Document - USA: Guantánamo and beyond: The continuing pursuit of unchecked executive power

AI Index: AMR 51/063/2005

Date: 13 May 2005

UNITED STATES OF AMERICA

Guantánamo and beyond: The continuing pursuit of unchecked executive power

I used to think that America had respect for human rights when it came to prison.

Mohammed Nechle, extrajudicially removed from Bosnia and Herzegovina by US agents(1)

My husband is a tall man with black hair and black eyes…He is now imprisoned in Guantánamo. We don’t know why.

Wife of Mohammed Nechle, Algerian national, 2004(2)

1. Summary: The pursuit of unfettered executive power - 2 -

2. Violating human rights erodes security and trust in government - 9 -

3. Guantánamo detainees – the international legal framework - 12 -

4. Hypocrisy vs. human rights - 14 -

5. Human rights law rejected by a war mentality - 27 -

6. Seeking to render the Rasuldecision meaningless - 44 -

7. A judge with security credentials takes a more critical view - 51 -

8. The Combatant Status Review Tribunal – no laughing matter - 54 -

9. Administrative Review Board – more of the same - 64 -

10. Military commissions – yet more executive injustice - 66 -

11. An executive in pursuit of execution – Zacarias Moussaoui - 80 -

12. Torture and ill-treatment – the executive has a case to answer - 83 -

13. Deaths in custody – evidence of abuse continue to emerge - 109 -

14. Secrecy – the executive’s weapon of mass distraction - 116 -

15. Transfers from Guantánamo and a return from Saudi Arabia - 130 -

16. Unchecked power at home – "enemy combatants" in the USA - 136 -

17. Guantánamo and beyond: The lawlessness must end - 139 -

Appendix 1: Some deaths in US custody in Afghanistan and Iraq - 142 -

Appendix 2: Some additional extracts of CSRT testimony - 147 -

Appendix 3: Alleged detention and interrogation practices - 152 -

Appendix 4: Recommendations: Preventing torture & ill-treatment - 154 -

Appendix 5: Selected AI documents on "war on terror" detentions - 161 -

1. Summary: The pursuit of unfettered executive power

It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check.

US Supreme Court Justice Stephen Breyer, 20 April 2004(3)

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 Rasuldecision 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:

1. 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."

2. 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."

3. 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."

4. 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-Rasullegal 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 corpuspetitions 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 Rasuldecision, 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 corpuspetitions 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 habeaslawyers 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 United States strengthens its national security when it promotes… a world in which states have governments that are responsible and obey, as it were, the rules of the road.

US Under Secretary of Defense, February 2005(22)

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:

5. "Many detainees have been implicated in using, constructing, or being trained to construct IEDs [improvised explosive devices]".

6. "Over 25 GTMO detainees have been identified by other detainees as being facilitators who provided money, documentation, travel, or safe houses".

7. "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

Conformity with international human rights and humanitarian law is not a weakness in the fight against terrorism but a weapon, ensuring the widest international support for actions and avoiding situations which could provoke misplaced sympathy for terrorists or their causes… [T]he Assembly considers that the US Government has betrayed its own highest principles in the zeal with which it has attempted to pursue the "war on terror". These errors have perhaps been most manifest in relation to Guantánamo Bay.

Parliamentary Assembly of the Council of Europe, 26 April 2005(27)

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:

8. 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:

9. 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

Societies that respect the rule of law do not provide the executive a blanket authority even in dealing with exceptional situations. They embrace the vital roles of the judiciary and the legislature in ensuring that governments take a balanced and lawful approach to complex issues of national interest.

United Nations High Commissioner for Human Rights, 2004(41)

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 corpuspetitions 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’idanetworks 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 blancheto 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. Bushon 28 June 2004 that the federal courts have jurisdiction to consider habeas corpusappeals 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 Rasuldecision of any real meaning.

In January 2005, two federal judges issued the first interpretations of the Rasulruling when they responded to habeas corpuspetitions 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 Rasulruling, 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 corpusto 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

America is a nation at war… At the direction of the President, we will defeat adversaries at the time, place, and in the manner of our choosing… Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.

US National Defense Strategy, March 2005(93)

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 isreasonably consistentwith 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 punishmentfor a disciplinary offence. The US authorities, including as authorized by Secretary Rumsfeld, have used isolation as an interrogation techniqueacross 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’idadetainees 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. Rumsfeldin 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 triggered by the place of the conflict, and not the particular faction a fighter is associated with. Thus at some level – whether as a prisoner-of-war entitled to the full panoply of Convention protections or only under the more limited protections afforded by Common Article 3 – the Third Geneva Convention applies to all persons detained in Afghanistan during the hostilities there".(131)

The government had also argued to Judge Robertson that even if the Third Geneva Convention could theoretically apply to an individual captured in Afghanistan, members of al-Qa’idadid not fulfil the criteria for prisoner of war status under Article 4 of the treaty because of their failure to carry arms openly or operate according to the laws and customs of war. The President had determined that this was the case, and such determinations are due "extraordinary deference", according to the government. However, Judge Robertson said that the President is not a "tribunal". Moreover, the Combatant Status Review Tribunal (see further below) was not established to address the issue of prisoner of war status, and was therefore not the "competent tribunal" envisaged by the Third Geneva Convention. Until or unless such a tribunal decides otherwise, Judge Robertson wrote, the Guantánamo detainee whose petition was before him should be presumed to be a prisoner of war and treated as such.(132)

Judge Robertson rejected the government’s argument that common Article 3 to the Geneva Conventions does not apply, citing among other things the International Court of Justice’s opinion (above). He continued that the government’s position was one "that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad". Judge Robertson noted evidence that other governments had already begun to use the example being set by the USA’s Guantánamo policy to justify their own repressive conduct.

Finally, the government had argued that any provisions of the Geneva Conventions were not enforceable in US court as the treaty was not "self-executing", that is that does not give rise to private cause of action in the US courts in the absence of specific implementing legislation. However, Judge Robertson took issue with this:

"Because the Geneva Conventions were written to protect individuals, because the Executive Branch of our government has implemented the Geneva Conventions for fifty years without questioning the absence of implementing legislation, because Congress clearly understood that the Conventions did not require implementing legislation except in a few specific areas, and because nothing in the Third Geneva Convention itself manifests the contracting parties’ intention that it not become effective as domestic law without the enactment of implementing legislation, I conclude that, insofar as it is pertinent here, the Third Geneva Convention is a self-executing treaty."

The government responded that Judge Robertson’s decision "should not be followed because it not only failed to accord the deference that is due to the President’s interpretation of the Conventions, it cannot withstand scrutiny".(133) The administration is seeking to have the ruling overturned by a higher court.

The US administration is not only resisting domestic judicial scrutiny of its actions in Guantánamo, but is rejecting the findings of international expert bodies. In 2002, the UN Working Group on Arbitrary Detention challenged President Bush’s 7 February 2002 prisoner of war determinations. The Working Group pointed out that the authority competent to make such determinations "is not the executive power but the judicial power". It went on to assert that in cases where POW status was not recognized by a competent tribunal, the "situation of the detainees would be governed by the relevant provisions of the [International] Covenant [on Civil and Political Rights] and in particular by articles 9 and 14 thereof, the first of which guarantees that the lawfulness of a detention shall be reviewed by a competent court, and the second of which guarantees the right to a fair trial".(134)

The USA responded that the Working Group did not have the mandate to consider whether the Guantánamo detentions were arbitrary, on the grounds that the detentions were controlled by the laws of armed conflict and not human rights law.(135) The USA further asserted to the Working Group on Arbitrary Detention that "enemy combatants are not entitled to be released or to have access to court or counsel".(136) The Working Group responded that it was concerned that the "war on terror" was being "invoked to set aside certain norms of international law, particularly those on the guarantees available to supected terrorists in detention". It continued:

"The Working Group is even more concerned that, in the context of the fight against terrorism, classified information and the protection of national security are often put forward as grounds for refusing to cooperate, and that its competence to judge the lawfulness of the detention of suspected terrorists is challenged on the pretext that the Group’s mandate does not cover situations of armed conflict…

The Working Group stresses that it attaches particular importance to the existence and effectiveness of international controls over the legality of detention. In its experience, the right to challenge the legality of detention is one of the most effective means of preventing and combating arbitrary detention. As such, it should be regarded not as a mere element in the right to a fair trial but, in a country governed by the rule of law, as a personal right which cannot be derogated from even in a state of emergency."(137)

