URU, Alm.del - 2011-12 - Bilag 95: Henvendelse af 11. januar 2012 fra Amnesty International om fangelejren i Guantánamo Bay

Table of ContentsGUANTÁNAMO:A DECADE OF DAMAGE TO HUMAN RIGHTS............................................................. 110ANTI-HUMAN RIGHTS MESSAGESGUANTÁNAMO STILL SENDS................................................... 4ANTI-HUMAN RIGHTS MESSAGE1 - THE WHOLE WORLD IS THE BATTLEGROUNDIN A GLOBAL WAR IN WHICH HUMAN RIGHTS DON'T APPLY………………….…….………………………5ANTI-HUMAN RIGHTS MESSAGE2 - HUMANE DETAINEE TREATMENT IS APOLICY CHOICE,NOT A LEGAL REQUIREMENT……………….………………………………….…..........9ANTI-HUMAN RIGHTS MESSAGE3 - EVEN DETENTIONS FOUND UNLAWFUL BYTHE COURTS CAN CONTINUE INDEFINITELY………………..……………………………………..….….12ANTI-HUMAN RIGHTS MESSAGE4 - THE RIGHT TO A FAIR TRIAL DEPENDS ON WHERE YOUCOME FROM AND THE DOMESTIC POLITICAL TEMPERATURE SURROUNDING YOUR CASE………….…..…..18ANTI-HUMAN RIGHTS MESSAGE5 - JUSTICE CAN BE MANIPULATED TO ENSURETHE GOVERNMENT ALWAYS WINS……………………………………………………………………….21ANTI-HUMAN RIGHTS MESSAGE6 - EXECUTION IS ACCEPTABLE--EVEN AFTER UNFAIR TRIAL….…..……22ANTI-HUMAN RIGHTS MESSAGE7 - VICTIMS OF HUMAN RIGHTS VIOLATIONSCAN BE LEFT WITHOUT REMEDY………………………………………..……………………………….25ANTI-HUMAN RIGHTS MESSAGE8 - LOOKING FORWARD MEANS TURNING A BLIND EYE TOTRUTH AND ACCOUNTABILITY,EVEN IN THE CASE OF CRIMES UNDER INTERNATIONAL LAW……..….…….27ANTI-HUMAN RIGHTS MESSAGE9 - RESPECT FOR UNIVERSAL HUMAN RIGHTSCAN BE DISCARDED IF THEY CONFLICT WITH'DOMESTIC VALUES'…………………………………..……34ANTI-HUMAN RIGHTS MESSAGE10 - DOUBLE STANDARDS,NOT UNIVERSAL STANDARDS,ARE THE ORDER OF THE DAY……………………………………………………………………………36CONCLUSION: ADECADE AND COUNTING(THE COST TO HUMAN RIGHTS) ...................................... ..42

Less than two months passed between President George W. Bush ordering his Secretary ofDefense to find an “appropriate location” to hold foreign nationals detained in the so-called“war on terror” and the first 20 such detainees – treated like so much human cargo – arrivingat the US Naval Base at Guantánamo Bay in Cuba on 11 January 2002.2A decade on, it canseem as if this ill-begotten prison was conceived and born in the blink of an eye.Not so its demise. If it took about seven weeks to get the Guantánamo detention facility upand running, it is now nigh on seven years since US authorities say they have been working toshut it down.3In his memoirs, former President Bush defends the decision to locate the detention facility atGuantánamo but also recalls that by early in his second term beginning in January 2005 hehad recognized that the detentions had become “a propaganda tool for our enemies and adistraction for our allies”. He subsequently worked, he said, to “find a way to close theprison”.4If indeed he or his administration made efforts after 2005 to close the detentioncentre, they clearly ended in failure. There were some 245 detainees still held there at theend of his presidency on 20 January 2009.5Two days later, the newly inaugurated President Barack Obama committed his administrationto closing the Guantánamo detention facility “promptly” and at the latest by 22 January2010. To do so, he said, would further the USA’s national security and foreign policyinterests as well as the “interests of justice”.6He later said that Guantánamo had become “asymbol that helped al Qaeda recruit terrorists to its cause”. The US electorate, he said, hadcalled for a new approach, “one that recognized the imperative of closing the prison atGuantánamo Bay.”7If so, the electorate has not got what it called for.Today there are more than 150 detainees still atGuantánamo.8The country that was first to put ahuman being on the moon apparently cannot find itsway to closing a prison its last two presidents havesaid does the country serious harm. Surely this is notrocket science, so what on earth is the problem?

CLOSE THE FACILITY WILL REMAIN ELUSIVE–ORThe most immediate reason is that the failure of theACHIEVED ONLY AT THE COST OF RELOCATINGadministration to act decisively to meet PresidentTHE VIOLATIONS–UNLESS THE US GOVERNMENTObama’s January 2009 commitment on ending theADDRESSES THE DETENTIONS AS AN ISSUE THATdetentions at Guantánamo allowed the issue toSQUARELY FALLS WITHIN THE USA’Sbecome mired in a domestic political impasse inINTERNATIONAL HUMAN RIGHTS OBLIGATIONS”which Congress has acted against closure and theadministration has been unwilling or unable to find away around this. Amnesty International would suggest, however, that the roots of the problemlie further back, in the long-standing reluctance of the USA to apply to itself internationalhuman rights standards it so often says it expects of others. A pick and choose approach tointernational law by the USA long preceded the Bush administration, but was built upon inthat administration’s policy responses to the attacks of 11 September 2001. This includedits decision to concoct a global “war” framework for its counter-terrorism policies underwhich the applicability of international human rights law was wholly denied. This global war

theory – under which the Guantánamo detentions were but one outcome, though perhaps itsbest-known and enduring symbol – continues to infect the body politic in the USA, to thedetriment of respect for human rights both by the USA and more generally.Two weeks before the first detainee flight landed at Guantánamo the US Department ofJustice assured the Pentagon that holding “enemy aliens” on Cuban soil would in alllikelihood keep them away from the US federal courts. A little noted aspect of this advice wasthat its authors warned that if a court was ever to scrutinize the detentions they might befound to breach the International Covenant on Civil and Political Rights (ICCPR), which theUSA ratified in 1992.9This passing nod to international human rights law would remainnotable by its rarity but also in the implied admission that the ICCPR could be applicable tothe detentions.10For, even before this Justice Department memo was written the USA tookthe position that the protections of the ICCPR do not reach detainees in US custody outsidemainland USA.11It continues to do so despite the clear and unequivocal reiteration to the USgovernment by the expert body established under the ICCPR to monitor its implementation –the UN Human Rights Committee – that this treaty applies to individuals held in US custodyoutside the USA’s ordinary territory, and that its obligations do not simply disappear in timesof war.12Among other things, the ICCPR prohibits torture or other cruel, inhuman or degradingtreatment or punishment, arbitrary detention (thereby prohibiting secret detention andenforced disappearance), unfair trial, and discrimination in the application of human rights.It also incorporates the right to remedy for victims of human rights violations. One can seewhy the Department of Justice raised a red flag about the ICCPR in relation to theGuantánamo detentions, especially given the emphasis placed on this treaty by the USA onthe international stage. The ICCPR, the Bush administration proclaimed at the UnitedNations, was “the most important human rights instrument adopted since the UN Charterand the Universal Declaration of Human Rights, as it sets forth a comprehensive body ofhuman rights protections.”13Not so important, however, that the USA felt it should applyand respect those protections for its own “war on terror” detainees.Violations of the ICCPR and other human rights treaties came to be part and parcel of theGuantánamo detentions. Detainees were subjected to torture or other ill-treatment either atthe prison or before they arrived there. Prolonged incommunicado detention as well aspossible enforced disappearances took place at Guantánamo as well as elsewhere in the USdetention system. For years, hundreds of Guantánamo detainees were denied their right tohave a judge rule on the lawfulness of their detention. The few that faced criminal chargesduring the Bush years were not brought before any ordinary US court of law; instead, for suchprosecutions the government invented an ad hoc system of military commissions, applyingrules that fell far short of international fair trial standards.But, some might ask, is this not an old story? Interrogations at Guantánamo have all butended, have they not, and anyway has not the ban on torture and other cruel, inhuman ordegrading treatment been reinforced by presidential order? The military commissions, now intheir third incarnation since 2001, are surely better than they once were, and the detaineeshave had access to habeas corpus review since 2008 when the US Supreme Court finallyrejected the Bush administration’s notion that foreign nationals held at Guantánamo had noright to challenge the lawfulness of their detentions in federal court. Are not unhelpful termslike “alien unlawful enemy combatant” and “war on terror” now generally frowned upon bythe administration, and is “unprecedented” transparency not one of its stated priorities?14So, after 10 years, why is Amnesty International still talking about Guantánamo as a humanrights problem?

The answer is that the detentions at Guantánamo, and the wider policies and practices ofwhich they have been and remain a part, continue to inflict serious damage on global respectfor human rights. While Guantánamo may have dropped from the news headlines, the humanrights concerns associated with it are far from a finished story, as this report seeks toillustrate.From day one, the USA failed to recognize theapplicability of human rights law to theGuantánamo detentions. As we approach 11January 2012, day 3,653 in the life of thisnotorious prison camp, the USA is still failing toaddress the detentions within a human rightsframework. The now long-stated goal to close theGuantánamo detention facility will remain elusive– or achieved only at the cost of relocating theviolations – unless the US government – all threebranches of it – addresses the detentions as anissue that squarely falls within the USA’sinternational human rights obligations.Friday, 11 January 2002 – Washington, DC,2.10pm Eastern Standard Time. US Departmentof Defense News Briefing with Secretary ofDefense Donald RumsfeldQ: Mr Secretary, now that the first planeload ofdetainees has landed in Cuba, how do yourespond to charges from some non-governmentalorganizations that hooding, shaving, chaining,perhaps even –Rumsfeld: What are the words?Q: Hooding, putting hoods on, shaving, chaining,perhaps even tranquilizing some of these peopleis violating their civil rights?

The Obama administration has said it remainsRumsfeld: That – that’s not correct.committed to closing the Guantánamo detentionQ: That you’ve done it or that it violates –facility on the grounds that it continues toRumsfeld: That it’s a violation of their rights. Itdamage national security.15What it has notsimply isn’t.acknowledged, at least not publicly, is the~~damage being done to international human rightsprinciples. In this regard the damage is not beingAt least 12 of the 171 men still held atcaused by the fact that the detentions take placeGuantánamo in December 2011 were transferredat Guantánamo Bay, but by the underlyingto the base on 11 January 2002. One of them –assertion by the administration that it canYemeni national Ali Hamza Ahmad Suliman alcontinue to hold detainees indefinitely withoutBahlul – is serving a life sentence after beingcharge or criminal trial (or even after a detainee isconvicted by military commission in November2008. None of the other 11 has been charged.acquitted at a military commission trial), whereverit pleases. The damage, then, will continue aslong as the actual policies and practices that Guantánamo has come to symbolize remain.And while repetition of the promise to close Guantánamo is by now wearing thin, the failureto meet this promise has allowed the domestic discourse to be dominated by the politics offear. This has made the likelihood of human rights principles being recognized and fullyrespected by the USA even more remote, and fed the possibility that a future president mightexpressly decide to keep the facility in operation indefinitely. At least four would-beRepublican successors to President Obama said in televised debates in November 2011 thatthey would keep the Guantánamo prison open if they were to become President.16The failure to resolve the detentions and to ensure accountability and remedy for past abuseshas also allowed the original overseers of the Guantánamo detention facility to claim whatthey see as the moral high ground. In her 2011 memoirs Condoleezza Rice, National SecurityAdvisor at the time of the facility’s conception, recalls that there was “no disagreement”among the Principals of the National Security Council over the decision to establish theprison camp.17For his part, former Secretary of Defense Donald Rumsfeld says that PresidentObama “had pandered to popular misconceptions” by promising to shut the Guantánamofacility down, and that his administration’s failure to find “a practical alternative” was one ofthe signs that “on most of the big questions regarding our enemies, George W. Bush and hisadministration got it right”.18And in yet another set of memoirs, former Vice President Dick

Cheney maintains that “it’s not Guantánamo that does the harm, it is the critics of thefacility”, adding he is “happy to note that for President Obama the ‘imperative’ of closingGuantánamo has evolved into the necessity of keeping it open”.19Over a year ago, President Obama blamed the failure to close the Guantánamo detentionfacility within his one-year deadline on the “difficult” politics surrounding “an issue that hasgenerated a lot of political rhetoric” and made people “fearful”.20Seven months later hisAttorney General blamed members of Congress for the administration’s U-turn on the trial offive detainees accused of involvement in the 9/11 attacks who he said would now beprosecuted before military commissions in Guantánamo rather than in federal court in theUSA as he had announced 18 months earlier.Under international law, domestic law and politics may not be invoked to justify failure tocomply with treaty obligations.21It is an inadequate response for one branch of governmentto blame another for a country’s human rights failure. International law demands thatsolutions be found, not excuses. The US administration is currently telling the world, ineffect, “we will resolve the Guantánamo detentions when the domestic political climate isright”. The USA has not been willing to accept such excuses from other governments seekingto justify their systemic human rights failures, and it should not be accepted when it is putforward by the USA.The acceptance by the Obama administration of certain basic assumptions that have led to10 years of military detentions at Guantánamo without fair criminal trial – that the USA isengaged in a global, pervasive, and open-ended “war” to which human rights simply does notapply and in which the President (and sometimes Congress) alone make the rules – has alsoled to the maintenance or even expansion of policies of extrajudicial execution and sweepinginvocations of secrecy that prevent both public scrutiny of government actions and any realchance of victims of human rights violations obtaining redress.22

