias (such as fear of dogs) to
induce stress”.119
Over 200 FBI agents who served at Guantánamo
between 2002 and 2004 subsequently told the
US Department of Justice Office of Inspector
General that they had “observed or heard about
various rough or aggressive treatment of
detainees, primarily by military interrogators. The
most frequently reported techniques included
sleep deprivation or sleep disruption, prolonged
shackling, stress positions, isolation, and the use
of bright lights and loud music”.120
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implementation, has said that article 6 “refers generally to abolition in terms which strongly
suggest that abolition is desirable. The Committee concludes that all measures of abolition
should be considered as progress in the enjoyment of the right to life”.122 Dozens of countries
have abolished the death penalty since this General Comment was issued in 1982. More than
1,250 men and women have been put to death across the USA during this time.
The message sent to the world by the USA’s use of the death penalty generally is that the
USA is way behind the times on an issue of fundamental human rights. Its pursuit of the
death penalty after unfair trials at Guantánamo sends the additional message that, far from
working towards abolition as human rights law expects of it, the US government is willing to
open a new chapter in the country’s ugly history of judicial killing, not turn over a new leaf.
~ ANTI-HUMAN RIGHTS MESSAGE 7~
VICTIMS OF HUMAN RIGHTS VIOLATIONS CAN BE LEFT WITHOUT REMEDY
Although mechanisms for remedies are available through US courts, we cannot make
commitments regarding their outcome
US government, to UN Human Rights Council, 2011123
It is a fundamental rule of international law that any person whose human rights have been
violated shall have access to an effective remedy. Like its predecessor, the Obama
administration has systematically blocked access to remedy for current or former detainees in
the counter-terrorism context.
In October 2004 four UK nationals, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal al-
Harith, who were held without charge or trial in Guantánamo for two years from 2002 after
being transferred there from Afghanistan, filed a lawsuit in US federal court seeking damages
for prolonged arbitrary detention, as well as torture and other cruel, inhuman or degrading
treatment.
In February 2006, the District Court noted that the lawsuit alleged “various forms of torture,
which include hooding, forced nakedness, housing in cages, deprivation of food, forced body
cavity searches, subjection to extremes of heat and cold, harassment in the practice of their
religion, forced shaving of religious beards, placing the Koran in the toilet, placement in
stress positions, beatings with rifle butts, and the use of unmuzzled dogs for intimidation.”
What was “most disturbing”, he wrote, was the claim that “executive members of the United
States government are directly responsible for the depraved conduct the plaintiffs suffered
over the course of their detention”.
Judge Ricardo Urbina found that the AUMF had authorized the military to carry out the
detentions and interrogations, and that the alleged torture, though “reprehensible”, was a
“foreseeable consequence of the military’s detention of suspected enemy combatants”. The
“heightened climate of anxiety, due to the stresses of war and pressures after September 11
to uncover information leading to the capture of terrorists”, he wrote, “would naturally lead to
a greater desire to procure information and, therefore more aggressive techniques for
interrogations”. This, he suggested, lay behind Secretary of Defense Rumsfeld’s authorization
in December 2002 of stress positions, stripping, prolonged isolation, hooding, sensory
deprivation, exploitation of detainee phobias and other techniques for use in Guantánamo.
Judge Urbina wrote that there was no evidence that the alleged torture and other ill-treatment
“had any motive divorced from the policy of the United States to quash terrorism around the
world”. He ruled that the individual officials named as defendants in the lawsuit had been
acting, “at least in part, to further the interests of their employer, the United States”. Under
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Index: AMR 51/103/2011 Amnesty International 26 16 December 2011
US law, once individual government officials are deemed to have been acting within the
scope of their employment, the US government is substituted as the defendant in their place.
Judge Urbina ruled that such a "substitution" in the Rasul case had the effect of granting the
individual defendants absolute immunity from civil liability in US courts for violations of
international law. Judge Urbina granted the government’s motion to dismiss the lawsuit.
At the time of Judge Urbina’s consideration of the case, the question of what constitutional
protections the Guantánamo detainees were entitled to was pending before the federal
courts. Because of the “unsettled nature” of their rights in US courts at that time, Judge
Urbina ruled, the officials “cannot be said to have been plainly incompetent or to have
knowingly violated the law”, and therefore, he ruled, “are entitled to qualified immunity”
under US law. This decision was appealed to the Court of Appeals which, on 11 January
2008, upheld Judge Urbina’s ruling, concluding that “Guantánamo detainees lack
constitutional rights because they are aliens without property or presence in the United
States”. Even if they did have constitutional rights, the panel wrote, this was not clearly
established at the time of their detention and the officials were entitled to qualified immunity
under US law.
Following the Supreme Court’s
Boumediene ruling in 2008 finding that
the Guantánamo detainees had the
constitutional right to challenge the
lawfulness of their detention in US
court, the Supreme Court remanded the
Rasul lawsuit case to the Court of
Appeals to consider the effect of the
Boumediene decision on it. There was
then a change in US administrations
following the November 2008
presidential election.
Anyone hoping for a policy change was disappointed. The new administration argued to the
Court of Appeals that it would be “unfair” to subject government employees to financial
damages when the constitutional rights being asserted “were not clearly established at the
time of the alleged acts in question here”. In April 2009, the Court decided in the
government’s favour, ruling that the Boumediene decision did not change the outcome of its
own January 2008 decision on the Rasul lawsuit. The claims raised by the former detainees
were not based on rights that were “clearly established” at the time they were detained and
“the doctrine of qualified immunity shields government officials from civil liability” under
such circumstances.
Lawyers for the four UK nationals petitioned the US Supreme Court to take the case. The
administration urged the Court not to take the case, arguing that the post-Boumediene
decision by the Court of Appeals in the Rasul lawsuit was correct and should be allowed to
stand. It was “not clearly established at the time petitioners were detained at Guantánamo
Bay that they had the constitutional rights they claim were violated”, the administration
argued. On 14 December 2009 the Supreme Court announced that it was not taking the
case, thereby allowing the Court of Appeals ruling to stand and leaving the former detainees
without access to judicial remedy in the USA.
The Obama administration’s November 2009 brief in the Rasul lawsuit asserted that “torture
is illegal under federal law, and the United States government repudiates it”. The
administration said much the same thing in seeking dismissal of another lawsuit filed in the
Secrecy blocks accountability: continuity or change?
“Information such as certain details about the conditions of
confinement, circumstances of capture, location of detention
facilities, assistance of foreign entities, and sensitive
intelligence collected from detainees has not been
disclosed… Operational details regarding the CIA’s former
interrogation program – that is, information about regarding
how the program was actually implemented – also remains
classified, as do descriptions of the implementation or
application of interrogation techniques, including details of
specific interrogations where Enhanced Interrogation
Techniques (EITs) were used”
Declaration of CIA Director Leon Panetta, September 2009124
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US Supreme Court in 2011. The lawsuit had been brought by five men – who between them
alleged that they were “rendered” to secret detention in Morocco, Egypt and Afghanistan and
subjected to enforced disappearance and torture or other ill-treatment at the hands of US
personnel and agents of other governments in the context of the CIA rendition program. In a
footnote, the US administration said: “This case does not concern the propriety of torture.
Torture is illegal and the government has repudiated it in the strongest possible terms”.
The US government does not just have a moral duty to “repudiate” torture and other human
rights violations, but to ensure that those who were subjected to such abuse have access to
effective remedy. Among the five plaintiffs in the Jeppesen case is Ethiopian national Binyam
Mohamed released from Guantánamo to the United Kingdom in February 2009. Taken into
custody in Pakistan in April 2002, subjected to rendition to and 18 months detention in
Morocco, transfer to the CIA-run “Dark Prison” in Afghanistan, then Bagram and then
Guantánamo, a US federal judge has written:
“Binyam Mohamed’s trauma lasted for two long years. During that time, he was
physically and psychologically tortured. His genitals were mutilated. He was
deprived of sleep and food. He was summarily transported from one foreign prison
to another. Captors held him in stress positions for days at a time. He was forced to
listen to piercingly loud music and the screams of other prisoners while locked in a
pitch-black cell. All the while, he was forced to inculpate himself and others in
various plots to imperil Americans. The Government does not dispute this
evidence...
[E]ven though the identity of the individual interrogators changed (from nameless
Pakistanis, to Moroccans, to Americans, and to Special Agent [redacted], there is no
question that throughout his ordeal Binyam Mohamed was being held at the behest
of the United States. Captors changed the sites of his detention, and frequently
changed his location within each detention facility. He was shuttled from country to
country, and interrogated and beaten without having access to counsel until arriving
at Guantánamo Bay…”125
The political branches of the US government refuse to ensure accountability for such human
rights violations, even in the face of such judicial comment, and the executive continues to
actively block remedy. Again, on 16 May 2011, the Obama administration got what it wanted
when the Supreme Court, without comment, dismissed the Jeppesen case, leaving in place a
divided decision of the Court of Appeals upholding the US administration’s invocation of the
“state secrets privilege” as justification for dismissing the lawsuit without any review of its
merits.126
~ ANTI-HUMAN RIGHTS MESSAGE 8 ~
LOOKING FORWARD MEANS TURNING A BLIND EYE TO TRUTH AND ACCOUNTABILITY, EVEN IN THE CASE OF
CRIMES UNDER INTERNATIONAL LAW
The US supports recommendations calling for prohibition and vigorous investigation and
prosecution of any serious violations of international law, as consistent with existing US law,
policy and practice…We investigate allegations of torture, and prosecute where appropriate
US government, to UN Human Rights Council, 2011127
The Obama administration has maintained that “with limited exceptions, the specific details
of the capture, detention, and interrogation of particular enemy combatants remains highly
classified”.128 This use of secrecy, by effect if not design, continues to obscure human rights
violations committed in the CIA’s secret detention program, including against those who were
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Index: AMR 51/103/2011 Amnesty International 28 16 December 2011
held in that program and remain today in Guantánamo.
On 18 January 2011, the US Court of Appeals for the DC Circuit upheld the CIA’s invocation
of Freedom of Information Act (FOIA) exemptions to withhold details of the locations and
treatment in secret detention of the 14 detainees transferred from CIA custody to
Guantánamo on 4 September 2006.129 The American Civil Liberties Union (ACLU) had filed
a FOIA request with the CIA and Pentagon in 2007 seeking unredacted records relating to
the hearings of the 14 detainees before Combatant Status Review Tribunals (CSRTs), the
military panels set up by the Bush administration in 2004 to review the “enemy combatant”
status attached to detainees at Guantánamo. In the versions of the CSRT transcripts
published by the Pentagon, allegations by the detainees of how they were treated in CIA
custody and where they were held were blacked out.
In October 2008, Chief Judge Royce Lamberth on the District Court for DC ruled against the
ACLU in a summary judgment, concluding that the CIA had provided adequate explanation
for its invocation of the FOIA exemptions. The case was subsequently sent back to the
District Court to review the case in light of President Obama’s three executive orders of 22
January 2009, which had included the order on the CIA to stop its use of long-term secret
detention and “enhanced” interrogation, and the release on 16 April 2009 of four Justice
Department memorandums from 2002 and 2005 that discussed the legality of “enhanced
interrogation techniques” by the CIA.130 In October 2009, Judge Lamberth again ruled
against disclosure of the CSRT records, deferring to the declaration filed by the CIA that to
publish the information about the detainees would harm national security. Judge Lamberth
declined even to conduct an in camera review of the withheld information.
The case was appealed to the DC Circuit Court of Appeals. The Obama administration urged
it to uphold the District Court’s ruling. Far from being critical of the CIA detention program,
the administration’s brief reiterated President Bush’s words that the CIA’s “terrorist detention
and interrogation program” had “provided the US Government with one of the most useful
tools in combating terrorist threats to the national security” and had “played a vital role in
the capture and questioning of additional senior al Qaeda operatives” and in thereby
assisting the USA in learning about al-Qa’ida. The brief noted that in the cases of ‘Abd al
Nashiri, Abu Zubaydah, Khaled Sheikh Mohammed, Hambali and Majid Khan, the withheld
information included details about their detention conditions in CIA custody, where they were
held, and in each case “the interrogation methods that he claims to have experienced”. The
administration argued that “the potential for harm from the disclosure of these interrogation
methods is not lessened by the fact that the documents contain detainees’ descriptions of
their own interrogations. These detainees are in a position to provide accurate and detailed
information about some aspects of the CIA’s former detention and interrogation program,
which remains classified.” Among other things, the administration stated that “the present
prohibition against using these interrogation methods does not render their past use
illegal”131
If these detainees have knowledge about detention conditions or interrogation techniques
that violate the prohibition of torture and other cruel, inhuman or degrading treatment or
punishment, it is only because the US government itself forced that knowledge on them in
the course of carrying out such violations of their rights. Allowing a government to, in effect,
indefinitely and unilaterally keep secret the details of allegations of such human rights
violations – indeed it has gone so far as to physically censor the voices of those who claim to
have suffered the violations – in a manner that by purpose or effect deprives the person of
access to an effective remedy and preserve the impunity of the perpetrators, is fundamentally
inconsistent with international law.132
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The Obama administration had also argued to the Court of Appeals that to disclose, for
example, “whether a particular foreign country assisted the United States in detaining or
interrogating a terrorism suspect, or allowed the United States to detain people on its soil”
would harm the CIA’s relations with such governments. Clearly the USA’s use of secret
rendition and detention could not have operated without the cooperation of other countries.
Indeed among the reasons given by the CIA – under both the Bush and the Obama
administrations – for keeping secret the contents of the presidential directive of 17
September 2001 which authorized the CIA to establish a secret detention program and other
documents relating to that program is a claim that disclosure of such information would
reveal the location of secret CIA facilities and the identities of countries that cooperated with
the USA in this regard.133
Those held in Guantánamo have between them been subjected to a range of human rights
violations by US forces, including the crimes under international law of torture and enforced
disappearance, for which there has been little or no accountability. They include individuals
still held there, among whom are the following:
Mohamed al Qahtani
This Saudi Arabian national was taken into custody by Pakistani forces when trying to enter
Pakistan from Afghanistan on 15 December 2001. He was handed over to US forces 11 days
later and transferred to Guantánamo on 13 February 2002. In mid-2002, the US came to
suspect him of having “high value” intelligence, and to consider him resistant to standard
military interrogation techniques. On 8 August 2002 Mohamed al-Qahtani (detainee number
063) was taken to an isolation facility. He was held in isolation there until at least 15
January 2003, some 160 days later. A FBI memorandum dated 14 July 2004 recalled that
“in November 2002, FBI agents observed Detainee #63 after he had been subject to intense
isolation for over three months. During that time period, #63 was totally isolated (with the
exception of occasional interrogations) in a cell that was always flooded with light. By late
November, the detainee was evidencing behavior consistent with extreme psychological
trauma (talking to non-existent people, reporting hearing voices, crouching in a cell covered
with a sheet for hours).”134
On 2 December 2002, Secretary Rumsfeld approved,
“as a matter of policy”, a number of “counterresistance”
techniques for use in interrogating detainees
at Guantánamo, including stress positions, sensory
deprivation, prolonged isolation, the use of 20-hour
interrogations, hooding during transportation and
interrogation, stripping, forcible shaving, and “using
detainees individual phobias (such as fear of dogs) to
induce stress”.135
After three months in isolation, Mohamed al-Qahtani was
for the next eight weeks – 23 November 2002 to around
15 January 2003 – subjected to interrogation under a
Special Interrogation Plan. Lieutenant General Randall
M. Schmidt, who led a military investigation into FBI
allegations of detainee abuse at Guantánamo said of the
treatment of Mohamed al-Qahtani: “…for at least 54
days, this guy was getting 20 hours a day interrogation
in the white cell. In the white room for four hours and
then back out.” He elaborated that for the four hours a
day that Mohamed al-Qahtani was not under
President George W. Bush, Letter to
Congressional leaders, 20 September
2002
“We currently hold approximately
550 enemy combatants at
Guantánamo. All are being treated
humanely and, to the extent
appropriate and consistent with
military necessity, in a manner
consistent with the principles of the
Geneva Conventions of 1949”
~~
More than 120 of the 171 men still
held at Guantánamo in December
2011 were transferred to the base
before September 2002. Among
them are Mohamed al-Qahtani who
in August 2002 was moved to an
isolation facility at the base and
subsequently subjected to torture
and other ill-treatment in
incommunicado detention (see text).
