One hundred and ninety-eight detainees remained held in the Guantánamo detention centre at the end of 2009, despite a commitment by the new administration to close the facility by 22 January 2010. Executive reviews to determine which detainees could be released, prosecuted or transferred to other countries were initiated. By the end of the year, most Guantánamo detainees who were the subjects of habeas corpus petitions were still waiting for their cases to be heard. At least five detainees were referred for trial before revised military commissions and one other was transferred to federal court jurisdiction. Further details emerged of torture and other ill-treatment of detainees held in the Central Intelligence Agency (CIA) secret detention programme, terminated by President Obama.
Concerns persisted about conditions in prisons, jails and immigration detention centres. The long-term isolation of thousands of prisoners in super-maximum security facilities continued to fall short of international standards. Dozens of people died after being stunned by police Tasers (electro-shock weapons). At least 105 people were sentenced to death and 52 executions were carried out during the year.
Women belonging to racial, ethnic and national minorities were more likely to die in pregnancy or childbirth than women from other sectors of the population, reflecting disparities based on poverty and race in health care provision.
Counter-terror and justice
Detentions at Guantánamo
In January, the indefinite detention without charge in the US naval base at Guantánamo Bay, Cuba, of foreign nationals designated as “enemy combatants” entered its eighth year. On 22 January, President Obama signed an executive order for the closure of the detention facility within a year. He ordered an executive review to determine which detainees could be released or prosecuted and what other “lawful means” existed for the disposition of individuals who the review determined could neither be tried by US authorities nor transferred to other countries.
The US authorities continued to refuse to allow the release into the US mainland of any Guantánamo detainee who could not be returned to his home country. In February, the Court of Appeal overturned a 2008 order by a federal judge for the release into the USA of 17 Uighur men held without charge at Guantánamo since 2002 and who could not be returned to China. In June, four of the Uighur detainees were transferred to Bermuda, and in October another six were released in Palau.
On 18 November, President Obama acknowledged that his deadline for closure of the detention facility would not be met. By the end of the year, 198 detainees remained in Guantánamo. Forty-nine detainees were transferred out of the base during 2009. A Yemeni man, Mohammad al Hanashi, died in Guantánamo in June, bringing to five the number of detainees reported to have committed suicide in the base.
In October, following a review of the prosecution options for Guantánamo detainees, President Obama signed into law the 2010 National Defense Authorization Act, which included the Military Commissions Act (MCA) of 2009, amending provisions of the MCA passed three years earlier.
In November, the Attorney General announced that the Justice Department was referring five Guantánamo detainees for trial by military commission.
- Canadian national Omar Khadr remained in US custody at the end of the year, facing a military commission trial for an alleged war crime committed when he was 15 years old (see Canada entry).
Transfers to federal court
- In June, Ahmed Khalfan Ghailani, held in secret US custody for two years before being transferred to Guantánamo in 2006, was transferred to New York to face trial in a federal court on charges relating to the 1998 bombings of the US embassies in Tanzania and Kenya.
- In November, Attorney General Eric Holder announced that five Guantánamo detainees previously facing military commission trials – Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, ‘Ali ‘Abd al-‘Aziz and Mustafa al Hawsawi – would be transferred for trial in federal courts on charges relating to the attacks in the USA of 11 September 2001. The five men were still held in Guantánamo at the end of the year.
- In March, Ali Saleh Kahlah al-Marri, a Qatari national held since June 2003 in indefinite military custody in the USA, was transferred to civilian custody to face charges in a federal court. He entered a guilty plea on a charge of “conspiracy to provide material support and resources to a foreign terrorist organization” and was sentenced to 100 months’ imprisonment. The judge reduced the sentence by nine months “to reflect the very severe conditions” in which Ali al-Marri had been held between 23 June 2003 and late 2004.
Habeas corpus proceedings for Guantánamo detainees
By the end of the year, 18 months after the Supreme Court ruled in Boumediene v. Bush that detainees held in Guantánamo were “entitled to a prompt habeas corpus hearing” to challenge the lawfulness of their detention, most of those who had lodged petitions had still not received a hearing. In a majority of the cases in which a decision was made, the detainee was found to be unlawfully held. A number of detainees who received such decisions continued to face indefinite detention at Guantánamo while the administration decided how to respond.
In November the Attorney General told a Senate hearing that there remained a possibility that, once the review of Guantánamo cases was completed, there would be a number of detainees whom the administration would seek to continue to detain without charge under “the laws of war”.