The USA speaks the language of human rights fluently on the global stage, but stumbleswhen it comes to applying human rights standards to itself. The Bush administrationpromised to put human rights at the centre of its counter-terrorism strategy, but singularlyfailed to do so. The Obama administration has promised the same thing, but the USAcontinues to fall short of this commitment, despite what were undoubtedly positive initialsteps in the right direction.24In a key speech in March 2010 on the Obama administration’s relationship to internationallaw, the Department of State’s Legal Advisor suggested that “from administration toadministration, there will always be more continuity than change; you simply cannot turn theship of state 360 degrees from administration to administration every four to eight years, norshould you”.25While he cited foreign policy, can continuity of failure on human rights be soexplained away? Did the Bush administration’s detention policies have such supertanker-likemomentum that they are impossible to reverse or remedy? Or is a deeply unsettling degree ofacceptance of those human rights-hostile policies across the US political spectrum helping toleave the USA on the wrong side of its international obligations?Certainly it was always too simplistic to say that the US response to the atrocities of 11

September 2001 was that of auniqueadministration to auniqueevent. As AmnestyInternational has long stressed, the Bush administration’s “war on terror” policies were notcut from new cloth. The choice of Guantánamo as a location for detentions, for example,built on existing US jurisprudence restricting the applicability of the constitution in the caseof federal government actions outside the USA concerning foreign nationals. The policy ofrenditions expanded upon past practice and a 1995 order signed by President Bill Clinton.Declassified CIA interrogation training manuals from the 1960s and 1980s describe“coercive techniques” echoing the “enhanced interrogation techniques” used by the CIA inthe secret program authorized by President Bush. The post 9/11 Justice Departmentmemorandums giving legal approval for such techniques drew upon the USA’s long-standingselective approach to international law and its conditional treaty ratifications.Notions of national history and tradition have played their role too. Reviving militarycommissions in 2009, for example, President Obama emphasised that such tribunals “have ahistory in the United States dating back to George Washington and the Revolutionary War”.26President Bush had said much the same thing when calling on Congress to pass the MilitaryCommissions Act of 2006,27the core provisions of which were incompatible withinternational law. And executions could also be said to be a US “tradition” given theirlongevity of use in the USA. The pursuit by both the administrations of death sentencesagainst Guantánamo detainees at military commission trials has hardly come as a bolt out ofthe blue.In his March 2010 speech at the American Society of International Law, the StateDepartment Legal Advisor said that, while there may be a degree of continuity between theBush and Obama administrations, the “most important difference between thisadministration and the last” is “its approach and attitude toward international law.” With thisin mind, Amnesty International outlines 10 anti-human rights messages that the Guantánamodetentions continue to transmit to the world. If the USA wishes to end these transmissions,and demonstrate its commitment to human rights, it should finally bring about an end to thepractice of indefinite detention without criminal trial, disavow its doctrine of global andpervasive war, and embrace international standards, not just in word, but in deed.

~ANTI-HUMAN RIGHTS MESSAGE1 ~THE WHOLE WORLD IS THE BATTLEGROUND IN A GLOBAL WAR IN WHICH HUMAN RIGHTS DON’T APPLYSomeone had dared attack America. They were going to pay… I turned to Andy and said,‘You’re looking at the first war of the twenty-first century’George W. Bush28The Bush administration responded to the attacks of 11 September 2001 by invoking thevision of a global “war” against al-Qa’ida and other groups in which international humanrights law would not apply. The Obama administration has broadly adopted this framework,which is indeed now largely accepted within all three branches of the US government. Sincethe Bush administration “declared” the “war on terror”, the USA has backdated this “war” tohaving begun prior to 9/11.29The USA has asserted the exclusive right unilaterally to definethe “war” and to make up its rules.On 14 September 2001, Congress passed a joint resolution, Authorization for Use of MilitaryForce (AUMF), by 518 votes to 1. There seemed to be considerable confusion amonglegislators as to what they were voting for, including whether it amounted to a declaration ofwar or not. Some referred to bringing those responsible for the attacks to “justice”, but withlittle or no elaboration – and the AUMF itself makes no reference to detention or trials, or

indeed to human rights. Some felt the resolution did not go far enough, others felt it went toofar; some opined that the President had all the power he needed without a resolution; othersstressed the limiting effect of the resolution. Nevertheless, legislator after legislator voted infavour of it. The resolution stated that it authorized the president to decide who wasconnected to the 9/11 attacks, who might be implicated in future attacks, and what level offorce could be used against them. At the same time, he was unconfined by any geographicallimits.30President Bush signed the resolution into law four days later, and his administrationwould subsequently exploit it to justify a range of human rights violations.31Even with the evidence before it of how itsresolution had been used to violate humanrights on a systematic and widespreadbasis, Congress continued to buy into theglobal war paradigm. Indeed, at the timeof writing, it was set to re-affirm the AUMFand the use of indefinite military detentionunder it. The version of the NationalDefense Authorization Act for 2012adopted by the Senate Armed ServicesCommittee on 12 December 2011 stated:“Congress affirms that the authority of thePresident to use all necessary andappropriate force pursuant to theAuthorization for Use of Military Forceincludes the authority for the ArmedForces of the United States to detaincovered persons pending disposition underthe law of war”. The “covered persons” arebroadly defined and the legislationcountenances their “detention under thelaw of war without trial under the end ofhostilities authorized by the Authorizationfor Use of Military Force”.33‘November20, 2001 is the last time I saw my mother andmy family.’On 20 November 2001, Mohamedou Ould Slahi was askedby security officials in his home city of Nouakchott,Mauritania, to come to the Intelligence Bureau, which hedid. He has been in detention without charge or trial eversince.“Istayed in jail in Mauritania for approximately one week.During that time, Mauritanian [redacted] did not questionor interrogate me. Eventually, [redacted] told me I wasgoing to be turned over to Jordan. I was shocked and Iasked him, ‘Why?’… [Redacted] said it was not hisdecision and that the Americans had told the Mauritaniangovernment to send me there. I asked him why theMauritanian government was not protecting me. He saidthat the Americans would hurt my country if theMauritanian government did not follow strictly theirinstructions. I argued that if the Americans have anythingon me they should take me to America, [redacted]. At thattime (November 2001), there was no Guantánamo Bay.Thus, on November 20, 2001, I was sent to Jordan. I wasimprisoned and interrogated there for eight months…During the eight months I spent in Jordan, I was always inisolation. The prison was horrible… I was never allowed tosee the representatives of the International Committee ofthe Red Cross (ICRC), who were visiting the prison everytwo weeks...”32

In seeking to distance itself from itspredecessor, the Obama administrationhas asserted that it does not seek to relyon the President’s constitutional authorityas Commander-in-Chief of the ArmedOn 19 July 2002, Mohamedou Slahi was transferred toForces to justify the detentions atBagram, where he has said he was subjected to ill-Guantánamo. Instead, it has said that it istreatment and threats of torture. On 5 August 2002, hebasing its detention authority on thewas transferred to Guantánamo where he was held as anAUMF. In fact, the Bush administration“enemy combatant” and subjected to ill-treatment andhad also latterly sought to justify thewhere he remains today, held under the “law of war”, asdetentions by reference to the AUMF. Inunilaterally asserted by the USA.anyevent,aJusticeDepartmentmemorandum issued two weeks after the9/11 attacks held that the AUMF cannot place “any limits on the President’s determinationsas to any terrorist threat, the amount of military force to be used in response, or the method,timing, and nature of the response. These decisions, under our Constitution, are for thePresident alone to make.”34This memo has not been withdrawn by the Obamaadministration.An interagency review of the Guantánamo detentions ordered by President Obama in January

2009 concluded a year later that there were 48 detainees who could neither be released nortried by the USA. They were “unanimously approved for continued detention under theAUMF”.35Forty-six of the 48 remain in detention, as two Afghan nationals who are believedto have been in this category have since died (see text box, page 20).36The administrationhas also asserted the right to return detainees acquitted at trial to indefinite detention underthe ‘law of war’ (see below). Thus indefinite military detention without criminal trial ofdetainees has been retained, as a continued sweeping invocation of the international law ofarmed conflict, to justify measures taken outside of any specific armed conflict and that arefundamentally incompatible with the ordinary systems of criminal justice operating in aframework of international human rights. The now long-term corrosive effect of misapplyingthe laws of war to matters of an essentially criminal nature only continues to eat away atbroader respect for human rights by the USA in its counter-terrorism efforts.It bears repeating that among those still heldin Guantánamo on “law of war” groundsinclude people taken into custody far fromany battleground as traditionally understood,and not in the territory of a state at war withthe USA.Mauritanian national MohamedouOuld Slahi was arrested by localauthorities in Mauritania inNovember 2001, transferred toJordan for eight months, thenhanded over to US custody inAfghanistan in July 2002 andtransferred to Guantánamo on 5August 2002.In January 2002, Algeriannational Belkacem Bensayah washanded over to US custody byauthoritiesinBosniaandHerzegovina. He has been inGuantánamo since 20 January2002.In early 2002, Yemeni nationalZakaria al-Baidany, also known asOmarMuhammedAlialRammah, was taken into custodyin or around Duisi in the PankisiGorge area of Georgia. Accordingto a leaked Pentagon document,he was taken into custody by“Georgianauthorities”,handcuffed, put in a vehicle,“taken to a parking lot where hewas transferred to another carand then taken to a warehousewhere he stayed for four days.After the four days, detainee wasdriven to another location where heAmin al-Bakri is a Yemeni national believed to have been inUS custody for nearly nine years without charge or trial.According to an amended habeas corpus petition filed in USDistrict Court in April 2011, he was abducted by US agents inBangkok on 30 December 2002 when on his way to the airportto fly back to Yemen after a trip to Thailand. His family didnot know his whereabouts or whether he was alive or deaduntil months later when they received a postcard in hishandwriting, via the ICRC, from the US detention facility atBagram airbase in Afghanistan. According to the petition,prior to his transfer to Bagram he had been held for aroundsix months in secret CIA custody at undisclosed locations andsubjected to torture and other abuse. Today, Amin al-Bakri isheld at the US Detention Facility in Parwan (DFIP) on theBagram air base.37The US military has confirmed that “a Yemeni citizen whosename is the same as or reasonably similar to [Amin al-Bakri’s] is being detained at DFIP”. It maintains that hisdetention has been found lawful by an executive body – theUS military Detainee Review Board (DRB).38The Obamaadministration argues that even if a DRB recommends adetainee’s release, as has been alleged it did in Amin al-Bakri’s case in August 2010, “the decision whether to acceptthe DRB’s recommendation is entirely committed to thediscretion of the Executive and necessarily involves complexdiplomatic, political, and national security considerations…These considerations are not within the province of thejudicial branch”.39As is the case with the Guantánamodetentions, the Obama administration has since January 2010been operating a moratorium on returns of detainees toYemen.The Obama administration is seeking to have Amin al-Bakri’shabeas corpus petition dismissed without review of its meritson the grounds that the District Court does not havejurisdiction to consider it. In 2009, a District Court judgeruled that Amin al-Bakri and two other non-Afghan nationalsheld on Bagram airbase should have access to the US courtsto be able to challenge the lawfulness of their detention. TheObama administration appealed and won a ruling from theCourt of Appeals for the DC Circuit in 2010 overturning thedecision. Rather than go to the Supreme Court, US lawyers forthe detainees returned to the District Court with newinformation. The Obama administration is arguing that thenew information makes no difference and that “the Court ofAppeals’ prior conclusion that habeas does not extend toBagram remains accurate today”.40Litigation is continuing.

