AI Index: AMR 51/063/2005
1. Summary: The pursuit of unfettered executive power
In late December 2001, a memorandum was sent from the United States Justice Department to the Department of Defense.(4) 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.(5) 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, the appeal brief shows an administration in unapologetic mood, in continuing pursuit of unfettered executive authority under the President’s war powers as Commander-in-Chief of the Armed Forces, and maintaining a disregard for international law and standards. Among the arguments in the legal brief are that:

• The US Constitution’s Fifth Amendment prohibition on the deprivation of liberty without due process of law "is inapplicable to aliens captured abroad and held at Guantanamo Bay." This, the government argues, repeating its pre-Rasul position, is because the "United States is not sovereign over Guantanamo Bay". In addition, "if the courts were to second-guess an Executive-Branch determination regarding who is sovereign over a particular foreign territory, they would not only undermine the President’s lead role in foreign policy, but also compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments."
  
• Even if the Fifth Amendment did apply to foreign nationals held at Guantánamo, the brief argues, the CSRT procedures would exceed whatever process was due in the case of these detainees. The need for deference to the executive on the question of the withholding of classified information and legal counsel from the detainees is "greatly magnified here, where the issue is not the administration of domestic prisons, but the Executive Branch carrying out incidents of its war-making function."
  
• According to the administration, "the determination of who are enemy combatants is a quintessentially military judgment entrusted primarily to the Executive Branch." The executive, the executive argues, "has a unique institutional capacity to determine enemy combatant status and a unique constitutional authority to prosecute armed conflict abroad and to protect the Nation from further terrorist attacks. By contrast, the judiciary lacks the institutional competence, experience, or accountability to make such military judgments at the core of the war-making powers."
  
• On the question of the Geneva Conventions, the brief argues, Judge Green’s contention that Taleban detainees picked up in Afghanistan should have been presumed to have prisoner of war status is "inconsistent with the deference owed to the President as Commander-in-Chief" who had unilaterally decided otherwise.(6)
  

This brief is perhaps an unsurprising response from an administration whose outgoing Attorney General decried what he characterized as "intrusive judicial oversight and second-guessing of presidential determinations";(7) whose Justice Department formulated the position, accepted by the White House Counsel, that the President – who apparently believes that there are people who are "not legally entitled" to humane treatment(8) – could override the national and international prohibition on torture;(9) and whose Secretary of Defense has authorized interrogation techniques that violate international law and standards.(10) This is an administration that has sought unchecked power throughout the "war on terror" and shown a chilling disregard for international law. The USA’s policies and practices have led to serious human rights violations and have set a dangerous precedent internationally.

USA’s “war on terror” detainees, April 2005 (approximate totals/estimates)(11)
USA: Naval Brig, Charleston, South Carolina	2 “enemy combatants”
Cuba: Guantánamo Bay naval base	520 (234 releases/transfers)
Afghanistan: Bagram air base	300
Afghanistan: Kandahar air base	250
Afghanistan: other US facilities (forward operating bases)	Unknown: estimated at scores of detainees
Iraq: Camp Bucca	6,300
Iraq: Abu Ghraib prison	3,500
Iraq: Camp Cropper	110
Iraq: Other US facilities	1,300
Worldwide: CIA facilities, undisclosed locations	Unknown: estimated at 40 detainees
Worldwide: In custody of other governments at behest of USA	Unknown: estimated at several thousand detainees
Worldwide: Secret transfers of detainees to third countries	Unknown: estimated at 100 to 150 detainees
Foreign nationals held outside the USA and charged for trial	4
Trials of foreign nationals held in US custody outside the USA	0
Total number of detainees held outside the USA by the US during “war on terror”	70,000

Section 5 of the report points to an overarching war mentality adopted by the US administration since 11 September 2001 which has led it to manipulate or jettison basic human rights protections for detainees, including instances of the USA refusing to recognize that United Nations human rights experts have the mandate to raise concerns about US actions in the "war on terror". For example, UN Special Rapporteurs have raised allegations of extrajudicial executions by US forces, only to have the US reject such concerns out of hand. In April 2005, the mandate of the UN Independent Expert on the Situation of Human Rights in Afghanistan was not renewed. This is alleged to have been the result of US government pressure. The former postholder has said that he believes the non-renewal of his mandate was due to the USA’s dislike of his insistence that he should be allowed to visit detainees in US custody in Afghanistan, particularly in light of allegations of torture and ill-treatment of such detainees.

Over a year after the Abu Ghraib torture scandal broke, and as evidence of torture and other cruel, inhuman or degrading treatment by US forces in the "war on terror" continues to mount, not one US agent has been charged with "war crimes" or "torture" under US law (see Section 12). In over 70 per cent of announced official actions taken in response to substantiated allegations of abuse, the punishment has been non-judicial or administrative. While a small number of mainly low-ranking soldiers have been subjected to courts-martial, members of the administration, who from the outset have claimed that the USA treats all detainees humanely and that any abuses have been the actions of a few aberrant soldiers, have remained free of independent investigation despite possible criminal responsibility in abuses. Congress has failed to initiate an independent commission of inquiry, as Amnesty International has sought. The current Attorney General, like his predecessor possibly involved in a conspiracy to immunize US agents from criminal liability for torture and war crimes under US law, has not appointed a special prosecutor to pursue this matter as Amnesty International and others have urged.

As the culture of impunity and military leniency grows, including in cases in which Afghan and Iraqi detainees have died as a result of abuses by US agents (see Section 13 and Appendix 1), the administration continues to seek to try members of the "enemy" for war crimes in front of military commissions – executive bodies, not independent or impartial courts. It has appealed a federal court ruling that the military commission procedures are unlawful because the defendant can be excluded from proceedings. In Section 10, Amnesty International reiterates its total opposition to the military commissions, which violate international fair trial standards in numerous ways.

Only foreign nationals can be tried by military commissions, violating the international rule that "all persons shall be equal before the courts and tribunals".(12) However, the administration is also violating fundamental human rights at home. As described in Section 16, a US "enemy combatant", José Padilla, will soon enter his fourth year in untried executive detention on the US mainland. The administration has appealed a recent federal court ruling that he should be released. A court decision is awaited in the case of a Qatari national who remains in military custody in South Carolina nearly two years after he was removed from the ordinary criminal justice system by President Bush who designated him as an "enemy combatant". Ali Saleh Kahlah al-Marri has now been detained for almost three and a half years, all in solitary confinement, raising serious concerns for his well-being and providing further evidence of the US administration’s willingness to violate human rights in the name of national security. Meanwhile, the administration is continuing to seek the execution of Zacarias Moussaoui, so far the only person charged in the USA in relation to the attacks of 11 September 2001. The case of this French national is described in Section 11.

Thousands of detainees remain in US custody in Iraq – a country which President Bush repeated on 12 April 2005 has become "a central front in the war on terror" since the US-led invasion in March 2003.(13) Hundreds remain in US custody in Afghanistan, with some in Bagram air base having been detained without trial and virtually incommunicado for more than a year. The International Committee of the Red Cross (ICRC), the only international organization with access to some of the detainees in Afghanistan, reiterated on 29 March 2005 that it was "increasingly concerned by the fact that the US authorities have not resolved the question of their legal status and of the applicable legal framework".(14) In addition, the USA is holding an unknown number of detainees in secret incommunicado custody in unknown locations and unknown conditions in cases that may amount to "disappearance". Evidence that the US authorities have "outsourced" torture via secret detainee transfers to other countries continues to come to light, as described in Section 14.

Now, as it faces possible further setbacks in the courts, the administration is said to be intending to outsource some of its Guantánamo detentions to other countries. In late March 2005, a federal court issued an order directing the government to give 30 days’ notice before transferring any one of 13 Yemeni detainees. Other judges have issued similar orders, but on 14 April 2005, a federal judge refused to issue such an order in the case of six Bahraini nationals, and a week later another judge did the same. Section 15 of this report highlights the question of transfers from Guantánamo, and also describes the recent case of a US national held in Saudi Arabia, Ahmed Abu Ali. His is alleged to have been a case of an outsourced detention, during which he was allegedly subjected to torture and ill-treatment. It appears to have been only the threat of US court action forcing the administration to reveal information on the case that secured the detainee’s return to the USA. In the "war on terror", it seems, the USA is prepared to have countries it annually criticizes in its State Department human rights reports do its dirty work for it. The judiciary and the legislature must do all they can to assert a check on the executive.

On 6 May 2005, three and a half years late, the USA submitted its Second Periodic Report to the Committee against Torture, the expert body established by the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to oversee implementation of that treaty. The USA’s Initial Report to the Committee had been submitted in October 1999, with the Committee’s findings and recommendations made in May 2000.(15) On 21 May 2004, a few weeks after the Abu Ghraib scandal became public, the Committee had asked the USA to provide it with updated information on US detentions in Iraq as part of its Second Periodic Report. In an Annex to this report just filed, which covers the period up to 1 March 2005, the US government provides information on detentions in Iraq, Afghanistan and Guantánamo Bay, including the post-Rasul legal framework. The US administration prefaces this information with the following:

"Since the Initial Report, with the attacks against the United States of September 11, 2001, global terrorism has fundamentally altered our world. In fighting terrorism, the US remains committed to respecting the rule of law, including the US Constitution, federal statutes, and international treaty obligations, including the Torture Convention."(16)

The USA’s report makes the welcome assertion, using the words of Article 2 of the CAT, that the "United States is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the United States, repeatedly reaffirmed at the highest levels of the US Government". This latter sentence serves as a reminder that words alone can never be enough and that torture must be condemned in deed as well as in word. For, at least between August 2002 and June 2004, a Justice Department memorandum to the White House narrowing the definition of torture, arguing that the President could authorize torture, suggesting defences for those accused of torture, and promoting acts that amount to cruel, inhuman or degrading treatment, represented the position of the US administration, albeit in secret. The USA’s Second Periodic Report notes that "concerns have been generated" by the 1 August 2002 memorandum, which was withdrawn on 22 June 2004, two months after the Abu Ghraib torture evidence became public. The USA’s report to the Committee against Torture notes that the 2002 memorandum was replaced in late December 2004. As Amnesty International points out in Section 12 below, the replacement Justice Department memorandum, while undoubtedly an improvement on its now infamous predecessor, has left numerous concerns unanswered and left the door open to possible future abuses.