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interrogation, “he was taken to a white room… with all the lights and stuff going on and
everything…”136 During interrogation, Mohamed al-Qahtani – always in shackles – was
variously forced to wear a woman’s bra and had a thong placed on his head; was tied by a
leash and led around the room while being forced to perform a number of dog tricks; was
forced to dance with a male interrogator while made to wear a towel on his head “like a
burka”; was forced to wear a mask made from a box with a “smiley face” on it, dubbed the
“happy Mohammed” mask by the interrogators; was subjected to forced standing, forcible
shaving of his head and beard during interrogation (and photographing immediately after
this), stripping and strip-searching in the presence of women, sexual humiliation, and to
sexual insults about his female relatives; had water repeatedly poured over his head; had
pictures of “swimsuit models” hung round his neck; was subjected to hooding, loud music
for up to hours on end, white noise, sleep deprivation, and to extremes of heat and cold
through manipulation of air conditioning.137 Dogs were used to induce fear in him. On at
least two occasions, a dog was “brought into the interrogation room and directed to growl,
bark, and show his teeth” at the detainee. Lt. Gen. Schmidt said: “[H]ere’s this guy
manacled, chained down, dogs brought in, put his face [sic], told to growl, show teeth, and
that kind of stuff. And you can imagine the fear kind of thing.”138
In May 2008, Susan Crawford, then convening authority for the military commissions at
Guantánamo, dismissed charges against Mohamed al-Qahtani, then facing a death penalty
trial by military commission. In January 2009, she explained: “We tortured Qahtani. His
treatment met the legal definition of torture. And that’s why I did not refer the case”.139
Mohamed al-Qahtani remains in detention at Guantánamo without charge or criminal trial.
A decade in US military custody without trial, remedy, accountability
13 November 2001 - President Bush orders his Secretary of Defense to find an “appropriate location” to hold
detainees and to establish military commissions to try some of them
27 December 2001 – Saudi Arabian national Mohamed al-Qahtani handed over to US forces in Afghanistan after 11
days in Pakistani custody
7 February 2002 – President Bush signs memorandum that common Article 3 to the Geneva Conventions will not
apply to Taleban or al-Qa’ida detainees, adding that “our values as a nation… call for us to treat detainees
humanely, including those who are not legally entitled to such treatment”.
13 February 2002 – Mohamed al-Qahtani transferred to Camp X-Ray at Guantánamo
April/May 2002 – Mohamed al-Qahtani and other detainees moved to the newly constructed Camp Delta
Mid-July 2002 – Evidence of Mohamed al-Qahtani’s possible link to the 9/11 attacks emerges, with US authorities
suspecting him of being a possible ‘20th hijacker’. President Bush and Attorney General Ashcroft are briefed about
the case. The administration’s response is that there is “no interest in prosecuting Al Qahtani in a US court at that
time”. Indeed, a determination is apparently made that “not one single detainee will see the inside of a courtroom in
the United States”.140
27 July 2002 – Mohamed al-Qahtani moved to the Maximum Security Facility at Camp Delta
8 August 2002 – Mohamed al-Qahtani moved by military ambulance to isolation in the Navy Brig at Guantánamo, a
detention facility separate from Camp Delta. He will later say that he was removed from his Camp Delta cell by force,
and that the Brig was “the worst place I was taken to”. He will recall that his cell window was covered, he could not
tell what time of day it was, he never saw sunlight for the six months he was held there, the lights on his cell were lit
24 hours a day, his cell was very cold, he was allowed no recreation, the guards covered their faces when in his
presence, and while he sometimes had a mattress this would be taken away if his interrogators did not like his
answers. The FBI conducted interrogations for the first 30 days, after which the military took over.
2 October 2002 – A meeting on interrogations is convened at Guantánamo at which various military personnel as
well as the chief legal counsel to the CIA Counterterrorist Center are present. The latter advises that while torture is
prohibited under the UN Convention against Torture, US domestic law implementing the treaty is “written vaguely”.
He also points out that the USA did not “sign up” to the international prohibition of cruel, inhuman or degrading
treatment which “gives us more licence to use more controversial techniques”. The meeting discusses the case of
Mohamed al-Qahtani, including “how he has responded to certain types of deprivation and psychological stressors”.
8 October 2002 – An FBI agent who has observed the military interrogations of Mohamed al-Qahtani sends an email
describing techniques being used on Mohamed al-Qahtani, including sleep deprivation, loud music, bright lights
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and “body placement discomfort”. In an interrogation three days earlier, a dog had been brought into the room and
had “barked, growled, and snarled at Al-Qahtani in very close proximity to him”. The use of dogs as an interrogation
tool is based on the understanding within the military that Arabs fear dogs
11 October 2002 – Major General Michael Dunlavey, Commander of Joint Task Force 170 at Guantánamo asks the
Commander of US Southern Command, General James Hill, to approve “counter-resistance” interrogation techniques
that go beyond the US Army Field Manual. This eventually goes to the Secretary of Defense, via Deputy Secretary of
Defense Paul Wolfowitz, Undersecretary of Defense for Policy Douglas Feith, Chairman of the Joint Chiefs of Staff,
General Richard Myers, and the Pentagon’s General Counsel William Haynes. In the context of the interrogation of
Mohamed al-Qahtani, according to a psychiatrist involved at the time, “we were routinely told that the interrogation
strategy was approved up to the Secretary of Defense level”.
12 November 2002 – General Hill orally approves use of “counter-resistance” techniques for use on Mohamed al-
Qahtani, including stress positions, deprivation of light and auditory stimuli, hooding, 20-hour interrogations, forced
shaving, exploitation of detainee phobias (such as dogs) to “induce stress”, and removal of clothing
13 November 2002 – General Hill approves an interrogation plan for Mohamed al-Qahtani over FBI objections. Under
phase 4 of the interrogation plan, if implemented, Mohamed al-Qahtani would be send “off island” either
temporarily or permanently to Egypt, Jordan or another third country for interrogation
23 November 2002 – After receiving approval from Major General Geoffrey Miller, commander of the Guantánamo
detentions, interrogations of Mohamed al-Qahtani under the special interrogation plan begin. He is taken to Camp
X-Ray for interrogations, apparently “to scare him”. A psychiatrist involved will later say that just before the
interrogations began, Mohamed al-Qahtani was “made to believe he was sent to a hostile country which advocated
torture” and “led to believe he himself might be killed if he did not cooperate with questioning”. For the next two
months Mohamed al-Qahtani is interrogated by a “special projects” team of US military intelligence personnel.
During this period, Mohamed al-Qahtani is subjected among other things, to stress positions, stripping, 20-hour
interrogations, sleep deprivation, fear of dogs, water poured repeatedly on head, forced shaving, sexual humiliation,
being treated like an animal, and forced physical training
2 December 2002 – Secretary of Defense Rumsfeld, “as a matter of policy”, authorizes the Commander of US
Southern Command, “in his discretion”, to use a variety of “counter-resistance” techniques “to aid in the
interrogation of detainees” (plural) at Guantánamo. The techniques include stress positions, deprivation of light and
auditory stimuli, hooding, 20-hour interrogations, forced shaving, exploitation of detainee phobias (such as dogs) to
“induce stress”, and “removal of clothing”.
15/16 January 2003 – Mohamed al-Qahtani’s interrogation under special interrogation plan ends and at some point
he is returned to Camp Delta after six months of isolation
28 June 2004 – US Supreme Court rules in Rasul v. Bush that the US courts can consider habeas corpus petitions for
Guantánamo detainees
5 October 2005 – Habeas corpus petition filed in District Court on behalf of Mohamed al-Qahtani
11 February 2008 – Mohamed al-Qahtani charged for death penalty trial by military commission
13 May 2008 – Pentagon announces that the charges against Mohamed al-Qahtani have been dismissed. The
Convening Authority will later reveal that her decision not to refer the case for trial was because “We tortured
Qahtani. His treatment met the legal definition of torture.”
12 June 2008 – US Supreme Court rules in Boumediene v. Bush that the Guantánamo detainees have right to
challenge the legality of their detention in US District Court
20 November 2008 – The US Senate Committee on Armed Services concludes that President Bush’s decision in
February 2002 “to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions,
with a policy subject to interpretation, impacted the treatment of detainees in US custody”. It finds among other
things that Secretary Rumsfeld’s 2 December 2002 authorization “continued to influence interrogation policies”,
including in Afghanistan and later Iraq.
12 December 2011 – Mohamed al-Qahtani remains in Guantánamo without charge or trial. To date there has been
no ruling on the lawfulness of his detention
Since leaving office, Donald Rumsfeld has confirmed his involvement in approving
interrogation techniques for use against Mohamed al-Qahtani after being advised that this
detainee “had information that could save American lives”.141 He claimed that he had
“understood that the techniques I authorized were intended for use with only one key
individual”, that is Mohamed al-Qahtani, although in the same memoirs he notes that the
Guantánamo military authorities under him were seeking the additional “counter-resistance
techniques” because “some detainees” (plural) had “resisted our current interrogation
methods”.142
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Mohamedou Ould Slahi
This Mauritanian national was arrested in Mauritania in November 2001 “at the request of
the United States”.143 After a week he was subjected to rendition to Jordan, “at the direction
of the US” according to his lawyers.144 After eight months in Jordan, he was transferred to
Afghanistan, possibly aboard a CIA-leased jet that made that journey on 19 July 2002, taken
to Bagram and thereafter transferred to Guantánamo on 4 August 2002. In addition to being
subjected to enforced disappearance, Mohamedou Slahi was allegedly subjected to torture or
other cruel, inhuman or degrading treatment in Jordan, in Bagram, and in Guantánamo, as
well as during his transfers.145 In Guantánamo, during 2003, he was allegedly deprived of
sleep for some 70 days straight, subjected to strobe lighting and continuous loud heavy metal
music, threats against him and his family, intimidation by dog, cold temperatures, dousing
with cold water, physical assaults, and food deprivation.
In April 2010, a federal judge noted that there is “ample evidence” that Mohamedou Slahi
was subjected to “extensive and severe mistreatment at Guantánamo from mid-June 2003 to
September 2003”. This was the period that this detainee had been labelled by his US
military captors as having “Special Projects Status” and subjected to a 90-day “special
interrogation plan” requested by the Defense Intelligence Agency and approved by the
commander of the Guantánamo detentions, General Geoffrey Miller on 1 July 2003, by
Deputy Secretary of Defense Paul Wolfowitz on 28 July 2003, and by Secretary of Defense
Donald Rumsfeld on 13 August 2003.146
The original interrogation plan approved by Secretary Rumsfeld had, among other things,
Mohamedou Slahi being hooded and put aboard a helicopter and flown off Guantánamo for
one or two hours to convince him that he was being rendered to a location where “the rules
have changed”. In practice, this fake rendition was amended and a boat was used instead of
a helicopter. Three weeks after being told to “use his imagination to think up the worst
possible scenario he could end up in”, that “beatings and physical pain are not the worst
thing in the world”, and that unless he cooperated he would “disappear down a dark hole”,
Mohamedou Slahi was taken from his cell, fitted with blacked out goggles, dragged into a
truck, and taken to a boat with individuals purporting to be Egyptian and Jordanian
interrogators who argued within the hearing of Mohamedou Slahi about who would get to
interrogate him. He was held for three and a half hours on the boat, during which time he
says he was beaten. He was eventually taken to a cell on land, apparently at Camp Echo.147
According to an appeal brief filed in the US Court of Appeals in June 2010,
“Salahi was the only prisoner in the
new building in which he was kept.
Consistent with the ‘special
interrogation plan’, his cell was
‘modified in such a way as to reduce
as much outside stimuli as possible.
The doors will be sealed to a point
that allows no light to enter the
room’. The guards assigned to him
wore face masks. It was not until a
year later – in July 2004 – that
Salahi was allowed out during
sunlight hours…It was not until June
or July 2004 that the guards
assigned to Salahi’s cell removed
their masks. In addition, on July 30,
2004, Salahi was finally told that he had not been ‘disappeared’ to a new country but
Justifying abuse: continuity or change?
“The United States justifiably opted to initially treat the
defendant as an intelligence asset – to obtain from him
whatever information it could concerning terrorists and
terrorist plots. This was done, simply put, to save lives. And
when significant intelligence had been collected from the
defendant, the United States made the entirely reasonable
decision to continue holding him as an alien enemy
combatant pursuant to the laws of war and to prosecute
him in a military commission for his many violations of
those laws.”