and put on a plane. When detainee landed, an American interrogator told him hewas in Afghanistan. Detainee was held in the Afghan National Directorate ofSecurity Prison Number Two for one year.” He was transferred to Bagram air baseon 9 April 2003 and to Guantánamo on 9 May 2003.Yemeni national Tofiq Nasser Awad al Bihani was arrested in late 2001 or early2002 by Iranian police in a marketplace in Zahedan, Iran. After several weeks inIranian custody, he was transferred to detention in Afghanistan. He was handedover to US custody in Bagram in December 2002, before being transferred toGuantánamo on 6 February 2003.41Yemeni national Hussain Salem Mohammed Almerfedi was arrested in Tehran,Iran in early 2002, before begin transferred in March or April 2002 to custody inAfghanistan. After being held in Afghan custody in Kabul for about 10 weeks, hewas transferred to US military custody in Afghanistan on or around July 2002before being transferred to Guantánamo on 9 May 2003.Saudi Arabian national Ahmed al-Darbi was arrested by civilian authorities inBaku, Azerbaijan, in June 2002, handed over to US custody and transported toGuantánamo on 5 August 2002.Pakistani national Saifullah Paracha was seized in Bangkok, Thailand, in July2003 by US agents, hooded, handcuffed, and thrown into the back of a vehicle.He was held for over a year in Bagram before being transferred to Guantánamo on19 September 2004.Fourteen detainees transferred on 4 September 2006 from the CIA’s secretdetention program to military custody in Guantánamo, where 13 of them remain,had originally been detained in Thailand, United Arab Emirates, Djibouti andPakistan. Somali national Hassan Ahmed Guleed, for example, was arrested in hishome by local authorities in Djibouti in March 2004. Malaysian nationalMohammed Farik Bin Amin was arrested in June 2003 as he came out of abookshop in Bangkok, Thailand. Libyan national Mustafa Faraj al-Azibi wasarrested by Pakistan Special Forces in Mardan, Pakistan, on 2 May 2005. He wastransferred to US custody on 6 June 2005.Kenyan national Mohammed Abdulmalik was arrested in February 2007 by policein Kenya before being handed over “to the Americans, who took me to Djibouti,Bagram, Kabul and Guantánamo Bay”.42He remains in Guantánamo, withoutcharge or trial, more than four and a half years after he was taken there on 23March 2007.While the Obama administration has not itself transferred any detainees to Guantánamo andhas said it will not, it not only uses the global war paradigm as the legal framework forexisting detentions there, but also beyond.43Somali national Ahmed Abdulkadir Warsamewas detained by US forces in the Gulf of Aden on or about 19 April 2011, for example, andwas apparently held in secret detention for at least two weeks and incommunicado for atleast six weeks before he was transferred to New York in early July 2011 and charged withterrorism-related offences. The US authorities responded to Amnesty International’s concernabout his pre-transfer treatment by saying that “the US Government has consistently assertedthat it is at war with al Qaida and its associated forces, and that it may take all lawfulmeasures, including detention, to defeat the enemy”.44The Obama administration has said that its authority to detain individuals in Afghanistan isbased on the AUMF. In September 2011 about 2,100 detainees were being held in the USDetention Facility in Parwan (DFIP) on the Bagram air base, more than twice as many as were

being held there a year earlier.45The detainees include three non-Afghan nationals for whomUS lawyers have filed habeas corpus petitions and whom a District Court judge said in 2009should have access to the US courts to be able to challenge the lawfulness of their detention.The Obama administration maintained that they should not have such access and won aruling from the Court of Appeals in 2010 overturning the District Court decision (see box).46In each of the cases, the government has sought to replace judicial review with executivediscretion, saying that military Detainee Review Boards in Bagram had determined that thedetainee is “lawfully detained pursuant to the Authorization for Use of Military Force, asinformed by the law of war”.47The USA’s global war paradigm is an unacceptably unilateral and wholesale departure fromthe very concept of the international rule of law generally, and the limited scope ofapplication of the law of armed conflict in particular, as it has existed to date. The negativeconsequences for human rights of the USA’s double-barrelled assault (‘Human Rights do notapply in War’; ‘Everywhere is War’) are immense. The message sent is that a government canignore or jettison its human rights obligations and replace them with rules of its ownwhenever it deems the circumstances warrant it. This is entirely inconsistent with the USA’sstated promise “to strengthen our own system of human rights protections and encourageothers to strengthen their commitments to human rights”.48

At a press conference on 14 November 2011, President Obama was asked for his response tothe fact that some of his would-be successors were defending “waterboarding”, a torturetechnique that is effectively a form of mock execution by interrupted drowning.50During atelevised debate between Republican Party presidential contenders the previous evening,Herman Cain had said “I don’t see that as torture, I see it as an enhanced interrogationtechnique,” while Michelle Bachmann asserted that the technique was “very effective”. Bothsaid that if they became President they would authorize the use of waterboarding.51PresidentObama responded:“They’re wrong. Waterboarding is torture. It’s contrary to America’s traditions. It’scontrary to our ideals. That’s not who we are. That’s not how we operate. We don’tneed it in order to prosecute the war on terrorism.”52On one level, President Obama’s response is to be welcomed, not least given that hispredecessor had specifically authorized use of this torture technique. On another level,however, it fell short. He failed to acknowledge that torture is a crime and that governmentshave an obligation to bring anyone responsible for torture to justice. Coupled with the USA’sfailure to bring to account those who authorized or used torture and other cruel, inhuman ordegrading treatment, including at Guantánamo, his answer left the impression that he agreedthat acceptance or rejection of torture, and the decision about what to do with thoseresponsible for it, is ultimately a question of domestic policy, tradition, and ideals alone.The administration of President George W. Bush took the decision to deny not only humanrights protections, but also the basic protections of international humanitarian law (the lawsof armed conflict), including under the Geneva Conventions, to detainees in US militarycustody outside the USA, including in relation to the conflict in Afghanistan. President Bush

suggested in the same policy memorandum of 7 February 2002 that there were detaineeswho were “not legally entitled” to humane treatment. The Department of Justice advised theCIA that it could use “enhanced interrogation techniques” in its secret detention programoperated under presidential authority so long as the program was not conducted in the USAand would not be used “against United States persons”.53In his 2010 memoirs, formerPresident Bush asserted that he personally approved the use of “enhanced interrogationtechniques”, including waterboarding, against detainees in secret custody. “Damn right”, herecalls as his response to the CIA Director’s request in 2003 for such authorization in thecase of Khalid Sheikh Mohammed.54At an undisclosed location prior to being brought toGuantánamo, this detainee was subjected, among other things, to some 183 applications of“waterboarding”.55In his 2010 memoirs, former President Bush defended the decision to locate the detentionfacility at the Guantánamo naval base. Holding “captured terrorists on American soil”, hesaid, “could [have] activate[d] constitutional protections they would not otherwise receive,such as the right to remain silent”.56The consequence of this policy decision waspredictable, indeed deliberate. For example, Mohamed al-Qahtani – held in US militarycustody in a location, Guantánamo, that was “outside the sovereign territory of the UnitedStates”57– was subjected to torture and other ill-treatment when he “remained silent” in theface of standard interrogation methods (see below).No one has been brought to justice for these and other acts of torture by the USA that havebeen publicly admitted and documented. So long as that is still the case, the problem oftorture remains a festering injustice, with Guantánamo at the centre. Khalid SheikhMohammed and Mohamed al-Qahtani are among the detainees remaining in Guantánamotoday. There is as little prospect as there has ever been of seeing Khalid Sheikh Mohammedand others brought to justice before ordinary criminal courts for their alleged involvement inthe 9/11 or other attacks; instead, they are charged for unfair trial by military commission(see below). Mohamed al-Qahtani – who has been in US military custody since late December2001 and at Guantánamo since 13 February 2002 – is held indefinitely without any criminaltrial after charges against him were dropped in 2008 on the grounds that he had indeed beentortured, as found by the official then in charge of the military commission proceedings atGuantánamo.The Obama administration has broken from the interrogation policies pursued by the USAduring the early Bush years and has made a clear commitment to ending the practice oftorture.58But questions remain as to whether this is a permanent break. Just as it waspresidential orders that set the policy lead on detainee treatment in the years after 9/11,today also the policy has been set by presidential order. While interrogation policy now moreclosely approaches international law on detainee treatment, the question as to what happenswhen a President with a different approach takes office remains an open one. The door to UStorture remains far from being firmly closed and bolted shut.Clearly, the absolute illegality of torture or that a technique such as waterboarding amountsto torture are not accepted facts across the political classes in the USA, as a number ofRepublican presidential contenders and members of Congress have recently illustrated.59Inaddition to those already mentioned, for example, would-be Presidents Mitt Romney and RickPerry have said that they support the use of “enhanced interrogation techniques”, andrefused to reject waterboarding outright.60Another candidate, Newt Gingrich, said to anaudience in South Carolina on 29 November 2011:“Waterboarding is by every technical rule not torture. [Applause] … It’s not — I’m notsaying it’s not bad, and it’s not difficult, it’s not frightening. I’m just saying that under

the normal rules internationally it’s not torture. I think the right balance is that aprisoner can only be waterboarded at the direction of the president in a circumstancewhich the information was of such great importance that we thought it was worth the riskof doing it…”61Members of the previous administration – including the former President and Vice-President– have also voiced their continuing support for conduct that constitutes torture and enforceddisappearance. In the aftermath of the killing of Osama bin Laden by US forces in Pakistanin May 2011, a former US Attorney General from the Bush administration, Michael Mukasey,claimed that “the intelligence that led to bin Laden” began with “a disclosure from KhalidSheikh Mohammed (KSM), who broke like a dam under the pressure of harsh interrogationtechniques that included waterboarding… That regimen of harsh interrogation was used onKSM after another detainee, Abu Zubaydah, was subjected to the same techniques”.Reviving such an interrogation program would be “a fitting way to mark the demise of Osamabin Laden”.62Noting that the USA looks set to resume the use of “enhanced” interrogationtechniques “if a Republican assumes the presidency in January 2013”, a former Bushspeechwriter has argued that while “it would be illegal for a foreign adversary to waterboard aUS soldier” because “American troops are lawful combatants”, this would not be so for“terrorists”. The latter, he says, are “unlawful combatants” whom the USA “may lawfullycoerce…to provide information about imminent terrorist attacks.”63Repetition by former or current officials of the mantra that the USA’s use of secret detentionand “enhanced” interrogation “saved lives” has undoubtedly been effective in reducingdomestic US public and political calls for accountability, but whether or not their claims aretrue64, such rationalizations for these crimes under international law have been expressly andformally rejected by the world community. Whether in times of peace or time of war or threatof war, whether in normal conditions or under a state of emergency that threatens the life ofthe nation, violations of the prohibitions of enforced disappearance, torture and other ill-treatment are absolutely forbidden.65Whether torture or enforced disappearance are effectiveor not in obtaining useful information has expressly been made irrelevant to the question ofwhether they are lawful – they never are – or whether an individual responsible for thesecrimes is to be investigated or prosecuted.Former Secretary of Defense Rumsfeld has said that “the way the administration reacheddecisions on detainee policy was generally consistent with a predisposition to protect thehistoric powers of the presidency”.66For a former head of the Office of Legal Counsel at theUS Department of Justice, “on issue after issue” in “the war on terrorism”, the Bushadministration erred “because it was too committed to expanding the President’sconstitutional powers”.67From Amnesty International’s perspective, domestic interpretationsof presidential power become a matter for concern if they are incompatible with internationallaw. Under the Bush administration this was the case; the question is, what about today?In June 2011, President Obama issued a statement to mark the 24thanniversary of the entryinto force of the UN Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment (UNCAT). “As a nation that played a leading role in the effort tobring this treaty into force”, he said, “the United States will remain a leader in the effort toend torture around the world and to address the needs of torture victims… We also remaindedicated to supporting the efforts of other nations, as well as international andnongovernmental organizations, to eradicate torture through human rights training for securityforces, improving prison and detention conditions, and encouraging the development andenforcement of strong laws that outlaw this abhorrent practice.”68Notable by its absence wasany explicit reference by the President to UNCAT’s requirements on accountability for tortureand other ill-treatment.

In 2003, 2004 and 2005, President Bush had also issued proclamations to mark the UNCATanniversary. In the first, he called on all governments to join the USA in “prohibiting,investigating, and prosecuting all acts of torture and in undertaking to prevent other crueland unusual punishment”.69In the second, he promised that the USA would “investigate andprosecute all acts of torture and undertake to prevent other cruel and unusual punishment inall territory under our jurisdiction”.70In the third, he reaffirmed the USA’s “commitment tothe worldwide elimination of torture” and “to building a world where human rights arerespected and protected by the rule of law.”71At the times he issued these statements, theCIA was operating a secret detention program under presidential authorization and PresidentBush himself had authorized interrogation techniques against detainees held in this programthat amounted to torture and other cruel, inhuman or degrading treatment.72Clearly words are not enough. Nor was ending such ill-treatment the only thing the Obamaadministration was legally obliged to do upon entering office. Amnesty International wouldagree with the US lawyer involved in seeking redress for abuses at Guantánamo when hewrote in November 2011:“What the Bush administration experience showed was not that torture never works, butthat the impulse to torture is ever present. Torture is always seen as a sad necessity,imposed with increasing frequency and brutality as panic and frustration increase. Thewould-be torturer invokes the scenario of the ticking time bomb, but given the power totorture, officials begin to see ticking time bombs everywhere, perhaps especially if theybelieve they have been right once before…The Obama administration can’t just say, ‘Trust us.’ Its challenge was not only to stopthe American government from torturing detainees, but to institutionalize the legalinfrastructure that would prevent the resumption of torture”.73History repeats itself when its lessons are ignored. President Obama’s missed deadline of 22January 2010 for closure of the Guantánamo detention facility has passed into history. It hasbeen replaced with no firm date or plan for closure and the prospect of a new US Presidentembracing the Guantánamo detention facility as a permanent fixture now looms. In similarvein, without the necessary investigations, prosecutions, reparations, transparency andlegislation, President Obama’s executive order of 22 January 2009 prohibiting long-termsecret detention and “enhanced interrogation techniques” may yet come to be seen as nomore than a paper obstacle if and when any future US President decides that torture orenforced disappearance are once again expedient for national security.