It is clear from the Second Periodic Report that the USA intends to adhere to its long-standing pick-and-choose approach to international law and standards. In its May 2000 recommendations, for example, the Committee against Torture had urged the USA to withdraw all the conditions it had attached to its ratification of CAT in 1994. This included the USA’s reservation to Article 16 of the treaty which calls on the State Party to prevent cruel, inhuman or degrading treatment "in any territory under its jurisdiction". Upon ratification, the USA had said that would be bound by Article 16 only to the extent that it already was so bound under the US Constitution. In its 6 May 2005 submission to the Committee against Torture, the US administration stated that it would not withdraw this or any other conditions attached to its ratification of the CAT, as the Committee had requested, because "there have been no developments in the interim which have caused the United States to revise its view of the continuing validity and necessity of the[se] conditions".

However, there have been developments on this issue, with the USA’s reservation to Article 16 being linked to abuses that have been authorized and alleged in the "war on terror", as Amnesty International pointed out in its report, USA: Human dignity denied: Torture and accountability in the ‘war on terror’, issued in October 2004.(17) Indeed, in January 2005, the then nominee for US Attorney General, Alberto Gonzales, wrote the following among his responses to a US Senator concerned about the nominee’s possible responsibility for human rights violations in the "war on terror" and his earlier refusal to given an unequivocal answer to the question of whether or not it was legally permissible for US personnel to engage in cruel, inhuman or degrading treatment "that does not rise to the level of torture":

"[T]he only legal prohibition on cruel, inhuman or degrading treatment comes from the international legal obligation created by the CAT itself. The Senate’s reservation, however, limited Article 16 to requiring the United States to prevent conduct already prohibited by the Fifth, Eighth, and Fourteenth Amendments. Those amendments, moreover, are themselves limited in application. The Fourteenth Amendment [right to equality before the law] does not apply to the federal government, but rather to the States. The Eighth Amendment [prohibition on cruel and unusual punishments] has long been held by the Supreme Court to apply solely to punishment imposed in the criminal justice system. Finally, the Supreme Court has squarely held that the Fifth Amendment [right to due process] does not provide rights for aliens unconnected to the United States who are overseas. Thus, as a direct result of the reservation the Senate attached to the CAT, the Department of Justice has concluded that under Article 16 there is no legal obligation under the CAT on cruel, inhuman or degrading treatment with respect to aliens overseas".(18)

The USA’s May 2005 submission to the Committee against Torture also paints a picture of the US judicial system reasserting itself over the detentions in Guantánamo. It notes that the habeas corpus petitions filed in federal court involve detainees from many countries, including Yemen, Saudi Arabia, Kuwait, Morocco, Algeria, Bahrain, Tunisia, Jordan, Sudan, Syria, Mauritania, China, Egypt, Libya, Palestine, Chad, Qatar, Kazakhstan, Tajikistan, Uganda, Iraq, Australia, Canada, Somalia, Turkey, Afghanistan, Pakistan and Ethiopia. It notes that the courts have access to the CSRT records from Guantánamo, that lawyers have been able to visit detainees in Guantánamo,(19) and that the courts "may address allegations of mistreatment that have arisen with respect to Guantanamo Bay."

The picture the administration provides to the Committee is far from full, however. It does not portray the extent to which the government is resisting due process every step of the way. By seeking the narrowest possible interpretation of the Rasul decision, and by appealing every court ruling that goes against it, it is ensuring that the detainees remain in their legal vacuum. Although the government’s report to the Committee notes that about 55 habeas corpus petitions involving 153 detainees had been filed by 27 April 2005(20), it did not explain that one reason why only about a third of those still held in Guantánamo had had petitions filed on their behalf was because the government has placed obstacles in the way of detainees finding lawyers to represent them and in the way of lawyers identifying the detainees who want representation. As described in Section 6 below, there is also evidence that Guantánamo interrogators have adopted ploys to undermine detainee/lawyer relationships in those cases where legal representation has been initiated.

On the question of the treatment of detainees, the USA’s report to the Committee paints a similarly one-sided picture. All "enemy combatants", it claims, "get state-of-the-art medical and dental care". Yet, as detailed further below, numerous detainees have alleged that the medical and dental care provided has been slow and on some occasions withheld as part of a punitive and coercive regime. The USA insists to the Committee that "detainees write to and receive mail from their families and friends". Yet, throughout the detentions, there has been evidence that this system of communications has been slow, over-censored, and even manipulated by the authorities to punish or coerce detainees. US habeas lawyers for some Yemeni detainees in Guantánamo have recently revealed that their "clients report that mail from their relatives arrives months later, if at all, and is very heavily redacted. Often the only part that they can read is the greeting, conclusion, and signature… In December 2004, [Abd Al Malik Abd Al Wahab] reported that his last piece of mail he received had been five months ago – a letter that had taken ten months to reach him. [Fellow detainee] Jamal Mar’i receives one out of every ten letters sent to him by his family. A recent letter from his seven-year-old daughter referred to many other letters that he never received." The USA’s report to the Committee against Torture goes on to assert that "enemy combatants at Guantanamo may worship as desired and in accordance with their beliefs". As Amnesty International has detailed elsewhere, and updates in Section 12 of this current report, there is evidence that detainees have been subjected to religious intolerance by their captors, and to interrogation techniques that play on their particular religious sensitivities.(21)

In this report, illustrated with cases throughout, Amnesty International concludes that hypocrisy, an overarching war mentality, and a disregard for basic human rights principles and international legal obligations continue to mark the USA’s "war on terror". Serious human rights violations, affecting thousands of detainees and their families, have been the result. The rule of law, and therefore, ultimately, security, is being undermined, as is any moral credibility the USA claims to have in seeking to advance human rights in the world. Indeed, the USA’s conduct threatens to legitimize repressive conduct by other governments. With this report, the latest in a series of papers on US conduct in the "war on terror", Amnesty International continues to campaign for the USA to change course and bring its policies and practices into line with international law and standards.

2. Violating human rights erodes security and trust in government
The Department of Defense recently published on its website a six-page unclassified document giving information about the Guantánamo detainees.(23) Even providing the minimal information contained in it was an unusual step for an administration that has been highly secretive about those held in the naval base. The document begins with the following:

"The US Government currently maintains custody of approximately 550 enemy combatants in the Global War on Terrorism at Guantanamo Bay, Cuba.(24) Many of these enemy combatants are highly trained, dangerous members of al-Qaida, its related terrorist networks, and the former Taliban regime. More than 4,000 reports capture information provided by these detainees, much of it corroborated by other intelligence reporting. This unprecedented body of information has expanded our understanding of al-Qaida and other terrorist organizations and continues to prove valuable…

The Joint Task Force, Guantanamo Bay (JTF-GTMO) remains the single best repository of al-Qaida information in the Department of Defense… GTMO is currently the only DoD strategic interrogation center and will remain useful as long as the war on terrorism is underway and new enemy combatants are captured and sent there. The lessons learned at GTMO have advanced both the operational art of intelligence, and the development of strategic interrogations doctrine."

The document claims that the detainees in Guantánamo, despite most of them having been held for more than three years, continue to provide "useful information" to support ongoing military operations in Afghanistan. It states that the detainees have "provided information on individuals connected to al-Qaida’s pursuit of chemical, biological, and nuclear weapons". It claims that detainees have also provided "information about al-Qaida operatives who remain at large as well as numerous al-Qaida, Taliban, and anti-coalition militia members who remain active in Central Asia, Europe, and the United States." In addition, it says that detainees "provide information that helps sort out legitimate financial activity from illegitimate terrorist financing information". It gives details of the sort of skills and training that individual detainees allegedly possess:

• "Many detainees have been implicated in using, constructing, or being trained to construct IEDs [improvised explosive devices]".
• "Over 25 GTMO detainees have been identified by other detainees as being facilitators who provided money, documentation, travel, or safe houses".
• "More than 10 percent of the detainees possess college degrees or obtained other higher education, often at western colleges, many in the United States. Among these educated detainees are medical doctors, airplane pilots, aviation specialists, engineers, divers, translators, and lawyers."
  

In addition, the Pentagon document asserts that "we know of several former detainees from JTF-GTMO that have rejoined the fight against coalition forces. We have been able to identify at least ten by name… Several former GTMO detainees have been killed in combat with US soldiers and Coalition forces." The document also lists some alleged statements and actions by detainees which "provide valuable insights into the mindset of these terrorists and the continuing threat they pose to the United States and the rest of the world". It provides as an example a case of a detainee who, when informed about the Combatant Status Review Tribunal process (see below), is alleged to have responded, "Not only am I thinking about threatening the American public, but the whole world". Another detainee has allegedly repeatedly stated that "the United States government is criminals". The document concludes with some "contrasting detainee comments", such as from a detainee who allegedly said: "If people say there is mistreatment in Cuba with the detainees, those type speaking are wrong, they treat us like a Muslim not a detainee".