Obama administration, December 2009, in case of
Tanzanian national subjected to enforced disappearance
for two years before transfer to Guantánamo in 2006148
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was still in Guantánamo…”149
In his memoirs published in 2011, Donald Rumsfeld noted that he had “approved
interrogation techniques beyond the traditional Army Field Manual” for use against
Mohamedou Ould Slahi after he had “tenaciously resisted questioning”.150
Musa’ab Omar al Madhwani
After five days in Pakistani custody following his arrest on 11 September 2002 in an
apartment in Karachi, this Yemeni national was handed over to US custody and flown to
Afghanistan. He says he was taken to the “Dark Prison”, a secret CIA-operated facility in or
near Kabul, where he was held for about a month. There, his lawyers allege, “he suffered the
worst period of torture and interrogation, treatment so terrible that it made him miss his time
with the Pakistani forces”.151 He was allegedly held for 30-40 days “in darkness so complete
that he could not see his hand in front of his face”; “not allowed to sleep for more than a few
minutes at a time”; “was fed only about every 2½ days, in very small portions”; and “twentyfour
hours a day, obnoxious music blared at a deafening volume”. In a declaration signed in
2008, Musa’ab al-Madhwani said:
“Raucous music blared continuously, except that screams of other prisoners could be
heard when the tapes were changed. I was beaten, kicked, sprayed with cold water,
deprived of food and sleep, and subjected to extreme cold, stress positions, and other
forms of torture. I was partially suspended by the left hand for the entire time at the
prison, so that I could not sit and was forced to rest all my weight on one leg. This
resulted in permanent nerve damage to my leg… The Americans sprayed me with cold
water and dumped water on my head until I got seizures and collapsed. The pain was so
extreme that I would pass out repeatedly. Then I was freezing and sweating at the same
time. An Arabic-speaking interrogator told me that I was in a place the bull flies cannot
find. He said no one could find me in that place, not even the International Committee
of the Red Cross”
Musa’ab al Madhwani was transferred to the US air base at Bagram where he was held for
another five days, before being transferred to Guantánamo on 28 October 2002. In a habeas
corpus hearing in US District Court more than seven years later, the judge noted that the US
government had “made no attempt” to refute Al Madhwani’s torture allegations, and that
there was “no evidence in the record” that they were inaccurate. To the contrary, he added,
the allegations were corroborated by “uncontested government medical records”, and
“classified testimony about his conditions of confinement, which I find to be credible, the
United States was involved in the prisons where he was held, and believed to have
orchestrated the interrogation techniques, the harsh ones to which he was subject”.152
Zayn al Abidin Muhammad Husayn (Abu Zubaydah)
It is now nearly five years since the International Committee of the Red Cross (ICRC)
transmitted to the US authorities its findings relating to the CIA’s secret program after
interviewing 14 detainees at Guantánamo in late 2006. The 14 men had been held by the
CIA at undisclosed locations prior to their transfer to military custody at Guantánamo on 4
September 2006. Abu Zubaydah was one of the 14, and had been held in secret detention
for the longest of any of them – four and a half years. Among other things, the ICRC had
concluded that US agents were responsible for enforced disappearance, torture and other
cruel, inhuman or degrading treatment and called on the US authorities to bring the
perpetrators of the abuses to justice.153 Interrogation techniques listed in the ICRC report
included prolonged “stress standing” position with arms extended and chained above the
head, physical assaults, confinement in a box, prolonged nudity, sleep deprivation, exposure
to cold temperature, threats of ill-treatment, deprivation or restriction of solid food, and
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water-boarding. According to the ICRC, not all of the methods it listed in the report had been
used on all of the detainees – except for one of them, Abu Zubaydah.
In December 2007, to pre-empt a report that was about to be published in the media,
General Michael Hayden, then Director of the CIA, confirmed that videotapes of
interrogations during 2002 had been destroyed by the CIA in 2005. In the course of
litigation in federal court in 2009, the CIA revealed that 92 videotapes of interrogations of
Abu Zubaydah (90) and ‘Abd al-Nashiri (2) recorded between April and December 2002 had
been destroyed. Twelve of the tapes depicted use of “enhanced interrogation techniques”,
including “water-boarding”. In fact, it was the CIA’s Office of Inspector General’s review of
the tapes in 2003 that revealed Abu Zubaydah being subjected to “eighty-three applications
of the waterboard”, a detail not made public until 2009.154
Those who destroyed the tapes were, it would
seem, thereby also destroying evidence of torture
and enforced disappearance, crimes under
international law. Wilfully concealing or
destroying evidence of a crime can constitute
complicity in the crime. Articles 4, 6 and 7 of the
UN Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment
(UNCAT) requires that not only the direct
perpetrators of torture, but also those complicit in
it, be brought to justice.
The prosecutor assigned to look into the matter, however, declined to initiate any criminal
proceedings against anyone in relation to the destruction of the interrogation tapes. On 9
November 2010, the US Department of Justice announced, without further explanation, that
no one would face criminal charges in relation to this issue.156 Then in June 2011, the US
Attorney General announced that, except for criminal investigations into two deaths in
custody allegedly involving the CIA – one in Afghanistan in 2002 and one in Iraq in 2003 –
all other investigations relating to the CIA secret detention and interrogation program would
be closed.157
Closing the Guantánamo detention facility would be an important step. But that alone will
not result in closure for the abuses it symbolizes – for this there must be accountability,
remedy and truth.
~ ANTI-HUMAN RIGHTS MESSAGE 9 ~
RESPECT FOR UNIVERSAL HUMAN RIGHTS CAN BE DISCARDED IF THEY CONFLICT WITH ‘DOMESTIC VALUES’
Critics of our policies are given to lecturing on the theme of being consistent with American
values. But no moral value held dear by the American people obliges public servants ever to
sacrifice innocent lives to spare a captured terrorist from unpleasant things
Former Vice President Richard Cheney, May 2009158
From early on in the “war on terror”, the White House issued assurances that “as Americans,
the way we treat people is a reflection of America’s values…, based upon the dignity of every
individual”.159 This particular statement was issued in February 2002. The following month,
Abu Zubaydah was arrested in Pakistan and within weeks would be subjected to
waterboarding 83 times in a single month as part of the torture and other cruel, inhuman and
degrading treatment he endured during four and a half years in solitary incommunicado
“The Attorney General has informed me that, with
limited exceptions, the Department of Justice
inquiries concerning the [Central Intelligence]
Agency’s former rendition, detention, and
interrogation program have been completed and
are now closed... We are now finally about to
close this chapter of our Agency’s history. As
Director, I have always believed that our primary
responsibility is not to the past, but to the
present…”
CIA Director, now US Secretary of Defence, Leon
Panetta, June 2011155
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confinement in undisclosed locations. No one is known to have been brought to justice for
these human rights violations.
Defending his decisions on
detentions in “the new war”,
including the decision to hold
detainees at Guantánamo upon
Justice Department advice that
there they would have “no right of
access to the US criminal justice
system”, former President Bush
asserted in his memoirs that
“maintaining our values was
critical to our position in the
world”.167 By way of example, he
asserted that his decision to
establish military commissions met
this criterion. Military commissions
for foreign nationals were
repeatedly justified by senior
members of his administration in
terms of national values and
history, not by reference to
international standards. On 8
December 2001, for example,
Secretary of Defense Rumsfeld
said that the development of the
military commissions would be
done in “a careful and measured
way that will be respectful of
American values”.168 On 21 March
2002, the day the Pentagon
released the commission rules,
Deputy Secretary of Defense Paul
Wolfowitz insisted that the system
“truly does meet American
standards and American
values”.169 Internationally, the
Bush military commission system
was roundly condemned for
disregarding international law even
before the US Supreme Court ruled
it unlawful in 2006.
In her memoirs published in 2011,
former National Security Advisor
and Secretary of State Condoleezza
Rice wrote that the Combatant
Status Review Tribunals – which the Bush administration improvised in 2004 in an attempt
to minimize judicial review of the Guantánamo detentions – were “in keeping with our legal
traditions and values”.170 President Bush “and his top advisors”, she wrote, “well understood
that national security decision-making inevitably requires doing what is legal and necessary
to protect the country while remaining true to the values at the core of our nation”. At the
17 September 2001 – President Bush authorizes the CIA “to set up
terrorist detention facilities outside the United States”.160 A decade
later, John Rizzo, chief legal counsel to the CIA during the Bush
administration, will write that “A few days after the attacks,
President Bush signed a top-secret directive to CIA authorizing an
unprecedented array of covert actions against Al Qaeda and its
leadership… [T]he White House directed that details about the
most ambitious, sensitive and potentially explosive new program
authorized by the President – the capture, incommunicado
detention and aggressive interrogation of senior Al Qaeda
operatives – could only be shared with the leaders of the House and
Senate, plus the chair and ranking member of the two intelligence
committees.”161
23 June 2004 – CIA Inspector General John Helgerson transmits
copies of his review of the CIA’s secret detention and interrogation
program to the Chairs and Ranking members of the House and
Senate Select Committees on Intelligence.162 The report reveals,
among other things, that Abu Zubaydah and Khalid Sheikh
Mohammed were between them subjected to more than 250
applications of water-boarding.163
5 March 2009 – US Senators Dianne Feinstein and Kit Bond, Chair
and Vice Chair of the US Senate Select Committee on Intelligence,
announce that the Committee “will review the CIA’s detention and
interrogation program”. The review will include “how the CIA
created, operated, and maintained its detention and interrogation
program” and “whether the CIA implemented the program in
compliance with official guidance, including covert action findings,
Office of Legal Counsel opinions, and CIA policy”. The review is
expected to take about a year.164
5 and 16 March 2009 – CIA Director Leon Panetta states that the
Chair and Vice Chair of the Senate Select Committee on Intelligence
have assured him that the goal of their review of the secret
detention program is not accountability for the past but to inform
“future policy decisions”, rather than “to punish those who followed
guidance from the Department of Justice.”165
1 December 2011 – During a debate in the Senate, Senator
Feinstein says, “As chairman of the Select Committee on
Intelligence, I can say that we are nearing the completion a
comprehensive review of the CIA’s former interrogation and
detention program, and I can assure the Senate and the Nation that
coercive and abusive treatment of detainees in US custody went
beyond a few isolated incidents at Abu Ghraib. Moreover, the abuse
stemmed not from the isolated acts of a few bad apples but from
fact that the line was blurred between what is permissible and
impermissible conduct, putting US personnel in an untenable
position with their superiors and the law.”166
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same time, however, Dr Rice seems to concede that domestic values can depend on context
rather than core, and that conduct which is consistent with domestic values for one person is
another person’s betrayal of them. In the Bush first term, secret detention was deemed
consistent with domestic values as well as legal, but “early in his second term the President
decided that the time was right to revisit these decisions in light of the progress we had made
in the war on terrorism”. For her part, Dr Rice “felt strongly that the time had come to
acknowledge that we were holding Khalid Sheikh Mohammed and other notorious terrorists.
We couldn’t allow them to remain ‘disappeared’ and outside the reach of the justice
system… Not everyone agreed, however, and this issue would turn out to be one of the most
contentious between the Vice President and me”.171
In his own memoirs, published a few months earlier, former Vice President Cheney returned
to the subject of a speech he had made in May 2009, re-asserting his view that “American
values” had been upheld throughout the Bush administration’s response to the attacks of 11
September 2001: “I also challenged the whole assumption that American values were
abandoned, or even compromised, in the fight against terrorists. For all that we’ve lost in this
conflict, the United States has never lost its moral bearings”. In that 2009 speech, the Vice
President had defended, among other things, “water-boarding” and its use against three
detainees then being subjected to enforced disappearance by the CIA, and now held in
Guantánamo.172 His remarks illustrated how the concept of “American values” can be a
malleable and subjective notion, indeed twisted to imply that full respect for universal human
rights cannot also be an “American value”.
In a speech on the same day as the former Vice-President’s, President Obama invoked US
values in explaining his decisions to close the Guantánamo detention facility and end
“enhanced interrogation techniques”, but also to support military commissions and indefinite
detention without criminal trial. President Obama said that the previous administration had
failed to rely upon “our deeply held values and traditions”. If instead of, or in addition to, his
invocation of domestic values and tradition, President Obama, together with Congress, had
fully recognized the USA’s failure to live up to its human rights obligations and insisted upon
the fullest respect for such standards (indeed as constituting itself a fundamental national
value), we might not be where we are now, with indefinite military detention at Guantánamo,
the resuscitation of the military commissions, and the blocking of accountability and remedy.
Appeals to national values and tradition is a part of political debate in every country, and
reference to domestic values and history can facilitate a country’s constructive self-criticism
as much as it can feed unhelpful myth-building and self-satisfaction over domestic laws and
institutions. Embracing universal human rights values as a key part of national values can
contribute to respect for the rights of all persons within a state’s territory or otherwise under
its control. The message that too often continues to emanate from Guantánamo is that the
answers lies in national values, to the exclusion of international human rights standards.
~ ANTI-HUMAN RIGHTS MESSAGE 10 ~
DOUBLE STANDARDS, NOT UNIVERSAL STANDARDS, ARE THE ORDER OF THE DAY
The American political system was founded on a vision of common humanity, universal rights
and rule of law. Fidelity to these values makes us stronger and safer. This also means
following universal standards, not double standards
Harold Hongju Koh, US Department of State Legal Adviser, March 2010173
What would the USA say if another country was trying US nationals by military tribunals,
using such courts for political reasons while the ordinary courts were sidestepped? Or was
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intending to execute detainees convicted by such tribunals applying lesser standards of
justice than its ordinary courts? Or asserting the right to hold detainees indefinitely after
their acquittal? Or holding detainees for months after judges had ruled their detention
unlawful? Or morphing the notion of a “prompt” habeas corpus hearing into one that takes
place after years rather than days of detention? Or systematically blocking remedy and
accountability for past human rights violations, including the crimes under international law
of torture and enforced disappearance? What would the USA say if it was another country
running the Guantánamo detention facility?
We can make an educated guess as to what it would say. Each year, the USA publishes its
assessment of the human records of other countries, as measured against the provisions of
the Universal Declaration of Human Rights (UDHR), the ICCPR and other international
instruments. Consider the following, for example:
“The Government’s human rights record remained poor, and it continued to commit
numerous, serious abuses. The security forces committed many unlawful killings, and
they were accused of the disappearances of numerous persons... Security forces
frequently tortured, beat, and otherwise abused or humiliated citizens. The Government
investigated some of the alleged abuses by the security forces; however, abusers rarely
were charged or disciplined… Security forces continued to use arbitrary arrest and
detention, and lengthy pretrial detention remained common… Political prisoners held
from previous years were released; however, numerous persons during the state of
emergency were denied habeas corpus and held indefinitely as ‘illegal combatants’…”174
At the time it published this critique of Liberia’s human rights record in March 2003, the
USA was using torture and other ill-treatment, enforced disappearance and arbitrary
detention against detainees in what it then called the “war on terror”. It was denying habeas
corpus to hundreds of detainees held at Guantánamo and elsewhere and building impunity
into its detention and interrogation programs.
In 2004, in a then secret report on the USA’s secret detention program, the CIA Inspector
General, John Helgerson, accused the government of double standards. The “enhanced”
interrogation techniques used in the program, he said, were “inconsistent with the public
policy positions that the United States has taken regarding human rights”. He noted that the
State Department’s annual assessments of human rights in other countries condemned such
techniques when used by other governments. He noted that President Bush – under whose
authority the CIA program was operating – had in June 2003 made a public proclamation
that “torture anywhere is an affront to human dignity everywhere” and that the USA was
“committed to building a world where human rights are respected and protected by the rule
of law”. A matter of weeks earlier, Khalid Sheik Mohammed had been subjected to 183
applications of waterboarding, one of the “enhanced” interrogation techniques carried out,
according to the former President, with his express authorization.
The Department of Justice sought to address the question of double standards, albeit in
secret. In a classified memorandum in 2005, the Justice Department wrote in a memo to the
CIA: “Each year, in the State Department’s Country Reports on Human Rights Practices, the
United States condemns coercive interrogation techniques and other practices employed by
other countries. Certain of the techniques the United States has condemned appear to bear
some resemblance to some of the CIA interrogation techniques… nudity, water dousing,
sleep deprivation, and food deprivation… We recognize that as a matter of diplomacy, the
United States may for various reasons in various circumstances call another nation to account
for practices that may in some respects resemble conduct in which the United States might
in some circumstances engage, covertly or otherwise”175
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Two years after that, the tendentious line taken by the Justice Department continued in
another secret memorandum. The Department of State, it wrote, had “informed us” that its
annual human rights assessments “are not meant to be legal conclusions, but instead they
are public diplomatic statements designed to encourage foreign governments to alter their
policies in a manner that would serve United States interests.” The USA’s public
condemnation of torture and of the “coercion of confessions in ordinary criminal cases”, it
said, “is not inconsistent with the CIA’s proposed interrogation practices”. The CIA program,
it continued “is designed to subject detainees to no more duress than is justified by the
Government’s paramount interest in protecting the United States and its interests from
further terrorist attacks.” As such, it concluded, the CIA’s conduct “fundamentally differs
from the conduct condemned in the State Department reports”.176
A reluctance to acknowledge the equal
application of international human rights
standards to the USA has been described
as a form of “American exceptionalism”.