prediction that he may do unlawful acts in the future…”75The Obama administrationdisagreed and appealed. Today, Mohamedou Slahi remains in Guantánamo, where he hasbeen held since August 2002 after being taken into custody in Mauritania in late 2001 andsecretly transferred to detention in Jordan and then Afghanistan before being brought to theUS naval base in Cuba.“Four independent UN experts welcome the announcement byUnder the USA’s global war framework,President-elect Barack Obama to close the Guantánamo Baythe Obama administration argued thatdetention centre… The experts state that ‘The regimeMohamedou Slahi’s detention is lawful.applied at Guantánamo Bay neither allowed the guilty to beThere was no requirement under thecondemned nor secured that the innocent be released.’ It alsoAUMF, the US Department of Justiceopened the door for serious human rights violations. Inlawyers argued, that Slahi had to haveaddition to being illegal, detention there was ineffective in“personally engaged in combat” and itcriminal procedure terms… At the same time they urge thatwas also of “no moment” that he wasin closing the Guantánamo Bay detention centre and secrettransferred to US custody “in a locationfacilities, the US government fully respect its internationalhuman rights obligations…The experts also stressed thatotherthanAfghanistan”.Thethose detainees facing criminal charges must be providedPresident’s detention authority underfair trials before courts that afford all essential judicialthe AUMF, it continued, “is not limitedguarantees. They emphatically reject any proposals thatto persons captured on a ‘battlefield’ inGuantánamo detainees could through new legislation beAfghanistan” and to argue otherwisesubjected to administrative detention, as this would onlywould“cripplethePresident’sprolong their arbitrary detention.”capability to effectively combat al-UN News Release, 22 December 200876Qa’ida”.77In November 2010, the Courtof Appeals vacated the District Courtruling and sent the case back for further proceedings on the question of whether MohamedouSlahi was “a part of”al-Qa’idaat the time he was taken into custody despite his claim tohave by then severed all ties to the group.78A new habeas corpus hearing may be heldsometime in 2012. By then Mohamedou Slahi will have been in custody without charge ortrial for over a decade.Would the USA accept such treatment of detainees by other governments? In a human rightsassessment of Peru published in 2001, for example, the USA criticized the authorities there:“Detainees have the right to a prompt judicial determination of the legality of theirdetention and adjudication of habeas corpus petitions; however, according to humanrights attorneys, judges continued to deny most requests for such hearings. In Lima andCallao, detainee petitions for habeas corpus are restricted severely, because under a1998 executive branch decree issued as part of the war on crime, only two judges areable to hear such petitioners, instead of the 40 to 50 judges in previous years, therebysignificantly delaying justice.”79The essence of habeas corpus proceedings has for centuries been that government authoritiesare required to bring an individual physically before the court and demonstrate that a clearlegal basis exists for their detention. Normally, if the government is unable to do so promptly,the court is to order the individual released.80A court’s power to obtain the immediaterelease of an unlawfully held individual must be real and effective and not merely formal,advisory, or declaratory.81This is the bedrock guarantee against arbitrary detention (reflectedin article 9(4) of the ICCPR, for example). If it is not fully respected by the government andcourts in every case, the right to liberty and the rule of law are more generally undermined.Guantánamo was chosen as a location for detentions in order to bypass this principle. By thetime that the US Supreme Court ruled, inBoumediene v. Bush,that the Guantánamodetainees had the constitutional right to challenge the lawfulness of their detention in habeas

corpus petitions filed in federal court, detainees had been held there, not for a few days, butforsix and a half years.Three and a half years since the 2008Boumedieneruling, the notionthat the detainees can obtain the “prompt” habeas corpus hearing ordered by the SupremeCourt has long since evaporated, and in the name of its global “war”, the USA continues toflout the requirement that any deprivation of liberty be subject to effective control byindependent courts.Even now, it can be years before aGuantánamo detainee gets a hearingon the merits of his habeas corpuschallenge. Once he does receive ahearing, he will find that domestic law– under a global war paradigm largelyaccepted by the federal judiciary – hasplaced substantial obstacles in the wayof him winning a court ruling that hisdetention is unlawful. Even if he meetsthat obstacle in the District Court inWashington, DC, the government mayturn to the Court of Appeals for the DCCircuit, which will not only mean thedetention will continue while thatcourt is briefed and its decisionawaited, but also likely result ingovernment victory if the record so faris any guide. By early December 2011,the Court of Appeals had issued 16decisions – ruling against the detaineein 12 cases and sending the other fourcases back to the District Court forfurther proceedings.From Iran to Afghanistan to GuantánamoDecember 2001/January 2002– Yemeni national Hussain SalemMohammad Almerfedi is arrested by Iranian police in TehranMarch/April 2002– Transferred to Afghanistan, held in KabulJuly 2002– Transferred to US custody in Bagram9 May 2003 –Transferred to Guantánamo28 June 2004– US Supreme Court rules inRasul v. Bushthat the UScourts can consider habeas corpus petitions for Guantánamo detainees7 July 2004– Pentagon announces formation of Combatant StatusReview Tribunal (CSRT) for Guantánamo detainees to “contest theirenemy combatant status”. The CSRTs will comprise panels of three USmilitary officers. The detainee will not have access to a lawyer for this15 December 2004– CSRT affirms Almerfedi as “enemy combatant”16 August 2005– Habeas corpus petition filed in District Court onbehalf of Hussain Salem Mohammed Almerfedi5 June 2006– In response, Bush administration files CSRT decision inDistrict Court and argues that Almerfedi is lawfully held under thePresident’s war powers12 June 2008– US Supreme Court rules inBoumediene v. Bushthatthe Guantánamo detainees have right to a “prompt” hearing tochallenge the legality of their detention in US District Court5 January 2010– A few days after a failed attempt to bomb acommercial airliner over Detroit, and the suspect’s alleged links toextremists in Yemen, President Obama announces a moratorium on allreturns of Yemeni nationals held at Guantánamo to Yemen3/4/5 March 2010– Hearing on the merits of Almerfedi’s habeascorpus petition held in District Court8 July 2010– “After carefully considering the accuracy, reliability, andcredibility of all of the evidence presented… in the context of theevidence as a whole, the extensive legal briefs submitted by theparties, and the arguments presented by counsel during the three-daymerits hearing”, District Court rules that the government has notshown “by a preponderance of the evidence” that Hussain Almerfediwas a “part of” al-Qa’ida. He rules the detention unlawful, and ordersthe detainee’s release3 September 2010– Obama administration announces it will appealthe District Court ruling9 November 2010– Administration files motion asking District Courtto stay its order on the government to “take all necessary andappropriate steps to facilitate the release of [Almerfedi] forthwith”while its appeal is pending4 March 2011– District Court judge denies the government’s motion10 June 2011– US Court of Appeals for DC Circuit reverses DistrictCourt’s ruling and rules that Hussain Almerfedi can be detained5 December 2011– US Supreme Court grants Hussain Almerfedi’smotion to file under seal a petition asking the court to review his case

the writ from the DC Circuit), the more credibility the US judicial system loses… Iwonder how many times I will have to explain to Ravil, that despite the Supreme Court’smandate to promptly process detainees’ habeas claims, the president’s promise to closethe prison and his [Ravil’s] own victory in federal court, it is more likely than not that wewill meet again in three months in this overly air-conditioned cell on a steamy island veryfar away from his elderly mother, his loving wife and his growing son that Ravil last saweight years ago when he was a baby”.82A recent ruling by the DC Circuit Court of Appeals has raised the bar even higher for theGuantánamo detainees seeking to challenge the lawfulness of their detention. The decisioncame in the case of Yemeni national Adnan Farhan Abdul Latif, who has been in US custodywithout charge or criminal trial for a decade. He was seized by Pakistani police in December2001 near Pakistan’s border with Afghanistan, handed over to US custody at the end of thatmonth and transferred to Guantánamo on 17 January 2002. He has been held in the baseever since, with his mental and physical health causing considerable concern along the way.In a meeting with his habeas lawyer in Guantánamo on 10 May 2009, Adnan Abdul Latif cutone of his own wrists. He had previously made a number of suicide attempts. Writing to hislawyer from isolation in Guantánamo’s Camp 5 in March 2010, he said that hiscircumstances make “death more desirable than living”. In a meeting with his lawyer on 25October 2011, he reported suffering from chronic back pain, and complained of headaches,heartburn, and a sore throat. He has been waiting for years for a hearing aid for deafness inhis left ear resulting from a car accident in Yemen in 1994.In June 2010, eight and a half years after Adnan Abdul Latif was taken into custody, and twoyears after the Supreme Court’sBoumedieneruling, a District Court judge held a hearing onthe merits of his habeas corpus petition (originally filed in 2004). Adnan Abdul Latifmaintained that he travelled to Pakistan in August 2001 to seek medical treatment for theinjuries he sustained as a teenager in his 1994 car accident, and that he had travelled toAfghanistan in pursuit of this medical care before fleeing the US bombing of Kabul in late2001. The US government alleged that he was recruited by al Qa’ida to travel to Afghanistanand that he trained and fought with the Taleban. In July 2010, District Court Judge HenryKennedy ruled that the government had not proved its theory by “a preponderance of theevidence” and held that Adnan Abdul Latif’s detention was unlawful.The Obama administration appealed. The case turned on a classified intelligence report,which Judge Kennedy had found insufficiently reliable to base the detention upon. Thegovernment argued that he had failed to properly assess Adnan al Latif’s credibility and hadbeen wrong in its assessment of the reliability of the intelligence report. On 14 October 2011– nearly a decade after Adnan al Latif was taken into custody – a divided panel of the Courtof Appeals ruled 2-1 in favour of the government, overturning Judge Kennedy’s order.The majority ruled that “in Guantánamo habeas proceedings a rebuttable presumption ofregularity applies to official government records, including intelligence reports like the one atissue here”. The dissenting judge accused his two colleagues of “mov[ing] the goal posts” by“imposing this new presumption”, and arguing that it “comes perilously close to suggestingthat whatever the government says must be treated as true”. He noted that the intelligencereport in question was “produced in the fog of war by a clandestine method that we knowalmost nothing about” which was “prepared in stressful and chaotic conditions, filteredthrough interpreters, subject to transcription errors, and heavily redacted for national securitypurposes”.83At the meeting with his lawyer in Guantánamo 11 days after the Court of Appeals ruling on

his case, Adnan Abdul Latif said “I am a prisoner of death”.84It remained to be seen at thetime of writing whether his case will be taken up by the US Supreme Court to elaborate on itsBoumedieneruling, which had left it to the District Court in the first instance to decide thescope of habeas corpus in the Guantánamo context, and which the DC Circuit Court ofAppeals has arguably gutted. In 2010, the Supreme Court rejected all seven petitions thathad been presented to it from Guantánamo habeas corpus cases that had been through theCourt of Appeals.At the time of writing, Yemeninational Musa’ab al Madhwani, whohas been held in Guantánamo for overnine years without charge or trial, wasseeking review of his case by the USSupreme Court. His habeas corpuspetition had been denied by theDistrict Court in January 2010,although the judge said that he was“not convinced” that the detaineewas a threat to US national security,given the absence of evidence that hehad either “fired a weapon in battle”or “planned, participated in, or knewof any terrorist plots”. Today, heremains in detention under theAUMF, the District Court’s rulingaffirmed by the Court of Appeals inMay 2011. In October 2011, apetition was filed in the US SupremeCourt asking it to take his case. Thepetition argues that in trying toimplement the 2008Boumedieneruling, “the courts (and in particularthe District of Columbia Court ofAppeals) have resorted to virtuallycomplete deference to Executivediscretion… Fundamental questionsof national importance pertaining tolimits on executive power andapplication of notions of due processto the detainees at Guantánamo areraised by this and other such cases”.Some decisions of the DC Circuit Court of Appeals11 March 2003– Upholds District Court ruling that it has nojurisdiction to hear habeas corpus petitions from foreign nationals heldin Guantánamo. Reversed by Supreme Court in 2004 (Rasulv. Bush)15 July 2005– Reverses District Court ruling that the Bush militarycommissions were unlawful. The Court of Appeals rules that Congressauthorized the commissions. Reversed by Supreme Court in 2006(Hamdanv. Rumsfeld)20 February 2007– Rules that the Military Commissions Act of 2006has stripped courts of jurisdiction to hear habeas corpus petitions fromGuantánamo detainees and that they have no constitutional rights.Reversed by Supreme Court in 2008 (Boumedienev. Bush)18 February 2009– Reverses District Court ruling ordering the releaseinto the USA of 17 Uighur detainees held in Guantánamo. Rules that“the government has represented that it is continuing diplomaticattempts to find an appropriate country willing to admit petitioners, andwe have no reason to doubt that it is doing so. Nor do we have the powerto require anything more.” (Kiyembav. Obama)24 April 2009– Upholds District Court ruling that claims by formerGuantánamo detainees seeking redress for unlawful detention andtorture were not based on rights that were “clearly established” at thetime they were detained and “the doctrine of qualified immunity shieldsgovernment officials from civil liability” (Rasulv. Myers)21 May 2010– Reverses District Court ruling that non-Afghan detaineesheld in US custody in Bagram, Afghanistan, can challenge thelawfulness of their detention (Maqalehv. Gates)18 January 2011– Upholds District Court ruling that specific details ofthe detention and interrogation in secret CIA custody of 14 detaineestransferred in September 2006 to Guantánamo are exempt fromdisclosure under freedom of information legislation(ALCU v. DoD)14 October 2011– Vacates District Court ruling that Adnan AbdulLatif’s detention is unlawful. Rules that in Guantánamo habeas cases,there must be a ‘presumption of regularity’ applied to officialgovernment records, including the intelligence report the District Courtfound to be an unreliable basis for Latif’s detention. (Latifv. Obama)