It is, of course, impossible to verify the claims made in the Pentagon’s document, precisely because of the secrecy and rejection of judicial or other independent scrutiny that has marked the US administration’s detention policies and practices. It should further be noted that the document has been issued at a time when the administration is doing all it can to persuade the US courts to leave this policy broadly free of judicial scrutiny. In addition, Amnesty International would make a number of points in response to the Pentagon document.

Ø The USA and other countries face serious security threats, including those posed by groups determined to pursue their fight by abusing fundamental human rights without restraint. Governments have a duty to protect people’s rights from such threats. In so doing, however, governments must not lose sight of other human rights and of their obligation to respect them;

Ø Respect for human rights is the route to security not an obstacle to it. This is recognized by the USA’s own National Security Strategy, which devotes an entire chapter to asserting that in its pursuit of security, the USA will "stand firmly for the non-negotiable demands of human dignity", including the rule of law. Likewise, the USA’s National Strategy for Combating Terrorism concludes that "a world in which these values are embraced as standards, not exceptions, will be the best antidote to the spread of terrorism";

Ø There have been massive failures in US intelligence-gathering, both prior to the attacks of 11 September 2001 and in the context of the stated reasons for invading Iraq. Using detainees held indefinitely outside the rule of law in order to attempt to make up for past intelligence failures through prolonged interrogation is immoral, unlawful, unreliable and counter-productive;

Ø Throughout the "war on terror", senior members of the US administration have shown contempt for the presumption of innocence by collectively labelling the Guantánamo detainees as "terrorists" and "killers". The Pentagon document persists in this attitude. This repeated contravention of a basic principle is also dangerous for the detainees. To be labelled as a "terrorist" is no small thing, and can put a detainee at future risk when eventually released. Mohammad Nechle, seized by US agents in Bosnia and Herzegovina in January 2002 and transported to Guantánamo Bay where he remains more than three years later, has summed it up thus: "In the end the way that this happened, the way I was brought here and the accusations that brought against me, I feel that my future has been destroyed. A person does not even know what to say to their kids now. That’s a really big thing." (25)

Ø Prior to the publication of this document, scores of people had been released from Guantánamo without charge or trial. They, too, had been labelled by the administration as "enemy combatants" and "terrorists". On return to their countries, the vast majority have been released. Their home governments evidently either believed that there was no evidence against the detainees, or that any evidence was inadequate, unreliable or inadmissible.

Yet, still, the Pentagon document asks the reader to take its claims on trust. The problem faced by the US administration is that its record in relation to detentions in the "war on terror" has undermined the credibility of its assertions, whether those assertions take the form of a stated commitment to human rights, or claims of threats averted due to intelligence gathered through interrogation. The administration has sought, and continues to seek, unchecked power for itself. As it has done so, violations of fundamental human rights have occurred or been proposed, including prolonged incommunicado, secret and arbitrary detentions, torture and other cruel, inhuman or degrading treatment, unfair trial proceedings, detainee transfers without protections, and denial of and resistance to judicial review.

In a recent report to the UN General Assembly, Secretary General Kofi Annan wrote:

"The protection and promotion of the universal values of the rule of law, human rights and democracy are ends in themselves. They are also essential for a world of justice, opportunity and stability. No security agenda and no drive for development will be successful unless they are based on the sure foundation of respect for human dignity…

I strongly believe that every nation that proclaims the rule of law at home must respect it abroad and that every nation that insists on it abroad must enforce it at home…

It would be a mistake to treat human rights as though there were a trade-off to be made between human rights and such goals as security or development. We only weaken our hand in fighting the horrors of extreme poverty or terrorism if, in our efforts to do so, we deny the very human rights that these scourges take away from citizens. Strategies based on the protection of human rights are vital for both our moral standing and the practical effectiveness of our actions."(26)

A much repeated but so far hollow promise of President Bush’s administration has been that the USA will adhere to fundamental principles of human dignity and the rule of law, including in the context of the "war on terror". The USA cannot have it both ways. It cannot speak the language of human rights while at the same time violating human rights and disregarding international law. Either it is for human rights in deed as well as in word, or it will continue to be denounced as a human rights violator and, especially given its power, reach and influence in the world, a global threat to the rule of law and security.

Whatever the truth about the identities, motivations, associations, previous activities of and threats posed by the detainees in US custody, none of them fall outside the protections of international law as the US administration’s policies and practices would suggest.

3. Guantánamo detainees – the international legal framework
The international armed conflict in Afghanistan ended in June 2002.(28) When that armed conflict ended, those who were captured by the USA during hostilities(29) - and who the USA was obliged to treat as prisoners of war in the absence of a determination "by a competent tribunal" that they were not(30) - were required to be released, unless charged with criminal offences.(31)

Civilians detained in that conflict were entitled to have their detention ("internment") reviewed "as soon as possible" by a "court or administrative board."(32) They too were required, when that conflict ended, to be released, unless charged with recognized criminal offences.(33)

Those detained later in Afghanistan, for reasons related to the subsequent non-international armed conflict there(34) and transferred to Guantánamo were required, as a minimum, to have their detention promptly, and thereafter periodically, reviewed.(35)

Those detained in countries outside of the zones of armed conflict and transferred to Guantánamo should always have been treated as criminal suspects, therefore subject to international human rights law, including the right to a prompt judicial review of the lawfulness of their detention and to release if that detention is deemed unlawful, and if prosecuted to be tried in proceedings which meet international standards of fairness (see below).(36)

The USA has applied none of the above-mentioned provisions of international humanitarian law and international human rights law in determining the status of the Guantánamo detainees:

Ø it has not treated those captured during the international armed conflict in Afghanistan initially as prisoners of war, pending determination of their status by a court;

Ø it has not convened a court to determine whether or not persons captured during the international armed conflict in Afghanistan are entitled to prisoner of war status;

Ø it has not reviewed promptly the detention of those captured during the subsequent non-international armed conflict in Afghanistan;

Ø it has not brought the detention of civilians promptly under judicial review, tried or released them;

Ø it did not, at the close of international hostilites, release the detainees captured during hostilities, with the exception of those against whom criminal procedures had been initiated – in fact, the USA initiated no such procedures.

More than 200 people have been released or transferred from the base, but the USA was expressly acting, in this as well as in other matters, in pursuit of it own perceived interests, rather than in compliance with its international legal obligations. As noted further below, the USA has denied having any such obligations regarding the detainees in Guantánamo.

In view of the above, Amnesty International believes that all those currently held in Guantánamo are arbitrarily and unlawfully detained. It continues to call on the USA to either:

• Release and repatriate the Guantánamo detainees, subject to international law and standards, including the prohibition of returning or transferring a person to a country where he or she faces a risk of torture, other ill-treatment, unfair trial, "disappearance", arbitrary detention or the death penalty;

or:

• Prosecute those suspected of committing internationally recognizable criminal offences(37) in proceedings that meet international standards of fairness, and which do not include the imposition of the death penalty.
  

Fair trial standards
Any trials, whatever the status of the person being tried, must be carried out in proceedings that meet international standards of fairness.(38) These standards include:

Ø All persons must be equal before the courts and tribunals;
Ø Charges must be for internationally recognisable criminal offences;
Ø Trials must commence within a reasonable time;
Ø All persons are entitled to a fair and public(39) hearing by a competent, independent and impartial tribunal established by law; (40)
Ø All persons must be presumed innocent until proven guilty;
Ø All persons must have full access to legal counsel of their own choosing, and have adequate time to prepare their defence;
Ø All persons must be informed promptly and in detail in a language which they understand of the nature and cause of the charge against them;
Ø All persons must be tried in their presence;
Ø All persons must be able to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;
Ø No persons must be compelled to testify against themselves or to confess guilt;
Ø Statements or any other material obtained by torture or by cruel, inhuman or degrading treatment or punishment must not be admissible as evidence (except as evidence that such treatment took place);
Ø All persons convicted of a crime must have the right to have their conviction and sentence reviewed by a higher tribunal according to law. Reviews must be made by competent, independent and impartial tribunals, be genuine and go beyond formal verifications of procedural requirements.

Amnesty International believes that the death penalty must never be imposed, as it violates the right to life and is the ultimate cruel, inhuman and degrading punishment.

4. Hypocrisy vs. human rights
On or around 29 November 2003, an unidentified shepherd was taken into custody by US soldiers near Husaybah in Iraq. A year later, documents obtained under a freedom of information lawsuit filed by the American Civil Liberties Union (ACLU) and others revealed that about an hour after the man was detained, one of the soldiers had made a video recording described as "his own version of the MTV show ‘Jackass’".(42) A little under a minute in length, the video begins with the handcuffed detainee being asked to wave to the camera. The soldier then turns to the camera and states, "I am going to punch this guy in the stomach, this is Jackass Iraq". He goes to punch the detainee who manages to avoid a direct hit, causing the soldier to respond, "oh, he moved, hold up, he’s a trickster, we need a camera man". The video then shows "an elbow com[ing] straight down in between the detainee’s shoulder blade [sic]". It "shows the detainee’s face and what appears to be an expression of pain as he is going down to the ground…The detainee is helped back up by [a soldier] lifting him by the flexi cuffs on his wrists… His face is noticeably distressed…"(43)

The film, variously called "Jackass Iraq", "Our first Iraqi prisoner" and "Our Prisoner (The Smash)", was then shown widely on digital camera and laptop computers to other soldiers. An army investigation found that "none of the soldiers took it seriously", rejecting the notion that the detainee was being abused. Neither of the soldiers directly involved in making the video "thought that anything they were doing was wrong."(44) Neither, it would seem, does the US administration believe that it has done anything fundamentally wrong in its "war on terror" detention and interrogation policies and practices.