Such exceptionalism may be based in
part on an assumption that universal
human rights rules or values are somehow
inferior to or less worthy than the
constitutional and other laws and values
of the USA. As outlined in the previous
section, the grave dangers of reliance on
any such assumption was starkly
demonstrated in recent years when the
invocation of “American values” as a sole
point of reference by public officials
became a familiar refrain even as the USA
adopted counter-terrorism detention
policies that clearly contradicted basic
rules of international human rights and
humanitarian law.
It remains to be seen how future
Presidents will act. Rick Perry, for
example, was at the time of writing one of
those seeking to become the next
President of the USA. “Perry believes in
American exceptionalism”, asserts his
presidential bid website.178 Among other
things, he has said that he would consider
the use of “enhanced interrogation
techniques” in the counter-terrorism
context, including “waterboarding”, and
that he would keep the Guantánamo
detention facility open, if he were to
become President. Newt Gingrich
“advocates sound policies to keep
Americans safe based on timeless
American principles”.179 As noted above,
he has suggested that “by every technical
rule” and “under the normal rules internationally”, waterboarding is “not torture”.
In 2003, 2004 and 2005, the entry on Bosnia and
Herzegovina in the US State Department’s annual human
rights assessment, under the heading ‘arbitrary arrest,
detention or exile’, reported the case of ‘six Algerian
terrorism suspects’ who had been transferred ‘to the
custody of a foreign government’ in January 2002. The
transfer had bypassed the courts and an order of the
Human Rights Chamber of Bosnia and Herzegovina, and
violated international law. The US Department of State
reported that in 2002 and 2003, the Human Rights
Chamber had ruled that the treatment of the men had
violated their treaty-based human rights, including the
right not to be arbitrarily deported in the absence of a fair
procedure.
What the State Department failed to point out was that the
mysterious “foreign government” in question was that of
the USA. It failed to report that the men in question,
extrajudicially removed from the sovereign territory of
Bosnia and Herzegovina, were and continued to be
detained virtually incommunicado, without charge or trial,
in the US Naval Base at Guantánamo. It failed to mention
that USA was holding the men as “enemy combatants” in a
war defined by the USA, although they had not been
captured on any battlefield, but arrested by civilian police
on territory of an allied government far from any armed
conflict. It did not report that the authorities there had
handed them over to US military forces, fearing negative
diplomatic and other consequences, including to the
country’s peace process, if it refused to do so.177
It was not until the US Supreme Court ruled in June 2008
that the Guantánamo detainees had the right to challenge
the lawfulness of their detention that the men obtained
rulings on their habeas corpus petitions. The decision
came nearly seven years after these six men were
transferred to Guantánamo. The federal judge ruled that
five of them were unlawfully held, even under the broad
“war” detention powers claimed by the government. The
five have since been released. The sixth, Algerian national
Belkacem Bensayah, remains in Guantánamo today,
without charge or criminal trial, nearly a decade after he
was first taken to the base.
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For its part, the Obama administration has promised an end to double standards. In 2009, it
articulated its approach:
“The deep commitment of the United States to championing the human rights enshrined
in the Universal Declaration of Human Rights is driven by the founding values of our
nation and the conviction that international peace, security, and prosperity are
strengthened when human rights and fundamental freedoms are respected and
protected. As the United States seeks to advance human rights and fundamental
freedoms around the world, we do so cognizant of our own commitment to live up to our
ideals at home and to meet our international human rights obligations.180
According to Secretary of State Hillary Clinton later in 2009: “A commitment to human
rights starts with universal standards and with holding everyone accountable to those
standards, including ourselves… When injustice anywhere is ignored, justice everywhere is
denied. Acknowledging and remedying mistakes does not make us weaker, it reaffirms the
strengths of our principles and institutions.”181 The US Department of State’s Legal Adviser
has since pointed to an emerging “Obama-Clinton Doctrine” under which the USA would
follow “universal standards, not double standards”.182
The USA does not conduct the same assessment of itself that it does of other countries in its
yearly State Department reports. However, it has at least now recognized this gap, a very
positive step, and said that subjecting itself to the Universal Periodic Review (UPR) process
at the United Nations Human Rights Council has filled it.183 It remains to be seen to what
extent the USA will change its approach to respect for international standards, in practice
and not just in theory, as a result of the scrutiny applied to it under the UPR.
In its 2010 UPR report to the UN Human Rights Council, the USA asserted: “From the
UDHR to the ensuing Covenants and beyond, the United States has played a central role in
the internationalization of human rights law and institutions”.184 While the USA indeed
played a key role in the development of many of the relevant international standards, for
which it can rightly be proud, the track record on its own compliance with those standards,
particularly in the field of counter-terrorism measures, is far less worthy of celebration. The
Bush administration’s approach to “war on terror” detentions, interrogations and trials
proceeded as if the UDHR and the International Covenant on Civil and Political Rights had
never happened. The USA’s failure to end the detentions at Guantánamo, and to ensure fair
trials, accountability, and remedy, as well as the continuing resistance by officials of the
administration to acknowledge that these same human rights instruments have any
application at all to its counter-terrorism measures, particularly outside ordinary US territory,
are a continuing insult to the Universal Declaration and the international human rights
framework as a whole.
There is a further stark double standard being applied by the USA to the question of how to
go about ending the detentions at Guantánamo. The USA expects other countries to do what
it itself refuses to – namely to receive released detainees who cannot be returned to their
home countries for fear of the human rights violations they would face there. The USA
created the Guantánamo detention facility, committed systematic human rights violations
against detainees held and transferred there, and yet has never allowed a single detainee to
be released in US territory, even when their detention has been ruled by the judiciary to have
been baseless and unlawful.
Five of the detainees remaining in Guantánamo today are Uighurs from China. It is now over
three years since their detention was ruled unlawful by the US District Court.
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 40 16 December 2011
Of the nearly 800 detainees the US authorities say have been taken to Guantánamo since
January 2002 when the detention facility began operating, 22 were Uighurs, most of them
detained in Pakistan in late 2001 and handed over to the USA in January 2002. Their plight
came to illustrate the detrimental impact on human rights of the USA’s global “war” theory,
particularly with respect to detentions.
Between the US Supreme Court’s 2004 Rasul v. Bush ruling that the District Courts had
jurisdiction to consider habeas corpus petitions filed on behalf of detainees held at
Guantánamo and its Boumediene v. Bush ruling four years later that the detainees had the
constitutional right to challenge the lawfulness of their detention, the only cases reviewed on
the merits by the District Court occurred in the case of two Uighur detainees whose “enemy
combatant” status had been rejected by the Combatant Status Review Tribunals (CSRTs), set
up by the Bush administration to seek to minimize judicial review of the Guantánamo
detentions after the US Supreme Court’s Rasul ruling in 2004.
The Bush administration asserted that the District Court did not have the authority to order
the Uighur detainees to be produced at a habeas corpus hearing in Washington, DC, arguing
that “the power to admit aliens into the United States lies solely with the Executive Branch”.
Moreover, to order the detainees into the USA for such a hearing “would interfere with the
Executive’s power, inherent in its authority to engage in war and detain suspected enemy
combatants, to wind up such detentions in an orderly fashion and to engage in foreign
diplomacy to achieve appropriate solutions with respect to individuals who cannot be sent
back to their home country”.185
On 22 December 2005 a federal judge ruled that the continued indefinite detention of Abu
Bakker Qassim and Adel Abdul Hakim at Guantánamo was unlawful. He ruled that even if
their initial detention was lawful (“the government’s use of the Kafka-esque term ‘no longer
enemy combatants’ deliberately begs the question of whether these petitioners ever were
enemy combatants”), the fact that more than six months had passed since the CSRT
decisions in their cases meant that their detention had become indefinite and was therefore
unlawful. However, the judge ruled that he could not order their release into the USA – the
only current option given that they could not be returned to China due to the risks they would
face there at the hands of Chinese authorities, and no third country had been found – and to
do so would have “national security and diplomatic implications beyond the competence or
authority of this Court”. He added that he believed that the law did not give him “the power
to do what I believe justice requires.”186
The case was scheduled to be argued in the DC Circuit Court of Appeals at 9.30am on
Monday 8 May 2006. At 4.30pm on Friday 5 May 2006, the detainees’ lawyers received a
telephone call from the US Department of Justice informing them that their clients, along
with three other Uighur detainees, had been transported to Albania. At 4.39pm on 5 May
2006, the administration filed an emergency motion that the appeal should be dismissed as
moot because the detainees were now in Albania. The government’s motion was granted.
This left 17 Uighur detainees still held in Guantánamo, most of whom had been cleared for
release since 2003. On 7 October 2008, a US District Court judge ruled that their detention
was unlawful as “the Constitution prohibits indefinite detention without just cause”. Noting
that the government was unable to point to any security risk posed by the Uighurs, and had
been unable to find a third country solution in years of trying, he ordered the government to
release the 17 into the USA and to bring them before the court at 10am on 10 October. The
Uighurs were then to be released, with the assistance of members of the local Uighur
community, religious groups and refugee settlement agencies who had offered their support
to help the detainees adjust to their lives outside Guantánamo. The government appealed.
USA: Guantánamo – A decade of damage to human rights.
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On 18 February 2009, the US Court of Appeals for the DC Circuit overturned the District
Court ruling. The Court of Appeals said that “it is not within the province of any court, unless
expressly authorized by law, to review the determination of the political branch of the
Government to exclude a given alien”. In the case of the 17 Uighurs, it continued, “the
Executive Branch has determined not to allow them to enter the United States”. It said that
it had no reason to doubt that the government was continuing diplomatic efforts to find third
country solutions, “nor do we have the power to require anything more”.
Even if as a matter of domestic US law,
the courts concluded they could not order
the government to release the Uighurs in
US territory, no law prevented the
executive government from doing so of its
own free will following the court’s rulings.
For political reasons, however, the Bush
administration refused to countenance
the release of the Uighurs into the USA.
The Obama administration failed to break
from this indefensible stance. The USA
continued to turn to other countries to do
what it would not. Four of the Uighur
men were transferred to Bermuda in June
2009, six to Palau in October 2009, and
two to Switzerland in March 2010.
The five Uighurs who remained in
Guantánamo were offered transfer to
Palau but rejected it. The case came back
to the Court of Appeals in 2010, and a
three-judge panel of the court affirmed its
earlier decision saying that even if the five
detainees “had good reason to reject the
offers they would have no right to be
released into the United States”.
Moreover, the court continued, “it is for
the political branches, not the courts, to
determine whether a foreign country is
appropriate for resettlement”. It further
noted that in the period since it first ruled on the case in 2009, “the Legislative Branch has
spoken”, explicitly to prohibit the “expenditure of any funds to bring any Guantánamo to the
United States”. Dismissing the claim that the congressional actions violated the US
Constitution, the Court of Appeals concluded that because the detainees never had a
constitutional right to be brought to the USA and released, the statutes passed by Congress
“suspend nothing” and “deprive petitioners of no right they already possessed”.190
The Uighurs continued to seek judicial relief and to be allowed to pursue litigation to show
that they were “still detained and are not ‘volunteers’ at Guantánamo merely because they
did not volunteer to resettle in another remote island” (i.e., Palau). If the detainees were to
be offered “resettlement in Antarctica”, the lawyers for the Uighurs argued in July 2010, “a
court would have no trouble concluding that rejection of the offer does not demonstrate that
Petitioners are volunteers who prefer Guantánamo to release. Palau is not Antarctica, but the
question is one of degree, and necessarily of fact: whether the facts show that rejecting the
offer rises to the level of volunteering to live at Guantánamo.” That determination could not
In its assessment of China’s human rights record in 2002,
the USA reported, among other things, “torture and
mistreatment of prisoners, forced confessions, arbitrary
arrest and detention, lengthy incommunicado detention,
and denial of due process. Conditions at most prisons
remained harsh.” It also noted evidence of the Chinese
government's “use of the international war on terror as a
justification for cracking down harshly on suspected
Uighur separatists expressing peaceful political dissent”187
In May 2004, Amnesty International reported that agents of
the Chinese government had apparently been in
Guantánamo in 2002 and had participated in the illtreatment
of Uighur detainees, including by sleep
deprivation, threats and environmental manipulation.188
The US government never directly responded to the
organization’s written concerns to it on this matter, but a
May 2008 report of the Office of the Inspector General at
the US Department of Justice revealed that an FBI agent
had reported that “several Uighur detainees were
subjected to sleep deprivation or disruption while being
interrogated at Camp X-Ray by Chinese officials prior to
April 2002”. The agent stated that he had understood that
this ill-treatment had been “either carried out by the
Chinese interrogators or was carried out by US military
personnel at the behest of the Chinese interrogators”. One
of the detainees had alleged that “the night before his
interrogation by Chinese officials, he was awakened at 15-
minute intervals the entire night and into the next day”.
The Inspector General’s report stated that “some Chinese
officials visited GTMO and were granted access to these
detainees for interrogation purposes”.189
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Index: AMR 51/103/2011 Amnesty International 42 16 December 2011
be made without the development of a factual record, which the courts had now precluded by
deferring to the executive.
Their appeal presented a question of “exceptional importance”, namely about whether the
judiciary has the power to grant relief in such cases. The ruling by the Court of Appeals went
well beyond the cases of the five Uighurs, the appeal argued, “because it bars a district
judge from ever exercising the judicial power to direct release for a successful Guantánamo
petitioner”. The “courts have not merely lost the judicial power”, it continued, but the Court
of Appeals had “cede[d] it to the Executive Branch. This is inimical to an independent
judiciary”.191
By seven votes to two, the Court of Appeals refused to reconsider the panel ruling, sitting as a
whole court. On 18 April 2011, the US Supreme Court refused to intervene. This ruling
leaves the USA in continuing violation of its obligations under the ICCPR, article 9(4) of
which explicitly states: “Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that that court may decide without delay
on the lawfulness of his detention and order his release if the detention is not lawful”
[emphasis added].The five Uighur detainees remain in Guantánamo where they have been
held since various dates in 2002.