There are 90 Yemenis still in Guantánamo, including one who is serving a life sentence afterbeing convicted by military commission in 2008. The administration has taken the positionthat 26 of the other 89 should continue to be held indefinitely without charge or trial underthe AUMF. Five others have been referred for prosecution. The remaining 58 detainees, theadministration asserts, could be released if the security conditions in Yemen improve or an“appropriate” third country option becomes available. About half of these detainees would beprioritized for transfer over the other half, based on differing threat assessments attached tothem by the administration.86The administration has not said which Yemenis fall into whichgroup (apart from those facing or convicted under military commission trials), so it is notknown which of the categories it has put Adnan Abdul Latif in.Today, Abu Zubaydah would appear to be one of the 48 Guantánamo detainees whom theadministration said in 2010 it intends to hold indefinitely without criminal trial. However,this has not been confirmed, and even Abu Zubaydah’s habeas corpus lawyers – who have topsecret security clearance – have not been told whether their client is one of the four dozen.87No date has been set for a hearing on the merits of his challenge to the lawfulness of hisdetention, and numerous motions brought by his lawyers since theBoumedieneruling remainunadjudicated. Abu Zubaydah’s habeas corpus petition was filed over three years ago and itis now almost a decade since he was taken into US custody and subjected to systematichuman rights violations, including the crimes under international law of torture and enforceddisappearance, for which no one has been held to account (see below).It might be considered unlikely that Abu"[T]heprimary purpose of the habeas corpus writ isZubaydah’s habeas corpus challenge willthe physical production of the person concernedultimately be successful, given the detentionbefore the court… [W]hile it is important not to beauthority claimed by the administration andseduced by romantic notions or purple prose, itendorsed by the courts in other cases. Butremains the fact that habeas corpus has beeneven if his challenge were to be successful,described as 'perhaps the most important writ knownwhere would he go? He is a statelessto the constitutional law of England, affording as itPalestinian. The Obama administration hasdoes a swift and imperative remedy in all case ofshown itself willing to continue indefinitelyillegal restraint or confinement', and as 'the mostholding at Guantánamo individuals whoseefficient protection yet developed for the liberty of thedetention has been ruled unlawful by thesubject'."courts but for whom no “diplomatic”Lord Neuberger of Abbotsbury, Master of the Rolls,arrangement for their release has been found.England and Wales Court of Appeal (Civil Division), inIt has found support for this from the Court ofthe case of a detainee held in US custody at Bagram.Appeals for the DC Circuit. The latter hasruled that in the case of a GuantánamoPakistani national Yunus Ramatullah was taken intodetainee who wins a ruling that his detentioncustody by UK forces in Iraq in February 2004, handedis unlawful, the District Court cannot compelover to US custody, and transferred to Afghanistan. Hethe government to release him as long as it ishas been held in Bagram since June 2004.88making good faith “diplomatic attempts tofind an appropriate country” willing to admit him.89That country will never be the USA itself,given continuing US government policy – endorsed by the Court of Appeals – not to do what itasks other countries to, namely to receive released detainees (see message 10 below).In his order of 21 July 2010 in Adnan Abdul Latif’s case, for example, Judge Kennedy hadordered the government to “take all necessary and appropriate diplomatic steps to facilitateLatif’s release forthwith”. The record from previous such rulings, and the administration’sresponse to them, show that this amounts to a request to the executive, not an order. Evenwhen courts have ruled a Guantánamo detainee’s detention unlawful and the government hasnot appealed, release has neither been prompt nor guaranteed.

Asked about how he saw his role in ensuring a fair trial in the case before him, a militaryjudge presiding over a pre-trial military commission hearing conducted at Guantánamo on 9November 2011, US Army Colonel James Pohl, noted that “one might say there may becertain gaps that are not present in other more developed systems”.92If the use of coercive interrogations conducted out of sight of independent judicial scrutiny,legal counsel and other fundamental safeguards for detainees was at the heart of the USA’sdetention experiment conducted at Guantánamo and beyond, trials by military commissionwere conceived as part of the experiment, even before the detentions began at Guantánamo.A forum for trials was developed that was vulnerable to political interference and couldminimize independent external scrutiny of detainee treatment. Further, contrary tointernational guarantees of equality before the courts and to equal protection of the law, thesystem was applied on prohibited discriminatory grounds: US nationals accused of identicalconduct would continue to receive the full fair trial protections of the ordinary US criminaljustice system while non-nationals could be deprived of those protections on the basis oftheir national origin alone.In a speech on 21 May 2009, former Vice President Cheney recalled that after Pakistaninational Khalid Sheikh Mohammed was arrested in Pakistan in March 2003, “Americanpersonnel were not there to commence an elaborate legal proceeding, but to extractinformation from him”.93By “elaborate legal proceeding”, the former Vice Presidentapparently meant an ordinary criminal trial. The detainee was not brought to trial in a USfederal court (where he had previously been indicted), but instead put into secret CIA custodyfor the next three and a half years during which time he was subjected to enforceddisappearance, torture and other cruel, inhuman or degrading treatment, including 183applications of “waterboarding” in March 2003.94The US Supreme CourtHamdan v. Rumsfeldruling in 2006 overturning President Bush’ssystem of military commissions was seen by the administration as a threat to the CIA’s secretdetention program and the wall of impunity built around. The administration moved KhalidSheikh Mohammed and 13 other CIA detainees to Guantánamo and exploited their cases toobtain passage of the Military Commissions Act of 2006. Legislate for military commissions,President Bush told Congress, and the USA can bring the perpetrators of the 9/11 attacks tojustice.95Congress passed the Act, authorizing military commissions that were a very closerelative to the ones blocked by theHamdanruling a few months earlier.

Over five years later, Khalid SheikhMohammed and four other detaineeswhom the USA has charged withinvolvement in the 9/11 conspiracy –all of whom have been in US custodyfor more than eight years – have stillnot been brought to trial. Domesticpolitics have intervened to denythem“theelaboratelegalproceeding”, the fair trial, they aredue under international law. Now,despiteachangetoanadministration claiming a newapproach to international law, theystill face unfair trial by militarycommission.There were, briefly, indications thatthe Obama administration wouldbring the men to a fair trial in aregular criminal court. On 13November 2009, Attorney GeneralHolder announced that the fivedetainees–KhalidSheikhMohammed, Walid bin Attash, Ramzibin al-Shibh, ‘Ali ‘Abd al-‘Aziz andMustafa al Hawsawi – would betransferred from Guantánamo forprosecution in ordinary federal court,“before an impartial jury under long-established rules and procedures”.Since then nothing has changed withthe federal courts. They remain openfor business and with the capacityand experience to conduct suchtrials. What has changed is thedomestic political temperature.

A third of a life spent in US military custody21 July 2002– During a night raid in Milani, Khost province, US forcestake Afghan national Obaydullah, then aged about 20, from his home onsuspicion of being a member of anal-Qa’idabomb cell after mines werefound outside the family compound. He is taken for interrogation atChapman Airfield in Khost. After 36 hours he is transferred to Bagramairbase28 October 2002– Transferred to GuantánamoSeptember 2004– Affirmed as an “enemy combatant” by CSRT. He tellsCSRT that after his arrest, US forces “put a knife to my throat, tied myhands and put sandbags on my arms. At the airport in Khost I waswalked around all night with the sandbags on my arms. They took me toBagram where the interrogation and punishment increased”, allegedlyincluding beatings, stress positions, sleep deprivation, and threats.12 June 2008– US Supreme Court rules that the Guantánamo detaineeshave right to a “prompt” hearing to challenge the legality of theirdetention in US District Court7 July 2008– Obaydullah’s abeas corpus petition filed in District Court9 September 2008– Obaydullah charged for trial by military commission12 November 2008– Government moves to have Obaydullah’s habeascorpus petition dismissed or stayed until after his trial and any appeals2 December 2008– District Court stays of habeas corpus proceedings20 January 2009– Obama administration takes office, and obtains 120-day stay of military commission cases, to review Guantánamo detentions24 February 2009– Lawyers seek to have the habeas corpus stay lifted13 March 2009– Obama administration opposes defence motion,arguing that “although military commission proceedings are currently notmoving forward”, the charges against Obaydullah “remain pending”22 April 2009– District Court denies defence motion to lift stay15 May 2009– President Obama announces that military commissionsfurther delayed as administration seeks to reform the commission system9 July 2009– Obaydullah’s lawyers renew their motion to have the stayon habeas corpus proceedings lifted. Administration opposes the motion6 August 2009– District Court refuses to lift stay. Case appealed6 January 2010– Obama administration tells Court of Appeals for DCCircuit that “the Attorney General has determined that prosecution in amilitary commissions is appropriate” for Obaydullah18 June 2010– Court of Appeals sees “no reason sufficient to justifydenying Obaydullah the ‘prompt habeas corpus hearing’ he is entitled to17 August 2010– Defence file motion in District Court seekinggovernment information on the source, credibility, and nature ofintelligence that led to the raid on Obaydullah’s home eight years earlier.The administration opposes the motion, and the District Court denies it.30 September/1 October 2010– Habeas corpus merits hearing held.19 October 2010– District Court rules that Obaydullah’s detention islawful under the AUMF. In a classified memorandum issued a monthlater, the judge notes that the “Government’s case in large part rests onthe pre-raid intelligence reports that link Obaydullah to an al Qaedabomb cell”, and that the government “has not disclosed the source” ofthis intelligence. The judge ruled that there was enough evidence towarrant a finding that “more likely than not” the detainee had been partof an al-Qa’ida bomb cell.7 June 2011– The military commission charges sworn againstObaydullah on 9 September 2008 are dismissed without prejudice21 October 2011– Unclassified version of Obaydullah’s petition to Courtof Appeals seeking reversal of the District Court’s denial of habeascorpus filed

military commissions did not have the same “time-tested track record of civilian courts.”96Why then, would the US authorities risk prosecuting anyone, let alone in one of the highestprofile cases in decades, in an essentially untested tribunal the international reputation ofwhich was so tainted, which lacked the institutional independence of the ordinary federaljudiciary, and which by any measure failed to include the full range of fair trial proceduralguarantees recognized as necessary in trials before the ordinary courts?The UN Human Rights Committeehas stated, on the right to a fair trialunder article 14 of the ICCPR, thatthe trial of civilians (anyone who isnot a member of a state’s armedforces) by special or military courtsmustbestrictlylimitedtoexceptional and temporary caseswhere the government can show thatresorting to such trials is “necessaryand justified by objective and seriousreasons”, and where “with regard tothe specific class of individuals andoffences at issue the regular civiliancourts are unable to undertake thetrials”.97The US government cannotpoint to any such rationale. It canonly point to domestic politics.The military commissions are not byanymeasuretribunalsofdemonstrably legitimate necessity,but creations of political choice.Further,especiallygiventhecontinuing failure of the USA tomeet its obligations of independentinvestigation, accountability, justice,and effective remedy, for the nowwell-documentedallegationsoftorture and other ill-treatment,enforced disappearance, and othersimilar human rights violationsagainst the individuals selected fortrial by military commission, themilitary commissions cannot bedivorced from the unlawful detentionand interrogation regime for whichthey were developed.Guantánamo: Ten years, eight deaths, six convictionsNovember 2001– President Bush orders his Secretary of Defenseto find an “appropriate location” to hold detainees and toestablish military commissions to try some of themJanuary 2002– First detainees transferred to US Naval Base atGuantánamo Bay in CubaJune 2006– Three detainees, two Saudi Arabians and oneYemeni, die at Guantánamo, reportedly by suicideJune 2006– US Supreme Court overturns Bush militarycommission system. System revived under Military CommissionsAct (MCA) signed into law by President Bush in October 2006April 2007– Having pled guilty, Australian national David Hicksis sentenced to seven years in prison, six years and three monthsof which is suspended under the terms of a pre-trial agreementwhich sees him transferred to AustraliaMay 2007– Saudi Arabian detainee dies, reportedly by suicideDecember 2007– Afghan detainee dies, reportedly of cancerAugust 2008– Yemeni detainee Salim Ahmed Hamdan issentenced to 66 months in prison, all but five of whichsuspended. He is transferred to Yemen in late 2008November 2008– Yemeni detainee Ali Hamza al Bahlulsentenced to life imprisonment under the MCA of 2006June 2009– Yemeni detainee dies, reportedly by suicideOctober 2009– President Obama signs Military CommissionsAct of 2009, with provisions for revised military commissionsAugust 2010– Sudanese national Ibrahim al Qosi sentenced to14 years under MCA of 2009. In exchange for his guilty plea, allbut two years of his sentence suspendedOctober 2010– Canadian national Omar Khadr sentenced to 40years in prison, limited to eight years under a pre-trial pleaarrangement, and possible return to Canada after a year. He was15 when taken into US military custody in Afghanistan in 2002February 2011– An Afghan detainee dies, reportedly of naturalcausesFebruary 2011– Sudanese detainee Noor Uthman Muhammedsentenced to 14 years in prison under the MCA 2009, all but 34months suspended under the terms of a guilty plea and promiseto cooperate in future proceedingsMay 2011– An Afghan detainee dies, reportedly by suicide.