In the build-up to declaring war on Iraq, the US administration cited the Iraqi government’s disregard for UN Security Council resolutions as well as findings by UN bodies that the government of Saddam Hussein had committed human rights violations. (45) In an address to the UN General Assembly on 12 September 2002, President George W. Bush asked: "Are Security Council resolutions to be honoured and enforced, or cast aside without consequence?" He continued: "We want the United Nations to be effective, and respected, and successful. We want the resolutions of the world’s most important multilateral body to be enforced. And right now those resolutions are being unilaterally subverted by the Iraqi regime."

The USA must look to its own conduct. Both before and since the invasion of Iraq in March 2003, which itself was premised on flawed intelligence(46) as well as information allegedly extracted under torture or ill-treatment,(47) the US administration’s own policies and practices in the "war on terror" have contravened Security Council resolutions as well as recommendations of UN experts and bodies. For example, in Resolution 1456, adopted two months before the US-led invasion of Iraq, the United Nations Security Council declared that "States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee and humanitarian law".(48) Further resolutions adopted by the Security Council and the General Assembly since then have reminded states of this obligation.(49) The USA has failed to amend its conduct accordingly. At the same time, it has continued to promote itself as a global human rights champion. According to the US State Department, launching its latest report on human rights in countries other than the USA, "Promoting human rights is not just an element of our foreign policy – it is the bedrock of our policy, and our foremost concern".(50)

For the past three years, the entry on Bosnia and Herzegovina in the US State Department’s annual Country Reports on Human Rights Practices has, under the heading "arbitrary arrest, detention or exile", reported developments in the case of "six Algerian terrorism suspects" who were transferred "to the custody of a foreign government" in January 2002.(51) The transfer bypassed the courts and an order of the Human Rights Chamber of Bosnia and Herzegovina, and violated international law.(52) The US State Department reported that in 2002 and 2003, the Human Rights Chamber 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. In its latest report, issued on 28 February 2005, the State Department noted that the families of the men "transferred to a foreign government’s custody" had not yet been paid the compensation ordered by the Human Rights Chamber.

What the State Department has so far failed to point out is that the mysterious "foreign government" in question is that of the United States of America. It fails to report that the men in question, extrajudicially removed from the sovereign territory of Bosnia and Herzegovina, have for the past three years been held in virtually incommunicado executive detention without charge or trial in the US Naval Base in Guantánamo Bay in Cuba. There is no mention by the State Department of the fact that the US authorities have responded to the recent habeas corpus petitions of the men by asserting that they have no rights under treaty or customary international law to be able to challenge the lawfulness of their detention. It failed to reveal that in hearings in 2004 the men were instead given a purely executive review of their detention for which they were allowed neither legal counsel nor access to classified evidence. At his so-called Combatant Status Review Tribunal (CSRT) hearing in October 2004 one of the six men, Mohammed Nechle, said:

"We were surprised that we were handed over to the American forces that are present in Bosnia. We were bound by our hands and our feet, and we were treated the worst treatment. For 36 hours without food, sleep, water or anything and we were treated the worst treatment… I used to think that America had respect for human rights when it came to prison." (53)

The State Department also failed to report that another of the men, Mustafa Ait Idir, alleged at his CSRT hearing in 2004 that he has been subjected to torture or ill-treatment at Guantánamo. A lawsuit filed in US court in April 2005 alleges that the following occurred against him during a cell search:

"The guards secured his hands behind his back and, while he was so restrained, the guards picked him up and slammed his body and his head into the steel bunk in his cell. They then threw him on the floor and continued to pound his body and bang his head into the floor. The guards picked him up again and banged his head on the toilet in his cell. The guards picked him up again, stuffed Mr Ait Idir’s face in the toilet and repeatedly pressed the flush button. Mr Ait Idir was starting to suffocate, and he feared he would drown. The guards then carried Mr Ait Idir outside the cell and threw him on the ground. His hands still were manacled behind his back. They held him down and pushed a garden hose into his mouth. They opened the spigot. As the water rushed in, Mr Ait Idir began to choke. The water was coming out of his mouth and nose. He could not breathe, and he could not yell to stop or for help. The guards then took the hose out of his mouth and held it approximately 6 to 10 inches in front of his face. He was still being restrained. The water ran full force into his face; he could not breathe."

On another occasion, it is alleged that members of an Immediate Response Force (IRF) at Guantánamo assaulted him:

"While Mr Ait Idir sat on the floor as instructed, the officer sprayed chemical irritant directly into Mr Ait Idir’s face. Two or three guards immediately entered the cell while he was lying on the floor. One forced Mr Ait Idir’s body onto the steel floor of the cell and jumped on his back, using his knees to pound Mr Ait Idir’s body into the floor. The second guard did the same thing. While they had Mr Ait Idir pinned, the guards secured his hands behind his back. He was carried out and thrown onto the crushed stones that surround the cell building. While Mr Ait Idir was lying bound on the stones, an IRF member jumped onto the side of Mr Ait Idir’s head with his full body weight, causing extreme pain. Another IRF member climbed onto Mr Ait Idir’s back, and while on his back, the IRF members twisted his middle finger and thumb on his right hand almost to the point of breaking. Two of his knuckles were dislocated, and he screamed in pain. His middle finger has almost no strength now. He requested and was refused any medical treatment for the permanent injuries inflicted by the guards.

Upon information and belief, as a result of that beating, Mr Aid Idir suffered a stroke. Shortly after that incident, one half of his face became paralyzed. He was in pain. He could not eat normally; food and drink leaked from his non-functioning mouth. Guards teased him because of his condition. Despite visible impairment and his request to go to the hospital, he did not receive medical treatment for ten days."(54)

The six men of Algerian origin had been arrested in October 2001 by the Bosnian Federation police on suspicion of involvement in an alleged plot to bomb the US Embassy in Sarajevo. On 17 January 2002, the Investigative Judge of the Federation Supreme Court ordered their release on the basis that there were no further grounds for their detention. Although the US Embassy had indicated that it had evidence linking the men to al-Qa’ida networks and substantiating the allegations of planning the embassy attacks, the US authorities did not submit any such evidence to the Supreme Court. One of the men, Boudella Al Haji, questioned about the alleged bombing conspiracy at his CSRT hearing in Guantánamo on 18 October 2004, said:

"I’ve been here for three years and these accusations were just told to me. Nobody or any interrogator ever mentioned any of these accusations you are talking to me about now. I’ve been here for three years, been through many interrogations and no interrogator ever mentioned any of these accusations, so how did they come up just now?"(55)

Another of the six men told Sabir Lahmar said the same thing at his CSRT hearing on 8 October 2004:

"From my first day in Cuba, I asked the interrogators to question me regarding the bombing of the Embassy. They tried to avoid asking me questions regarding that matter. On occasion, they told me they knew I didn’t attempt to blow up the Embassy; they only brought me to Cuba for information. They told me if I gave them information, they would let me go. I refused to talk to them until they addressed the accusation of the bombing of the Embassy. This lasted for eight months before they gave up on me talking. I was punished and placed in solitary confinement for three months."(56)

In similar vein, Mohammad Nechle told the CSRT on 19 October 2004:

"We came to this place so they could interrogate us. Now I have been here three years. Unfortunately I thought the case was about an American embassy and up until now, no one has directed one question towards me regarding this case. Believe me, I came to this place as a mistake and I think that I was wronged. It was unfair to me… I have a clear conscience that I am not part of these terrorist organizations. I am not afraid of anything because I am not a terrorist. If you interrogated me for 20 years you would find that I am Mohammed Nechle…"

In March 2005, the Bosnia and Herzegovina Council of Ministers sent an official request to the USA calling for the release of the detainees. The US Secretary of State reportedly responded in a letter indicating that the men would not be released as the US authorities needed to investigate them further. It remains to be seen how the State Department will report on these developments in its next human rights publication.

As this case suggests, three and a half years into its broadly-defined "war on terror", the United States administration is still seeking – and assuming – carte blanche to detain without judicial review any foreign national it broadly defines as an "enemy combatant", regardless of where outside the USA the detention takes place, and regardless of whether the person seized was directly involved in any armed hostilities. According to the administration, such a detainee can be detained without charge or trial until it, the executive, determines that he or she has no "intelligence value" or poses no threat to the USA or its allies, or until the end of the "war", which, even if recognized, could occur after a detainee’s natural lifespan.

Meanwhile, the USA criticizes other countries for their failure to comply with international human rights law and standards. For example, the State Department’s latest entry on human rights in North Korea includes the following under the heading "arbitrary arrest or detention":

"There are no restrictions on the ability of the Government to detain and imprison persons at will and to hold them incommunicado. Family members and other concerned persons reportedly find it virtually impossible to obtain information on charges against detained persons or the length of their sentences. Judicial review of detentions does not exist in law or practice".

Iran is likewise criticized by the USA for the lack of a time limit, in practice, on incommunicado detention and the absence of "any judicial means to determine the legality of detention". In similar vein, Myanmar (Burma) is brought to task by the US State Department for its record of arbitrary arrest and incommunicado detention facilitated by the fact that "there is no provision in the law for judicial determination of the legality of detention".

