Counter Terror with Justice

Counter Terror with Justice checklist: Assessing President Obama's first 100 days

Close Guantánamo and End Illegal Detention

1. Confirm that the USA will permanently close the detention facility at Guantánamo and set a relatively short deadline for the closure.

ACHIEVED: Executive Order of 22 January 2009 “Review and Disposition of Individuals detained at Guantánamo Bay Naval Base and Closure of Detention Facilities”.

2. Issue an executive order ending any use of rendition, secret detention or prolonged incommunicado detention by or on behalf of the US authorities anywhere.

PROGRESS: The Executive Order “Ensuring Lawful Interrogations” ends the CIA's programme of long-term secret detention and guarantees access to the ICRC to detainees held by the USA. However, the order does not end the practice of rendition and leaves open the possibility for the CIA to use detention facilities on a short-term, transitory basis, or to use foreign-controlled facilities to detain and interrogate individuals at its behest (proxy detention).

3. Revoke the 20 July 2007 Executive Order which authorized the continuation of the CIA’s programme of secret detention and interrogation.

ACHIEVED: This order is revoked by Section 1 the Executive Order “Ensuring Lawful Interrogations”.

4. Revoke the 13 November 2001 Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.

UNCLEAR: All executive orders between 2001 and 2009, to the extent that they are inconsistent with the Executive Order “Ensuring Lawful Interrogations”, have been revoked, although particular orders are not specified. It is unclear if the 13 November 2001 order is fully revoked, particularly as a potential authority for detaining individuals.

5. End trials by military commission and the system of Combatant Status Review Tribunals and Administrative Review Boards.

PROGRESS: The military commissions have been suspended. However, the military commissions have not been permanently ended, and the US administration has relied on charges pending under the Military Commissions Act to oppose particular habeas corpus review applications.

6. Announce a plan to promptly charge Guantánamo detainees and send them for trial before US federal courts or to release them with full protection against further violations of their human rights, and ensure that the plan is adequately resourced.

NO ACTION TAKEN

7. Ensure Guantánamo detainees who would be at risk of serious human rights violations if returned to their country of origin are offered the opportunity to live in the USA, if they wish to do so, and work with other governments to ensure that other such detainees are offered protection.

MIXED: Other governments, including France and Ireland, have said they will offer protection to detainees that cannot be returned to their home countries. The US administration has not publicly committed to allow any Guantánamo detainee an opportunity to live in the USA, including those whose release has been ordered by US courts.

8. Commit the US administration not to arbitrarily deprive anyone of their liberty (including by denying or interfering with effective judicial review), and immediately end the US government’s opposition to full habeas corpus hearings for detainees in Guantánamo and other similar situations.

SETBACK: The administration adopted its predecessor’s approach to the detentions in the US airbase in Afghanistan, and has appealed against a decision granting habeas corpus rights to some detainees held there. While recognizing rights of Guantánamo detainees to habeas corpus review, this judicial review has continued to face delays under the new administration. The administration continues to oppose inclusion of detainee treatment or detention conditions in habeas corpus reviews.

ERADICATE TORTURE AND OTHER ILL-TREATMENT

9. Issue an executive order that the USA will not, under any circumstances, resort to torture or other cruel, inhuman or degrading treatment, as defined under international law.

PROGRESS: The Executive Order “Ensuring Lawful Interrogations” is a major step forward, directing an end to the euphemistically named “enhanced interrogation techniques” as used in the secret detention programme. However, Amnesty International is concerned about reliance on the Army Field Manual, which contains loopholes for torture and other ill-treatment, and there is no mention of the need for compliance with the ICCPR or other human rights standards other than the Convention against Torture.

10. Announce that the administration will not use any information obtained under torture or other ill-treatment in any proceedings, except against an alleged perpetrator of the abuse.

NO ACTION TAKEN

11. Commit to work with Congress to withdraw all reservations and limiting understandings relating to torture and other ill-treatment attached to US ratification of human rights treaties, including the International Covenant on Civil and Political Rights and the UN Convention against Torture.

NO ACTION TAKEN

12. Order the declassification of all legal opinions and other documents authorizing or approving interrogation techniques and detention conditions that discuss whether the techniques or conditions are consistent with the national or international prohibition of torture or other cruel, inhuman or degrading treatment or punishment.

PROGRESS: A number of previously undisclosed or classified legal opinions of the US Justice Department’s Office of Legal Counsel have been published. Declassification of the expanded Senate Armed Services Committee report also revealed further relevant information.

END IMPUNITY

13. Ensure that criminal investigations into the programmes of rendition and secret detention operated by or on behalf of the US authorities are initiated.

NO ACTION TAKEN

14. Reject impunity for crimes under international law such as torture and other ill-treatment of detainees, and enforced disappearance.

NO ACTION TAKEN: The President and the Attorney General, as well as the CIA Director, appear willing to accept impunity for at least some perpetrators of crimes under international law, including torture and other similar abuse of detainees, and enforced disappearance.

15. Ensure that an independent commission of inquiry is established into all aspects of the USA’s detention and interrogation practices in the “war on terror”.

NO ACTION TAKEN: President Obama stated that “if and when” there needs to be further accountability that Congress could examine ways that this could be done in a bipartisan fashion. Beyond this, however, no commitment was made on the part of the administration to ensure a properly empowered commission of inquiry is set up.

16. Make known the name, nationality, present whereabouts, status and circumstances of detention of all those who are or have been detained as part of the programmes of rendition and secret detention.

NO ACTION TAKEN

17. Announce that his administration will work to ensure that victims of human rights violations for which the US authorities may be responsible will have meaningful access to redress and remedy.

NO ACTION TAKEN: If anything there has been a setback. The Department of Justice has invoked state secrecy and military immunity laws in a manner that would block the victims of human rights violations from obtaining effective redress and remedy.