The Obama administration’s decision to retain military commissions is part of a continuingapproach that seems aimed at keeping the government’s thumb firmly placed on its side ofthe scales of justice, with decisions made on detainees taken according to which avenue isdeemed most likely to achieve government “success”, or minimize domestic political fallout,rather than adhering to principles of equality, due process and human rights.“Whenever feasible”, the Guantánamo detainees whom the administrationdecides it cannot release or transfer to the custody of other governments will betried in federal court on the US mainland (although, many in Congress are tryingto eliminate this option altogether);101Where the administration deems this not feasible – it currently considers this tobe the case across the board as a result of Congress blocking the transfer ofdetainees to the US mainland – it will turn to military commissions atGuantánamo with institutions and procedures that fall far short on respect for fairtrial rights;In the case of acquittal by military commission (or presumably after a sentencehas been served by a detainee convicted by such tribunals), the administrationreserves the right to return the detainee to indefinite detention under the “law ofwar”. It has recently indicated that it also reserves the right to do this after anacquittal in federal District Court in the USA.102Where no trial is deemed possible – which the administration concluded in 2010was the case for 48 Guantánamo detainees – indefinite detention without anyprospect of criminal trial in any form is the order of the day.103Detainees have access to habeas corpus, but if a judge orders release on thegrounds that the detention is unlawful, this can still mean indefinite detention,

possibly for years, if the government says it is unable to find any country willingto take the detainee (because the USA continues to refuse to allow anyGuantánamo detainee to be released into the USA).In March 2009, President Obama said that some of the detainees held at Guantánamo “willbe difficult to try…because of the manner in which evidence was obtained. So there’s aclean-up operation that has to take place, and that’s complicated”.104A few weeks later, hereferred to the “messy situation” of the Guantánamo detentions: “We’ve got a lot of peoplethere who we should have tried early, but we didn’t. In some cases, evidence against themhas been compromised. They may be dangerous, in which case we can’t release them.”105TheObamaadministrationundoubtedly faced the seriousconsequences of unlawful policiespursued by its predecessor.Whatevermeasurestheadministration takes, however,detainees should not pay for theerror of the USA’s ways. Any“clean-up” should not amount to acover-up of any human rightsviolationsthathavebeencommitted. Neither should it placeany obstacle in the way of remedyfor detainees unlawfully treated, orrelease of detainees unlawfullyheld whom the USA does notintend promptly to charge.16 January 2002 – Washington, DC, US Department of DefenseNews Briefing with Secretary of Defense Donald RumsfeldRumsfeld: We are also currently holding 50 detainees inGuantánamo Bay, Cuba, and we expect a third plane of 30detainees to arrive there later this afternoon.Q: Have you begun questioning yet the detainees in Gitmo,and are you close to charging any of them?Rumsfeld: I'm trying to think who's there now. It keepschanging. We've been sending 10, 20 or 30 in periodically. Ido not believe that formal interrogation has continued inGuantánamo Bay. The preliminary interrogations took placein the locations where the detainees had previously been incustody, essentially Kandahar and Bagram, but also someother places. And I don't believe they've started down there.And we have not made any decisions with respect todisposition of the ones that are currently in Guantánamo, tomy knowledge.

Nogovernmentshouldbe2011 were transferred to the base on 16 January 2002. Bypermitted to diminish the qualityDecember 2011, none of these nine had been charged.of justice to compensate for itsown past injustices, even if that injustice took place under a previous executive andlegislature. The human rights violations of the past cannot provide any valid excuse forfurther disregard of human rights in the present. Clearly among the detainees still held atGuantánamo there are individuals who should face prosecution – indeed who should havebeen charged and brought to trial years ago. Any Guantánamo detainee who cannot bebrought to fair trial should be released. This is true whether the government does not haveenough evidence to bring a prosecution or whether the evidence the government does havehas been rendered inadmissible in a fair trial by the way in which it was obtained, forexample through torture or other ill-treatment. If a person is released and subsequentsurveillance and investigation generates sufficient evidence that the person is then engagingin criminal activity, he can still be brought to justice in a fair trial.

detainees accused of involvement in the attacks of 11 September 2001 would be transferredto the US mainland and prosecuted in federal court there rather than by military commissionin Guantánamo, he said he wanted “to assure the American people” of something inparticular – namely that the government would still seek to have the men executed. “I fullyexpect to direct prosecutors to seek the death penalty against each of the alleged 9/11conspirators”, he said.106Not long afterwards, asked about the views of those offended by theprospect of the trial of Khalid Sheikh Mohammed being conducted in federal court where theconstitutional protections afforded to US citizens would apply, rather than before a militarycommission, where they would not, President Obama responded: “I don’t think it will beoffensive at all when he’s convicted and when the death penalty is applied to him”.107Since then, the Obama administration has done a U-turn on the trial forum, but ismaintaining an unbending inclination for the death penalty in these cases. As if the humanrights violations committed at and beyond Guantánamo over the past decade were not badenough, another violation of international law is now on the cards in relation to theGuantánamo detentions – execution after unfair trial by military commission.The UN Human Rights Committee has emphasised that fair trial guarantees are particularlyimportant in cases leading to death sentences, and that any trial not meeting internationalfair trial standards that results in a death sentence would constitute a violation of the right tolife under the ICCPR. Military commissions do not meet these standards.It comes as no surprise that the USA intends to seek the death penalty in these Guantánamotrials, not only because judicial killing remains a part of the US policy and legal landscape,but also because the notion of “justice” has taken many rights-violating forms in what theBush administration dubbed the “war on terror”.Nine years ago, in November 2002, ‘Abd Al Rahim al-Nashiri was handed over to US custodyby authorities in the United Arab Emirates where he had been arrested a few weeks earlier.President Bush – asked about the significance of the arrest – responded that “we did bring tojustice a killer”.108He subsequently added: “We’re making progress on this war againstterror. Sometimes you’ll see the progress, and sometimes you won’t. It’s a different kind ofwar. The other day, we hauled a guy in named al-Nashiri.”109“He’s not a problem anymore.[Laughter] One by one, we’re bringing them to justice.”110A few days earlier, on or around 27November 2002, 12 days into his interrogation in secret CIA custody at an undisclosedlocation, ‘Abd al-Nashiri was subjected to “waterboarding”. His “enhanced” interrogationcontinued until 4 December 2002, the day after President Bush spoke of having brought himto “justice”.111In the same month that ‘Abd al-Nashiri was being tortured in secret CIA custody, an allegedsenior member ofal-Qa’ida,Abu Al al-Harithi, and five other men were killed in a car inYemen by a CIA-controlled Predator drone missile strike. The UN Special Rapporteur onextrajudicial, summary or arbitrary executions described the incident as constituting “a clearcase of extrajudicial killing”.112The US government disagreed, arguing that the killings werelawful under the law of armed conflict and that the Special Rapporteur’s mandate did notextend to military actions conducted during “the course of an armed conflict with alQa’ida”.113A few weeks after the killings, President Bush asserted that “you can’t hide fromthe United States of America. You may hide for a brief period of time, but pretty soon we’regoing to put the spotlight on you, and we’ll bring you to justice”, adding that some people“were now answering questions at Guantánamo Bay”, while others had “met their fate bysudden justice”, that is, had been killed.114Eight years later, in his announcement that a team of US Special Forces had enteredPakistan and killed Osama bin Laden, President Obama said that “justice has been done”.115

He repeated this in a television interview two days later.116That “justice” was done by killingOsama bin Laden on sight was the common refrain from various US officials.Since the attacks of 11 September 2001, Amnesty International has called for thoseresponsible for this crime against humanity to be brought to justice, in accordance withinternational human rights and humanitarian law, and for retaliatory injustices to beresisted.117For Amnesty International, this has always explicitly meant bringing theperpetrators before properly constituted independent and impartial courts for criminal trial infair proceedings, without recourse to the death penalty, a punishment the organizationunconditionally opposes in every case and every country. The limited explanations to date byUS authorities, to the media and in response to written queries from Amnesty International,about the killing of Osama bin Laden and the legal framework under which it was conducted,and the refusal of US authorities to conduct an independent investigation into the death,leave little option but to conclude that the killing was a violation of international law in whichthe opportunity to bring Osama bin Laden to justice before courts of law was therebyextinguished.11822 January 2002 – Washington, DC, US Department‘Abd al Rahim al-Nashiri, taken into custodyof Defense News Briefing with Secretary of Defenserather than being subjected to what PresidentDonald RumsfeldBush dubbed “sudden justice”, was“And let there be no doubt, the treatment of thetransferred to Guantánamo in Septemberdetainees in Guantanamo Bay is proper, it'shumane, it's appropriate, and it is fully2006 after nearly four years in secretconsistent with international conventions. Nodetention. In 2008, the Bush administrationdetainee has been harmed, no detainee has beencharged him for trial by military commissionmistreated in any way. And the numerousand was intending to seek the death penaltyarticles, statements, questions, allegations, andbreathless reports on television are undoubtedlyagainst him. The trial had not happened byby people who are either uninformed,the time President Bush left office, but themisinformed or poorly informed.”Obama administration has revived its~~predecessor’s lethal pursuit, re-charging ‘Abdal Rahim al-Nashiri in April 2011 for trial byAt least 32 of the 171 men still held atGuantánamo in December 2011 were transferredmilitary commission, with the conveningto the base before 22 January 2002.authority in September 2011 authorizing thedeath penalty as a sentencing option if theOn 2 December 2002, Secretary Rumsfeldapproved, “as a matter of policy”, a number ofprosecution obtains a conviction at the trial.“counter-resistance” techniques for use inThat trial is currently due to begin in lateinterrogating detainees at Guantánamo, including2012, by which time ‘Abd al-Nashiri willstress positions, sensory deprivation, prolongedhave been in US custody for a decade.isolation, the use of 20-hour interrogations,For much of the world, the death penalty isincompatible with fundamental notions ofjustice. Today, 139 countries are abolitionistin law or practice. The Obama administrationhas responded to calls from such countriesfor the USA to join them in abandoning thedeath penalty as merely indicative of policydifference.121hooding during transportation and interrogation,stripping, forcible shaving, and “using detaineesindividual phobias (such as fear of dogs) toinduce stress”.119Over 200 FBI agents who served at Guantánamobetween 2002 and 2004 subsequently told theUS Department of Justice Office of InspectorGeneral that they had “observed or heard aboutvarious rough or aggressive treatment ofdetainees, primarily by military interrogators. Themost frequently reported techniques includedsleep deprivation or sleep disruption, prolongedshackling, stress positions, isolation, and the useof bright lights and loud music”.120

It is a fundamental rule of international law that any person whose human rights have beenviolated shall have access to an effective remedy. Like its predecessor, the Obamaadministration has systematically blocked access to remedy for current or former detainees inthe counter-terrorism context.In October 2004 four UK nationals, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal al-Harith, who were held without charge or trial in Guantánamo for two years from 2002 afterbeing transferred there from Afghanistan, filed a lawsuit in US federal court seeking damagesfor prolonged arbitrary detention, as well as torture and other cruel, inhuman or degradingtreatment.In February 2006, the District Court noted that the lawsuit alleged “various forms of torture,which include hooding, forced nakedness, housing in cages, deprivation of food, forced bodycavity searches, subjection to extremes of heat and cold, harassment in the practice of theirreligion, forced shaving of religious beards, placing the Koran in the toilet, placement instress positions, beatings with rifle butts, and the use of unmuzzled dogs for intimidation.”What was “most disturbing”, he wrote, was the claim that “executive members of the UnitedStates government are directly responsible for the depraved conduct the plaintiffs sufferedover the course of their detention”.Judge Ricardo Urbina found that the AUMF had authorized the military to carry out thedetentions and interrogations, and that the alleged torture, though “reprehensible”, was a“foreseeable consequence of the military’s detention of suspected enemy combatants”. The“heightened climate of anxiety, due to the stresses of war and pressures after September 11to uncover information leading to the capture of terrorists”, he wrote, “would naturally lead toa greater desire to procure information and, therefore more aggressive techniques forinterrogations”. This, he suggested, lay behind Secretary of Defense Rumsfeld’s authorizationin December 2002 of stress positions, stripping, prolonged isolation, hooding, sensorydeprivation, exploitation of detainee phobias and other techniques for use in Guantánamo.Judge Urbina wrote that there was no evidence that the alleged torture and other ill-treatment“had any motive divorced from the policy of the United States to quash terrorism around theworld”. He ruled that the individual officials named as defendants in the lawsuit had beenacting, “at least in part, to further the interests of their employer, the United States”. Under

US law, once individual government officials are deemed to have been acting within thescope of their employment, the US government is substituted as the defendant in their place.Judge Urbina ruled that such a "substitution" in theRasulcase had the effect of granting theindividual defendants absolute immunity from civil liability in US courts for violations ofinternational law. Judge Urbina granted the government’s motion to dismiss the lawsuit.At the time of Judge Urbina’s consideration of the case, the question of what constitutionalprotections the Guantánamo detainees were entitled to was pending before the federalcourts. Because of the “unsettled nature” of their rights in US courts at that time, JudgeUrbina ruled, the officials “cannot be said to have been plainly incompetent or to haveknowingly violated the law”, and therefore, he ruled, “are entitled to qualified immunity”under US law. This decision was appealed to the Court of Appeals which, on 11 January2008, upheld Judge Urbina’s ruling, concluding that “Guantánamo detainees lackconstitutional rights because they are aliens without property or presence in the UnitedStates”. Even if they did have constitutional rights, the panel wrote, this was not clearlyestablished at the time of their detention and the officials were entitled to qualified immunityunder US law.Secrecy blocks accountability: continuity or change?FollowingtheSupremeCourt’s“Informationsuch as certain details about the conditions ofBoumedieneruling in 2008 finding thatconfinement, circumstances of capture, location of detentionthe Guantánamo detainees had thefacilities, assistance of foreign entities, and sensitiveconstitutional right to challenge theintelligence collected from detainees has not beenlawfulness of their detention in USdisclosed… Operational details regarding the CIA’s formercourt, the Supreme Court remanded theinterrogation program – that is, information about regardingRasullawsuit case to the Court ofhow the program was actually implemented – also remainsAppeals to consider the effect of theclassified, as do descriptions of the implementation orBoumedienedecision on it. There wasapplication of interrogation techniques, including details ofthen a change in US administrationsspecific interrogations where Enhanced InterrogationfollowingtheNovember2008Techniques (EITs) were used”presidential election.Declaration of CIA Director Leon Panetta, September 2009124Anyone hoping for a policy change was disappointed. The new administration argued to theCourt of Appeals that it would be “unfair” to subject government employees to financialdamages when the constitutional rights being asserted “were not clearly established at thetime of the alleged acts in question here”. In April 2009, the Court decided in thegovernment’s favour, ruling that theBoumedienedecision did not change the outcome of itsown January 2008 decision on theRasullawsuit. The claims raised by the former detaineeswere not based on rights that were “clearly established” at the time they were detained and“the doctrine of qualified immunity shields government officials from civil liability” undersuch circumstances.Lawyers for the four UK nationals petitioned the US Supreme Court to take the case. Theadministration urged the Court not to take the case, arguing that the post-Boumedienedecision by the Court of Appeals in theRasullawsuit was correct and should be allowed tostand. It was “not clearly established at the time petitioners were detained at GuantánamoBay that they had the constitutional rights they claim were violated”, the administrationargued. On 14 December 2009 the Supreme Court announced that it was not taking thecase, thereby allowing the Court of Appeals ruling to stand and leaving the former detaineeswithout access to judicial remedy in the USA.The Obama administration’s November 2009 brief in theRasullawsuit asserted that “tortureis illegal under federal law, and the United States government repudiates it”. Theadministration said much the same thing in seeking dismissal of another lawsuit filed in the