Amnesty International welcomes the State Department reports in principle. Under the Universal Declaration of Human Rights, countries are required to "promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance". A government makes a mockery of this commitment, however, when it violates the same rights it says it expects others to respect.(57) Moreover, such an approach undermines the whole system of legal protections. Why should any other government not then follow the example set, especially if that example is being set by one of the most powerful and influential countries in the world?

The US Supreme Court’s ruling in Rasul v. Bush on 28 June 2004 that the federal courts have jurisdiction to consider habeas corpus appeals from foreign detainees held in Guantánamo Bay raised hopes that, at a minimum, judicial review of the lawfulness of these detentions, and eventually the detention of foreign nationals held in incommunicado or secret detention elsewhere outside US sovereign territory, would occur forthwith. These hopes have been put on hold in the face of an executive arguing for the courts to effectively empty the Rasul decision of any real meaning.

In January 2005, two federal judges issued the first interpretations of the Rasul ruling when they responded to habeas corpus petitions from Guantánamo detainees, some of whom by now had been held for three years without charge or trial. One of the judges ruled in favour of the government, while the other showed respect for the fundamental human rights of the detainees (see further below). The administration is appealing to have the conflict between the two rulings resolved in its favour. Its refusal to recognize international law and standards relating to detention is keeping the detainees in their legal limbo and their families in distress. Even if the government eventually loses again in the US Supreme Court, such a ruling may not occur until some time in 2006, and only then would judicial review on the merits begin.

Judicial review of the lawfulness of detentions is a fundamental safeguard against arbitrary detention, torture and ill-treatment, and "disappearance". Unsurprisingly, then, with the US courts having been kept out of reviewing the cases for more than three years, there is evidence that all these categories of abuse have occurred at the hands of US authorities in the "war on terror". Indeed, Amnesty International believes that abuses have been the result of official policies and policy failures and linked to the executive decision to leave detainees unprotected by not only the courts, but also by the prohibition on torture and other cruel, inhuman or degrading treatment as defined under international humanitarian and human rights treaties binding on the USA. The US administration still does not believe itself legally bound by the Geneva Conventions in relation to the detainees in Guantánamo, Afghanistan and in secret locations, by customary international law, or by the human rights treaty prohibition on the use of cruel, inhuman or degrading treatment in the case of foreign detainees in US custody held outside of US sovereign territory. Nor has it expressly abandoned the notion that the President may in times of war ignore all the USA’s international legal obligations and order torture, or that torturers may be exempted from criminal liability by entering a plea of "necessity" or "self-defence" (see below).

Neither, apparently, does the administration consider itself bound by the international prohibition against transferring or returning anyone to a country where they may face torture or other cruel, inhuman or degrading treatment. Indeed, there is evidence that the USA has turned this prohibition on its head and "outsourced" torture. It is alleged that countries with a record of torture – as documented by the US State Department annually – have been specifically selected to receive certain "war on terror" detainees for interrogation. A recent report quotes a former counterterrorism agent as saying that after 11 September 2001, "Egypt, Jordan, Malaysia, Thailand, Indonesia, Pakistan, Uzbekistan and even Syria were all asked to make their detention facilities and expert interrogators available to the US".(58)

Numerous detainees are alleged to have been threatened by US interrogators that they will be sent to such countries. For example, Yemeni Guantánamo detainee Abd Al Malik Al Wahab has allegedly been threatened with transfer to Egypt or Jordan where, he says he was told by interrogators, "they will torture you".(59) A Bahraini detainee in Guantánamo has alleged that he was told that he would be "sent to a prison where he would be raped", and another Bahraini alleged that he was threatened with being sent to a prison that "would turn him into a woman".(60) Threatening to transfer a detainee to a third country that he is "likely to fear would subject him to torture or death" is one of the interrogation techniques recommended by the Pentagon’s Working Group report on interrogations in the "war on terror", dated April 2003, which remains operational.(61) Set along side this, the State Department annual report risks becoming a dual-purpose manual – promoting human rights on the one hand, while providing ideas for US interrogators on how to abuse them on the other. An FBI document from December 2004, originally classified as secret for 25 years but released under a freedom of information request in early 2005, included reference to the following observation by FBI agents in Guantánamo Bay: "Agents have seen documentary evidence that a detainee was told that his family had been taken into custody and would be moved to Morocco for interrogation if he did not begin to talk" (see section 12 below).

The latest State Department report entry on Sweden notes that "the 2001 repatriation of two Egyptians gained attention during the year as the result of allegations that the deportees were subjected to torture in Egypt". It further notes "calls for a parliamentary inquiry into the legality of the deportations…and alleged improper cooperation with a foreign country in the deportations". What the State Department again fails to record is that the "foreign country" in question was the USA.

The two Egyptians were seized by Swedish security police in Stockholm on 18 December 2001, handed to CIA agents at Bromma airport and flown to Egypt on board a US-registered Gulfstream jet. According to a Swedish police officer who was present at the deportations, "the Americans they were running the whole situation".(62) The detainees had their clothes cut from them by the masked US agents, were reportedly drugged, made to wear diapers and overalls, and were handcuffed, shackled, hooded, and strapped to mattresses on the plane. The alleged torture they subsequently faced in Egypt included electric shocks. While the State Department’s entry on Sweden notes that a parliamentary investigation into these events was opened in 2004, its entries on other European countries fail to record that similar investigations were being conducted elsewhere. In Italy and Germany, for example, officials were investigating allegations that individuals were seized and secretly flown by US agents to Egypt and Afghanistan where they were allegedly subjected to torture and other cruel, inhuman or degrading treatment (see Section 14).

Next year, in its report on human rights in 2005, the State Department will be able to report that on 22 March 2005, the Chief Parliamentary Ombudsman in Sweden, having reviewed the Swedish government’s role in the transfer to Egypt of the two detainees, concluded that the treatment of the two men by the US agents "must be considered to have been inhuman and thus unacceptable". He was highly critical of the home authorities, saying that "the Swedish Security Police lost control of the situation at the airport and during the transport to Egypt. The American security personnel took charge… Such total surrender of power to exercise public authority on Swedish territory is clearly contrary to Swedish law".(63) His words are echoed in those of a Guantánamo detainee taken from Gambia by US agents in late 2002 and still in the US Naval Base in Cuba more than two years later. He told his Combatant Status Review Tribunal in September 2004, "in Gambia, the Americans were running the show…The US was there and in charge from day one. They were not very respectful to the Gambians".(64)

International complicity in apparently unlawful activities in the context of the "war on terror" has had other manifestations. In November 2002, for example, with Yemen’s cooperation, the USA killed six people in a car in Yemen in what appear to have been extrajudicial executions (see also Section 5). (65) They were targeted because Abu Ali al-Harithi and the other five occupants of the car were alleged members of al-Qa’ida.(66) A little over a year earlier, the US State Department had said of Israel’s resort to targeted killings:

"We remain opposed to targeted killings. We think Israel needs to understand that targeted killings of Palestinians don’t end the violence.."(67) "We have long made very clear – we have made known the US Government's opposition to the policy and practice of targeted killings, and we are going to continue to urge the Israelis to desist from this policy."(68)

The killing of the six people in Yemen was not mentioned in the Yemen entry in the State Department’s human rights report covering 2002 (or 2003 or 2004). Rather than ordering a thorough, prompt and impartial investigation into the killings, as required under international standards,(69) senior US officials instead adopted a celebratory stance. US Deputy Secretary of Defense Paul Wolfowitz described the killings as "a very successful tactical operation, and one hopes each time you get a success like that, not only have you gotten rid of somebody dangerous, but to have imposed changes in their tactics and operations and procedures".(70) Secretary Rumsfeld responded to questions about the attack by saying that "it would be a very good thing if [Abu Ali al-Harithi] were out of business".(71) Today, the White House website notes the killings under "accomplishments" in "waging and winning the war on terror". (72) A few weeks after the killings, President Bush later said "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… We’re working with friends and allies around the world. And we’re hauling them in, one by one. Some have met their fate by sudden justice; some are now answering questions at Guantánamo Bay. In either case, they’re no longer a problem to the United States of America and our friends."(73)

In the "war on terror", allies and enemies have been defined in broad and malleable terms by the USA.(74) One of those held under the catch-all label of "enemy combatant" in Guantánamo is Omar Deghayes, who was born in Libya but fled to the United Kingdom (UK) as a child refugee after his father was allegedly tortured and killed. He has alleged that at least four other governments have been involved in his detention, torture or ill-treatment. He was detained in Pakistan in April 2002, and alleges that the authorities there told him he was being held at the behest of the USA. He has said that he was tortured and ill-treated by government agents in Pakistan, including by "systematic beatings", having his head pushed under water "until I was almost drowned", stress positions, being subjected to electric shocks from a hand-held device, possibly a stun weapon, and being put in a room which was "all painted black and white, with dim lights" in which there were "very large snakes in glass boxes". He said that he was threatened with being left in the room with the snakes let out of the boxes. He has also alleged that he was interrogated by British and US intelligence officers in Pakistan during a period when he was further ill-treated. He has stated that, once transferred to US custody in Afghanistan, he was subjected to food deprivation, stripping, beatings, hooding, shackling, and forced kneeling, and in Guantánamo that he was subjected to solitary confinement and brutal cell extractions (see Section 12).(75)

Omar Deghayes has also claimed that he was twice interrogated by Libyan agents in Guantánamo, on 9 and 11 September 2004. He alleged that the US military authorities took him to an interrogation room with the air-conditioning on maximum and left him there for several hours, shackled and freezing cold. Eventually, at around midnight on 9 September 2004, four Libyan agents and three US personnel in civilian clothes entered the room. He was interrogated for around three hours by the Libyan agents, and again two days later. The agents allegedly made veiled threats of violence and death against him if he should ever be returned to Libya, and showed him pictures of severely beaten Libyan dissidents.