In a key speech in September 2006, confirming that his administration had been using
secret detention and was transferring a number of detainees held at undisclosed locations to
Guantánamo, then President Bush blamed refusals by others to receive former detainees, but
not the refusal of the USA to do so, for the fact that the Guantánamo detention facility
remained in operation:
“America has no interest in being the world’s jailer. But one of the reasons we have not
been able to close Guantánamo is that many countries have refused to take back their
nationals held at the facility. Other countries have not provided adequate assurances
that their nationals will not be mistreated or they will not return to the battlefield, as
more than a dozen people released from Guantánamo already have. We will continue
working to transfer individuals held at Guantánamo and ask other countries to work with
us in this process. And we will move toward the day when we can eventually close the
detention facility at Guantánamo Bay.”192
The US political branches continue to block the release of any Guantánamo detainee into the
USA. While the administration continues to blame Congress for the unmet promise to close
the facility, President Obama’s March 2011 order on annual executive review of Guantánamo
detentions, including in those cases where a judge has ruled the detention unlawful but
where the detainee has not been released, states that “nothing in this order, and no
determination made under this order, shall be construed as grounds for release of detainees
covered by this order into the United States.”193
CONCLUSION – A DECADE AND COUNTING (THE COST TO HUMAN RIGHTS)
I knew when I ordered Guantánamo closed that it would be difficult and complex. We're
cleaning up something that is, quite simply, a mess – a misguided experiment
President Barack Obama, May 2009194
In 2002 the Guantánamo detention facility was dubbed by a senior US army official as
“America’s Battle Lab” in the global “war on terror”, and he recommended an environment
there “conducive to extracting information by exploiting the detainees’ vulnerabilities”.195
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 43 16 December 2011
Two commanders in charge of the detentions subsequently adopted the “Battle Lab” label
and were among those officials who sought approval for, or approved, interrogation methods
that violated the prohibition of torture and other ill-treatment.196 In 2008, the Senate Armed
Services Committee found that interrogation policies approved for use in Guantánamo
migrated to Afghanistan and Iraq where they contributed to abuses against detainees.197
Today interrogations are believed to have all but ended at Guantánamo. With no new
detainees being transferred to the detention facility for nearly four years – the last arrival was
in March 2008 – Guantánamo has continued as a location for indefinite military
incarceration and occasional military commission trials, rather than intelligence-gathering. If
the prison’s original status as a strategic interrogation facility has essentially been
mothballed, its continued existence has become a political football, with any prospect of the
detentions being addressed by the USA within a human rights framework kicked into the long
grass. Three years after President Obama signed an executive order to close the Guantánamo
detention facility, his administration’s failure to meet this commitment has encouraged a
number of his would-be successors to make campaign promises to keep the prison open or
even to expand it.
In addition, although the Obama administration has attempted to draw a line under the CIA’s
program of long-term secret detention and use of “enhanced” interrogation techniques, it
cannot do so because the injustices committed in that program continue to fester. Not only
should the US authorities immediately set about identifying and bringing to justice those
responsible for crimes under international law committed in the CIA program, including
against a number of men who remain in Guantánamo today, they should also finally confirm,
among other things, whether or not the base was itself the location for a CIA “black site” for
so-called “high-value” detainees. Four of the 14 men transferred to Guantánamo from secret
CIA detention at undisclosed locations on 4 September 2006 said that they had been held at
the naval base for periods ranging from a week to a year during 2003/2004.198 The alleged
commission of crimes under international law at Guantánamo was not limited to the CIA. The
torture and other ill-treatment of Mohamed al-Qahtani and Mohamedou Slahi at the base in
2002 and 2003, for example, were carried out by military personnel for which there has been
no criminal accountability either. A former FBI interrogator has recently revealed another
possible case of secret detention at the base. He has written that in 2004, Abdul Aziz al-
Matrafi, a Saudi Arabian national held in Guantánamo from February 2002 to late 2007, was
taken by a “specialized military team to a black site (a secret location) and interrogated.”199
It is not clear whether the detainee was taken out of Guantánamo entirely or simply
transferred to a secret site at the base, as apparently occurred in the case of Mohamedou
Slahi described above.
The Bush administration’s decision to locate a “war on terror” detention facility at
Guantánamo was motivated by its desire to keep the detainees away from the ordinary courts
and the legal protections they provide. Locating secret CIA “black sites” outside the USA was
similarly motivated – keeping the detainees off “American soil” was used to allow aggressive
interrogation, prolonged incommunicado detention and solitary confinement. Gradually, legal
challenges brought the judiciary into the equation, but to this day the damage done to rules
of ordinary criminal justice by Guantánamo and the wider detention regime run by the USA is
being cemented into a permanent part of the US legal and policy landscape rather than being
remedied.
The CIA’s use of Guantánamo as a “black site” is believed to have ended shortly after oral
argument in late April 2004 in the Supreme Court in the Rasul v. Bush case. This was
followed two months later by the ruling that the US federal courts could consider habeas
corpus petitions filed for Guantánamo detainees. After the Supreme Court ruled in Hamdan v.
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 44 16 December 2011
Rumsfeld in June 2006 that Article 3 common to the Geneva Conventions was applicable to
US detentions in the “war on terror”, Guantánamo became integral to the Bush
administration’s efforts to protect the CIA’s secret program and reinforce the wall of impunity
it had attempted to build around it. In a major speech on 6 September 2006, two days after
his administration moved 14 of the detainees held in the CIA program to Guantánamo,
President Bush exploited their cases to seek passage of the Military Commissions Act (MCA).
In the charged climate of looming congressional elections, Congress failed in its duty to bring
the USA into line with its human rights obligations on detentions, trials and accountability.
The MCA amended the War Crimes Act, resuscitated the military commissions struck down
by Hamdan, and sought to strip the courts of habeas corpus jurisdiction in the case of
Guantánamo and other detainees held as “enemy combatants”. Signing the MCA into law on
17 October 2006, President Bush emphasised that it would “allow the Central Intelligence
Agency to continue its program for questioning key terrorist leaders” and the administration
to “prosecute captured terrorists for war crimes through a full and fair trial.”200
It took another two years for the Boumediene v. Bush case to reach the US Supreme Court
and for the court’s subsequent ruling that the Guantánamo detainees had the right to
challenge the lawfulness of their detention before a judge. By the time the decision came,
the global “war” paradigm had taken root, including within substantial parts of the federal
judiciary. Today, for detainees held at Guantánamo, a “prompt” habeas corpus hearing
means one that is conducted years after arrest – and perhaps years after the Boumediene
ruling itself – and a judicial order for the government to release an unlawfully held detainee
has effectively become a request.
Meanwhile – after a decade of detentions at Guantánamo – only one detainee has been
transferred to the USA for prosecution in ordinary federal court. Clearly among the detainees
still held at the base there are individuals who should be brought to justice – in the sense of
being brought before the ordinary courts for fair criminal trial – on charges of responsibility in
relation to the 11 September 2001 attacks. Indeed, from the perspective of respect for the
rights of the victims of the attacks, those individuals should been charged and brought to fair
trial years ago. Currently, however, those accused of involvement in the 9/11 attacks and
other serious crimes face capital trial at Guantánamo before military commissions that do not
meet international fair trial standards.
A month before the 10th anniversary of the Guantánamo detentions, two retired US Marine
generals characterized the detention facility as a “morally and financially expensive symbol of
detainee abuse”.201 It is not just a symbol of past abuse, however, but of a continuing assault
by the USA on human rights principles. Two and a half years ago, President Obama said that
the Guantánamo detentions were a “misguided experiment”, but his administration has kept
the laboratory operating. Also in 2009, Attorney General Eric Holder said that he and
President Obama were in agreement that “Guantánamo has come to represent a time and an
approach that we want to put behind us”.202 How much longer does the world have to wait
until the USA steps into a future without the Guantánamo detention facility, and adopts an
approach to countering terrorism that incorporates full respect for its international human
rights obligations?
1 George W. Bush. Decision Points, Virgin Books (2010), page 166.
2 Military Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 13
November 2001. According to former Secretary Rumsfeld, among other locations discussed were
Alcatraz Island; the US army facility at Fort Leavenworth, Kansas; US island military bases in the Pacific
and Indian Oceans and a ship permanently stationed in the Arabian sea. Donald Rumsfeld, Known and
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 45 16 December 2011
unknown: A memoir. Sentinel Books (2011), page 566.
3 Detainees were first held in a facility known as Camp X-Ray, with wire-mesh cells. Construction began
on Camp Delta, a facility with multiple cell blocks, and detainees were moved there from April 2002.
4 Decision points, op. cit., page 180.
5 According to the Obama administration, a total of 779 individuals have been detained at Guantánamo
since detention operations began there on 11 January 2002. See Final Report of the Guantánamo Task
Force, 22 January 2010, page 1. http://www.justice.gov/ag/guantanamo-review-final-report.pdf. Almost
80 per cent of the 779 detainees were transferred there during 2002. The annual detainee transfer
totals were: 2002 – 632; 2003 – 117; 2004 – 10; 2005 – zero; 2006 – 14; 2007 – five; 2008 – one.
No detainee has been transferred to the base under the Obama administration. Given the evidence that
prior to 2004 the CIA may have operated a “black site” at Guantánamo, it is not known if the total of
779 includes any detainee who was held exclusively “outside the wire” (the reported US military
parlance for where the alleged CIA secret detention facility at Guantánamo was located), without
subsequent transfer to military detention at the base.
6 Executive Order – Review and disposition of individuals detained at the Guantánamo Bay Naval Base
and closure of detention facilities. President Barack Obama, 22 January 2009,
http://www.whitehouse.gov/the-press-office/closure-guantanamo-detention-facilities
7 Remarks by the President on National Security, National Archives, Washington, DC, 21 May 2009,
http://www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09
8 By early December 2011, there were 171 men held at Guantánamo, four of whom (one Yemeni, one
Canadian, and two Sudanese nationals) were serving sentences after being convicted by military
commission (three as a result of guilty pleas in return for reduced sentences). The remaining 167
detainees were men of some 21 nationalities: Afghan, Algerian, Chinese (Uighur), Egyptian, Indonesian,
Kenyan, Kuwaiti, Libyan, Malaysian, Mauritanian, Moroccan, Pakistani, Palestinian, Russian, Saudi
Arabian, Somali, Sudanese, Syrian, Tajikistani, Tunisian, UAE, and Yemeni. See Who’s still being held at
Guantánamo, Miami Herald, at http://www.miamiherald.com/2011/04/29/v-fullstory/2192896/who-isstill-
at-guantanamo.html
9 “You have also asked us about the potential legal exposure if a detainee successfully convinces a
federal district court to exercise habeas jurisdiction. There is little doubt that such a result could
interfere with the operation of the system that has been developed to address the detainment and trial of
enemy aliens. First, a habeas petition would allow a detainee to challenge the legality of his status and
treatment under international treaties, such as the Geneva Conventions and the International Covenant
on Civil and Political Rights…” Possible habeas jurisdiction over aliens held in Guantanamo Bay, Cuba.
Memorandum for William J. Haynes, II, General Counsel, Department of Defense, From Patrick F. Philbin
and John C. Yoo, Deputy Assistant Attorneys General, US Department of Justice, 28 December 2001.
10 A March 2003 US Department of Justice memorandum on the interrogations of foreign nationals held
outside the USA, including at Guantánamo, advised the Pentagon that the UN Convention against
Torture or other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), which the USA ratified
in 1994, “places no legal obligations under domestic law on the Executive Branch, nor can it create any
cause of action in federal court. Similarly, customary international law lacks domestic legal effect, and in
any event can be overridden by the President at his discretion”. UNCAT, the memo advised, did not
preclude “justification” of cruel, inhuman or degrading treatment or punishment in “exigent
circumstances”. Interrogation methods that constituted such ill-treatment could be justified by “selfdefense
or necessity”. The memo entirely ignored the fact that under the ICCPR, even “in time of public
emergency which threatens the life of the nation”, there can be no derogation from the prohibition of
cruel, inhuman or degrading treatment or punishment (articles 4 and 7). Because the memo considered
the 1949 Geneva Conventions to be entirely inapplicable to members of al Qaeda and the Taliban, it also
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 46 16 December 2011
did not mention that common article 3 to the Geneva Conventions expressly lists “violence to life and
person, in particular murder of all kinds, mutilation, cruel treatment and torture” as well as “outrages
upon personal dignity, in particular, humiliating and degrading treatment” as being among those acts
that “are and shall remain prohibited at any time and in any place whatsoever” with respect to all
detainees. Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Re:
Military interrogation of alien unlawful combatants held outside the United States. From John C. Yoo,
Deputy Assistant Attorney General, Office of Legal Counsel, US Department of Justice, 14 March 2003,
pages 33-34, 47.
11 See, for example, United States responses to selected recommendations of the Human Rights
Committee 10, October 2007, http://2001-2009.state.gov/documents/organization/100845.pdf (“The
United States takes this opportunity to reaffirm its long-standing position that the Covenant does not
apply extraterritorially... Since the time that US delegate Eleanor Roosevelt successfully proposed the
language that was adopted as part of Article 2 providing that the Covenant does not apply outside the
territory of a State Party, the United States has interpreted the treaty in that manner”.)
12 “The State party should review its approach and interpret the Covenant in good faith, in accordance
with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in
the light of its object and purpose. The State party should in particular (a) acknowledge the applicability
of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its
applicability in time of war; (b) take positive steps, when necessary, to ensure the full implementation of
all rights prescribed by the Covenant; and (c) consider in good faith the interpretation of the Covenant
provided by the Committee pursuant to its mandate.” UN Doc.: CCPR/C/USA/CO/3/Rev.1, 18 December
2006, Concluding observations of the Human Rights Committee: United States of America, para. 10.
13 Opening statement to the UN Human Rights Committee, Matthew Waxman, Head of US Delegation
and Principal Deputy Director of Policy Planning, US Department of State, 17 July 2006, Geneva,
Switzerland, http://2001-2009.state.gov/g/drl/rls/70392.htm
14 See, for example, Memorandum for the Heads of Executive Departments and Agencies. Subject:
Classified Information and Controlled Unclassified Information, The White House, 27 May 2009,
http://www.whitehouse.gov/the-press-office/presidential-memorandum-classified-information-andcontrolled-
unclassified-informat
15 Remarks by Assistant to the President for Homeland Security and Counterterrorism John Brennan at
CSIS, ‘Securing the Homeland by Renewing American Strength, Resilience and Values’, 26 May 2010,
http://www.whitehouse.gov/the-press-office/remarks-assistant-president-homeland-security-andcounterterrorism-
john-brennan-csi (“We must not forget what military leaders and national security
experts from across the political spectrum have said for years, that the detention facility at Guantánamo
has served as a powerful recruiting tool for our enemies and must be closed.”) Remarks of John O.
Brennan, Assistant to the President for Homeland Security and Counterterrorism, Harvard Law School,
‘Strengthening our security by adhering to our values and laws’, 16 September 2011,
http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-oursecurity-
adhering-our-values-an
16 For example, see ‘GOP hopefuls would keep Guantánamo camps’. Miami Herald, 13 November 2011.
See also, Republican presidential candidates on terror. Associated Press, 6 December 2011.
17 Condoleezza Rice, No Higher Honor, Crown Publishers (New York, 2011), page 106-107.
18 Donald Rumsfeld, Known and Unknown: A memoir, op. cit., pages 573, 608-9.
19 Dick Cheney, In my time, Threshold Editions (2011), pages 356 and 523.
20 Press conference by President Obama, 10 September 2010, transcript available at
http://www.whitehouse.gov/the-press-office/2010/09/10/press-conference-president-obama
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 47 16 December 2011
21 This general rule is reflected, for example, in Article 27 of the Vienna Convention on the Law of
Treaties: “A party may not invoke the provisions of its internal law as justification for its failure to
perform a treaty”.
