26 Getting to Ground Truth 82 83 84 85 FAY REPORT, supra, note 15, at 19. DAIG REPORT, supra, note 1, at Foreword. FAY REPORT, supra note 15, at 8 Maj. Gen. Geoffrey D Miller, quoted in Jackie Spinner, Abu Ghraib Policy Defended, WASH POST, Aug. 17, 2004. 86 87 88 DAIG REPORT, supra, note 1, at Foreword. SCHLESINGER REPORT, supra, note 1, at 5 See Letter to J William Leonard Director, Information Security Oversight Office, National Archives and 89 90 91 FAY REPORT, Supra, note 15, at 7 Douglas Jehl and Eric Schmitt, Report Faults General in Prison Abuse, N.Y. TIMES, Aug. 27, 2004, at A1. See Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1286-93 (11th Cir. 2002); see also THE LAW OF LAND WARFARE ¶ 499 (1956) (defining "war crime" as any violation of the law of war). Under the Federal War Crimes Act, 18 USC § 2441, "war crimes" are defined to include, generally, "grave breaches" of the 1949 Geneva Conventions, violations of Common Article 3 to the Geneva Conventions, and certain violations of the 1907 Hague Convention IV. "Grave breaches of the Geneva Conventions include, among other things "torture or inhuman treatment... willfully causing great suffering or serous injury to body or health Third Geneva Convention, art. 130 Fourth Geneva Convention, art. 147. Likewise, Common Article 3 prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment." Third Geneva Convention, art. 3(1); Fourth Geneva Convention, Art. 3(1). U.S. DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE, ¶ 501 (1956). TAGUBA REPORT, supra, note 1, at 27: Third Geneva Convention arts. 3, 13, 14, 17, 27, 87, 89, 13; Fourth Geneva Convention, arts. 3, 5, 27, 31, 32, 33, 147. 100 Memorandum from Lt. Col. James Phifer to Maj. Gen. Michael Dunlavey, Commander at Guantanamo for Approval on Interrogation Techniques (October 2002), available at http://www.npr.org/documents/2004/dod prisoners/20040622doc3.pdf (accessed Sept 7, 2004). Memorandum from William J. Haynes II, General Counsel, Dep't of Defense to Secretary of Defense Donald http://www.npr.org/documents/2004/dod prisoners/20040622doc5 pdf (accessed Sept 7, 2004) (seeking 101 See Third Geneva Convention arts. 3, 13, 14, 17, 27, 87, 89, 13; Fourth Geneva Convention, arts. 3, 5, 27, 31, 32, 33, 147, 18 USC § 2441 (criminalizing grave breaches of the Geneva Conventions), 18 USC § 2441. m Endnotes 27 102 See Secretary of Defense Rumsfeld Interview with David Frost (BBC), June 27, 2004, available at http://www.defenselink.mil/transcripts/2004/tr20040713-secdef1001.html (accessed Sept. 6, 2004); Tim Golden and Don Van Natta Jr., U.S. Said to Overstate Value of Guantanamo Detainees, N.Y. TIMES, June 21, 2004, A1. 103 104 105 SCHLESINGER REPORT, supra, note 1, at 81 JONES REPORT, supra, note 7, at 15. See FAY REPORT, supra, note 15, at 21-30 The use of dogs to intimidate detainees, forced nudity, and prolonged solitary confinement violates the United States' international and domestic legal obligations. See Third Geneva Convention arts. 3, 13, 14, 17, 27, 87, 89, 13, Fourth Geneva Convention, arts. 3, 5, 27, 31, 32, 33, 147. 112 TAGUBA REPORT, supra, note 1, at 26-27; see also JONES REPORT, supra, note 7, at 22, FAY REPORT, supra, note 15, at 9, 44-45, 53, 118, DAIG REPORT, supra, note 1, at 56-57. 113 114 TAGUBA REPORT, supra, note 1, at 27. Red Cross Fears US Officials Are Holding Terror Suspects in Secret Locations Worldwide, ASSOCIATED PRESS, at http://www.able2know.com/forums/about28807.html (accessed Sept 7, 2004) 115 SCHLESINGER REPORT, supra, note 1, at 69, DAIG REPORT, Supra, note 1, at 87, FAY REPORT, supra, note 15, at 116. 121 See Interview by Maxine McKew, Australian Broadcasting Corporation's Lateline, of Richard L. Armitage, Deputy Secretary of State, in Washington, DC. (June 9, 2004), available at http://www.state.gov/s/d/rm/33460 htm. human rights first THE NEW NAME OF LAWYERS COMMITTEE FOR HUMAN RIGHTS New York Headquarters Human Rights First 333 Seventh Avenue 13th Floor New York, NY 10001 Tel: (212) 845-5200 Fax: (212) 845-5299 Washington, DC Office Human Rights First 100 Maryland Avenue, N E. Suite 502 Washington, DC 20002 Tel: (202) 547-5692 Fax: (202) 543-5999 GUANTANAMO AND BEYOND: THE CONTINUING PURSUIT OF UNCHECKED EXECUTIVE POWERS" SUBMITTED FOR THE RECORD BY CHIP PITTS, CHAIR OF THE BOARD, AMNESTY INTERNATIONAL USA Public amnesty international UNITED STATES OF AMERICA 13 May 2005 AI Index: AMR 51/063/2005 I used to think that America had respect for human rights when it came to prison. My husband is a tall man with black hair and black eyes... He is now imprisoned in Wife of Mohammed Nechle, Algerian national, 20042 1. Summary: The pursuit of unfettered executive power 2. Violating human rights erodes security and trust in government. 