The Chairperson-Rapporteur of the Working Group on Arbitrary Detention is one of the four UN experts for whom access to US "war on terror" detainees has been requested by the UN. A joint statement issued by a group of UN experts on 25 June 2004 noted "recent developments that have seriously alarmed the international community with regard to the status, conditions of detention and treatment of prisoners in specific places of detention". The statement called for four UN experts to be allowed to visit detainees held in Iraq, Afghanistan and Guantánamo Bay.(138) On 9 November 2004, the US government responded that it was unable to grant the request. Instead it offered to provide the UN experts with a briefing in Washington, DC. The experts only agreed to such a briefing, in Geneva, to the extent that it would be a preliminary step in preparation for their requested access to the detainees.(139) On 4 April 2005, a meeting took place in Geneva between US officials and three UN Special Rapporteurs.(140)

While the executive has assumed sweeping powers to detain, interrogate, charge or try suspected "terrorists" or their associates, at the same time its "war" scenario has also brought with it a disturbing attitude to the use of torture and other cruel, inhuman or degrading treatment (see Section 12) as well as to the use of lethal force.(141) The relatively low value that appears to have been placed by the US administration on the lives of Afghanistan and Iraq citizens killed by US forces in the past three years – as demonstrated by the failure to thoroughly investigate or even quantify such casualties – is exemplified by an incident in Yemen on 3 November 2002, when six men were killed in a car, blown up by missiles fired from a CIA-controlled Predator unmanned aerial vehicle.(142) One of the people in the car was alleged to be a senior member of al-Qa’ida, Abu Ali al-Harithi, and the strike was carried out with the cooperation of the Government of Yemen. In Amnesty International’s view, the USA and Yemen should have cooperated to try to arrest the suspects in the car rather than kill them. Rather than opting for killing them by remote control, lethal force should have been used only as a last resort.(143) To the extent that the US authorities deliberately decided to kill, rather than attempt to arrest these men, their killing would amount to extrajudicial executions.

"Governments shall prohibit by law all extra-legal, arbitrary and summary executions and shall ensure that any such executions are recognized as offences under their criminal laws, and are punishable by appropriate penalties which take into account the seriousness of such offences. Exceptional circumstances including a state of war or threat of war, internal political instability or any public emergency many not be invoked as a justification of such executions. Such executions shall not be carried out under any circumstances including, but not limited to, situations of internal armed conflict, excessive or illegal use of force by a public official or other person acting in an official capacity or by a person acting at the instigation, or with the consent or acquiescence of such person, and situations in which deaths occur in custody. This prohibition shall prevail over decrees issued by governmental authority."(144)

On 17 September 2001, President Bush is reported to have signed an executive order giving the CIA broad new authorities, including the use of lethal force, in the "war on terror".(145) In January 2003, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions described the CIA killings in Yemen as "truly disturbing" and "an alaming precedent", adding that in her opinion "the attack in Yemen constitutes a clear case of extrajudicial killing".(146) In April 2003, the US authorities responded to the UN Special Rapporteur, disagreeing that "military operations against enemy combatants could be regarded as extrajudicial executions", and adding that the "conduct of a government in legitimate military operations, whether against Al Qaida operatives or any other legitimate military target, would be governed by the international law of armed conflict." It concluded that "enemy combatants may be attacked unless they have surrendered or are otherwise rendered hors de combat", and that any "Al Qaida terrorists who continue to plot attacks against the United States may be lawful subjects of armed attacks in appropriate circumstances". It stated that the mandate of the Special Rapporteur does not extend to "allegations stemming from any military operations conducted during the course of an armed conflict with Al Qaida", and that both the Special Rapporteur and the UN Commission on Human Rights lack competence "to address issues of this nature arising under the law of armed conflict".(147)

In December 2004, the new Special Rapporteur on extrajudicial, summary or arbitrary executions followed up on this issue. He stated:

"Empowering Governments to identify and kill "known terrorists" places no verifiable obligation upon them to demonstrate in any way that those against whom lethal force is used are indeed terrorists, or to demonstrate that every other alternative had been exhausted. While it is portrayed as a limited ‘exception’ to international norms, it actually creates the potential for an endless expansion of the relevant category to include any enemies of the State, social misfits, political opponents, or others. And it makes a mockery of whatever accountability mechanisms may have otherwise constrained or exposed such illegal acts under either humanitarian or human rights law."(148)

An earlier case of a possible extrajudicial killing left unpunished occurred on 28 August 2002, when US soldiers shot dead an Afghan man near Lwara, southeast of Kabul. The soldiers involved claimed that Mohammad Sayari was shot after he lunged for a weapon. The case remained out of the public domain until redacted documents were released in late 2004 under a freedom of information request (see Section 12). These reveal that an investigator, who in August 2002 had only recently arrived at the US base at Lwara, was called upon to respond to the shooting. In a sworn statement given to investigators with the US Army Criminal Investigation Command (CID) on 9 October 2002, he described finding Mohammad Sayari’s body:

"His right hand and arm were near his head and in his right hand, clenched in a fist, were prayer beads…(149) There was massive trauma to his head that appeared to be the exit wound caused by a bullet... Th[e] splatter pattern, I felt, was consistent with the person laying in the prone and the bullet path coming from an angle that was slightly behind and from the left side of the body. Additionally, I noticed approximately 5 small bullet entry holes on the back of the shirt… I became nervous at this time realizing that the man had been shot in the back…"

The investigator said that during his subsequent time in Lwara, he would "hear small pieces of information that described the attitudes" of the Special Forces unit implicated in the case, which he concluded to be a unit "operating without any oversight". He said that the unit was described as the "door kicker types", and recalled how one of its members described to him how to use mock executions as an interrogation technique when detaining groups of people. The investigator also said that he heard comments that led him to believe that one of the soldiers implicated in the shooting "wanted to kill a local Afghan before he left Afghanistan to return to the US". The investigator further alleged to the CID investigators that he was told by an officer with the Special Forces unit to delete certain photographs that he had taken at the scene of the shooting. The investigator said that "it was obvious to me that he didn’t want the pictures to exist". He also feared reprisals for his investigation, concluding from the unit’s "actions…that they would not threaten me, they would kill me". His sworn statement contains the following exchange with CID investigators:

Q: What do you think were the circumstances of Sayari’s death?

A: I believe Sayari to have been executed.

Q: Why do you think they executed Sayari?

A: How do you say just for the fun of it? I think that members of the team felt that the Afghan life was less than human.

The CID investigation into the killing, completed in May 2003, concluded that there was probable cause to believe that five soldiers had committed crimes, and recommended their prosecution for conspiracy, murder, dereliction of duty and obstruction of justice. Their recommendations were forwarded to the US Army Special Forces Command in Fort Bragg, North Carolina. There, the decision was taken not to prosecute. One of the soldiers received a letter of reprimand and no action was taken against the other four.(150)

The Special Rapporteur on extrajudicial, summary or arbitrary executions noted that the USA’s position in response to the November 2002 Yemen killings (and again when the USA rejected the Special Rapporteur’s concerns about reports of the use of excessive force against civilians in Iraq)(151) would appear to suggest that (i) extrajudicial, summary or arbitrary executions, falling within the Special Rapporteur’s mandate, can take place only in situations where international human rights law applies; and (ii) where humanitarian law is applicable, it operates to exclude human rights law. The Special Rapporteur pointed out that such an analysis is not supported by general principles of international law:

"It is now well recognized that the protection offered by international human rights law and international humanitarian law are coextensive, and that both bodies of law apply simultaneously unless there is a conflict between them. In the case of a conflict, the lex specialis should be applied but only to the extent that the situation at hand involves a conflict between the principles applicable under the two international legal regimes."(152)

Thus, the Special Rapporteur concluded, echoing the language of the Human Rights Committee, "the two bodies of law are in fact complementary and not mutually exclusive".(153) He stressed that "efforts to eradicate terrorism must be undertaken within a framework clearly governed by human rights law as well as international humanitarian law, and that executions occurring in the context of armed conflict that violate that framework fall squarely within the remit of the Special Rapporteur".