22 See, for example, USA: A reflection on justice, 16 May 2011,
http://www.amnesty.org/en/library/info/AMR51/038/2011/en and USA: Remedy blocked again: Injustice
continues as Supreme Court dismisses rendition case, 25 May 2011,
http://www.amnesty.org/en/library/info/AMR51/044/2011/en
23 Remarks of John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism,
on Ensuring al-Qa'ida's Demise – As Prepared for Delivery. Paul H. Nitze School of Advanced
International Studies, Washington, DC, 29 June 2011, http://www.whitehouse.gov/the-pressoffice/
2011/06/29/remarks-john-o-brennan-assistant-president-homeland-security-and-counter
24 See, for example, USA: The promise of real change. President Obama’s executive orders on detentions
and interrogations, 30 January 2009, http://www.amnesty.org/en/library/info/AMR51/015/2009/en.
25 The Obama administration and international law. Harold Hongju Koh, Legal Adviser, US Department of
State, 25 March 2010, http://www.state.gov/s/l/releases/remarks/139119.htm
26 Remarks by the President on National Security, 21 May 2009,
http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-On-National-Security-5-21-09/
27 “Military commissions have been used by Presidents from George Washington to Franklin Roosevelt to
prosecute war criminals, because the rules for trying enemy combatants in a time of conflict must be
different from those for trying common criminals or members of our own military…The procedures in the
bill I am sending Congress today reflect the reality that we are a nation at war”. President Bush, 6
September 2006.
28 Decision points, op. cit., pages 127 and 137. Andy Card was President Bush’s Chief of Staff at the
time of the 9/11 attacks.
29 See, for example, §948d of the Military Commissions Act of 2009 (“A military commission under this
chapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable by
this chapter…, or the law of war, whether such offense was committed before, on, or after September
11, 2001…”). ‘Abd al Rahim al-Nashiri, for example, is currently charged with alleged war crimes
committed prior to 11 September 2001. See USA: ‘Heads I win, tails you lose’. Government set to
pursue death penalty at Guantánamo trial, but argues acquittal can still mean life in detention, 8
November 2011, http://www.amnesty.org/en/library/info/AMR51/090/2011/en
30 The AUMF authorized the President to “use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks
that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United States by such nations, organizations or
persons.”
31 USA: Doctrine of pervasive ‘war’ continues to undermine human rights. A reflection on the ninth
anniversary of the AUMF, 15 September 2010,
http://www.amnesty.org/en/library/info/AMR51/085/2010/en
32 Slahi v. Obama. Amended declaration of Mohamedou Ould Slahi. In the US District Court for DC.
Amnesty International quotes from unclassified materials, which contains redactions. In this brief, the
date of his arrest in Mauritania, the country to which he was transferred, and the dates of his transfer to
Bagram and Guantánamo are redacted. However, this information is available in other official documents
in the public domain, including that the prison in Jordan was in Amman.
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 48 16 December 2011
33 Section 1021. A “covered person” is (1) “a person who planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored those responsible for the attacks” or
(2) “a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that
are engaged in hostilities against the United States or its coalition partners, including any person who
has committed an a belligerent act or has directly supported such hostilities in aid of such enemy
forces”. The “requirement to detain a person in military custody under this section does not extend to
citizens of the United States” or to a “lawful resident alien of the United States on the basis of conduct
taking place within the United States, except to the extent permitted by the Constitution of the United
States”.
34 The President’s constitutional authority to conduct military operations against terrorists and nations
supporting them. Memorandum opinion for Timothy Flanigan, the Deputy Counsel to the President, from
John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, US Department of Justice, 25
September 2001, http://www.justice.gov/olc/warpowers925.htm (“In light of the text, plan, and history of
the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice
of the executive branch, and the express affirmation of the President's constitutional authorities by
Congress, we think it beyond question that the President has the plenary constitutional power to take
such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the
United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to
prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals,
groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the
Constitution vests the President with the power to strike terrorist groups or organizations that cannot be
demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the
security of the United States and the lives of its people, whether at home or overseas. In both the War
Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use
force in circumstances such as those created by the September 11 incidents. Neither statute, however,
can place any limits on the President's determinations as to any terrorist threat, the amount of military
force to be used in response, or the method, timing, and nature of the response. These decisions, under
our Constitution, are for the President alone to make.”)
35 Final report, Guantánamo Review Task Force, 22 January 2010, op. cit.
36 See Why Obama can’t close Guantánamo, Carol Rosenberg, Foreign Affairs, 14 December 2011.
37 The DFIP replaced the Bagram Theater Internment Facility in late 2009.
38 Al Maqaleh et al v. Gates et al, Declaration of Vice Admiral Robert S. Harward, in the US District Court
for DC, 13 May 2011.
39Al Maqaleh et al v. Gates et al, Respondents’ opposition to petitioners’ motion to file supplemental
materials in further support of petitioners’s opposition to motion to dismiss, In the US District Court for
DC, 12 August 2011.
40 Al Maqaleh et al v. Gates et al, Respondents’ motion to dismiss amended petitions for writs of habeas
corpus, in the US District Court for DC, 19 May 2011.
41 Tofiq al Bihani had been in Afghanistan before leaving the country after the US invasion. In 2010, the
US District Court ruled that Tofiq al Bihani was lawfully detained under the AUMF. The judge noted that
“even assuming the catalyst behind the petitioner’s travel to Afghanistan was to prepare for battle in
Chechnya, and not against the United States, this fact has no material effect on whether the government
can detain the petitioner. Nothing in the AUMF, as construed by this Court and the District of Columbia
Circuit, requires an individual to be ‘part of’ al-Qaeda and to have engaged in hostile aggression, or to
have desired to engage in such conduct, against the United States in order to be rendered detainable”
(emphasis in original). Al-Bihani v. Obama, Memorandum Opinion, US District Court for DC, 22
September 2010. On appeal to the Court of Appeals to the DC Circuit in January 2011, the government
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 49 16 December 2011
and Tofiq al-Bihani jointly moved for summary affirmation of the District Court’s ruling. His lawyers
explained that “Because Mr al-Bihani contends that he did not participate actively and directly in hostile
acts against the United States, and did not intend to engage in hostile acts against the United States, in
his view he cannot be lawfully detained under the Authorization for Use of Military Force (AUMF), or the
laws of armed conflict”. They explained that his reason for joining the joint motion was out of recognition
of the futility of pursuing the challenge in the Court of Appeals because his arguments had been
foreclosed by DC Circuit precedent. He therefore wished to seek Supreme Court review of the District
Court ruling “in the most efficient manner possible”. The Court of Appeals granted the motion on 10
February 2011. Tofiq al-Bihani’s petition seeking Supreme Court review was filed in that court in May
2011 and was due to be considered on 6 January 2012.
42 Abdulmalik v. Obama, Declaration by Mohammed Abdulmalik, In the US District Court for the District
of Columbia, 13 October 2010.
43 The administration has also cited the AUMF as the domestic law underpinning the USA’s use of
targeted killing in its “armed conflict with al-Qaeda, as well as the Taliban and associated forces”. The
Obama administration and international law, 25 March 2010, op. cit.
44 Letter from William K. Lietzau, Deputy Assistant Secretary of Defense for Rule of Law and Detainee
Policy, 23 August 2011. In its letter of 20 July 2011, Amnesty International wrote: “Amnesty
International welcomes the decision to charge Ahmed Warsame for trial in ordinary federal court, and
recognises the fortitude the administration has shown in doing so in the face of Congressional opposition.
We urge the administration to remind members of Congress, as well as its own officials, of how important
it is that the USA fulfil the international human rights obligations it has entered into with the
international community, including the requirement to ensure criminal suspects receive full and fair
trials within a reasonable time in independent and impartial courts, without discrimination, including on
the basis of nationality. However, the very fact that Amnesty International should find itself welcoming a
decision by the USA to use its own ordinary courts to prosecute international terrorism suspects, a course
of action that only a decade ago was seen as routine – indeed, was recognised to be the only legitimate
forum for such a criminal trial – illustrates how far the USA has strayed from its commitment to respect
for human rights during that time and how much work remains to be done to change course.”
45 The DFIP replaced the Bagram Theater Internment Facility in late 2009. Most of the detainees held in
DFIP are Afghan nationals, taken into custody by coalition forces in southern and eastern Afghanistan,
according to the International Committee of the Red Cross. According to the Pentagon, the process of
“transitioning detention operations at the DFIP” to the Afghan government began in January 2011, when
one detainee housing unit was handed over to the Afghan Ministry of Defense. This unit has Afghan
guards “with the support” of US personnel. Once the DFIP is transferred to Afghan control, it is expected
to become “part of a larger Afghan Justice Center in Parwan (JCIP)”. According to the Pentagon, by May
2011 more than 130 trials had been conducted by Afghan authorities at the JCIP and DFIP and more
than 550 additional prosecution cases were in preparation. Maqaleh et al v. Gates et al. Declaration of
William K. Lietzau, 19 May 2011. In the US District Court for DC.
46 After the Court of Appeals refused to reconsider its decision in July 2010, US lawyers for the
detainees returned to the District Court to pursue the litigation, which is continuing.
47 Maqaleh et al v. Gates et al. Declaration of Vice Admiral Robert S. Harward, 13 May 2011, in the US
District Court for DC.
48 UN Doc. A/HRC/WG.6/9/USA/1 (23 August 2010). National report submitted in accordance with
paragraph 15 (a) of the annex to Human Rights Council resolution 5/1. United States of America, para 5.
49 Statement by the President on the International Day in Support of Victims of Torture, 24 June 2011,
http://www.whitehouse.gov/the-press-office/2011/06/24/statement-president-international-day-supportvictims-
torture
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 50 16 December 2011
50 See Evan Wallach, ‘Drop by drop: Forgetting the history of water torture in US courts’, Columbia
Journal of Transnational Law, Volume 45 (2006-2007), pages 468 to 506. See also, for example, US
Attorney General Eric Holder at the Jewish Council for Public Affairs Plenum, Washington, DC, 2 March
2009 (“As I unequivocally stated in my confirmation hearing before the US Senate, water-boarding is
torture. My Justice Department will not justify it, rationalize it, or condone it. The sanction of torture is at
odds with the history of American jurisprudence and American principles.”). (See also, for instance,
statement to UK Parliament by then-UK Foreign Secretary David Miliband “I consider that waterboarding
amounts to torture”, HC Deb, 21 April 2008, col 1726W; statement to the 63rd Session of the
UN General Assembly, by the Special Rapporteur on Torture, Manfred Nowak, Thursday, 23 October
2008, paragraph 3; Committee against Torture, Concluding Observations on USA, UN Doc
CAT/C/USA/CO/2 (25 July 2006), para 24; Report of the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment, Manfred Nowak, UN Doc A/HRC/13/39/Add.5 (5
February 2010), para 74; Interview with Special Rapporteur on torture, Juan Mendez (12 November
2010), http://www.abc.net.au/pm/content/2010/s3065204.htm; Judgment of the International Military
Tribunal for the Far East (1948). Part B, Chapter VIII, p. 1059. Judgment of the 26 July 2010, the
Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) in the case against
Kiang Guek Eav (alias ‘Duch’)1(“Case 001”), http://www.eccc.gov.kh/en/documents/court/judgementcase-
001 paragraphs 241 and 360.
51 In early December 2011, Herman Cain suspended his presidential campaign.
52 News Conference by President Obama, JW Marriott Ihilani Resort & Spa, Kapolei, Hawaii, 14
November 2011, transcript available at http://www.whitehouse.gov/the-press-office/2011/11/14/newsconference-
president-obama
53 Re: Application of United States obligations under Article 16 of the Convention against Torture to
certain techniques that may be used in the interrogation of high value al Qaeda detainees. Memorandum
for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Stephen G.
Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, US Department of
Justice, 30 May 2005.
54 George W. Bush, Decision points, op. cit., pages 168-180.
55 Re: Application of United States obligations under Article 16 of the Convention against Torture to
certain techniques that may be used in the interrogation of high value al Qaeda detainees, 30 May 2005,
op. cit. Khalid Sheikh Mohammed was allegedly “always kept naked” during this torture and female
interrogators were present, “increasing the humiliation aspect”. ICRC report on the treatment of fourteen
‘high value detainees’ in CIA custody, International Committee of the Red Cross, February 2007, page 6.
Khalid Sheikh Mohammed was held in various undisclosed locations. In his third place of detention,
when he was not in interrogation, he has alleged that he was shackled in the “prolonged stress standing
position” for a month, with his wrists shackled to a bar or hook in the ceiling above his head. He has also
said that he was kept naked for a month in secret detention in Afghanistan, and during one period was
kept shackled continuously for 19 months, even when inside his cell.
56 Decision points, op. cit., page 166.
57 Possible habeas jurisdiction over aliens held in Guantánamo Bay, Cuba. Memorandum for William J.
Haynes, 28 December 2001, op. cit.
58 This is not to say that Amnesty International does not have concerns about US interrogation policy. For
example, the organization has questions relating to the Army Field Manual which generally governs
interrogations. Appendix M of the Manual, for example, provides for an interrogation method described as
“physical separation” (i.e. solitary confinement), initially for 30 days, but with provisions for unlimited
extensions. At the same time, the Manual states that the use of separation must “not preclude the
detainee getting four hours of continuous sleep every 24 hours.” Again there are no limitations placed on
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this, meaning that such limited sleep could become a part of the 30-day separation regime, and
extendable indefinitely. See Appendix M of FM 2-22.3 (FM 34-52) Human Intelligence Collector
Operations. Department of the Army, September 2006.
59 See, for example, Civil rights groups oppose expanded interrogation, The Sacramento Bee, 22
November 2011.
60 See, generally, The torture candidates, Editorial, The New York Times, 14 November 2011.
61 Video clip available at http://thinkprogress.org/security/2011/11/29/377907/gingrich-waterboardingnot-
torture/
62 The waterboarding trail to bin Laden. By Michael Mukasey (US Attorney General 20007 to 2009), The
Wall Street Journal, 6 May 2011. See also, for example, Cheney praises Obama for bin Laden’s death,
but bemoans use of harsh tactics, FoxNews.com, 7 May 2011.
63 Marc Thiessen, On waterboarding: Let’s stick to the facts. Washington Post, 15 November 2011,
http://www.washingtonpost.com/blogs/post-partisan/post/on-waterboarding-lets-stick-to-thefacts/
2011/11/15/gIQAHHiiON_blog.html
64 For another view, see Chapter 22 of Ali H. Soufan, The black banners: The inside story of 9/11 and
the war against al-Qaeda. W.W. Norton (2011). Ali Soufan was an FBI interrogator who, among other
things, interrogated Abu Zubaydah prior to the CIA employing “enhanced interrogation techniques”.
65 See also, for example, UN Human Rights Committee General Comment 20 (1992) on article 7 of the
International Covenant on Civil and Political Rights which prohibits the use of torture or other cruel,
inhuman or degrading treatment or punishment (para 3: “The text of article 7 allows of no limitation. The
Committee also reaffirms that, even in situations of public emergency such as those referred to in article
4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain
in force. The Committee likewise observes that no justification or extenuating circumstances may be
invoked to excuse a violation of article 7 for any reasons, including those based on an order from a
superior officer or public authority.”) Common article 3 to the 1949 Geneva Conventions expressly lists
“violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” as
well as “outrages upon personal dignity, in particular, humiliating and degrading treatment” as being
among those acts that “are and shall remain prohibited at any time and in any place whatsoever” with
respect to all detainees. Article 2(2) of the UN Convention against Torture provides, “No exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any
other public emergency, may be invoked as a justification of torture.”