Detentions in Bagram, Afghanistan
The US military continued to hold hundreds of detainees, including a number of children, without access to lawyers or the courts in Bagram air base in Afghanistan (see also Afghanistan entry). Litigation continued in US federal courts about whether Bagram detainees could have access to the US courts to challenge the lawfulness of their detention.
On 2 April, a federal judge ruled that three of the four Bagram detainees whose habeas corpus petitions were before him could challenge their detention. The three were non-Afghan nationals, while the fourth was an Afghan. In September, the government appealed against this ruling. The appeal was pending at the end of the year.
CIA secret detention programme
In April, the Director of the Central Intelligence Agency (CIA) confirmed that, pursuant to an executive order on interrogations signed by President Obama on 22 January, the CIA was no longer using any “enhanced interrogation techniques” or operating “detention facilities or black sites”. He also confirmed that the CIA retained the authority to detain individuals on a “short-term transitory basis”.
In April, the administration released four Justice Department memorandums from 2002 and 2005 providing legal approval for various “enhanced interrogation techniques” against detainees held in secret CIA custody. The techniques included forced nudity, prolonged sleep deprivation, and “water-boarding” (simulated drowning). Among other things, the memorandums revealed that Abu Zubaydah, the subject of the 2002 memorandum, had been “waterboarded” more than 80 times in August 2002, and Khaled Sheikh Mohammed some 183 times in March 2003. President Obama and Attorney General Holder stressed that anyone who had relied “in good faith” on the advice in the memorandums would not be prosecuted.
In August further details of the torture and other ill-treatment of detainees held in the CIA programme were released into the public domain. Attorney General Holder announced a “preliminary review” into whether “federal laws were violated in connection with the interrogation of specific detainees at overseas locations”.
The administration resisted further release of details of the actual treatment of detainees in the now-terminated secret CIA programme on the grounds of national security.
Detainee interrogation and transfer policy
In August, the Special Task Force on Interrogations and Transfer Policies, set up under the 22 January executive order on interrogations, issued its recommendations to the President. These included the formation of a High-Value Detainee Interrogation Group and guidance for interrogators from the military and other agencies.
Impunity and lack of remedy
Impunity and lack of remedy persisted for human rights violations committed during what the Bush administration termed the “war on terror”.
In January, the Convening Authority for the military commissions, Susan J. Crawford, revealed that she had dismissed charges against Guantánamo detainee Mohamed al-Qahtani in 2008 because he had been tortured in US custody. By the end of the year no criminal investigation had been opened into the case.
In a policy U-turn, the new administration moved to block publication of a number of photographs depicting abuse of detainees in US custody in Afghanistan and Iraq. In October new legislation granted the Pentagon the authority to suppress photographs deemed harmful to national security.
On 4 November in Milan, Italy, 22 US agents or officials of the CIA and one military officer were convicted of crimes for their involvement in the abduction of Usama Mostafa Nasr (Abu Omar), who was abducted in Milan and transferred to Egypt where he was allegedly tortured. The US officials were tried in their absence.
Torture and other ill-treatment – electro-shock weapons
At least 47 people died after being struck by police Tasers, bringing to more than 390 the number of such deaths since 2001. Among them were three unarmed teenagers involved in minor incidents and an apparently healthy man who was shocked for 49 continuous seconds by police in Fort Worth, Texas, in May. These and other cases raised further concern about the safety and appropriate use of such weapons.
- Fifteen-year-old Brett Elder died in Bay City, Michigan, in March, after being shocked by officers responding to reports of unruly behaviour at a party. The coroner ruled that the boy, who was of small stature, died from alcohol-induced excited delirium, with the Taser shocks a contributory factor.
Thousands of prisoners were held in long-term isolation in US super-maximum security prisons, where conditions in many cases fell short of international standards for humane treatment.
- Scores of prisoners at Tamms CMAX facility in Illinois – many of them mentally ill – had spent 10 or more years confined to solitary cells for 23 hours a day, with inadequate treatment or review of their status. Prisoners had no work, educational or recreational programmes and little contact with the outside world. In September, following appeals from community and human rights groups, the new Director of Corrections introduced a 10-point reform plan, which included Transfer Review Hearings for each inmate, more mental health monitoring and an opportunity for prisoners to undergo General Educational Development (basic education) testing.
In October, a US federal appeals court ruled that constitutional protection against shackling pregnant women during labour had been clearly established by decisions of the US Supreme Court and lower courts.