The fact that it was a CIA-controlled Predator drone that was used to blow up the vehicle in Yemen can now be set against what has since been learned about the CIA’s role in torture and ill-treatment of "war on terror" detainees, and what appears to have been efforts within the administration from early in the "war on terror" to immunize CIA personnel from possible future prosecutions for torture and war crimes (see below). It has recently been alleged that under a series of "findings" and executive orders signed by President Bush, the Pentagon’s role in covert military activities will be expanded and the CIA’s role downgraded. Under this scenario, it is alleged, congressional oversight of military covert operations will be minimal or absent. A former high-level intelligence official is quoted as saying: "The Pentagon doesn’t feel obligated to report any of this to Congress. They don’t even call it ‘covert ops’ – it’s too close to the CIA phrase. In their view, it’s ‘black reconnaissance’… Do you remember the right-wing execution squads in El Salvador? We founded them and we financed them. The objective now is to recruit locals in any area we want. And we aren’t going to tell Congress about it." Avoiding congressional oversight, according to comments attributed to a Pentagon adviser, "give[s] power to Rumsfeld – giving him the right to act swiftly, decisively, and lethally. It’s a global free-fire zone".(154)

Responding to an earlier article (which he said he had not read), Secretary of Defense Donald Rumsfeld described the allegations about the "Salvador Option" as "nonsense" and "simply fanciful".(155) Amnesty International is not in a position to substantiate the allegations or dismiss them. However, it points out that the record of the US administration during the "war on terror" means that its assurances must be treated with caution. On 26 June 2003, for example, President George W. Bush proclaimed to the world that "the United States is committed to the worldwide elimination of torture and we are leading this fight by example". At the time he made this proclamation, a now notorious 1 August 2002 Justice Department memorandum had been the US administration’s position, albeit in secret, for almost a year and would be so for another year. This memorandum advised on how US interrogators could escape criminal liability for torture, on how to narrow the definition of torture, on how officials could get away with using cruel, inhuman or degrading treatment that purportedly fell short of torture, and on how the President could override international or national prohibitions on torture.(156)

Another administration document originally classified for 10 years, but made public in June 2004 in the wake of the Abu Ghraib scandal, is the Pentagon Working Group Report on Detainee Interrogations in the Global War on Terrorism, dated 4 April 2003 and believed to still be operational, states: "The United States has maintained consistently that the Covenant does not apply outside the United States or is special maritime and territorial jurisdiction, and that it does not apply to operations of the military during an international armed conflict".(157)

The International Court of Justice (ICJ) has explicitly rejected the notion that the International Covenant on Civil and Political Rights (ICCPR) only applies in peacetime:

"... [T]he protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 [derogation in a time of national emergency]. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities."(158)

The ICJ has recently restated this, namely that "the protection offered by human rights conventions does not cease in case of armed conflict…"(159)

In 2001, the Human Rights Committee, the expert body established by the ICCPR to oversee its implementation, issued an authoritative interpretation of rights under states of emergency (General Comment 29).(160) Under Article 4 of the treaty, states may derogate from certain obligations under certain very strict and narrow conditions (the USA, which ratified the ICCPR in 1992, has not announced any such derogation). The Committee stressed that "even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation"(161) – in other words, human rights law applies during times of armed conflict even though rules of international humanitarian law become applicable at such a time.

Article 4.2 of the ICCPR states that, in any event, there can be no derogation from certain provisions, including Article 6 (right to life) and Article 7 (prohibition on torture or other cruel, inhuman or degrading treatment or punishment). In its General Comment 29, the Human Rights Committee stressed that the category of peremptory norms extends beyond the list of non-derogable provisions contained in Article 4, including the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person. The Committee further stated that

"the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court do decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant."(162)

Within months of the Human Rights Committee’s comment, the USA had transferred the first detainees to Guantánamo in conditions of transfer and detention that shocked international opinion and violated the prohibition on cruel, inhuman or degrading treatment. Judicial review was denied, with the USA arguing that foreign nationals captured and held outside US sovereign territory had no rights. Secret memorandums were drafted within the US administration arguing that torture could be authorized by the President and that a wide array of interrogation techniques that amounted at least to cruel, inhuman or degrading treatment could be used without making the interrogator criminally liable under US law. In violation of the presumption of innocence, detainees were repeatedly labelled as "killers" and "terrorists" by the US administration. President Bush signed a military order providing for trials by military commissions – not independent and impartial courts of law, but executive bodies. This is serial international law-breaking.

Three months before the US Supreme Court handed down its ruling that the federal courts could consider appeals from the Guantánamo detainees, the Human Rights Committee issued its authoritative interpretation of the general obligations that the ICCPR imposes on states which are party to it (General Comment 31).(163) It made clear that the obligations of the ICCPR are "binding on every State Party as a whole" including all branches of government – executive, legislative and judicial – and all levels of government – national, regional or local.(164) It emphasised that each State Party must respect and ensure the rights in the Covenant to anyone "within the power or effective control of that State Party, even if not situated within the territory of that State Party". (165) Where there are inconsistencies between domestic law and the ICCPR, the domestic law must be changed "to meet the standards imposed by the Covenant’s substantive guarantees". No domestic political, social, cultural or economic considerations can be used to justify failure to comply with this obligation.(166)

General Comment 31 shows that the US administration was ignoring its international obligations when it argued to the US Supreme Court in the Rasulcase that "the ICCPR is inapplicable to conduct by the United States outsideits sovereign territory".(167) Yet some 10 months after the Supreme Court decision, the US administration is still attempting to keep its detention regime in Guantánamo and elsewhere as free from judicial or other external scrutiny as it can on the basis that foreign nationals captured and held outside sovereign US territory have no rights under national or international law.

6. Seeking to render the Rasuldecision meaningless

Petitioners could not be more wrong. On a fundamental level, petitioners’ objection to the Executive’s power to capture and detain alien enemy combatants in foreign territory during ongoing hostilities is flatly inconsistent with the historical understanding of the President’s role as Commander in Chief of the Armed Forces

US Justice Department, legal brief, October 2004(168)

It has been said that a week is a long time in politics.(169) It seems that the same could be said about the law, or at least judicial interpretations of it. In the space of two weeks in January 2005, two diametrically opposed responses to the same question of law were handed down by judges on the same federal court in Washington, DC. The first displayed a troubling degree of deference to the executive’s attempts to ignore its human rights obligations, while the second showed a welcome respect for human rights. The US administration supports the former ruling and rejects the latter. It should change direction.

Each of the two judges in question – Judge Richard Leon and Judge Joyce Hens Green of the District Court for the District of Columbia – was faced with petitions from detainees labelled as "enemy combatants" and held in indefinite executive detention in Guantánamo. The petitions were asking the judges to issue writs of habeas corpusso that the detainees could challenge the lawfulness of their detention, a basic protection under international law against arbitrary arrest, torture and "disappearance", also explicitly provided in the US Constitution (Article 1, Section 9)(170). The petitions had been filed following the US Supreme Court’s decision of 28 June 2004, Rasul v. Bush, which held that the federal courts "have jurisdiction to consider challenges to the legality of the detentions of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay".(171) The decision was widely welcomed as a first step to restoring the rule of law to Guantánamo, but the US administration has sought to drain it of real meaning, and to keep any review of the detentions as narrow and as far from a judicial process as possible.(172)

For this, the US Supreme Court bears some responsibility. Judge Green, for one, "would have welcomed a clearer declaration in the Rasulopinion regarding the specific constitutional and other substantive rights" of the detainees.(173) However, the executive is not forced to adopt a regressive interpretation of narrowly-defined Supreme Court opinions. A government, not least one which promotes itself as a progressive force for human rights, should do all it can to ensure that its conduct conforms to domestic and international law without waiting for the courts to order it to do so. Regrettably, in its "war on terror" detention policy, the US administration has opted for executive fiat over the rule of law and hypocrisy over human rights. Even the current Attorney General has admitted that the US administration’s post-Rasulstance would be unlikely to "meet international scrutiny".(174)

In a press release issued immediately after the Rasulruling, the US Justice Department interpreted it as holding that "individuals detained by the United States as enemy combatants have certain procedural rights to contest their detention".(175) The Department’s use of the word "procedural", rather than "substantive", is telling. It would later argue in the DC District Court that the Guantánamo detainees had no grounds under constitutional, federal or international law on which to challenge the lawfulness of their detention. In other words, according to the administration’s Kafkaesque vision for Guantánamo, the Rasulruling should be interpreted as mandating no more than a purely procedural right – the detainees could file habeas corpuspetitions, but only in order to have them necessarily dismissed. Any further action would be an "unprecedented judicial intervention into the conduct of war operations, based on the extraordinary, and unfounded, proposition that aliens captured outside this country’s borders and detained outside the territorial sovereignty of the United States can claim rights under the US Constitution".(176) This was the same position the administration had adopted before the Rasulruling.

At the same time, the administration has done nothing to facilitate the Guantánamo detainees’ access to legal counsel so that they can file petitions to challenge the lawfulness of their detention. Efforts by US lawyers to gain access to, or information about, the detainees in order to be able to assist them in filing habeascorpuspetitions if the detainee so chooses, have been stymied by the administration.(177)

Moreover, in the cases where individuals do have lawyers for their habeas corpusappeals, there is concern that the authorities have tried to undermine the relationships between detainees and their counsel. For example, a lawyer representing Kuwaiti detainees has alleged that the interrogators in Guantánamo "have engaged in practices to destroy the trust of the Kuwaiti nationals in us as their lawyers". During his visits to the base, at least two of the detainees have told him that interrogators have told them not to trust their lawyers, including "because they are Jewish". One of the detainees said that an interrogator had told him that he would be tortured if he was returned to Kuwait. When he replied that his lawyer had assured him that this would not happen, "the interrogator laughed and said ‘don’t trust your lawyers’. She also said "did you know your lawyers are Jews?’" Another of the Kuwaiti detainees said that he, too, had been told by his interrogator: "Your lawyers are Jews. How could you trust Jews?" A Yemeni detainee has reported that another detainee had a "lawyer" who made him multiple visits. The "lawyer" subsequently turned up in military uniform. Detainees are reported to have become suspicious of civilian attorneys, suspecting that they may be military personnel in disguise. Some have said that since lawyers have started visiting the base, punishments for those detainees with lawyers have increased. A Yemeni detainee has alleged that after a visit from his US habeaslawyer in November 2004, he was immediately subject to interrogation. Another Yemeni has alleged that after a visit, all his items were removed from his cell and he was forced to wear only shorts for a month.