66 Donald Rumsfeld. Known and Unknown: A memoir, op. cit., page 603.
67 Jack Goldsmith, The Terror Presidency: Law and judgment inside the Bush Administration, W.W.
Norton and Company, 2007, page 102.
68 Statement by the President on the International Day in Support of Victims of Torture, 24 June 2011.
69 Statement on the United Nations International Day in Support of Victims of Torture, 26 June 2003.
70 Statement on the United Nations International Day in Support of Victims of Torture, 26 June 2004.
71 Statement on United Nations International Day in Support of Victims of Torture, 26 June 2005.
72 See, generally, Joint study on global practices in relation to secret detention in the context of
countering terrorism, by the UN Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, the UN Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment, the UN Working Group on Arbitrary Detention, and the
Working Group on Enforced and Involuntary Disappearances, UN Doc A/HRC/13/42, 20 May 2010.
73 Eric Lewis, Torture’s future, New York Times, 21 November 2011,
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 52 16 December 2011
http://campaignstops.blogs.nytimes.com/2011/11/21/tortures-future/.
74 Kiyemba v. Obama, US Court of Appeals for the DC Circuit, 18 February 2009.
75 Salahi v. Obama, Memorandum Order, US District Court for DC, 9 April 2010.
76 UN experts welcome the announcement by President-elect Obama to close the Guantánamo Bay
detention facility, 22 December 2008. The four UN experts were the Special Rapporteur on the
independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, the Special Rapporteur on the promotion and protection of human
rights while countering terrorism, and the Special Rapporteur on the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health.
77 Salahi v. Obama, Reply brief for respondents-appellants, In the US Court of Appeals for DC Circuit,
June 2010.
78 Salahi v. Obama, US Court of Appeals for the DC Circuit, 5 November 2010.
79 Peru. Country Reports on Human Rights Practices, Bureau of Democracy, Human Rights, and Labor,
2000, US Department of State, 23 February 2001,
http://www.state.gov/g/drl/rls/hrrpt/2000/wha/827.htm
80 General Comment no 8, para 2 (1982) (…“delays must not exceed a few days”).
81 See e.g. Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc
CCPR/C/59/D/560/1993 (30 April 1997), para 9.5
82 Allison M. Lefrak. Justice denied at Guantánamo. National Law Journal, 19 September 2011.
83 Latif v. Obama, US Court of Appeals for the DC Circuit, 14 October 2001, Judge Tatel dissenting.
84 From lawyer’s declassified notes.
85 Abdah et al v. Obama et al, Memorandum opinion, US District Court for DC, 26 May 2010.
86 Final report, Guantánamo Review Task Force, 22 January 2010, op. cit.
87 Final Report, Guantánamo Review Task Force, 22 January 2010, op. cit.
88 In the case of Yunus Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and
Secretary of State for Defence, 14 December 2011, ([2011] EWCA Civ 1540),
http://www.bailii.org/ew/cases/EWCA/Civ/2011/1540.html, paragraphs 26 & 43.
89 Kiyemba v. Obama, US Court of Appeals for the DC Circuit, 18 February 2009. This case involved
Uighurs who were seeking release into the USA in the absence of third country solutions.
90 Executive Order – Periodic review of individuals detained at Guantánamo Bay Naval Station pursuant
to the Authorization for Use of Military Force, 7 March 2011, http://www.whitehouse.gov/the-pressoffice/
2011/03/07/executive-order-periodic-review-individuals-detained-guant-namo-bay-nava
91 Arraignment hearing for ‘Abd al Rahim al-Nashiri. From the “unofficial/unauthenticated” transcript
issued by the Pentagon.
92 Ibid.
93 Remarks by Richard B. Cheney, as prepared for delivery, American Enterprise Institute, 21 May 2009,
http://www.aei.org/speech/foreign-and-defense-policy/regional/india-pakistan-afghanistan/remarks-byrichard-
b-cheney/
94 Re: Application of United States obligations under Article 16 of the Convention against Torture to
certain techniques that may be used in the interrogation of high value al Qaeda detainees, 30 May 2005,
op. cit. He was “always kept naked” during this torture and female interrogators were present,
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 53 16 December 2011
“increasing the humiliation aspect”. ICRC report on the treatment of fourteen ‘high value detainees’ in
CIA custody, International Committee of the Red Cross, February 2007, page 6. He was held in various
undisclosed locations. In his third place of detention, when he was not in interrogation, he has alleged
that he was shackled in the “prolonged stress standing position” for a month, with his wrists shackled to
a bar or hook in the ceiling above his head. He has also said that he was kept naked for a month in
secret detention in Afghanistan, and during one period was kept shackled continuously for 19 months,
even when inside his cell.
95 Remarks on the war on terror. President G. W. Bush, 6 September 2006 (“As soon as Congress acts to
authorize the military commissions I have proposed, the men our intelligence officials believe
orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice”).
The President’s News Conference, 15 September 2006 (“This debate is occurring because of the
Supreme Court’s ruling that said that we must conduct ourselves under the Common Article Three of the
Geneva Convention. And that Common Article Three says that there will be no outrages upon human
dignity. It’s very vague. What does that mean, ‘‘outrages upon human dignity’’? That’s a statement that is
wide open to interpretation… Now, this idea that somehow we’ve got to live under international treaties,
you know – and that’s fine, we do, but oftentimes the United States Government passes law to clarify
obligations under international treaty. And what I’m concerned about is, if we don’t do that, then it’s very
conceivable our professionals could be held to account based upon court decisions in other countries.
And I don’t believe Americans want that. I believe Americans want us to protect the country, to have
clear standards for our law enforcement, intelligence officers, and give them the tools necessary to
protect us within the law… So Congress has got a decision to make: Do you want the program to go
forward or not?”)
96 Attorney General Eric Holder speaks at the US Constitution Project Awards Dinner, 15 April 2010,
http://www.justice.gov/ag/speeches/2010/ag-speech-1004152.html
97 UN Human Rights Committee, General Comment No 32, Article 14: Right to equality before the
courts and tribunals and to a fair trial, UN Doc CCPR/C/GG/32, 23 August 2007, para. 22.
98 Known and unknown, op. cit., page 608.
99 Ahmed Khalfan Ghailani, a Tanzanian national charged for trial by military commission by the Bush
administration, was convicted in US District Court in New York in 2010 and sentenced to life
imprisonment in January 2011.
100 Representative Jerrold Nadler, at Hearing on Legal issues surrounding the military commissions
system, House of Representatives, Subcommittee on the Constitution, Civil Rights, and Civil Liberties,
Committee on the Judiciary, 8 July 2009.
101 Remarks by the President on National Security, 21 May 2009, op. cit.
102 At the military commission arraignment at Guantánamo on 9 November 2011, the following dialogue
occurred between the military judge and a prosecutor from the US Department of Justice, Assistant US
Attorney Anthony Mattivi. Military Judge, Colonel Pohl: “If the accused were acquitted today, there is no
legal prohibition from the government to take him under the Authorization for Use of Military Force
straight back to the cell he came from? Today.” US Attorney Mattivi: “Today, just as if the same thing
had happened to Mr [Ahmed Khalfan] Ghailani in the Southern District in the Article III case, that’s
absolutely correct”. Ahmed Ghailani is the only Guantánamo detainee to have been transferred to the
US mainland for prosecution. He was convicted in 2010 and sentenced to life imprisonment in 2011.
103 Final report, Guantánamo Review Task Force, 22 January 2010, op. cit.
104 Obama’s Interview aboard Air Force One, New York Times transcript, 7 March 2009.
105 Interview on 22 May 2009 with Steve Scully, Political Editor, C-SPAN, aired on 23 May 2009.
USA: Guantánamo – A decade of damage to human rights
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106 Attorney General announces forum decisions for Guantánamo detainees, 13 November 2009,
http://www.justice.gov/ag/speeches/2009/ag-speech-091113.html.
107 See Obama on terror trials: KSM will die. Politico.com, 18 November 2009,
http://www.politico.com/news/stories/1109/29661.html
108 President George W. Bush, Remarks Following Discussions With President Vladimir Putin of Russia
and an Exchange With Reporters in St. Petersburg, Russia, 22 November 2002.
109 President George W. Bush, Remarks in Shreveport, Louisiana, 3 December 2002.
110 President George W. Bush, Remarks at a Luncheon for Senatorial Candidate Suzanne Haik Terrell in
New Orleans, Louisiana, 3 December 2002.
111 Special Review. Counterterrorism detention and interrogation activities (September 2001 – October
2003), CIA Office of Inspector General, 7 May 2004, paras. 36 and 224. Information released into the
public domain indicates ‘Abd al Rahim al-Nashiri was also subjected to shackling, hooding and nudity as
well as to a number of “unauthorized” techniques, including being threatened with a handgun and a
electric power drill, “potentially injurious stress positions” and the use “of a stiff brush [used in bathing]
that was intended to induce pain”, and “standing on al-Nashiri’s shackles, which resulted in cuts and
bruises”.
112 UN Doc.: E/CN.4/2003.3, 13 January 2003. Report of the Special Rapporteur, Asma Jahangir,
submitted pursuant to Commission on Human Rights resolution 2002/36, paras. 37-39. See also
Yemen/USA: government must not sanction extra-judicial executions, 8 November 2002,
http://www.amnesty.org/en/library/info/AMR51/168/2002/en
113 UN Doc.: E/CN.4/2003/G/80, 22 April 2003. Letter dated 14 April 2003 from the Chief of Section,
Political and Specialized Agencies, of the Permanent Mission of the United States of America to the
United Nations Office at Geneva addressed to the secretariat of the Commission on Human Rights.
114 President George W. Bush. Remarks to the troops at Ford Hood in Killeen, Texas, 3 January 2003.
Weekly compilation of Presidential documents.
115 Remarks by the President on Osama bin Laden, White House, 2 May 2011,
http://www.whitehouse.gov/the-press-office/2011/05/02/remarks-president-osama-bin-laden
116 CBS 60 minutes, Interview of President Barack Obama by Steve Kroft, broadcast 8 May 2011.
117 See USA: Amnesty International appalled at devastating attacks against civilians, 11 September
2001, http://www.amnesty.org/en/library/info/AMR51/134/2001/en; USA: Justice, not revenge, must
prevail, 13 September 2001, http://www.amnesty.org/en/library/info/AMR51/140/2001/en; Open letter to
the UN Security Council, 17 September 2001,
http://www.amnesty.org/en/library/info/ACT30/020/2001/en; A joint civil society statement on the tragedy
in the United States, 21 September 2001, http://www.amnesty.org/en/library/info/ACT30/021/2001/en;
Letter to President George W. Bush, 21 September 2001,
http://www.amnesty.org/en/library/info/AMR51/144/2001/en;
118 On 4 May 2011, a spokesperson for the US administration explained: “The team had the authority to
kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his
surrender if the team could do so safely. The operation was conducted in a manner fully consistent with
the laws of war. The operation was planned so that the team was prepared and had the means to take bin
Laden into custody. …consistent with the laws of war, bin Laden’s surrender would have been accepted
if feasible” (Press Briefing by Press Secretary Jay Carney, 4 May 2011, http://www.whitehouse.gov/thepressoffice/
2011/05/04/press-briefing-press-secretary-jay-carney-542011). Initially, the administration
had asserted: “It was a firefight. He, therefore, was killed in that firefight and that’s when the remains
were removed” (Press Briefing by Press Secretary Jay Carney and Assistant to the President for
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 55 16 December 2011
Homeland Security and Counterterrorism John Brennan, White House, 2 May 2011,
http://www.whitehouse.gov/the-pressoffice/2011/05/02/press-briefing-press-secretary-jay-carney-andassistant-
president-homela). Officials subsequently clarified that Osama bin Laden was in fact unarmed
when he was shot in the head during the raid (See, for example, White House corrects information on bin
Laden raid. American Forces Press Service, 3 May 2011,
http://www.defense.gov//News/NewsArticle.aspx?ID=63803). The US Attorney General told the Senate
Judiciary Committee, “If he had surrendered, attempted to surrender, I think we should obviously have
accepted that, but there was no indication that he wanted to do that and therefore his killing was
appropriate” (http://www.bbc.co.uk/news/world-us-canada-13286312). Administration officials were,
however, subsequently reported to have admitted that no real opportunity for surrender was planned for
or in fact provided (LA Times, “Osama bin Laden's surrender wasn't a likely outcome in raid, officials
say”, 3 May 2011, http://articles.latimes.com/2011/may/03/world/la-fg-bin-laden-us-20110504).
Amnesty International wrote to US officials on 4 May 2011 seeking further information. In a reply dated
31 May 2011, the US administration made it clear that the raid was conducted under the USA’s theory
of a global armed conflict between the USA and al-Qa’ida. In a response dated 22 July 2011, Amnesty
International wrote: “To permit any state to claim that it can act in contravention of human rights
standards virtually anywhere in the world at any time simply by invoking the concept of a ‘global war’
against a diffuse network of non-state actors, a ‘war’ that is without prospect of a clearly recognizable
end, would seriously undermine the very foundations of international human rights law. Such a claim
further finds no explicit basis in the various sources of international humanitarian law itself.” The
organization wrote that if the legal justification referenced in the administration’s letter of 31 May 2011
“represents the USA’s final word on this matter, then we are left with little choice but to conclude that
the killings in question were committed without a proper legal basis, were carried out in accordance with
instructions that failed to implement the applicable human rights standards, and were therefore
inconsistent with due respect for the right to life.” Relevant in this regard would be the right not to be
arbitrarily deprived of life as provided for under article 6 of the International Covenant on Civil and
Political Rights (ICCPR), and specifically the requirements of prior warning and effective opportunity to
comply, and necessity, as reflected for instance in the UN Code of Conduct for Law Enforcement
Officials, adopted by General Assembly resolution 34/169 of 17 December 1979, and the UN Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, 27 August to 7 September
1990. The organization also called on the US administration to conduct an investigation, in accordance
with international human rights standards into the killings in Abbottabad operation, as required under
the ICCPR, and as reflected in the UN Principles on the Effective Prevention and Investigation of Extralegal,
Arbitrary and Summary Executions, Economic and Social Council resolution 1989/65 of 24 May
1989. By early December 2011, the organization had received no further communication on this matter
from the US authorities, few details were subsequently provided publicly, and no independent
investigation is known to have taken place. See also Amnesty International, USA: A reflection on justice,
16 May 2011, http://amnesty.org/en/library/info/AMR51/038/2011/en.
119 Action memo, Counter-resistance techniques. Office of the Secretary of Defense, 27 November 2002,
signed by Secretary Rumsfeld, 2 December 2002. See also Memorandum for Commander, Joint Task
Force 170, Legal brief on proposed counter-resistance strategies, 11 October 2002.
120 A review of the FBI’s involvement in and observations of detainee interrogations in Guantánamo Bay,
Afghanistan and Iraq, US Department of Justice, Office of Inspector General, October 2009 (revised)
(hereinafter FBI Inspector General Report).
