USA: President Obama’s first 100 days on counter terrorism - Case Studies
Abu Zubaydah, arrested in Pakistan in March 2002, has been in US custody for seven years, four and a half of them spent incommunicado in solitary confinement in undisclosed locations. He was subjected to the torture technique of “waterboarding” – simulated drowning – and has allegedly been subjected to numerous other interrogation techniques that violate the prohibition of torture and other cruel, inhuman or degrading treatment. These techniques, approved for use at the highest levels of government, include forced nudity, sleep deprivation, confinement in small dark boxes, deprivation of solid food, cold temperatures, stress positions, and physical assaults. Videotapes of some of his interrogations are believed to be amongst those destroyed by the CIA in 2005.
He became the victim of enforced disappearance in the USA’s secret detention program which, like torture is a crime under international law.
Abu Zubaydah was transferred to Guantánamo in September 2006 where he and other former CIA detainees are held in Camp 7 where conditions are the most isolating. Since his transfer to Guantánamo, Abu Zubaydah is reported to have suffered more than 150 seizures. His medical health continues to be of serious concern.
He has never been charged, despite being accused for years by US authorities of involvement in serious crimes.
Changes to the case in President Obama’s first 100 days
Whilst the situation for Abu Zubaydah himself has not changed significantly since President Obama took office, further details have emerged about his treatment and that of other CIA detainees, triggering widespread debate on accountability, and possible investigations and prosecutions of those responsible.
A leaked ICRC report of its interviews with Abu Zubaydah and other “high value” detainees states that “the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture.” US Justice Department memos made public on 16 April 2009, reveal that Abu Zubaydah was subjected 83 times to “water-boarding”, a torture technique that simulates drowning. Both President Obama and Attorney General Eric Holder have recognized that water-boarding constitutes torture. They are bound under international law to ensure full investigation and accountability under international law.
The review of conditions at Guantánamo ordered by President Obama urged that steps be taken to “increase detainee-to-detainee contact” in Camp 7. It is not known if these recommendations have been acted upon.
A special prosecutor is currently investigating whether the destruction of the CIA videotapes constituted a crime. The investigation has been ongoing for 15 months.
17 Uighur Detainees
17 ethnic Uighur men from the Xinjiang Uighur Autonomous Region of China have been in Guantánamo without charge or trial since 2002. At various times between 2003 and 2008, the Bush administration decided that each of them was not an “enemy combatant”, the label it had attached to them for years in an attempt to justify their indefinite detention without charge or trial, and could be released. The men cannot be returned to China because they would be at serious risk of torture or execution there. The Bush administration asked over 100 countries to accept the detainees but all refused.
The men were taken into custody in Pakistan in late 2001. They had fled there from Afghanistan after their camp was bombed by US forces.
On 7 October 2008, Judge Ricardo Urbina of the US District Court for the District of Columbia ordered the government to release the 17 Uighurs into the USA. The Bush administration appealed and the releases were indefinitely postponed.
Changes to the case in President Obama’s first 100 Days
The 17 Uighur men have remained unlawfully held by the USA at Guantánamo Bay since President Obama took office. While some US officials have held open the possibility that Uighur detainees might yet be released into the USA, this had not occurred in the 100 days.
On 18 February 2009, a US federal appeals court overturned the District Court ruling ordering the 17 Uighur detainees’ release into the USA. The ruling cited that the District Court was not authorised to “review the determination of the political branch of the Government to exclude a given alien.”
On 7 April 2009, the Court of Appeals for the District of Columbia overturned the District Court’s decision in a case brought by nine of the Uighur detainees in 2005 requiring that the Government provide a 30-day notice to the court and detainees’ lawyers before transferring individuals from Guantánamo. The Court of Appeals held that it could not question the Executive’s assurance not to transfer someone to a country where they could be at risk of torture.
Ali Saleh al-Marri
Ali al-Marri, a Qatari national and US resident, was arrested in Illinois in December 2001 and charged in federal court with credit card fraud, identity fraud, and making false statements. His trial never took place, because on 23 June 2003 he was designated as an “enemy combatant” by President George W. Bush, transferred to the custody of the US Department of Defense, and shut away in a military facility in Charleston, South Carolina. The transfer of Ali al-Marri from civilian to military custody appears to have been motivated by the Bush administration’s wish to interrogate him without respect for the fundamental rights and safeguards, including judicial supervision of his detention, provided for by the criminal justice system.
He was granted access to a lawyer only 16 months after his transfer into military custody, during which period he was held incommunicado and allegedly subjected to torture or other ill-treatment. His isolation continued throughout his detention. For almost five years, Ali al-Marri did not speak to a single human being outside the government bar his lawyers and representatives of the ICRC. There exists significant evidence that prolonged isolation can cause serious psychological and physical harm, particularly when combined with other measures such as conditions of reduced sensory stimulation, enforced idleness and confinement in an enclosed space.
Changes to the case in President Obama’s first 100 days
On 22 January, President Obama signed a memorandum ordering the review of Ali al-Marri’s detention. On 26 February, Ali al-Marri was charged for trial in US federal court on charges of conspiring to provide material support to a terrorist organisation. President Obama ordered his transfer from military to civilian custody. In a brief asking the US Supreme Court to dismiss the al-Marri case which was then pending before it, the new administration did not reject the Bush administration’s position that Ali al-Marri could be detained indefinitely as an “enemy combatant”. Ali al-Marri’s civilian trial is scheduled to start on 26 May 2009.
See Amnesty International’s report “Mixed messages: Counter terror and human rights President Obama’s first 100 days”