Amnesty International has since been informed that on 8 September 2004, the day before Omar Deghayes says he was first interrogated by Libyan agents, a US-registered Gulfstream jet, registration N8068V, flew direct from Tripoli in Libya to Guantánamo Bay. The same plane has allegedly been used in secret transfers of detainees, including the above case of the two Egyptians deported from Sweden in December 2001 to alleged torture in Egypt (also see Section 14). Was it carrying Libyan agents this time? Did such agents interrogate other Libyan nationals held in Guantánamo, of whom there are at least two?

The State Department’s latest human rights report notes that allegations of torture in Libya "were difficult to corroborate because many prisoners were held incommunicado"; so, too, in the case of detainees in US custody in Guantánamo, Afghanistan and elsewhere (Omar Deghayes’ allegations have only emerged since a lawyer gained access to him in 2005). In May 2004, Amnesty International raised allegations that a Chinese government delegation had visited Guantánamo in September 2002 and participated in interrogations of Chinese ethnic Uighur detainees held there. It is alleged that during this time, the detainees were subjected to intimidation and threats, and to interrogation techniques such as environmental (temperature) manipulation, forced sitting for many hours, and sleep deprivation, some of which was on the instruction of the Chinese delegation.(76) There has been no satisfactory response to these allegations from the US government, whose State Department annually criticizes the Chinese authorities for failing to take "sufficient measures to end [torture and ill-treatment]".

Amnesty International and other international human rights organizations continue to be denied access to the detainees in Guantánamo, exactly what the US State Department criticizes the Chinese authorities for. In its latest report, the Department noted that the UN Working Group on Arbitrary Detention was given access to some detention facilities in China during 2004. Not so in the case of the USA, which has denied the Working Group and other UN experts access to its "war on terror" detainees and has rejected their criticisms of the USA’s treatment of the detainees (see below).

While torture and ill-treatment are facilitated by the absence of external scrutiny that characterizes secret or incommunicado detention, such conditions can in themselves amount to such treatment and also be used to coerce detainees into making "confessions" or other statements against themselves or others. Evidence extracted under torture or other coercion – the reliability of which will always be suspect – can be admitted by the Combatant Status Review Tribunals and Administrative Review Boards – executive bodies that, respectively, determine whether each Guantánamo detainee is an "enemy combatant" and then, annually, whether he remains a security risk or of intelligence value.

Similarly, the rules for US military commissions – set up under a presidential Military Order to "try" only foreign nationals – do not exclude the use of evidence extracted under torture or other coercion, in violation of international standards against torture and ill-treatment and for fair trial.(77) These military commissions are executive bodies – not independent or impartial courts – whose rules are determined by the executive, whose personnel are selected by the executive, and whose final decisions the executive vets, including whether a condemned defendant lives or dies. Time spent in executive detention as an "enemy combatant", however long, is not to be considered as time already served if an individual is sentenced to a term of imprisonment by a military commission. In the event of an acquittal, it is the executive who will decide whether to release the detainee or place him or her back in indefinite detention as an "enemy combatant".

President George W. Bush – under whose "wartime" powers as Commander-in-Chief of the Armed Forces all this is being justified – said of the Guantánamo detainees shortly after making six of them the first to be eligible for trial by military commission that "the only thing I know for certain is that these are bad people".(78) It seems that, according to this administration, "bad people", as determined by the President, have no rights. Thus, the Military Order under which the commissions are set up states that no one held under it will "be privileged to seek any remedy or maintain any proceeding" in any US, foreign, or international court. It states that it "is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party, against the United States, its departments, agencies or other entities, its officers or employees, or any other person".(79) This is repeated in the instructions for the military commissions themselves, which also add that: "alleged non-compliance with an Instruction does not, of itself, constitute error, give rise to judicial review, or establish a right to relief for the Accused or any other person." (80) As the American College of Trial Lawyers wrote in March 2003: "It appears that the content of the [Military] Order and the [military commission] Procedures, particularly the exclusion of US citizens from their reach and the placement of the detainees at Guantanamo, were carefully designed to evade judicial scrutiny and to test the limits of the President’s constitutional authority."(81) More than two years later, the administration is still engaged in this bid for unchecked executive power.

Surely such executive excess would be condemned by the USA if it were happening in another country? In its latest human rights report, for example, the State Department’s entry on Syria contains the following under "Denial of Fair Public Trial":

"The Constitution provides for an independent judiciary; however, the Supreme State Security Court (SSSC), in dealing with cases of alleged national security violations, was not independent of executive branch control… The SSSC did not observe the constitutional provisions safeguarding defendants’ rights… In April 2001, the UN Commission on Human Rights stated that the procedures of the SSSC are incompatible with the provisions of the International Covenant on Civil and Political Rights, to which the country is a party".

The USA has also been criticized by the UN for its plans for trials by military commissions which would violate fair trial rights under international standards.(82) The criticism has not only been international. In November 2004, a US federal judge ruled that, at least in one respect, the rules of the US military commissions were unlawful. Specifically, he noted, "The accused himself may be excluded from proceedings… and evidence may be adduced that he will never see." The judge pointed out that "such a dramatic deviation" from the US constitutional right to a fair trial "could not be countenanced in any American court", and added that the right to trial "in one’s presence" is "established as a matter of international humanitarian and human rights law".(83)

In its most recent human rights report, as in previous reports, the State Department criticized Libya’s special revolutionary or national security courts, such as the People’s Court, noting that trials in these bodies "often are held in secret or even in the absence of the accused." The State Department will be able to report next year that, in a historic ruling on 12 January 2005, Libya’s parliament abolished the People’s Court. Amnesty International has welcomed this development as an important step forward for human rights in Libya. There has been no such move on the USA’s military commissions, however. The administration has appealed the judge’s ruling, which it has characterized as "an extraordinary intrusion into the Executive’s power". (84)

It was the case of a Libyan national held in Guantánamo Bay, Faren Gherebi, which led the US Court of Appeals for the Ninth Circuit to issue the following rejection of the US administration’s theory that it possesses "unchecked authority". The court said that "even in times of national emergency – indeed, particularly in such times – it is the obligation of the Judicial Branch…to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike". It continued:

"Under the government’s theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and these detainees as it will, when it pleases, without any compliance with any rule of law of any kind… Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or it was summarily executing the detainees. To our knowledge, prior to the current detention at Guantanamo, the US government has never before asserted such a grave and startling proposition."(85)

By the end of April 2005, Faren Gherebi remained in custody in Guantánamo Bay in essentially unchanged conditions.(86) Despite the US Supreme Court’s Rasul ruling, and widespread international condemnation, including from its allies as well as from UN experts and bodies, the US administration continues to cling to policies that deny fundamental human rights. It has not expressly and for all agencies rejected interrogation techniques that violate the prohibition on torture or ill-treatment. It has not rejected the use of secret or incommunicado detention. It has not rejected the use of military commissions. It maintains its attachment to the denial of the full rights of habeas corpus to hundreds of foreign detainees.

Indeed the administration appears to view its problem as one of presentation rather than substance. In 2002, the White House announced that it would set up the Office of Global Communications in part to counter perceptions around the world that that "the United States is arrogant, hypocritical, self-absorbed, self-indulgent, and contemptuous of others".(87) Amnesty International pointed out that in the area of human rights, at least, the US administration would need to "move beyond public relations and into substantive change if it wished to improve its reputation abroad."(88) Two and a half years later, the organization regrets that the same advice is still valid.

The Director of the Defense Intelligence Agency pointed out to the Senate Armed Services Committee in March 2005 that: "Multiple polls show favourable ratings for the United States in the Muslim world at all-time lows. A large majority of Jordanians oppose the War on Terrorism, and believe Iraqis will be ‘worse off’ in the long term… Across the Middle East, surveys report suspicion over US motivation for the War on Terrorism. Overwhelming majorities in Morocco, Jordan, and Saudi Arabia believe the US has a negative policy toward the Arab world."(89)

The US State Department has said that "it’s obvious that the American image in the world has suffered", and has pointed to the need for "a more effective portrayal of the United States".(90) On 14 March 2005, announcing the nomination of Karen Hughes as Under Secretary of State for Public Diplomacy and Public Affairs, Secretary of State Condoleezza Rice noted that "too few in the world… know of the value we place on international institutions and the rule of law". The nominee herself stated her commitment to "share our country’s good heart and our idealism and our values with the world", and to "always do my best to stand for what President Bush has called the non-negotiable demands of human dignity", including "the rule of law", "limits on the power of the state", and "equal justice".(91) She faces an uphill task in the absence of substantive change in her government’s policies, which tell a different story.

The State Department’s annual criticisms of the human rights records of other countries will inevitably lead to accusations of double standards and be drained of moral power as long as the USA fails to put its own house in order. Why, for example, should the Cuban authorities respond constructively to the State Department’s criticism that in 2004 Cuba "did not permit independent monitoring of prison conditions by international or national human rights monitoring groups", or that members of the Cuban security forces "sometimes beat and otherwise abused" detainees and prisoners? After all, in the southeast corner of Cuba, the US government continues to operate a military detention camp in which detainees have been kept virtually incommunicado without charge or judicial review for more than three years. With international human rights monitors denied access, evidence that detainees held in the base have been subjected to torture and ill-treatment continues to mount.