121 See USA: An embarrassment of hitches: Reflections on the death penalty, 35 years after Gregg v.
Georgia, as states scramble for lethal injection drugs, 1 July 2011,
http://www.amnesty.org/en/library/info/AMR51/058/2011/en
122 CCPR General Comment No. 6, The right to life (Article 6), 1982.
USA: Guantánamo – A decade of damage to human rights
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123 UN Doc.: A/HRC/16/11/Add.1, Report of the Working Group on the Universal Periodic Review: United
States of America. Addendum: Views on conclusions and/or recommendations, voluntary commitments
and replies presented by the State under review, 8 March 2011.
124 ACLU et al v. Department of Defense et al, Declaration of Leon E. Panetta, Director, Central
Intelligence Agency, US District Court for the Southern District of New York, 22 September 2009.
125 Mohammed v. Obama, Memorandum opinion, US District Court for DC, 19 November 2009.
126 In November 2011, the plaintiffs in the Jeppesen lawsuit took their case to the Inter-American
Commission on Human Rights.
127 UN Doc.: A/HRC/16/11/Add.1, Report of the Working Group on the Universal Periodic Review: United
States of America. Addendum: Views on conclusions and/or recommendations, voluntary commitments
and replies presented by the State under review, 8 March 2011.
128 ALCU v. Department of Defense, Central Intelligence Agency. Brief for appellees, In the US Court of
Appeals for the DC Circuit, March 2010.
129 ALCU v. Department of Defense and Central Intelligence Agency, US Court of Appeals for the DC
Circuit, 18 January 2011.
130 See USA: Torture in black and white, but impunity continues: Department of Justice releases
interrogation memorandums, 17 April 2009,
http://www.amnesty.org/en/library/info/AMR51/055/2009/en
131 ALCU v. Department of Defense, Central Intelligence Agency. Brief for appellees, In the US Court of
Appeals for the DC Circuit, March 2010.
132 See ‘A little knowledge is a dangerous thing’, In appendix 1 of USA: Detainees continue to bear costs
of delay and lack of remedy. Minimal judicial review for Guantánamo detainees 10 months after
Boumediene, 9 April 2009, http://www.amnesty.org/en/library/info/AMR51/050/2009/en
133 See, e.g., ACLU et al v. Department of Defense et al. Sixth Declaration of Marilyn A. Dorn,
Information Review Officer, CIA, US District Court, Southern District of New York, 5 January 2007
(disclosure of the information “could be expected to impair the foreign relations and foreign activities of
the United States by undermining the cooperative relationships that the United States has developed
with its critical partners in the global war on terrorism”), and Declaration of Leon A. Panetta, CIA
Director, 8 June 2009 (disclosure of the information “would disclose the locations of covert CIA facilities
and the identities of foreign countries cooperating with the CIA in counterterrorism operations”).
134 Re: suspected mistreatment of detainees. To Major General Donald J. Ryder, Department of the Army,
from T.J. Harrington, Deputy Assistant Director, Counterterrorism Division, US Department of Justice,
Federal Bureau of Investigation. 14 July 2004.
135 Action memo, Counter-resistance techniques. Office of the Secretary of Defense, 27 November 2002,
signed by Secretary Rumsfeld, 2 December 2002. See also Memorandum for Commander, Joint Task
Force 170, Legal brief on proposed counter-resistance strategies, 11 October 2002.
136 Testimony of LTG Randall M. Schmidt. Taken 24 August 2005 at Davis Mountain Air Force Base,
Arizona. Department of the Army Inspector General, Investigations Division.
137 FBI Inspector General Report, op. cit., pages 102-103. See also USA: Where is the accountability?
Health concern as charges against Mohamed al-Qahtani dismissed, Amnesty International, 20 May
2008, http://www.amnesty.org/en/library/info/AMR51/042/2008/en.
138 Testimony of LTG Randall M. Schmidt. Taken 24 August 2005, op. cit.
139 Detainee tortured, says US official. Bob Woodward, Washington Post, 14 January 2009. See also, A
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 57 16 December 2011
case to answer: the torture of Mohamed al-Qahtani, in Memorandum to the US Government on the report
of the UN Committee Against Torture and the question of closing Guantánamo, Amnesty International,
June 2006, http://www.amnesty.org/en/library/info/AMR51/093/2006/en
140 Quotes and other details in this text box come from FBI Inspector General Report, op. cit.; Inquiry
into the treatment of detainees in US custody. Report of the Committee on Armed Services, United
States Senate (SASC Report), 20 November 2008; and 24 October 2002 email between DOD CITF
personnel, Subject: FW: Counter Resistance Strategy Meeting Minutes (from SASC report supporting
documents). See also: USA: Where is the accountability? Health concern as charges against Mohamed
al-Qahtani dismissed, 20 May 2008, http://www.amnesty.org/en/library/info/AMR51/042/2008/en
141 Donald Rumsfeld. Known and unknown: a memoir, op. cit., page 580.
142 Ibid, citing Memorandum for Chairman of the Joint Chiefs of Staff. Subject: Counter-resistance
techniques. From US Army General James T. Hill, 25 October 2002.
143 FBI Inspector General Report, op. cit. As a transliteration, both Mohammedou Salahi and
Mohamedou Slahi have been used for this detainee in court and other documents in English.
144 Salahi v. Obama. Brief for appellee, In the US Court of Appeals for the DC Circuit, 9 June 2010. The
US government has never publicly admitted that it rendered Mohamedou Ould Slahi to Jordan.
145 Ibid., also see USA: Rendition – torture – trial? The case of Guantánamo detainee Mohamedou Ould
Slahi, 20 September 2006, http://www.amnesty.org/en/library/info/AMR51/149/2006/en.
146 See SASC Report, op. cit., pages 135-141. See also FBI Inspector General Report, op. cit.
147 SASC Report, op. cit., page 137.
148 USA v. Ghailani, Memorandum of law in opposition to Defendant Ahmed Khalfan Ghailani’s motion to
dismiss the indictment due to the denial of his constitutional right to a speedy trial. In the US District
Court for Southern District of New York, 18 December 2009.
149 Salahi v. Obama, Brief for appellee, In the US Court of Appeals for DC Circuit, June 2010.
150 Known and unknown, op. cit. page 580 (note).
151Al-Madhwani v. Obama, Brief for petitioner-appellant Musa’ab Al-Madhwani, In the US Court of
Appeals for the DC Circuit, 15 November 2010.
152 USA: See no evil: Government turns the other way as judges make findings about torture and other
abuse, February 2011, http://www.amnesty.org/en/library/info/AMR51/005/2011/en
153 ICRC report on the treatment of fourteen ‘high value detainees’ in CIA custody, op. cit.
154 ACLU et al v. Department of Defense, et al. Opinion and order denying motion to hold defendant CIA
in civil contempt. US District Court, Southern District of New York, 5 October 2011.
155 Message from the Director: DoJ Investigations Moving Toward Closure. Statement to Employees by
Director of the Central Intelligence Agency Leon E. Panetta on DoJ Investigations Moving Toward
Closure, 30 June 2011, https://www.cia.gov/news-information/press-releases-statements/directorsstatement-
interrogation-policy-contracts.html
156 Department of Justice statement on the investigation into the destruction of videotapes by CIA
Personnel, 9 November 2010, http://www.justice.gov/opa/pr/2010/November/10-ag-1267.html
157 Statement of the Attorney General regarding investigation into the interrogation of certain detainees,
US Department of Justice, 30 June 2011, http://www.justice.gov/opa/pr/2011/June/11-ag-861.html
158 Remarks by Richard B. Cheney, American Enterprise Institute, 21 May 2009, op. cit.
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 58 16 December 2011
159 Statement by the White House Press Secretary on the Geneva Conventions, 7 February 2002.
160 ACLU et al v. Department of Defense et al. US District Court for the Southern District of New York,
Ninth Declaration of Marilyn A. Dorn, Deputy Chief, Policy and Community Action Staff, National
Clandestine Service, Central Intelligence Agency, 7 June 2007.
161 John Rizzo, 9/11: Three major mistakes. Hoover Institution, 8 September 2011,
http://www.hoover.org/publications/defining-ideas/article/91992. John Rizzo was the CIA’s chief legal
counsel from 2001 to 2002 and from 2004 to 2009.
162 Investigation into the Office of Legal Counsel’s memoranda concerning issues relating to the Central
Intelligence Agency’s use of ‘enhanced interrogation techniques’ on suspected terrorists. Report, Office
of Professional Responsibility, US Department of Justice, page 117.
163 Special Review of counterterrorism detention and interrogation activities (September 2001 – October
2003). Office of Inspector General, Central Intelligence Agency, 7 May 2004.
164 Feinstein, Bond announce Intelligence Committee review of CIA detention and interrogation program,
Senate Intelligence Committee press release, 5 March 2009.
165 Statement to Employees by Director of the Central Intelligence Agency Leon E. Panetta on the Senate
Review of CIA's Interrogation Program, 5 March 2009, https://www.cia.gov/news-information/pressreleases-
statements/senate-review-of-cia-interrogation-program.html; Statement to Employees by Director
of the Central Intelligence Agency Leon E. Panetta on the New Review Group on Rendition, Detention,
and Interrogation, 16 March 2009, https://www.cia.gov/news-information/press-releases-statements/newreview-
group-on-rendition-detention-and-interrogation.html
166 S8130, Congressional Record – Senate, 1 December 2011.
167 Decision Points, op. cit., pages 166-168.
168 Stakeout on Capitol Hill with Secretary Rumsfeld and Gen. Pace, US Department of Defense
transcript, 8 December 2001.
169 Wolfowitz Interview with Jim Lehrer, News Hour, PBS TV. US Department of Defense transcript, 21
March 2002.
170 Condoleezza Rice. No Higher Honor, op. cit., page 276.
171 Condoleezza Rice. No Higher Honor, op. cit., page 502.
172 Remarks at the American Enterprise Institute, 21 May 2009, op. cit.
173 The Obama Administration and International Law, 25 March 2010, op. cit.
174 Liberia. Country Reports on Human Rights Practices, Bureau of Democracy, Human Rights, and
Labor, 2002. Published 31 March 2003, http://www.state.gov/g/drl/rls/hrrpt/2002/18211.htm
175 Re: Application of United States obligations under Article 16 of the Convention against Torture to
certain techniques that may be used in the interrogation of high value al Qaeda detainees, 30 May 2005,
op. cit., including note 30.
176 Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the
Geneva Conventions to certain techniques that may be used by the CIA in the interrogation of high-value
al Qaeda detainees. Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence
Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel,
US Department of Justice, 20 July 2007, page 39.
177 USA: Federal judge orders release of five of six Guantánamo detainees seized in Bosnia in 2002, 20
November 2008, http://www.amnesty.org/en/library/info/AMR51/141/2008/en
USA: Guantánamo – A decade of damage to human rights.
Index: AMR 51/103/2011 Amnesty International 59 16 December 2011
178 Rick Perry for President, http://www.rickperry.org/issues/national-security/
179 Newt 2012 (presidential bid website), http://www.newt.org/solutions/tell-truth-about-national-security
180 United States of America: US human rights commitments and pledges. 27 April 2009, US
Department of State, Bureau of International Organization Affairs,
http://www.state.gov/documents/organization/122476.pdf.
181 Remarks on the Human Rights Agenda for the 21st Century. Hillary Rodham Clinton, Secretary of
State, Georgetown University’s Gaston Hall, Washington DC, 14 December 2009.
182 The Obama administration and international law, op. cit., 25 March 2010.
183 See Introduction to 2010 Country Reports on Human Rights Practices, US Department of State, April
2011, http://www.state.gov/g/drl/rls/hrrpt/2010/frontmatter/154329.htm (“The reports do not cover
human rights in the United States, although this Administration has made a commitment to take a close
and critical look at our own performance on these issues even as we cast a spotlight on the practices of
other countries. In November, the United States presented its first report on human rights in the United
States to the UN Human Rights Council (UNHRC) in Geneva through the Universal Periodic Review.”)
184 UN Doc. A/HRC/WG.6/9/USA/1 (23 August 2010). National report submitted in accordance with
paragraph 15 (a) of the annex to Human Rights Council resolution 5/1. United States of America, para 4.
185 Qassim v. Bush, Respondents’ supplemental memorandum pursuant to the Court’s invitation at the
August 1, 2005 hearing. In the US District Court for DC, 8 August 2005.
186 Qassim v. Bush, US District Court for the District of Columbia, Memorandum of 22 December 2005.
Shortly before this judgment was due to be appealed in a higher court, these and three other Uighur
detainees were transferred from Guantánamo by the US authorities and released in Albania.
187 China, 2002 Country Reports on Human Rights Practices, Bureau of Democracy, Human Rights, and
Labor, 31 March 2003, http://www.state.gov/g/drl/rls/hrrpt/2002/18239.htm
188 See Urgent Action http://www.amnesty.org/en/library/info/AMR51/090/2004/en.
189 FBI Inspector General report, op. cit.
190 Kiyemba v. Obama, On remand from the US Supreme Court, US Court of Appeals for the DC Circuit,
28 May 2010.
191 Kiyemba v. Obama, Petition for rehearing en banc. In the US Court of Appeals for the DC Circuit, 12
July 2010.
192 Remarks on the war on terror. President George W. Bush, 6 September 2006. It may also be noted
that the practice of relying on “assurances against mistreatment” as a means of justifying transfers to
risks of torture or other human rights violations, which would otherwise clearly be prohibited, is in itself
of serious concern from a human rights perspective: see for instance Amnesty International, Dangerous
Deals: Europe’s reliance on ‘diplomatic Assurances’ against torture, 12 April 2010,
http://www.amnesty.org/en/library/info/EUR01/012/2010.
193 Executive Order--Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant
to the Authorization for Use of Military Force, op. cit.
194 Remarks by the President on National Security, 21 May 2009, op.cit.
195 Colonel John Custer, CJCS external review of Guantánamo Bay Intelligence Operations, cited SASC
report, November 2008, op. cit.), pp. 42-43; p. xxvii-xxviii, and pp. 73-91.
196 SASC report, op. cit., November 2008, p. xxvii-xxviii, and pp. 73-91. See also Counter-resistance
strategies. Memorandum for Commander, United States Southern Command, 11 October 2002. Signed
USA: Guantánamo – A decade of damage to human rights
Index: AMR 51/103/2011 Amnesty International 60 16 December 2011
by Major General Dunlavey.
197 SASC report, op.cit.
198 ICRC report on the treatment of fourteen ‘high value detainees’ in CIA custody, op. cit., February
2007, page 7. According to a military investigative interview conducted in 2005 and subsequently
leaked, the CIA had “unfettered access to people they wanted to have and they had their own area. They
didn’t use [military] interrogation facilities because they had their own trailer operation” at Guantánamo.
Testimony of LTG Randall Schmidt, taken by the Department of the Army Inspector General,
Investigations Division, 24 August 2005.
199 Ali H. Soufan, The black banners, op. cit., page 482.
200 Remarks on signing the Military Commissions Act of 2006, President G.W. Bush, 17 October 2006.
201 Guantánamo forever? By Charles C. Krulak and Joseph P. Hoar. New York Times, 12 December 2011.
202 Attorney General Eric Holder delivers remarks on the closing of Guantánamo Bay, at the Hans Arnhold
Center of the American Academy of Berlin, Germany, 29 April 2009.

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