3. Guantánamo detainees - the international legal framework.. 5. Human rights law rejected by a war mentality. 6. Seeking to render the Rasul decision meaningless 7. A judge with security credentials takes a more critical view 1 Mohammed Nechle, 19 October 2004. Nechle v. Bush. Unclassified records of Combatant Status USA Guantánamo and beyond - The continuing pursuit of unchecked executive power 1. Summary: The pursuit of unfettered executive power It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check. US Supreme Court Justice Stephen Breyer, 20 April 2004' In late December 2001, a memorandum was sent from the United States Justice Department to the Department of Defense. It advised the Pentagon that no US District Court could "properly entertain" appeals from "enemy aliens" detained at the US Naval Base in Guantánamo Bay, Cuba Because Cuba has "ultimate sovereignty over Guantánamo, the memorandum asserted, US Supreme Court jurisprudence meant that a foreign national in custody in the naval base should not have access to the US courts. The first “war on terror" detainees were transferred to the base two weeks later. The memorandum remained secret until it was leaked to the media in mid-2004 in the wake of the Abu Ghraib torture scandal. Not long after this leak, on 28 June 2004, the US Supreme Court ruled, in Rasul v. Bush, that the federal courts in fact do have jurisdiction to hear appeals from foreign nationals detained in Guantánamo Bay. Yet almost a year later, none of the more than 500 detainees of some 35 nationalities still held in the base - believed to include at least three people, from Canada. Chad and Saudi Arabia, who were minors at the time of being taken into custody has had the lawfulness of his detention judicially reviewed. The US administration continues to argue in the courts to block any judicial review of the detentions or to keep any such review as limited as possible and as far from a judicial process as possible. Its actions are ensuring that the detainees are kept in their legal limbo, denied a right that serves as a basic safeguard against arbitrary detention, “disappearance” and torture or other cruel, inhuman or degrading treatment. Amnesty International believes, as explained in Section 3, that all those currently held in Guantánamo are arbitrarily and unlawfully detained. The administration responded to the Rasul decision by setting up Combatant Status Review Tribunals (CSRTs), panels of three military officers, to determine if each detainee was an "enemy combatant" as labelled. The detainee has no access to secret evidence used against him in this process or to legal counsel to assist him. The CSRT, meanwhile, can draw on evidence extracted under torture or other ill-treatment in making its determinations. The CSRTS began in July 2004 and were completed for the current detainee population in January 2005, with the final decisions issued in late March 2005. In 93 per cent of the 558 cases, the CSRT affirmed the detainee's "enemy combatant" status. Eighty-four per cent of the 38 cases where the detainee was found not to be an "enemy combatant" were decided later than 31 January 2005, when a federal judge. District Judge Joyce Hens Green, found that the CSRT process was unlawful, but before the government's appeal against her ruling was heard (see Sections 7 and 8, and Appendix 2). At the end of April 2005, three years and three months after "war on terror" detentions in Guantánamo Bay began. the government filed a brief in the US Court of Appeals arguing that Judge Green's opinion should be overturned and that the purely executive CSRT process should be accepted as a substitute for judicial review. The government emphasised the CSRT's "findings in favor of 38 detainees" as a sign of a constitutionally fair system. The brief did not point out or explain if it was pure coincidence - that all but six of these 38 cases had been decided after Judge Green's ruling. In any event, 3 Rasul v. Bush, oral argument. US Supreme Court, 20 April 2004. Memorandum for William J. Haynes, II. General Counsel, Department of Defense, Re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba. From Patrick F. Philbin, Deputy Assistant Attorney General and John C. Yoo, Deputy Assistant Attorney General. 28 December 2001. http://www.gwu edu/--nsarchiv/NSAEBB/NSAFBB[27/01,12,28.pdf. Rasul v. Bush, 000 U.S. 03-334, decided 28 June 2004. |