In addition, it would appear that the detaining authorities have offered little or no practical advice to the detainees about how they might go about seeking a lawyer. Official advice has been limited to telling the detainees that they can file petitions in federal court (while at the same time the government has argued in court that any such petitions should be necessarily dismissed). By 3 May 2005, only 168 named detainees (including at least 11 since released or transferred out of Guantánamo) had had petitions filed on their behalf in the US courts (in 61 petitions). By that date there were approximately 520 detainees held in the base. In a bid to reach all the detainees, lawyers have filed a habeas corpuspetition for "John Does Nos 1-570" to include "every detainee being held at Guantánamo whom the United States has not officially confirmed to be in its custody by disclosing his or her identity and who has not yet filed a petition for a writ of habeas corpus", and to include detainees held by any agency.(178) At the time of writing, the government was seeking to have this petition dismissed.

In its post-Rasulnews release, the Justice Department added that it would review the decision in order to determine how to "modify existing processes to satisfy the Court’s ruling". Clearly, the administration was in no mood for a clean start if all it wanted to do was to "modify existing processes" – after all, what "process" was there to be modified for a detainee held indefinitely without charge or trial, access to legal counsel, relatives or the courts? International human rights law – under which each and every Guantánamo detainee has the right to full judicial review of his detention and to release if that detention is unlawful – demanded a U-turn in policy, not tinkering around its edges.(179)

Nevertheless, having argued for two and a half years to keep the Guantánamo detainees out of the reach of the courts, the administration was unwilling to abandon its quest. Ten days after the Rasulruling, the Department of Defense announced the formation of the Combatant Status Review Tribunal (CSRT) to "serve as a forum for detainees to contest their status as enemy combatants".(180) The term "enemy combatant" – which as noted above was invented by the USA for the "war on terror" – is defined broadly for the CSRT.(181) In one of the subsequent CSRT hearings, the following exchange took place between the President of the three-military officer panel and the detainee, Bisher al-Rawi, an Iraqi national/UK resident:

Detainee: I still don’t fully understand the actions I have committed, to be classified as an enemy combatant. I have read the definition of ‘enemy combatant’ several times. I find it to be very vague and to have many meanings… I would like to fully understand this, so I can defend myself.

f0 Tribunal President: As you have heard from the Oath we took, we are to apply our common sense, our knowledge, our sense of justice to this definition and to you, in order to come to a conclusion as to whether you have been properly classified as an enemy combatant or not. That is what we are going to do today. We are going to go over the evidence that the government provided. You are going to see the unclassified portion. I am going to make an assumption at this point that there is classified evidence you won’t be able to read…"(182)

The Pentagon asserted that the CSRT’s procedures were intended to "reflect the guidance the Supreme Court provided" in Rasul v. Bush coupled with another ruling issued on the same day, Hamdi v. Rumsfeld.(183) The latter decision concerned Yaser Esam Hamdi, a US citizen captured in the armed conflict in Afghanistan and held without charge or trial as an "enemy combatant" on the US mainland (see further below). The plurality in the split Hamdidecision said that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker". The Hamdiplurality held that "the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator".

With this reference to "military operations" in mind, it should be stressed that the CSRT was not devised to conduct battlefield determinations of the status of detainees. It was devised more than two years after detentions began, for use thousands of miles away from the point of capture, regardless of whether that capture occurred on the battlefield of an international conflict long since over or on the street of a city in a country not at war in the first place.

Meanwhile, in Afghanistan, were some detainees have been US custody for more than a year, not even the CSRT process is being applied. Once detainees in the custody of the US Department of Defense in Afghanistan are designated as an "enemy combatant", they have an initial review of that status by a Commander or designee within 90 days of being taken into custody. After that, "the detaining combatant commander, on an annual basis, is required to reassess the status of each detainee. Detainees assessed to be enemy combatants under this process remain under DoD control until they no longer present a threat."(184)

The administration’s penchant for secrecy and disregard for the fundamental rights of detainees was again on display in the rules for the Combatant Status Review Tribunal, as Amnesty International pointed out at the time they were announced.(185) The detainees would have no access to legal counsel (only to a "personal representative" – a military officer) or to classified evidence to assist them in the CSRT process, yet the burden was on the detainee to disprove his "enemy combatant" status:

"Following the hearing of testimony and the review of documents and other evidence, the Tribunal shall determine in closed session by majority vote whether the detainee is properly detained as an enemy combatant. Preponderance of the evidence shall be the standard used in reaching this determination, but there shall be a rebuttable presumption in favour of the Government’s evidence".(186)

The presumption by the CSRT that the detainee is an "enemy combatant" is clear from some of the transcripts of the hearings. For example, Bisher al-Rawi asked why he had to wear shackles for his hearing. The Tribunal President responded:

"You are classified as an enemy combatant against the United States until we make a determination otherwise. I treat all enemy combatants fairly but the same. I won’t allow anyone in here without the shackles. I am treating you like I treat everyone else."(187)

The CSRT – a panel of three "neutral" military officers – was "free to consider any information it deems relevant and helpful", including "hearsay evidence, taking into account the reliability of such evidence in the circumstances". Evidence extracted under torture or other coercion was not excluded. As the Principal Deputy Associate Attorney General of the US Justice Department argued to Judge Richard Leon:

"If in fact information came to the CSRT’s attention that was obtained through a non-traditional means, even torture by a foreign power, I don’t think that there is anything in the due process clause [of the US Constitution], even assuming they were citizens, that would prevent the CSRT from crediting that information for purposes of sustaining the enemy combatant class[ification]".(188)

The Justice Department’s representative said that this would also be the case if the torture was carried out by US agents, adding that "we don’t think anything qualifying remotely as torture has occurred at Guantánamo". In other words, the CSRT process would presume that "evidence" extracted under torture is genuine and accurate, and it would be up to the detainee, with no legal assistance, to refute it. Even without the allegations of torture and ill-treatment that have been raised in the context of the interrogation process in Guantánamo, as well as in Afghanistan, the totality of the detention conditions themselves – harsh, indefinite, and isolating – may amount to cruel, inhuman or degrading treatment in violation of international law. These conditions themselves may be coercive, and feed into the CSRT process. For example, the CSRT determined that Faruq Ali Ahmed was an "enemy combatant" based on the testimony of a fellow detainee who according to Faruq Ali Ahmed’s "personal representative" "with some certainty... has lied about other detainees to receive preferable treatment and to cause them problems while in custody". Faruq Ali Ahmed testified to the CSRT that he was in Afghanistan to teach the Koran to children. His "personal representative" said that had the CSRT dismissed the fellow detainee’s evidence as unreliable, "then the position we have taken is that a teacher of the Koran (to the Taliban’s children) is an enemy combatant (partially because he slept under a Taliban roof)".(189)

The 7 July 2004 order establishing the CSRT was intended "solely to improve management within the Department of Defense concerning its detention of enemy combatants at Guantanamo Bay Naval Base, Cuba, and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law, in equity, or otherwise by any party against the United States…".(190) Guantánamo began receiving "war on terror" detainees following legal advice from the Justice Department that "a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantánamo Bay Naval Base, Cuba."(191) The Rasulruling showed otherwise, but the administration has refused to admit that this legal advice, like the legal advice on torture contained in other previously secret administration memorandums, disregarded international law and fundamental human rights standards. The CSRT process is an improvised minimalist response to the US Supreme Court’s rulings designed to keep the lawfulness of the detentions away from judicial or other external scrutiny for as long as possible.

The CSRT Order added that nothing contained in it should be construed to "limit, impair, or otherwise affect" the President’s Commander-in-Chief powers. This has been reflected in the subsequent statistics. On 29 March 2005, the authorities announced that they had completed all the CSRTs for the current detainees in Department of Defense custody in Guantánamo.

Ø Of the 558 CSRT decisions finalized by 29 March 2005, all but 38 (93 per cent) affirmed that the detainee was indeed an "enemy combatant" as broadly defined by the Order.

Ø Amnesty International’s review of 60 cases filed in the DC District Court by April 2005 reveals that most were decided inside a single day, and that in all 58 cases which gave the voting details, the CSRT panel was unanimous in finding the detainee to be an "enemy combatant". These 58 cases were all finalized in late 2004.