US Supreme Court in 2011. The lawsuit had been brought by five men – who between themalleged that they were “rendered” to secret detention in Morocco, Egypt and Afghanistan andsubjected to enforced disappearance and torture or other ill-treatment at the hands of USpersonnel and agents of other governments in the context of the CIA rendition program. In afootnote, the US administration said: “This case does not concern the propriety of torture.Torture is illegal and the government has repudiated it in the strongest possible terms”.The US government does not just have a moral duty to “repudiate” torture and other humanrights violations, but to ensure that those who were subjected to such abuse have access toeffective remedy. Among the five plaintiffs in theJeppesencase is Ethiopian national BinyamMohamed released from Guantánamo to the United Kingdom in February 2009. Taken intocustody in Pakistan in April 2002, subjected to rendition to and 18 months detention inMorocco, transfer to the CIA-run “Dark Prison” in Afghanistan, then Bagram and thenGuantánamo, a US federal judge has written:“Binyam Mohamed’s trauma lasted for two long years. During that time, he wasphysically and psychologically tortured. His genitals were mutilated. He wasdeprived of sleep and food. He was summarily transported from one foreign prisonto another. Captors held him in stress positions for days at a time. He was forced tolisten to piercingly loud music and the screams of other prisoners while locked in apitch-black cell. All the while, he was forced to inculpate himself and others invarious plots to imperil Americans. The Government does not dispute thisevidence...[E]ven though the identity of the individual interrogators changed (from namelessPakistanis, to Moroccans, to Americans, and to Special Agent [redacted], there is noquestion that throughout his ordeal Binyam Mohamed was being held at the behestof the United States. Captors changed the sites of his detention, and frequentlychanged his location within each detention facility. He was shuttled from country tocountry, and interrogated and beaten without having access to counsel until arrivingat Guantánamo Bay…”125The political branches of the US government refuse to ensure accountability for such humanrights violations, even in the face of such judicial comment, and the executive continues toactively block remedy. Again, on 16 May 2011, the Obama administration got what it wantedwhen the Supreme Court, without comment, dismissed theJeppesencase, leaving in place adivided decision of the Court of Appeals upholding the US administration’s invocation of the“state secrets privilege” as justification for dismissing the lawsuit without any review of itsmerits.126

held in that program and remain today in Guantánamo.On 18 January 2011, the US Court of Appeals for the DC Circuit upheld the CIA’s invocationof Freedom of Information Act (FOIA) exemptions to withhold details of the locations andtreatment in secret detention of the 14 detainees transferred from CIA custody toGuantánamo on 4 September 2006.129The American Civil Liberties Union (ACLU) had fileda FOIA request with the CIA and Pentagon in 2007 seeking unredacted records relating tothe hearings of the 14 detainees before Combatant Status Review Tribunals (CSRTs), themilitary panels set up by the Bush administration in 2004 to review the “enemy combatant”status attached to detainees at Guantánamo. In the versions of the CSRT transcriptspublished by the Pentagon, allegations by the detainees of how they were treated in CIAcustody and where they were held were blacked out.In October 2008, Chief Judge Royce Lamberth on the District Court for DC ruled against theACLU in a summary judgment, concluding that the CIA had provided adequate explanationfor its invocation of the FOIA exemptions. The case was subsequently sent back to theDistrict Court to review the case in light of President Obama’s three executive orders of 22January 2009, which had included the order on the CIA to stop its use of long-term secretdetention and “enhanced” interrogation, and the release on 16 April 2009 of four JusticeDepartment memorandums from 2002 and 2005 that discussed the legality of “enhancedinterrogation techniques” by the CIA.130In October 2009, Judge Lamberth again ruledagainst disclosure of the CSRT records, deferring to the declaration filed by the CIA that topublish the information about the detainees would harm national security. Judge Lamberthdeclined even to conduct anin camerareview of the withheld information.The case was appealed to the DC Circuit Court of Appeals. The Obama administration urgedit to uphold the District Court’s ruling. Far from being critical of the CIA detention program,the administration’s brief reiterated President Bush’s words that the CIA’s “terrorist detentionand interrogation program” had “provided the US Government with one of the most usefultools in combating terrorist threats to the national security” and had “played a vital role inthe capture and questioning of additional senior al Qaeda operatives” and in therebyassisting the USA in learning aboutal-Qa’ida.The brief noted that in the cases of ‘Abd alNashiri, Abu Zubaydah, Khaled Sheikh Mohammed, Hambali and Majid Khan, the withheldinformation included details about their detention conditions in CIA custody, where they wereheld, and in each case “the interrogation methods that he claims to have experienced”. Theadministration argued that “the potential for harm from the disclosure of these interrogationmethods is not lessened by the fact that the documents contain detainees’ descriptions oftheir own interrogations. These detainees are in a position to provide accurate and detailedinformation about some aspects of the CIA’s former detention and interrogation program,which remains classified.” Among other things, the administration stated that “the presentprohibition against using these interrogation methods does not render their past useillegal”131If these detainees have knowledge about detention conditions or interrogation techniquesthat violate the prohibition of torture and other cruel, inhuman or degrading treatment orpunishment, it is only because the US government itself forced that knowledge on them inthe course of carrying out such violations of their rights. Allowing a government to, in effect,indefinitely and unilaterally keep secret the details of allegations of such human rightsviolations – indeed it has gone so far as to physically censor the voices of those who claim tohave suffered the violations – in a manner that by purpose or effect deprives the person ofaccess to an effective remedy and preserve the impunity of the perpetrators, is fundamentallyinconsistent with international law.132

The Obama administration had also argued to the Court of Appeals that to disclose, forexample, “whether a particular foreign country assisted the United States in detaining orinterrogating a terrorism suspect, or allowed the United States to detain people on its soil”would harm the CIA’s relations with such governments. Clearly the USA’s use of secretrendition and detention could not have operated without the cooperation of other countries.Indeed among the reasons given by the CIA – under both the Bush and the Obamaadministrations – for keeping secret the contents of the presidential directive of 17September 2001 which authorized the CIA to establish a secret detention program and otherdocuments relating to that program is a claim that disclosure of such information wouldreveal the location of secret CIA facilities and the identities of countries that cooperated withthe USA in this regard.133Those held in Guantánamo have between them been subjected to a range of human rightsviolations by US forces, including the crimes under international law of torture and enforceddisappearance, for which there has been little or no accountability. They include individualsstill held there, among whom are the following:Mohamed al QahtaniThis Saudi Arabian national was taken into custody by Pakistani forces when trying to enterPakistan from Afghanistan on 15 December 2001. He was handed over to US forces 11 dayslater and transferred to Guantánamo on 13 February 2002. In mid-2002, the US came tosuspect him of having “high value” intelligence, and to consider him resistant to standardmilitary interrogation techniques. On 8 August 2002 Mohamed al-Qahtani (detainee number063) was taken to an isolation facility. He was held in isolation there until at least 15January 2003, some 160 days later. A FBI memorandum dated 14 July 2004 recalled that“in November 2002, FBI agents observed Detainee #63 after he had been subject to intenseisolation for over three months. During that time period, #63 was totally isolated (with theexception of occasional interrogations) in a cell that was always flooded with light. By lateNovember, the detainee was evidencing behavior consistent with extreme psychologicaltrauma (talking to non-existent people, reporting hearing voices, crouching in a cell coveredwith a sheet for hours).”134On 2 December 2002, Secretary Rumsfeld approved,“as a matter of policy”, a number of “counter-resistance” techniques for use in interrogating detaineesat Guantánamo, including stress positions, sensorydeprivation, prolonged isolation, the use of 20-hourinterrogations, hooding during transportation andinterrogation, stripping, forcible shaving, and “usingdetainees individual phobias (such as fear of dogs) toinduce stress”.135After three months in isolation, Mohamed al-Qahtani wasfor the next eight weeks – 23 November 2002 to around15 January 2003 – subjected to interrogation under aSpecial Interrogation Plan. Lieutenant General RandallM. Schmidt, who led a military investigation into FBIallegations of detainee abuse at Guantánamo said of thetreatment of Mohamed al-Qahtani: “…for at least 54days, this guy was getting 20 hours a day interrogationin the white cell. In the white room for four hours andthen back out.” He elaborated that for the four hours aday that Mohamed al-Qahtani was not underPresident George W. Bush, Letter toCongressional leaders, 20 September2002“We currently hold approximately550 enemy combatants atGuantánamo. All are being treatedhumanely and, to the extentappropriate and consistent withmilitary necessity, in a mannerconsistent with the principles of theGeneva Conventions of 1949”~~More than 120 of the 171 men stillheld at Guantánamo in December2011 were transferred to the basebefore September 2002. Amongthem are Mohamed al-Qahtani whoin August 2002 was moved to anisolation facility at the base andsubsequently subjected to tortureand other ill-treatment inincommunicado detention (see text).

interrogation, “he was taken to a white room… with all the lights and stuff going on andeverything…”136During interrogation, Mohamed al-Qahtani – always in shackles – wasvariously forced to wear a woman’s bra and had a thong placed on his head; was tied by aleash and led around the room while being forced to perform a number of dog tricks; wasforced to dance with a male interrogator while made to wear a towel on his head “like aburka”; was forced to wear a mask made from a box with a “smiley face” on it, dubbed the“happy Mohammed” mask by the interrogators; was subjected to forced standing, forcibleshaving of his head and beard during interrogation (and photographing immediately afterthis), stripping and strip-searching in the presence of women, sexual humiliation, and tosexual insults about his female relatives; had water repeatedly poured over his head; hadpictures of “swimsuit models” hung round his neck; was subjected to hooding, loud musicfor up to hours on end, white noise, sleep deprivation, and to extremes of heat and coldthrough manipulation of air conditioning.137Dogs were used to induce fear in him. On atleast two occasions, a dog was “brought into the interrogation room and directed to growl,bark, and show his teeth” at the detainee. Lt. Gen. Schmidt said: “[H]ere’s this guymanacled, chained down, dogs brought in, put his face [sic], told to growl, show teeth, andthat kind of stuff. And you can imagine the fear kind of thing.”138In May 2008, Susan Crawford, then convening authority for the military commissions atGuantánamo, dismissed charges against Mohamed al-Qahtani, then facing a death penaltytrial by military commission. In January 2009, she explained: “We tortured Qahtani. Histreatment met the legal definition of torture. And that’s why I did not refer the case”.139Mohamed al-Qahtani remains in detention at Guantánamo without charge or criminal trial.A decade in US military custody without trial, remedy, accountability13 November 2001- President Bush orders his Secretary of Defense to find an “appropriate location” to holddetainees and to establish military commissions to try some of them27 December 2001– Saudi Arabian national Mohamed al-Qahtani handed over to US forces in Afghanistan after 11days in Pakistani custody7 February 2002– President Bush signs memorandum that common Article 3 to the Geneva Conventions will notapply to Taleban or al-Qa’ida detainees, adding that “our values as a nation… call for us to treat detaineeshumanely, including those who are not legally entitled to such treatment”.13 February 2002 –Mohamed al-Qahtani transferred to Camp X-Ray at GuantánamoApril/May 2002 –Mohamed al-Qahtani and other detainees moved to the newly constructed Camp DeltaMid-July 2002– Evidence of Mohamed al-Qahtani’s possible link to the 9/11 attacks emerges, with US authoritiessuspecting him of being a possible ‘20thhijacker’. President Bush and Attorney General Ashcroft are briefed aboutthe case. The administration’s response is that there is “no interest in prosecuting Al Qahtani in a US court at thattime”. Indeed, a determination is apparently made that “not one single detainee will see the inside of a courtroom inthe United States”.14027 July 2002– Mohamed al-Qahtani moved to the Maximum Security Facility at Camp Delta8 August 2002– Mohamed al-Qahtani moved by military ambulance to isolation in the Navy Brig at Guantánamo, adetention facility separate from Camp Delta. He will later say that he was removed from his Camp Delta cell by force,and that the Brig was “the worst place I was taken to”. He will recall that his cell window was covered, he could nottell what time of day it was, he never saw sunlight for the six months he was held there, the lights on his cell were lit24 hours a day, his cell was very cold, he was allowed no recreation, the guards covered their faces when in hispresence, and while he sometimes had a mattress this would be taken away if his interrogators did not like hisanswers. The FBI conducted interrogations for the first 30 days, after which the military took over.2 October 2002– A meeting on interrogations is convened at Guantánamo at which various military personnel aswell as the chief legal counsel to the CIA Counterterrorist Center are present. The latter advises that while torture isprohibited under the UN Convention against Torture, US domestic law implementing the treaty is “written vaguely”.He also points out that the USA did not “sign up” to the international prohibition of cruel, inhuman or degradingtreatment which “gives us more licence to use more controversial techniques”. The meeting discusses the case ofMohamed al-Qahtani, including “how he has responded to certain types of deprivation and psychological stressors”.8 October 2002– An FBI agent who has observed the military interrogations of Mohamed al-Qahtani sends an emaildescribing techniques being used on Mohamed al-Qahtani, including sleep deprivation, loud music, bright lights