Migrants and asylum-seekers
Tens of thousands of migrants, including asylum-seekers, were routinely detained, in violation of international standards. Many were held in harsh conditions and had inadequate access to health care, exercise and legal assistance. In August, the government announced a number of proposed changes, including strengthening federal oversight of immigration detention facilities and consultation on alternatives to detention. However, it declined to make nationwide standards governing conditions in detention enforceable by law.
In May, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions expressed concern about deaths of migrants in Immigration and Customs Enforcement (ICE) custody resulting from inadequate medical care. He found that more deaths had occurred than the 74 officially recorded since 2003 and urged that ICE be required to promptly and publicly report all deaths in custody, with each death fully investigated.
Health and reproductive rights
In May, Dr George Tiller was shot dead in Wichita, Kansas, by an anti-abortion activist. Dr Tiller had been subjected to a series of threats and attacks for providing lawful late-term abortions to women whose pregnancies presented a grave risk to their health or who were carrying non-viable foetuses. After Dr Tiller’s murder, the federal government increased security protection for some other abortion providers. However, threats and harassment of doctors and clinics continued.
Right to health – maternal mortality
The number of preventable deaths from pregnancy-related complications remained high, costing the lives of hundreds of women during the year. There were inequalities in access to maternal health care based on income, race, ethnicity or national origin, with African American women nearly four times more likely to die of pregnancy-related causes than white women. An estimated 52 million people under 65 had no health insurance in early 2009, a rise over the previous year.
Trade embargo against Cuba
President Obama lifted some travel restrictions to Cuba, allowing Cuban-Americans to visit relatives in Cuba and send money home. However, he extended the USA’s 47-year trade embargo against Cuba, which limited Cubans’ access to medicines, endangering the health of millions (see Cuba entry).
In August, Travis Bishop, a sergeant in the US army, was sentenced to one year in prison for refusing to serve in Afghanistan because of his religious beliefs. His application for conscientious objector status was still pending when he was court-martialled. He is one of several US soldiers imprisoned in recent years for refusing to deploy to Iraq or Afghanistan.
In August, the US Parole Commission denied release on parole to Leonard Peltier, despite concerns about the fairness of his 1977 conviction for murder. The former American Indian Movement activist had spent more than 32 years in prison for the murders of two Federal Bureau of Investigation (FBI) agents in June 1975.
In June, the US Supreme Court declined to hear an appeal against the 2001 convictions of five men imprisoned on charges of acting as unregistered agents for the Cuban government and related offences. In May 2005, the UN Working Group on Arbitrary Detention had stated that their detention was arbitrary because of the failure to guarantee them a fair trial.
Fifty-two people were executed during the year, bringing to 1,188 the total number of prisoners executed since the US Supreme Court lifted a moratorium on the death penalty in 1976 and allowed executions to resume in January 1977.
In September, Ohio attempted and failed to execute Romell Broom, a 53-year-old African American man. The lethal injection team spent some two hours attempting to find a useable vein, before giving up. In November, the state authorities announced that they had decided to switch from using three drugs in lethal injections to one. On 8 December, Ohio executed Kenneth Biros using this method.
Texas executed 24 people during the year and in June carried out its 200th execution under the current governor, Rick Perry. During the year, Governor Perry faced intense criticism over the case of Cameron Willingham, who was executed in Texas in 2004. Details continued to emerge that the arson murders of which he was convicted may have been the result of an accidental fire.
Nine people were released from death rows during the year on grounds of innocence, bringing to more than 130 the number of such cases since 1976.
In March, New Mexico became the USA’s 15th abolitionist state when the state governor signed into law a bill abolishing the death penalty.
Amnesty International reports
- USA: The promise of real change – President Obama’s executive orders on detentions and interrogations
- USA: Out of sight, out of mind, out of court? The right of Bagram detainees to judicial review
- USA: Right to an effective remedy – Administration should release Guantánamo Uighurs into the USA now
- USA: Different label, same policy? Administration drops ‘enemy combatant’ label in Guantánamo litigation, but retains law of war framework for detentions
- USA: Detainees continue to bear costs of delay and lack of remedy: Minimal judicial review for Guantánamo detainees 10 months after Boumediene
- USA: Too much cruelty, too little clemency: Texas nears 200th execution under current governor
- USA: Federal court rejects government’s invocation of ‘state secrets privilege’ in CIA ‘rendition’ cases
- USA: ‘Unconscionable and unconstitutional’: Troy Davis facing fourth execution date in two years
- USA: Trials in error: Third go at misconceived military commission experiment
- USA: Blocked at every turn. The absence of effective remedy for counter-terrorism abuses