As the new Under Secretary of State for Public Diplomacy and Public Affairs pointed out, President Bush has repeatedly professed the USA’s commitment to the "non-negotiable demands of human dignity", including the rule of law, limits on the power of the state, and equal justice. Such promises, however, have been rendered meaningless by the USA’s conduct towards detainees held in the "war on terror". The executive must change its policies, not the way that it presents them. At the same time, the judiciary and the legislature must provide the necessary check on the executive.

"The rule of law and separation of powers not only constitute the pillars of the system of democracy but also open the way to an administration of justice that provides guarantees of independence, impartiality and transparency… [Judicial] monitoring should not be perceived as part of an institutional rivalry between the judicial, executive and legislative powers, but acts as a means of containing any authoritarian excesses and ensuring the supremacy of the law under all circumstances…[T]he desire to restrict or even suspend this judicial power would be tantamount to impairing the independence of justice".(92)

5. Human rights law rejected by a war mentality
In the early hours of 10 December 2003, human rights day, a 20-year-old Iraqi youth heard a knock on the door of his home in Mosul. He later recalled through an interpreter:

"I was studying in the morning because I am a student. It was around 05.00. It was a Wednesday. There was a knock at my door so I answered it. American soldiers came in and took me outside and arrested me. They told me they were there for my father. They also arrested my brother and my father. I complained because my father is old and my brother is sick. My brother has many physical problems. My mother was crying."

In a handwritten statement, among documents released under the ACLU’s freedom of information lawsuit, he told army investigators how he came to have a broken lower jaw:

"After that, they tied my brother and father and my hands and took us to their quarters. There, they put bags on our heads and took us to a room which contains a vocal device (so big recorder) and rised its voice so loudly and started torturing us with many kinds of torture like stand and sit down, pour cold water on our bodies at night and beat us during the day and didn’t give us food and even water except one time for two days. (The period of our torture).

During the time of torture, the bag was on my head, when one of the soldiers drew me till I came near the wall, then he kicked me a very strong kick on my face even my teeth were broken. Also my down jaw broke (several fractures). After I’ve injured, they took me to another room and told me to say that I’ve fallen down and no one beated me. Then they transferred me from Mosul to Baghdad without treatment of my wounds."

An army investigator concluded that the detainee’s jaw had been broken as the result of an "intentional act". A factor that contributed to the injury was a detention regime in the US facility where abuses were systematic – detainees were physically exercised to the point of exhaustion, subjected to sleep deprivation, physical assault, loud music blasted from metre-high loudspeakers, and hooding. "There is evidence", the investigator wrote, that military intelligence personnel and/or translators "engaged in physical torture of the detainees".(94)

In its October 2004 report on torture and accountability in the "war on terror", Amnesty International concluded that senior US military and civilian officials had set a climate, both through words and actions, conducive to torture and ill-treatment.(95) Indeed, one of the members of the Independent Panel to Review Department of Defense Detention Operations (Schlesinger Panel), which reported in August 2004, suggested that a degree of responsibility "for the confusion about permissible interrogation techniques extend[s] all the way up the chain of command to include the Joint Chiefs of Staff and the Office of the Secretary of Defense". (96) Evidence of a permissive climate contributing to abuses is provided among documents released in April 2005 to the ACLU.

In November 2003, a US army Staff Sergeant received a letter of reprimand for failing to "properly supervise detainee interrogation operations" at a US detention facility in Tikrit, Iraq, in which detainees had been abused.(97) In rebutting the reprimand, the Staff Sergeant suggested that at least one of the soldiers in question had committed abuses believing that such actions would be approved of by those higher up the chain of command:

"I firmly believe that [redacted] took the actions he did, partially, due to his perception of the command climate of the division as a whole. Comments made by senior leaders regarding detainees such as ‘They are not EPWs [enemy prisoners of war]. They are terrorists and will be treated as such’ have caused a great deal of confusion as to the status of the detainees. Additionally, personnel at the [Interrogation Control Element] regularly see detainees who are, in essence, hostages. They are normally arrested by Coalition Forces because they are family members of individuals who have been targeted by a brigade based on accusations that may or may not be true, to be released, supposedly, when and if the targeted individual surrenders himself… I know that [redacted] has himself witnessed senior leaders at briefings, reporting that they have taken such detainees, with the command giving their tacit approval. In hindsight, it seems clear that, considering the seeming approval of these and other tactics by the senior command, it is a short jump of the imagination that allows actions such as those committed by [redacted], to become not only tolerated, but encouraged. This situation is made worse with messages from higher echelons soliciting lists of alternative interrogation techniques and the usage of phrases such as ‘…the gloves are coming off’. (98)

Such a tone has been set by senior US officials. Members of the administration, including the President as Commander-in-Chief, have repeatedly referred to detainees as "terrorists" and "killers". This stance has been adopted throughout the military chain of command, and throughout the "war on terror". (99) Other officials have referred to "the gloves coming off". (100)

Meanwhile, hostage-taking by US troops in Iraq reportedly occured a year and a half after the Staff Sergeant wrote the above reference to such abuses. On 2 April 2005, two Iraqi women, Salima al-Batawi and her daughter Aliya al-Batawi, were allegedly taken hostage by US soldiers who were looking for their male relatives. The two women were held for six days without charge in a US detention facility after being seized at their home in Baghdad. A note allegedly left on the gate of their home by the soldiers threatened that the women would remain in detention unless a male relative gave himself up. Although military personnel claimed that the women were detained as suspected insurgents in their own right, after her release Salima al-Batawi was quoted as saying that she had been told that she would be detained until her sons gave themselves up.(101) International humanitarian and human rights law prohibits the taking of hostages and arbitrary detentions.(102)

In a keynote address to the International Summit on Democracy, Terrorism and Security, in Madrid, Spain, on 10 March 2005, UN Secretary General Kofi Annan pointed out that "international human rights experts, including those of the UN system, are unanimous in finding that many measures which States are currently adopting to counter terrorism infringe on human rights and fundamental freedoms." He continued:

"Human rights law makes ample provision for counter-terrorist action, even in the most exceptional circumstances. But compromising human rights cannot serve the struggle against terrorism. On the contrary, it facilitates achievement of the terrorist’s objective – by ceding to him the moral high ground, and provoking tension, hatred and mistrust of government among precisely those parts of the population where he is most likely to find recruits. Upholding human rights is not merely compatible with successful counter-terrorism strategy. It is an essential element".(103)

A month earlier, on 4 February 2005, six United Nations human rights experts – whose mandates include torture, "disappearances", arbitrary detention, the independence of judges and lawyers, and health, had expressed "serious concerns" about the USA’s "war on terror" detainees. and reiterated that:

"the right and duty of all States to use all lawful means to protect their citizens against death and destruction brought about by terrorists must be exercised in conformity with international law, lest the whole cause of the international fight against terrorism by compromised". (104)

In his report of March 2005, the UN’s Independent Expert on the Situation of Human Rights in Afghanistan, M. Cherif Bassiouni, wrote of the reports of abuses by Coalition forces in Afghanistan that he had received from victims, the Afghan Independent Human Rights Commission and others. The alleged abuses include: "forced entry into homes, arrest and detention of nationals and foreigners without legal authority or judicial review, sometimes for extended periods of time, forced nudity, hooding and sensory deprivation, sleep and food deprivation, forced squatting and standing for long periods of time in stress positions, sexual abuse, beatings, torture and use of force resulting in death".(105) The UN Independent Expert continued:

"When these forces directly engage in practices that violate or ignore international human rights and international humanitarian law, they undermine the national project of establishing a legal basis for the use of force. The impact of abusive practices and the failure to rectify potential problems create a dangerous and negative political environment that threatens the success of the peace process and overall national reconstruction."(106)

Professor Bassiouni’s mandate as UN independent expert on Afghanistan was not renewed at the UN Commission for Human Rights in April 2005. In an interview with the BBC on 25 April, he suggested that one reason for this was because of his "insistence that I should be allowed to go to the Bagram and Kandahar military bases as well as the 14 other firebases in which the US by its own regulations detains people for up to 14 days without even allowing the ICRC to see them." He reiterated that he had "interviewed a number of persons who have indicated that they had been arbitrarily arrested, that they had been tortured" by US forces in Afghanistan. The reason his mandate had not been renewed, he suggested, was not because "anybody felt the job was done", but because of US government pressure not to renew. The interview continued:

Q. Let’s be clear about this, what you are suggesting is that an independent human rights monitor mandated by the UN in Afghanistan has been prevented from doing that job because, you say, the Americans didn’t want you, to put it bluntly, poking your nose into what they were getting up to in various camps where they were holding detainees.
A. That is correct. In fact what my report does not contain is an exchange of correspondence I’ve had with the US ambassador to Geneva… in which he basically says the United Nations mandate does not include going into areas where American bases are. He takes the position that the American bases there are above and beyond the reach of the law.(107)

Whether or not it was US pressure that led to the UN expert’s mandate not being renewed – at the time of writing, information received by Amnesty International indicates that it was – an overarching war mentality adopted by the US administration since 11 September 2001 has led it to manipulate or jettison basic human rights protections for detainees. As noted further below, this has included instances of the USA refusing to recognize that UN human rights experts have the mandate to raise concerns about US actions in the "war on terror" on the grounds that the detentions are controlled by the law of armed conflict rather than human rights law. At the same time, the US administration has adopted its own unilateral interpretation of international humanitarian law.