Ø Eighty-four per cent of the cases (32 out of 38) where the detainee was found not to be an "enemy combatant" were decided later than 1 February 2005, after Judge Joyce Hens Green ruled that the CSRT process was inadequate and unconstitutional, but before the appeal against her decision was heard. In its 27 April 2005 brief appealing to the US Court of Appeals for the District of Columbia Circuit to overturn Judge Green’s ruling, the government emphasised these 38 cases as a sign of a constitutionally fair system. The brief did not point out – or explain whether it was pure coincidence – that all but six of them had been decided after Judge Green’s finding that the CSRT process was unlawful.(192)

Ø This sudden and marked increase in findings that a detainee was no longer an "enemy combatant" also coincided with a period during which the Pentagon was said to be looking to reduce the number of detainees held in the base in the wake of the administration’s losses in the courts, including by "outsourcing" detentions to other countries (see Section 15).

Creating procedures that bypass international norms and avoiding judicial scrutiny for its actions should be unacceptable to any government which believes that fundamental human rights principles are non-negotiable, as the USA claims to. As Judge Green said in her recent ruling on the Guantánamo detainees:

"Of course, it would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected ‘enemy combatants’ at Guantanamo Bay without having to acknowledge and respect any constitutional rights of detainees. That, however, is not the relevant legal test... Although this nation unquestionably must take strong action under the leadership of the Commander in Chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over two hundred years."

For consistency’s sake, it had been agreed to have a single judge, Judge Joyce Hens Green, a senior judge appointed to the court in 1979, resolve issues common to the Guantánamo cases.(193) Thus, when the government filed its motion to dismiss the petitions for a writ of habeas corpus, the motion being common to all the cases, other judges on the court transferred this issue to Judge Green. However, Judge Richard Leon declined to participate in this arrangement. He subsequently became the first judge to issue a ruling interpreting the Rasuldecision.(194) He sided with the government and dismissed the petitions.

On 19 January 2005, just over three years after the Guantánamo detentions began, Judge Leon in essence determined that whereas under the Supreme Court ruling Guantánamo detainees have the right to petition federal courts for a habeas corpuswrit, they nevertheless do not have the right to obtain such writs. He ruled that there was "no viable legal theory" by which he could issue writs of habeas corpusto foreign detainees held without charge or trial in the naval base. In Judge Leon, appointed to the court by President George W. Bush in 2002, the administration found an ally for its position that the "war on terror" is a global armed conflict and that under the President’s Commander-in-Chief powers, individuals broadly defined as "enemy combatants" could be picked up by the USA anywhere in the world and be subjected to executive detention for the duration of the "war". He agreed with the government that the detainees have no rights under constitutional law to challenge the lawfulness of their detention because they are non-resident foreign nationals captured abroad and held in a naval base whose "ultimate sovereignty" was Cuba’s.(195) Similarly, he concluded that they had no rights under federal or international law. He seemed satisfied to give the government the benefit of the doubt on the question of torture and ill-treatment, despite the mounting evidence of such abuses by US forces in the "war on terror". He maintained a similar blind faith in the CSRT process. Amnesty International concluded that Judge Leon placed too much trust in the executive and not enough in the rule of law and fundamental human rights principles which the USA is obliged to uphold.(196)

7. A judge with security credentials takes a more critical view

[A]s critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.

US Supreme Court, Hamdi v. Rumsfeld, 28 June 2004

Judge Joyce Hens Green, who stressed that she had served as the Chief Judge of the United States Foreign Intelligence Surveillance Court, "the focus of which involves national security and international terrorism", cast an apparently far more critical eye over the situation.(197) Her decision, handed down on 31 January 2005, offered the detainees and their families hope that justice will yet be done and their legal limbo ended.(198)

Judge Green noted that the Guantánamo detainees seeking habeas corpusrelief included men taken into custody as far away from Afghanistan as Gambia, Zambia, Bosnia and Thailand. She wrote that "although many of these individuals may never have been close to an actual battlefield and may never have raised conventional arms against the United States or its allies, the military nonetheless has deemed them detainable as ‘enemy combatants’". She noted that the government had chosen to submit to the court as factual support for the detentions only CSRT records, despite claiming that the detainees’ cases had been subjected to unspecified "multiple levels" of administrative review. The "nature and thoroughness" of these alleged multiple levels of review, she said, must be called into "serious question".(199) CSRT proceedings had only commenced from late July 2004, at which point most of the detainees had already been held for more than two years.(200)

Unlike Judge Leon, Judge Green rejected the government’s argument that the detainees have no substantive rights, concluding that they must have more than just the procedural right "to file papers in the Clerk’s Office". She rejected the government’s notion – which lay behind its choice of Guantánamo as a location for "war on terror" detentions – that because Cuba retains "ultimate sovereignty" over Guantánamo, US Supreme Court precedent meant that the detainees have no rights under the US Constitution. On this point, she noted the irony that, while the Cuban government had claimed that the USA was violating the human rights of the Guantánamo detainees and had demanded their humane treatment, the US government "does not appear to have conceded the Cuban government’s sovereignty over these matters". The executive will only point to Cuba’s "sovereignty" over the base when it suits the US agenda.

In the Rasulruling, the Supreme Court majority had said in a footnote: "Petitioners’ allegations – that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing – unquestionably describe custody in violation of the Constitution or laws or treaties of the United States" (emphasis added). The government argued to Judge Leon that "it is not for us to speculate… on the basis of mood music from the [Rasul] opinion".(201) In his subsequent ruling dismissing the Guantánamo detainees’ petitions, Judge Leon characterized the reliance of the petitioners on the footnote as "misplaced and unpersuasive".

Judge Green, however, adopted a different stance, writing that "it is difficult to imagine that the Justices would have remarked that the petitions ‘unquestionably describe custody in violation of the Constitution or laws or treaties of the United States’ unless they considered the petitioners to be within a territory in which constitutional rights are guaranteed." Thus, Judge Green ruled, "it is clear that Guantánamo Bay must be considered the equivalent of a US territory in which fundamental constitutional rights apply." Specifically, she held that the detainees had the Fifth Amendment right not to be deprived of liberty without due process of law.

Judge Green said that a relevant factor in the Guantánamo cases is the potential length of the incarcerations. She noted that the administration was asserting the right to hold "enemy combatants" until the "war on terror" is over or the executive determines that the individual no longer poses a threat to national security. She noted that the government had been unable to inform her of how long it believed the "war on terror" might last, or even how it will determine when it has ended. She continued:

"At a minimum, the government has conceded that the war could last several generations, thereby making it possible, if not likely, that ‘enemy combatants’ will be subject to terms of life imprisonment at Guantanamo Bay. Short of the death penalty, life imprisonment is the ultimate deprivation of liberty, and the uncertainty of whether the war on terror – and thus the period of incarceration – will last a lifetime may be even worse than if the detainees had been tried, convicted, and definitively sentenced to a fixed term."

At the end of his Combatant Status Review Tribunal on 1 September 2004, Yemeni national Fahmi Abdullah Ahmed said:

"Just know that I have been here for three years and have [not] been in touch with my family. I don’t think this is just and it’s not right for the American legal system to not allow people to talk to their families. It is a very small right that is allowed to all detainees around the world."(202)

The Tribunal President responded that "we are here today to determine your enemy combatant status, and that alone is what we focus our attention on today." On that same day, the panel of three military officers unanimously decided that Fahmi Abdullah Ahmed was an "enemy combatant", as has been done in 519 other cases. He remains held without charge or trial or access to his relatives.(203)

8. The Combatant Status Review Tribunal – no laughing matter

I hope this Tribunal is a fair one. I’ve already been classified as an enemy combatant but from what I know of the American justice system is that a person is innocent until they are proven guilty. Right now, I’m guilty trying to prove my innocence. This is something I haven’t heard of in a justice system.

Kuwaiti detainee, CSRT hearing, Guantánamo, 1 November 2004(204)

Although the government had urged Judge Green to dismiss the petitions on the grounds that the detainees had no right to challenge the lawfulness of their detentions, it had also argued that if she did find that the detainees were entitled to due process under the Fifth Amendment of the Constitution, she should accept that the Combatant Status Review Tribunal fully met that requirement. In its legal brief to the DC District Court in October 2004, for example, the Justice Department insisted that "the enemy combatant status proceedings that the Department of Defense is completing provide all the process that petitioners are due (and then some)".(205)

Yet the CSRT is a purely administrative process claiming to be lawful under US law while disregarding international law.(206) For example, Qatar national Jarallah al-Marri chose to attend his CSRT hearing on 30 October 2004. As the hearing opened he asked "Does this Tribunal follow the law of the United States?" The Tribunal President responded that it did, to which Jarallah al-Marri responded that: "I don’t understand or I don’t know who makes the laws, and because of this I will require a lawyer." The Tribunal President responded that because "this is not a criminal court… it is not necessary for you to have a lawyer". From this moment on, Jarallah al-Marri responded to any question with "no comment". After the hearing, the same day, the tribunal of three military officers unanimously determined that he was an "enemy combatant".(207)

UK national Moazzam Begg had sought to have a witness from the ICRC at his CSRT hearing. The ICRC employee apparently would have testified that Moazzam Begg had been issued with a prisoner of war identity card when in US custody in Kandahar in Afghanistan. The CSRT President had initially determined that such a witness would be relevant, but later changed her mind. This followed advice from a legal advisor to the CSRT process that the CSRT did not have the discretion to determine that a detainee should have been classified as a prisoner of war, only whether the detainee falls within the US administration’s own definition of "enemy combatant". Moazzam Begg, who did not attend his CSRT hearing, was found to be an "enemy combatant" by a unanimous vote of the CSRT panel. He was transferred to the UK a few weeks later, and released.

Another UK national, Feroz Abbasi, asked for a lawyer at his CSRT hearing. He was told that he could not have one because "this is not a legal proceeding". When the detainee himself tried to raise the question of the lawfulness of his detention under international law, the CSRT President replied that "international law does not apply, Geneva Conventions do not apply". When Feroz Abbasi questioned this, the CSRT President repeated,

"Once again, international law does not matter here. Geneva Convention does not matter here. What matters here and what I am concerned about and what I really want to get to, is your status as enemy combatant based upon the evidence that has been provided and your actions while you were in Afghanistan. If you deviate from that one more time, you will be removed from this Tribunal and we will continue to hear evidence without you being present".

Subsequently, Fero Abbasi made another reference to international law, which drew the following response from the Tribunal President:

"Mr Abbasi, your conduct is unacceptable and this is your absolute final warning I don’t care about international law. I don’t want to hear the words international law again. We are not concerned with international law".

Feroz Abbasi was eventually removed from the hearing and the process continued in his absence. Abbasi had sought to have a number of witnesses and records for his CSRT hearing. For example, he had requested certain US government employees to address issues relating to his health and alleged ill-treatment at Guantánamo Bay, and for his medical records to substantiate his claims of ill-health and abuse. The CSRT President determined that such witnesses and records were not relevant to the CSRT process. Feroz Abbasi was found by a unanimous vote of the CSRT to be an "enemy combatant". He was transferred to the UK three months later and released.

Unlike Judge Leon, Judge Green rejected the notion that the CSRT process was sufficient. She found that the CSRT procedures "fail to satisfy constitutional due process requirements in several respects."

Judge Green wrote that the "fundamental deficiencies" of the CSRTs included its reliance on classified evidence to which the detainee did not have access, and the refusal to allow the detainees access to legal counsel to compensate for this. She noted that in all of the cases before her, the CSRT had "substantially relied upon classified evidence". Yet none of the detainees "was ever permitted access to any classified information nor was any detainee permitted to have an advocate review and challenge the classified evidence on his behalf". As Yemeni national Ali Husayn Abdullah Al Tays his CSRT panel at his hearing in September 2004: "What can I do if the information is classified and it’s all lies?"(208) Another Yemeni detainee, Saeed Ahmed Mohammed Abdullah Sarem Jarabh, expressed his nervousness at being in front of the panel unrepresented:

Q: You understand that nobody here in the Tribunal is forcing you to either say things or not to say things? Is that clear to you?

A: My emotional state right now, I’m nervous. I didn’t want to say anything… the story before. Even just the mental state, being in a prison, you can’t say everything you want to say. I’m telling you, I’m talking to you right now and I’m scared that you might take me to Romeo Block or any of the other blocks you take people to.(209)

Part of the evidence against Yemeni national Emad Abdalla Hassan was that he had been arrested in a house by Pakistan authorities in Faisalabad along with several others from Yemen, Saudi Arabia, Palestine, Russia and Pakistan. He agreed, explaining that he had been studying at a university and that the house where he was arrested was a "university dorm, so we have international students from all over the world, so it makes sense that we have so many different nationalities". The central accusation against him is that he travelled to Afghanistan "to fight in the Jihad". He denied ever having been to Afghanistan, apart from when he was handed over to USA by Pakistan authorities after two months detention in Pakistan and taken to Bagram and Kandahar air bases in Afghanistan prior to his removal to Guantánamo. During the CSRT hearing, the following exchange took place:

Q: Have you told [the interrogators] the same thing that you are telling us? You have never been to Afghanistan.

A: Yes.

Q: Then why do you believe you are here?

A: (Laughter) How can you ask me this question? This question should be asked to you.

Q: You’ve been here almost three years. Surely the interrogators have given you an idea of why they believe you should be here.

A: In Bagram, they told me I was definitely going to go home. They told us we were captured by mistake. We’re still under the error.(210)

Emad Abdalla Hassan was not allowed to see the classified evidence on which the CSRT based its unanimous decision on 30 September 2004 that Emad Hassan had been in Afghanistan and was an "enemy combatant".

A number of detainees boycotted their CSRT proceedings. Yemeni national Adil Said Al Haj Obeid Al Busayss declined to participate in the CSRT on the grounds that he did not have anything with which to counter the government’s brief summary of unclassified evidence against him, the only evidence he was allowed to see.(211) In the case of Khalid Bin Abdullah Mishal Thamer Al Hameydani, his "personal representative" informed the CSRT that "detainee [was] unresponsive" during a meeting prior to the scheduled CSRT hearing: "Sat in chair with head down, did not speak at any time." The CSRT decided that "because the Personal Representative fully explained the Tribunal process to the detainee, the Tribunal finds the detainee made a knowing, intelligent and voluntary decision not to participate in the Tribunal process". On 29 September 2004, the CSRT, describing the unclassified evidence on the case as "unpersuasive", relied wholly upon classified evidence to find that the detainee was an "enemy combatant".(212)

Judge Green also noted from the cases before her "the lack of any significant advantage" for a detainee to have a US military officer as his "personal representative". In the case of Jamil Al-Banna, a Jordanian national with refugee status in the UK, the CSRT determined that he was an "enemy combatant" despite his "personal representative’s position that it was unsupported by the record before the tribunal".(213) Judge Green noted that the personal representative in the CSRT process "is neither a lawyer nor an advocate"; nor is there a confidential relationship between the representative and the detainee. The former must relay to the CSRT any inculpatory information learned from the detainee.

In the case of Yemeni detainee Adnan Farhan Abdul Latif, his personal representative wrote to the CSRT panel that the detainee "rambles for long periods and does not answer questions. He has clearly been trained to ramble as a resistance technique and considered the initial [meeting] as an interrogation. This detainee is likely to be disruptive during the Tribunal." He also described him as "evasive". At the CSRT hearing, when confronted with the accusation that he was an al-Qa’ida member, he stated that he was from Orday City, "very far from the city of al Qaida". The panel said that al-Qa’idawas not a place but an organization. The detainee said that "whether it is a city or an organization, I am not from al Qaida. I am from Orday City." Al-Qaidah is a town in Yemen. Later, the following exchange took place:

Detainee: Why have I been here for three years? Why have I been away from my home and family for three years?

CSRT: That is what we are trying to determine today.

Detainee: Why did you come after three years? Why wasn’t it done much sooner after my arrest?

CSRT: I cannot answer to what has happened in the past...

Detainee: Why am I not allowed freedom here?

CSRT: Because you have been classified as an enemy combatant.

Detainee: How can they classify me an enemy combatant? You don’t have the right documents.

CSRT: That is what we are here to determine.

Detainee: For three years I haven’t been treated very well because of wrong information. Would you let that happen to you? What will be your position if you find out what happened to me was based on wrong information and I am innocent?

CSRT: Your current conduct is unacceptable. If you keep interrupting the proceedings, you will be removed and the hearing will continue without you.

The CSRT also relied upon classified evidence in reaching its decision that he was an "enemy combatant".(214)

The case of another detainee, Murat Kurnaz, is further instructive. On 30 September 2004, a Combatant Status Review Tribunal consisting of two US Air Force officers and a Lieutenant Commander in the US Navy, determined "by a preponderance of the evidence" that Murat Kurnaz was an "enemy combatant", specifically finding that he "is a member of al-Qaida". Nineteen-year-old Kurnaz, a Turkish citizen who was born in Germany, was taken off a bus from Peshawar to Lahore by Pakistan police in late 2001. He was transferred to US custody in Afghanistan, before being transported to Guantánamo Bay in January 2002 where he has been ever since. He is now 23. The Pentagon confirmed the CSRT’s decision as final on 15 October 2004.