Indeed, "following the events of September 11, 2001, a new category of detainee, enemy combatant (EC), was created for personnel who are not granted or entitled to the privileges of the Geneva Convention [sic]".(108) In its broadly-defined global "war", the administration has defined "enemy combatant" broadly:

"Any person that US or allied forces could properly detain under the laws and customs of war. For purposes of the war on terror an enemy combatant includes, but is not necessarily limited to, a member or agent of Al Qaeda, Taliban, or another international terrorist organization against which the United States is engaged in an armed conflict."(109)

Not only are these so-called "enemy combatants" denied the protections of the Geneva Conventions, they are also denied the protections of international human rights law because the US administration considers that they are held exclusively under "the laws and customs of war", regardless of where in the world they were taken into custody.

The leading authority on provisions of international humanitarian law, or the law of war, is the ICRC which has stated:

"Irrespective of the motives of their perpetrators, terrorist acts committed outside of armed conflict should be addressed by means of domestic or international law enforcement, but not by application of the laws of war… ‘Terrorism’ is a phenomenon. Both practically and legally, war cannot be waged against a phenomenon, but only against an identifiable party to an armed conflict. For these reasons, it would be more appropriate to speak of a multifaceted ‘fight against terrorism’ rather than a ‘war on terrorism’…What is important to know is that no person captured in the fight against terrorism can be considered outside the law. There is no such thing as a ‘black hole’ in terms of legal protection."(110)

Yet, in seeking to have the post-Rasul habeas corpus petitions of Guantánamo detainees dismissed, the executive has rejected the notion that the detainees have any rights under human rights treaty law or customary international law:

"Customary law is constantly evolving, thus implying that states can modify their practices to adapt to new or unanticipated circumstances or challenges… Even if customary international law proscribed ‘prolonged arbitrary detention’, it is not at all clear that petitioners’ detention fall within this rubric. The detention here is not arbitrary, but based on the Military’s determination that petitioners are enemy combatants. The treaties cited by petitioners as evidence of customary international law do not appear to deal with wartime detentions of this type, but rather with criminal-like matters, and petitioners cite no clear evidence of a consistent and widespread norm, followed as a matter of legal obligation, that detention of enemy combatants in a worldwide war against a terrorist organization is improper."(111)

Such an argument, if accepted, would give a government – any government – a blank cheque to ignore its obligations under international law for any situation that it defined as a "war", "new" or "unanticipated" or for any person that it defined as the "enemy". In this case, it follows President Bush’s assertion that the "war against terrorism ushers in a new paradigm [which] requires new thinking in the law of war".(112) As revealed by a series of previously secret government documents, the thinking that has been done has been of a sort that looks to manipulate and bypass the USA’s fundamental international legal obligations. Thus, whatever "new thinking" has been done, the result has been old abuses, abuses which when committed by other countries warrant an entry in the US State Department annual human rights report.

For itself, the US administration maintains that the President’s war powers as Commander-in-Chief of the Armed Forces provide the executive with a clear mandate to run this broadly-defined "war on terror" without judicial interference or external scrutiny. Whatever the case may be under the US Constitution – the administration has sought to rely on US jurisprudence restricting the applicability of the Constitution in the case of federal government actions outside the USA concerning foreign nationals(113) – the fact is that there is no such potential leeway under international law.(114)

The administration is even still engaged in an attempt to extend presidential authority to seizing US citizens in civilian settings on US soil and subjecting them to indefinite military detention without criminal charge or trial.(115) José Padilla, a US citizen arrested at Chicago airport in 2002 on the suspicion of planning to detonate a radioactive "dirty" bomb in the United States, was removed from the criminal justice system a month later under an executive order signed by President Bush labelling Padilla as an "enemy combatant". Since then he has been held in indefinite military custody without charge or trial (see further below). On 28 February 2005, a federal judge ruled in José Padilla’s case, concluding that "this is a law enforcement matter, not a military matter". The judge said that "[t]here were no impediments whatsoever to the Government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing." He continued:

"The civilian authorities captured [Padilla] just as they should have. At the time that [Padilla] was arrested…any alleged terrorist plans that he harbored were thwarted. From then on, he was available to be questioned – and was indeed questioned – just like any other citizen accused of criminal conduct. This is as it should be. There can be no debate that this country’s laws amply provide for the investigation, detention and prosecution of citizen and non-citizen terrorists alike." (116)

The executive disagreed, and immediately annouced its intention to appeal the order to release José Padilla from military custody. The administration appears to lack confidence in both its laws and its courts. At the same time, it is showing scant regard for international law and standards in its "war on terror".

The UN Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Robert K. Goldman, wrote in his recent report to the UN Commission on Human Rights: "However States conceive of the struggle against terrorism, it is both legally and conceptually important that acts of terrorism not be invariably conflated with acts of war". He continued:

"If committed during an armed conflict, such acts may constitute war crimes. However, when such acts take place during peacetime or an emergency not involving hostilities, as is frequently the case, they simply do not constitute war crimes, and their perpetrators should not be labelled, tried or targeted as combatants. Such situations are governed not by international humanitarian law, but by international human rights law, domestic law and, perhaps, international criminal law...

Human rights law does not cease to apply when the struggle against terrorism involves armed conflict. Rather, it applies cumulatively with international humanitarian law... Despite their different origins, international human rights law and humanitarian law share a common purpose of upholding human life and dignity."(117)

Human dignity has fallen victim to the USA’s "war on terror" detention and interrogation regime, as the administration has not only rejected international human rights law, but also adopted a selective disregard for international humanitarian law, despite being a state party to the principle treaties of both strands of law, and thereby obliged to apply their provisions. This was made clear as the first prisoners arrived at Guantánamo Bay on 11 January 2002, when Secretary of Defense Donald Rumsfeld said: "We have indicated that we do plan to, for the most part, treat [the prisoners] in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate, and that is exactly what we have been doing." [emphasis added].(118) Such a policy is clearly "vague and lacking", to use the words of the panel appointed by Secretary Rumsfeld to revew the Pentagon’s detention operations.(119)

Such vagueness opens the door, whether inadvertently or by design, to torture and other cruel, inhuman or degrading treatment. For example, the Third and Fourth Geneva Conventions allow a maximum of 30 days isolation of a detainee as punishment for a disciplinary offence. The US authorities, including as authorized by Secretary Rumsfeld, have used isolation as an interrogation technique across its theatres of operation. In Afghanistan, techniques included "isolating people for long periods of time".(120) The ICRC found that the US authorities were using "excessive isolation" in Guantánamo for not cooperating in interrogations.(121) In at least two cases of Guantánamo detainees, Salim Ahmed Hamdan and Moazzam Begg, the isolation was for a year or more. Yet Major General Geoffrey Miller, former commander of Guantánamo detentions, has said: "We’re enormously proud of what we had done at Guantánamo, to be able to set that kind of environment where we were focused on gaining the maximum amount of intelligence. But we detained the people in a humane manner, in accordance with the Third and Fourth Geneva Conventions."(122) This is not the case. Indeed, even in Iraq, where the USA held that it was adhering to the Geneva Conventions, interrogators resorted to the systematic use of isolation to obtain detainee co-operation.(123)

On 7 February 2002, it was announced that President Bush had determined that the Geneva Conventions applied to the conflict with the Taleban. However, at the same time it was made clear that no detainee, whether a suspected member of the Taleban or of al-Qa’ida, would be granted prisoner of war status or in cases of doubt presumed to be prisoners of war unless or until a "competent tribunal" determined otherwise, as required by Article 5 of the Third Geneva Convention.(124) In a unilateral executive decision, the President had determined that there would be no doubt in any case. This decision followed advice that not applying the Geneva Conventions would make future prosecutions of US agents for war crimes less likely.(125) Allegations of torture and ill-treatment in secret and incommunicado detention have followed. No US agent has so far been charged with war crimes or torture under the USA’s War Crimes Act or Anti-Torture Act.

President Bush’s memorandum of 7 February 2002, originally classified as secret for 10 years, was made public on 22 June 2004 in the wake of the revelations about torture and ill-treatment of detainees in US custody in Abu Ghraib prison in Iraq. In this memorandum, not only did the President determine that neither Taleban nor al-Qa’ida detainees captured in the international armed conflict in Afghanistan would be eligible for prisoner of war status, but also that common Article 3 to the Geneva Conventions – which prohibits, among other things, torture, cruel, humiliating and degrading treatment – did not apply to either category of detainee. The protections of common Article 3 "constitute a minimum yardstick" reflecting "elementary considerations of humanity", according to the International Court of Justice(126), and "are generally accepted throughout the world as customary international law," according to the USA’s bi-partisan Congressional commission into the attacks of 11 September 2001.(127) However, the current administration takes a dismissive approach to customary international law, which it believes is not binding on the President in the context of the "war on terror".(128) This would appear even to contradict the USA’s own March 2005 National Defense Strategy, which asserts that states "must exercise their sovereignty responsibly, in conformity with the customary principles of international law".(129)

Trials by military commissions – executive bodies viewed within the administration as "entirely the creatures of the President’s authority as Commander-in-Chief"(130) – are currently on hold following the decision of a federal judge. In Hamdan v. Rumsfeld in November 2004, Judge James Robertson examined President Bush’s 7 February 2002 decision on the non-applicability of the Geneva Conventions to detainees picked up in Afghanistan. Judge Robertson rejected the administration’s assertion that the presidential determination was "not reviewable":

"Notwithstanding the President’s view that the United States was engaged in two separate conflicts in Afghanistan (the common public understanding is to the contrary), the government’s attempt to separate the Taliban from al Qaeda for Geneva Conventions purposes finds no support in the structure of the Conventions themselves, which are triggere