The CSRT reached its decision after considering unclassified information and one classified document. The unclassified evidence found that Murat Kurnaz attended a mosque in his home town of Bremen in Germany, which was moderate in its views but housed a branch of Jama’at-Al-Tabliq, a missionary organization "alleged to support terrorist organizations". Murat Kurnaz also had a friend, Selcuk Belgin, who the authorities said "is possibly the Elalanutus suicide bomber" (see below). Murat Kurnaz himself testified to the CSRT, denying that he was a member of al-Qa’ida, but confirming that he had gone to Pakistan in October 2001 to study the Koran on the advice of an Imam at Jama’at-Al-Tabliq. On the question of his relationship to Selcuk Belgin, he was told by the CSRT that any other information on him was classified. Murat Kurnaz responded:

"I am here because Selcuk Belgin had bombed somebody? I wasn’t aware he had done that. My association with him is not as a terrorist. We exercised together at the gym and played sports. We both raised dogs, and because of this common interest, we became very good friends…Now I hear Jama’at-Al-Tabliq supports terrorism. I never knew that… I never supported terrorists and I still don’t support terrorism. I just want peace, to be a Muslim, and pray to God. That is the reason I wanted to study Islam…

I have never supported terrorism. I hate terrorists. I am here having lost a few years of my life because of Usama Bin Laden. His beliefs show Islam in the wrong way. I am not angry with Americans. Many Americans died on 11 September in the terrorist attack. I realize the Americans are trying to stop terrorism… I went to study in Pakistan at the wrong time… If I go back home, I will prove that I am innocent. If I learn of any terrorist groups or plots, I will notify the German authorities to show them that I don’t support terrorism, so I can sleep well."

The CSRT, which had been informed that the German authorities had investigated Murat Kurnaz after he went to Pakistan and had concluded that there was no evidence that he had been or was involved in or associated with any criminal activity, said that it "found certain aspects of the detainee’s testimony persuasive, but also turned to classified sources for further clarification".

Murat Kurnaz’s case was of those one filed with Judge Joyce Hens Green. In her ruling of 31 January 2005, Judge Green pointed out that:

"even if all of the unclassified evidence were accepted as true, it alone would not form a constitutionally permissible basis for the indefinite detention of the prisoner… Nowhere does the CSRT express any finding based on unclassified evidence that the detainee planned to be a suicide bomber himself, took up arms against the United States, or otherwise intended to attack American interests. Thus the most reasonable interpretation of the record is that the classified document formed the most important basis for the CSRT’s ultimate determination. That document, however, was never provided to the detainee, and had he received it, he would have had the opportunity to challenge its credibility and significance."

Judge Green’s ruling subsequently had some small amendments made to the unclassified version for public release. In a sentence that was previously redacted, but is now public, Judge Green states that the classified evidence relied upon by the CSRT in Murat Kurnaz’s case "fails to provide any significant details to support its conclusory allegations, does not reveal the sources for its information, and is contradicted by other evidence on the record". Thus, she said, the Court cannot at this stage of the litigation give the document the weight the CSRT afforded it. She wrote that

"absent other evidence, it would appear that the government is indefinitely holding the detainee – possibly for life – solely because of his contacts with individuals or organizations tied to terrorism and not because of any terrorist activities that the detainee aided, abetted, or undertook himself. Such detention… would be a violation of due process. Accordingly, the detainee is entitled to fully litigate the factual basis for his detention in these habeas proceedings and to have a fair opportunity to prove that he is being detained on improper grounds".

Since her ruling, evidence has come to light suggesting that the US authorities themselves do not believe there is a basis for holding Murat Kurnaz. Previously classified statements in his file include the following:

Ø "CITF [Command Information Task Force] has no definite link/evidence of detainee having an association with al-Qaida or making any specific threat toward the US."

Ø "The Germans confirmed that this detainee has no connection to an al-Qaida cell in Germany."

Ø "CITF is not aware of any evidence that Kurnaz has knowingly harboured any individual who was a member of al-Qaida or who has engaged in, aided or abetted, or conspired to commit acts of terrorism against the US, its citizens or its interests."

In addition, Selcuk Belgin, found by the CSRT possibly to have engaged in a suicide bombing, is reported to be alive and well and has never been charged with a criminal offence. German prosecutors are said to have closed their investigative file on him for lack of evidence.(215) Thus it would appear that Murat Kurnaz has been held for more than three years without charge or trial on the basis of his association with a friend who he did not know was involved in "terrorism" because, it seems, he was not. In addition, Murat Kurnaz has alleged that he has been subjected to torture and ill-treatment in US custody (see below).

Meanwhile, the Pentagon continues to defend the CSRT process. On 29 March 2005, the Secretary of the Navy, Gordon England, said:

"Is the system perfect? It’s human beings, so obviously it’s not perfect, but it is as perfect as we can make the system for the detainee while protecting America. Keep in mind we do have an obligation to protect America from terrorists. So we make this as fair as we can… So we’ve made it open, transparent and available, and I believe we’re doing this the very best way we can."(216)

The administration’s "very best", then, is clearly not good enough, and cries out for judicial intervention. For her part, Judge Green illustrated the "inherent lack of fairness" of the CSRT process by reprinting part of the transcript of one of the CSRT hearings. It was not one of the cases before her, but one before Judge Leon. He, it should be recalled, had said that the court’s role in reviewing the executive’s detention of "enemy combatants" must be "highly circumscribed", and that he would "not probe into the factual basis" for the detainees’ detention. Amnesty International points out that such an approach, in the words of the US Supreme Court in its Hamdidecision of June 2004, "serves only to condensepower into a single branch of government".(217)

The case which Judge Leon refused to probe and which Judge Green chose to highlight involved Mustafa Ait Idir. He is one of six Algerian men who were extrajudicially removed from Bosnia and Herzegovina by US agents in January 2002 and transferred to Guantánamo.(218) At his CSRT hearing some two and a half years later, the following exchange took place after the Recorder (not a member of the tribunal) read out the allegation that: "While living in Bosnia, the detainee associated with a known Al Qaida operative":

Detainee: Give me his name.

Tribunal President: I do not know.

Detainee: How can I respond to this?

Tribunal President: Did you know of anybody that was a member of Al Qaida?

Detainee: No, no.

Tribunal President: I’m sorry, what was your response?

Detainee: No.

Tribunal President: No?

Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.

Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary.

Subsequently, the Recorder read out the allegation that Mustafa Ait Idir had been arrested because of his involvement in a plan to bomb the US Embassy in Sarajevo. The detainee asked to see the evidence against him. He said that in the absence of such evidence, "to tell me I planned to bomb, I can only tell you that I did not plan". He continued:

I was hoping you have evidence that you can give me. If I was in your place – and I apologize in advance for these words – but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that.

The transcript reveals that "everyone in the Tribunal room laughs", after which the Tribunal President said to Mustafa Ait Idir: "We had to laugh, but it is okay". The detainee continued:

Why? Because these are accusations that I can’t even answer. I am not able to answer them. You tell me I am from Al Qaida, but I am not an Al Qaida. I don’t have any proof to give you except ask you to catch Bin Laden and ask him if I am a part of Al Qaida. To tell me what I thought, I’ll just tell you that I did not. I don’t have proof regarding this. What should be done is you should give me evidence regarding these accusationsbecause I am not able to give you any evidence. I can just tell you no, and that is it.

On 20 October 2004, the CSRT determined that Mustafa Ait Idir was an "enemy combatant". For her part, Judge Green wrote that "[t]he laughter in the transcript is understandable, and this exchange might have been truly humorous had the consequences of the detainee’s ‘enemy combatant’ status not be so terribly serious and had the detainee’s criticism of the process not been so piercingly accurate." She ruled that the CSRT process is unconstitutional, violating detainees’ right to due process of law.

Judge Leon sided with the government, which argued that the CSRTs "provide each [detainee] with process than is more than constitutionally adequate".(219) Judge Leon said that "to the extent these non-resident detainees have rights, they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct towards these detainees".

itap0 The US administration reacted in predictable fashion to Judge Green’s ruling on the Guantánamo detentions. The Justice Department said that Judge Leon had been correct to dismiss the petitions and that the Department would "explore options for expeditiously resolving" the conflicts between his and Judge Green’s rulings.(220) On 4 February 2005, Judge Green stayed her ruling to allow the government to appeal it.

Meanwhile, the lawyers who are representing named detainees in habeas corpuschallenges (petitioner-detainees) are being denied certain information that is redacted from the records of the CSRT hearings. Amnesty International understands, for example, that Adnan Abdul Latif is being detained on the basis of a classified document that the government has refused to show to either his habeaslawyer or to the DC District Court.

In late August 2004, the government had agreed to provide the CSRT records, "on a rolling basis, as CSRT proceedings for petitioner-detainees are completed". This, the government stated, would accommodate "the interests of counsel for petitioner-detainees in receiving in the coming weeks a complete statement of the factual basis for a detainee’s status as an enemy combatant".(221) The government failed to meet its own schedule and on 30 September 2004, Judge Green issued an order for the government to comply with the schedule.(222) By mid-October 2004, the government had filed only around half of the CSRT returns for the petitioner-detainees, and then only the unclassified portions. At a hearing in front of Judge Green on 13 October 2004, the government pointed out that "obviously the unclassified portions of the factual returns, the CSRT records, are not as informative as the full record will be" and promised to begin filing the complete factual returns including the classified portions as soon as the system for lawyers seeing such material had been finalized. Then the government said all lawyers for petitioner-detainees "will have the benefit of the full combatant status review tribunal record". By 29 October 2004, the government still had not produced all the unclassified portions of the CSRT records. Judge Green ordered the government to file with the court, by 3 November 2004, the records in the remaining seven cases.(223) Judge Green added that "there shall be no further extensions", and pointed out that these detainees "were initially detained nearly three years ago and have remained in custody since that time".(224) On the same day she also ordered that complete factual returns, including unredacted classified material, to the court by 5 November 2004. Even if all the lawyers did not yet have security clearance to view the classified material, she said, "this Judge and her staff have appropriate security clearances and it is the Court’s wish and responsibility to examine promptly the full, classified versions of the factual returns."(225)

On 5 November 2004, the government filed the classified CSRT records with the court. It added that the records show that each detainee had been found to be an "enemy combatant" and is "therefore, lawfully subject to detention pursuant to the President’s Power as Commander in Chief or otherwise". It called again for the detainees’ petitions for a writ of habeas corpusto be dismissed.(226) Three days later the court entered a "protective order" under which the detainees’ lawyers would be able to view the classified records. The government began making redacted versions of the classified records available to the detainees’ lawyers at a secure facility. The lawyers filed a motion requesting the judge to order the government to provide lawyers with security clearance access to the complete, unredacted records. The government opposed the motion. On 31 January 2005, Judge Green ruled that the classified information that the government was seeking to have withheld from the lawyers was "relevant to the merits of this litigation and that counsel for the petitioners are entitled to have access to that information", as long as they complied with the relevant security procedures.(227)

By 15 April 2005, the government had still not complied with the order. It has argued that Judge Green’s decision to stay her 31 January 2005 ruling denying the government’s motion to dismiss the habeas corpusappeals, pending the government’s appeal of that decision, also puts on hold her order of 31 January for the lawyers to have access to the full CSRT records. The lawyers for the detainees are asking the court to reject the government’s position and ensure that the lawyers have access to the full CSRT records, so that they can help the detainees prepare for their upcoming Administrative Review Board hearings (see below), and also to prepare for the time when, hopefully, Judge Green’s stay is lifted.

The conflict between Judge Green’s and Judge Leon’s interpretations of the detainee’s post-Rasulrights will have to be resolved in a higher court, either the US Court of Appeals for the District of Columbia Circuit, or possibly eventually, in the US Supreme Court. At the end of April 2005, the administration filed its opening brief in the Court of Appeals arguing that Judge Green’s opinion should be overturned. Its arguments show an administration in unapologetic mood, in continuing pursuit of unfettered executive authority under the President’s war powers as Commander-in-Chief, and disregarding international law and standards. Among its arguments are that:

10. The due process clause of the US Constitution’s Fifth Amendment "is inapplicable to aliens captured abroad and held at Guantanamo Bay, Cuba." This, the government argues, repeating its pre-Rasul position, is because the "United States is not sovereign over Guantanamo Bay" and US Supreme Court precedent makes it clear that the applicability of the Fifth Amendment to aliens "turns on whether the United States is sovereign, not whether it merely exercises control, over the territory at issue". Moreover, "to construe a single, oblique footnote [in the Rasul decision, see above] as implicitly overruling decades of settled precedent would be utterly implausible…". 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."

11. Even if the Fifth Amendment did apply to foreign nationals held at Guantánamo, the CSRT procedures would exceed whatever due process requirements there were. The CSRT process, the administration argues, "manifestly satisfies the requirements of due process (if any) in the unique context of ongoing armed hostilities". Moreover, the CSRT procedures criticized by Judge Green "are not constitutionally problematic". The need for deference to the executive on the question of withholding 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."

12. The definition of "enemy combatant" is not overbroad, as Judge Green found. According to the administration, "although there may be difficult calls at the margin, that has been true in every war, and… 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. These concerns are especially pronounced given the unconventional nature of the current war and enemy…".

13. On the question of the Geneva Conventions, Judge Green "should have deferred to the view of the Executive as to whether the treaty was intended to grant those captured during an armed conflict judicially enforceable rights." Judge Green’s contention that the Taleban detainees should have been presumed to have prisoner of war status is "inconsistent with the deference owed to the President as Commander-in-Chief."(228)

Thus, at every step, the executive continues to place obstacles in the way of the detainees having their cases subjected to judicial scrutiny. It continues to appeal every decision that goes against it. By continuing its bid for unfettered executive power, rather than heed the ever-mounting criticism, it is inflicting further damage on the rule of law, human rights principles and the international reputation of the USA. Meanwhile, the detainees are kept in a legal black hole created by the US administration. Forced to share in this limbo, their families are subjected to what may amount to cruel, inhuman or degrading treatment.(229) The situation remains a human rights scandal.

9. Administrative Review Board – more of the same

There are ongoing processes to review the status of detainees. A determination about the continued detention or transfer of a detainee is based on the best information and evidence available at the time. The circumstances in which detainees are apprehended can be ambiguous, and many of the detainees are highly skilled in concealing the truth.

US Department of Defense, 26 April 2005(230)

For any detainee affirmed as an "enemy combatant" by the Combatant Status Review Tribunal detainee – except those pending trial by military commission (see below) – it will be up to another purely administrative process to review each case once a year to determine if the detainee should be released, transferred to the custody of another country, or continue to be detained. The Administrative Review Board (ARB) process will consist of:

"an administrative proceeding for consideration ofall relevant and reasonably available information to determine whether the enemy combatant represents a continuing threat to the US or its allies in the ongoing armed conflict against al Qaida and its affiliates and supporters (e.g., Taliban), and whether there are other factors that could form the basis for continued detention (e.g., the enemy combatant’s intelligence value and any law enforcement interest in the detainee)."(231)

As with the CSRT, the detainee will have no access to legal counsel or to secret evidence, and there is no rule excluding evidence extracted under torture or other coercion. In the case of the CSRT, the decision is made by the panel of three military officers; for the ARB, the panel makes a recommendation to the Designated Civilian Official (DCO) overseeing the process who takes the final decision. This position is currently held by the Secretary of the Navy, Gordon England, appointed to the role of DCO by Secretary of Defense Donald Rumsfeld.(232)

According to the Pentagon, the detainees are informed of the ARB in the following way:

"A Combatant Status Review Tribunal (CSRT) has determined that you are an enemy combatant. Because you are an enemy combatant, the United States may continue to detain you. An Administrative Review Board (ARB) will now be held to determine whether you still pose a threat to the United State or its allies… If you believe you do not pose a threat to the United States or its allies, we recommend you immediately gather any information that you believe will prove that you are no longer a threat and why you should be released from detention."

This notification offers few ideas as to how a detainee held thousands of miles from home in virtually incommunicado detention, with limited and censored communication with his family, and no legal counsel, can so gather the requisite information. The following exchanged that took place in a CSRT hearing on 26 September 2004 for Bahraini detainee Adil Kamil Abdullah Al Wadi is illustrative:

Q: Adil, do you have any other evidence to present to this Tribunal?

A: I don’t have any other proof or evidence. All what I have is my biography. Everybody knows me in Bahrain. I am a very correct person. I have never had any problems with the government or anything.

Q: Anything else?

A: I have no proof. I have been here for two years. I don’t have anything.

The ARB notification states that the Board will consider written statements from family members or "other persons" who can explain "why you are no longer a threat". The detainee does not have to attend the ARB hearing, which will be conducted regardless of whether the detainee is there or not. The detainee may have a US military officer to help him if he wishes – an "Assisting Military Officer" (AMO). As with the "personal representative" in the CSRT, the detainee/AMO relationship is not confidential and the AMO can discuss any meetings with the detainee at the ARB hearing.

Hearings by the ARB began in December 2004. On 5 May 2005, Amnesty International was informed that "over 90" ARB hearings had been held to that date.(233) However, the military spokesperson said that no other information was currently being made public, including any results of the hearings, whilst any litigation relating to the ARBs was pending in the US courts. The spokesperson pointed out that the authorities were anticipating running some 520 ARBs given that that was the number of people who had been determined to be "enemy combatants" by the CSRT. In at least one case, the CSRT had recommended that an ARB be held as soon as possible to consider the detainee for release. (234) In another, the CSRT had said that an ARB should consider the detainee’s apparent sincerity when he said that he was not an enemy of the USA and had not engaged in any "terrorist" activity.(235) Despite these recommendations, the CSRT had s