and “body placement discomfort”. In an interrogation three days earlier, a dog had been brought into the room andhad “barked, growled, and snarled at Al-Qahtani in very close proximity to him”. The use of dogs as an interrogationtool is based on the understanding within the military that Arabs fear dogs11 October 2002– Major General Michael Dunlavey, Commander of Joint Task Force 170 at Guantánamo asks theCommander of US Southern Command, General James Hill, to approve “counter-resistance” interrogation techniquesthat go beyond the US Army Field Manual. This eventually goes to the Secretary of Defense, via Deputy Secretary ofDefense Paul Wolfowitz, Undersecretary of Defense for Policy Douglas Feith, Chairman of the Joint Chiefs of Staff,General Richard Myers, and the Pentagon’s General Counsel William Haynes. In the context of the interrogation ofMohamed al-Qahtani, according to a psychiatrist involved at the time, “we were routinely told that the interrogationstrategy was approved up to the Secretary of Defense level”.12 November 2002– General Hill orally approves use of “counter-resistance” techniques for use on Mohamed al-Qahtani, including stress positions, deprivation of light and auditory stimuli, hooding, 20-hour interrogations, forcedshaving, exploitation of detainee phobias (such as dogs) to “induce stress”, and removal of clothing13 November 2002 –General Hill approves an interrogation plan for Mohamed al-Qahtani over FBI objections. Underphase 4 of the interrogation plan, if implemented, Mohamed al-Qahtani would be send “off island” eithertemporarily or permanently to Egypt, Jordan or another third country for interrogation23 November 2002– After receiving approval from Major General Geoffrey Miller, commander of the Guantánamodetentions, interrogations of Mohamed al-Qahtani under the special interrogation plan begin. He is taken to CampX-Ray for interrogations, apparently “to scare him”. A psychiatrist involved will later say that just before theinterrogations began, Mohamed al-Qahtani was “made to believe he was sent to a hostile country which advocatedtorture” and “led to believe he himself might be killed if he did not cooperate with questioning”. For the next twomonths Mohamed al-Qahtani is interrogated by a “special projects” team of US military intelligence personnel.During this period, Mohamed al-Qahtani is subjected among other things, to stress positions, stripping, 20-hourinterrogations, sleep deprivation, fear of dogs, water poured repeatedly on head, forced shaving, sexual humiliation,being treated like an animal, and forced physical training2 December 2002– Secretary of Defense Rumsfeld, “as a matter of policy”, authorizes the Commander of USSouthern Command, “in his discretion”, to use a variety of “counter-resistance” techniques “to aid in theinterrogation of detainees” (plural) at Guantánamo. The techniques include stress positions, deprivation of light andauditory stimuli, hooding, 20-hour interrogations, forced shaving, exploitation of detainee phobias (such as dogs) to“induce stress”, and “removal of clothing”.15/16 January 2003– Mohamed al-Qahtani’s interrogation under special interrogation plan ends and at some pointhe is returned to Camp Delta after six months of isolation28 June 2004– US Supreme Court rules inRasul v. Bushthat the US courts can consider habeas corpus petitions forGuantánamo detainees5 October 2005– Habeas corpus petition filed in District Court on behalf of Mohamed al-Qahtani11 February 2008– Mohamed al-Qahtani charged for death penalty trial by military commission13 May 2008– Pentagon announces that the charges against Mohamed al-Qahtani have been dismissed. TheConvening Authority will later reveal that her decision not to refer the case for trial was because“WetorturedQahtani. His treatment met the legal definition of torture.”12 June 2008– US Supreme Court rules inBoumediene v. Bushthat the Guantánamo detainees have right tochallenge the legality of their detention in US District Court20 November 2008– The US Senate Committee on Armed Services concludes that President Bush’s decision inFebruary 2002 “to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions,with a policy subject to interpretation, impacted the treatment of detainees in US custody”. It finds among otherthings that Secretary Rumsfeld’s 2 December 2002 authorization “continued to influence interrogation policies”,including in Afghanistan and later Iraq.12 December 2011– Mohamed al-Qahtani remains in Guantánamo without charge or trial. To date there has beenno ruling on the lawfulness of his detention

Mohamedou Ould SlahiThis Mauritanian national was arrested in Mauritania in November 2001 “at the request ofthe United States”.143After a week he was subjected to rendition to Jordan, “at the directionof the US” according to his lawyers.144After eight months in Jordan, he was transferred toAfghanistan, possibly aboard a CIA-leased jet that made that journey on 19 July 2002, takento Bagram and thereafter transferred to Guantánamo on 4 August 2002. In addition to beingsubjected to enforced disappearance, Mohamedou Slahi was allegedly subjected to torture orother cruel, inhuman or degrading treatment in Jordan, in Bagram, and in Guantánamo, aswell as during his transfers.145In Guantánamo, during 2003, he was allegedly deprived ofsleep for some 70 days straight, subjected to strobe lighting and continuous loud heavy metalmusic, threats against him and his family, intimidation by dog, cold temperatures, dousingwith cold water, physical assaults, and food deprivation.In April 2010, a federal judge noted that there is “ample evidence” that Mohamedou Slahiwas subjected to “extensive and severe mistreatment at Guantánamo from mid-June 2003 toSeptember 2003”. This was the period that this detainee had been labelled by his USmilitary captors as having “Special Projects Status” and subjected to a 90-day “specialinterrogation plan” requested by the Defense Intelligence Agency and approved by thecommander of the Guantánamo detentions, General Geoffrey Miller on 1 July 2003, byDeputy Secretary of Defense Paul Wolfowitz on 28 July 2003, and by Secretary of DefenseDonald Rumsfeld on 13 August 2003.146The original interrogation plan approved by Secretary Rumsfeld had, among other things,Mohamedou Slahi being hooded and put aboard a helicopter and flown off Guantánamo forone or two hours to convince him that he was being rendered to a location where “the ruleshave changed”. In practice, this fake rendition was amended and a boat was used instead ofa helicopter. Three weeks after being told to “use his imagination to think up the worstpossible scenario he could end up in”, that “beatings and physical pain are not the worstthing in the world”, and that unless he cooperated he would “disappear down a dark hole”,Mohamedou Slahi was taken from his cell, fitted with blacked out goggles, dragged into atruck, and taken to a boat with individuals purporting to be Egyptian and Jordanianinterrogators who argued within the hearing of Mohamedou Slahi about who would get tointerrogate him. He was held for three and a half hours on the boat, during which time hesays he was beaten. He was eventually taken to a cell on land, apparently at Camp Echo.147According to an appeal brief filed in the US Court of Appeals in June 2010,“Salahi was the only prisoner in theJustifying abuse: continuity or change?new building in which he was kept.“TheUnited States justifiably opted to initially treat theConsistentwiththe‘specialdefendant as an intelligence asset – to obtain from himinterrogation plan’, his cell waswhatever information it could concerning terrorists and‘modified in such a way as to reduceterrorist plots. This was done, simply put, to save lives. Andas much outside stimuli as possible.when significant intelligence had been collected from theThe doors will be sealed to a pointdefendant, the United States made the entirely reasonablethat allows no light to enter thedecision to continue holding him as an alien enemyroom’. The guards assigned to himcombatant pursuant to the laws of war and to prosecutewore face masks. It was not until ahim in a military commission for his many violations ofyear later – in July 2004 – thatthose laws.”Salahi was allowed out duringObama administration, December 2009, in case ofsunlight hours…It was not until JuneTanzanian national subjected to enforced disappearanceor July 2004 that the guardsfor two years before transfer to Guantánamo in 2006148assigned to Salahi’s cell removedtheir masks. In addition, on July 30,2004, Salahi was finally told that he had not been ‘disappeared’ to a new country but

was still in Guantánamo…”149In his memoirs published in 2011, Donald Rumsfeld noted that he had “approvedinterrogation techniques beyond the traditional Army Field Manual” for use againstMohamedou Ould Slahi after he had “tenaciously resisted questioning”.150Musa’ab Omar al MadhwaniAfter five days in Pakistani custody following his arrest on 11 September 2002 in anapartment in Karachi, this Yemeni national was handed over to US custody and flown toAfghanistan. He says he was taken to the “Dark Prison”, a secret CIA-operated facility in ornear Kabul, where he was held for about a month. There, his lawyers allege, “he suffered theworst period of torture and interrogation, treatment so terrible that it made him miss his timewith the Pakistani forces”.151He was allegedly held for 30-40 days “in darkness so completethat he could not see his hand in front of his face”; “not allowed to sleep for more than a fewminutes at a time”; “was fed only about every 2½ days, in very small portions”; and “twenty-four hours a day, obnoxious music blared at a deafening volume”. In a declaration signed in2008, Musa’ab al-Madhwani said:“Raucous music blared continuously, except that screams of other prisoners could beheard when the tapes were changed. I was beaten, kicked, sprayed with cold water,deprived of food and sleep, and subjected to extreme cold, stress positions, and otherforms of torture. I was partially suspended by the left hand for the entire time at theprison, so that I could not sit and was forced to rest all my weight on one leg. Thisresulted in permanent nerve damage to my leg… The Americans sprayed me with coldwater and dumped water on my head until I got seizures and collapsed. The pain was soextreme that I would pass out repeatedly. Then I was freezing and sweating at the sametime. An Arabic-speaking interrogator told me that I was in a place the bull flies cannotfind. He said no one could find me in that place, not even the International Committeeof the Red Cross”Musa’ab al Madhwani was transferred to the US air base at Bagram where he was held foranother five days, before being transferred to Guantánamo on 28 October 2002. In a habeascorpus hearing in US District Court more than seven years later, the judge noted that the USgovernment had “made no attempt” to refute Al Madhwani’s torture allegations, and thatthere was “no evidence in the record” that they were inaccurate. To the contrary, he added,the allegations were corroborated by “uncontested government medical records”, and“classified testimony about his conditions of confinement, which I find to be credible, theUnited States was involved in the prisons where he was held, and believed to haveorchestrated the interrogation techniques, the harsh ones to which he was subject”.152Zayn al Abidin Muhammad Husayn (Abu Zubaydah)It is now nearly five years since the International Committee of the Red Cross (ICRC)transmitted to the US authorities its findings relating to the CIA’s secret program afterinterviewing 14 detainees at Guantánamo in late 2006. The 14 men had been held by theCIA at undisclosed locations prior to their transfer to military custody at Guantánamo on 4September 2006. Abu Zubaydah was one of the 14, and had been held in secret detentionfor the longest of any of them – four and a half years. Among other things, the ICRC hadconcluded that US agents were responsible for enforced disappearance, torture and othercruel, inhuman or degrading treatment and called on the US authorities to bring theperpetrators of the abuses to justice.153Interrogation techniques listed in the ICRC reportincluded prolonged “stress standing” position with arms extended and chained above thehead, physical assaults, confinement in a box, prolonged nudity, sleep deprivation, exposureto cold temperature, threats of ill-treatment, deprivation or restriction of solid food, and

water-boarding. According to the ICRC, not all of the methods it listed in the report had beenused on all of the detainees – except for one of them, Abu Zubaydah.In December 2007, to pre-empt a report that was about to be published in the media,General Michael Hayden, then Director of the CIA, confirmed that videotapes ofinterrogations during 2002 had been destroyed by the CIA in 2005. In the course oflitigation in federal court in 2009, the CIA revealed that 92 videotapes of interrogations ofAbu Zubaydah (90) and ‘Abd al-Nashiri (2) recorded between April and December 2002 hadbeen destroyed. Twelve of the tapes depicted use of “enhanced interrogation techniques”,including “water-boarding”. In fact, it was the CIA’s Office of Inspector General’s review ofthe tapes in 2003 that revealed Abu Zubaydah being subjected to “eighty-three applicationsof the waterboard”, a detail not made public until 2009.154Those who destroyed the tapes were, it wouldseem, thereby also destroying evidence of tortureand enforced disappearance, crimes underinternational law. Wilfully concealing ordestroying evidence of a crime can constitutecomplicity in the crime. Articles 4, 6 and 7 of theUN Convention against Torture and other Cruel,Inhuman or Degrading Treatment or Punishment(UNCAT) requires that not only the directperpetrators of torture, but also those complicit init, be brought to justice.“TheAttorney General has informed me that, withlimited exceptions, the Department of Justiceinquiries concerning the [Central Intelligence]Agency’s former rendition, detention, andinterrogation program have been completed andare now closed... We are now finally about toclose this chapter of our Agency’s history. AsDirector, I have always believed that our primaryresponsibility is not to the past, but to thepresent…”CIA Director, now US Secretary of Defence, LeonPanetta, June 2011155

confinement in undisclosed locations. No one is known to have been brought to justice forthese human rights violations.Defendinghisdecisionsondetentions in “the new war”,including the decision to holddetainees at Guantánamo uponJustice Department advice thatthere they would have “no right ofaccess to the US criminal justicesystem”, former President Bushasserted in his memoirs that“maintaining our values wascritical to our position in theworld”.167By way of example, heasserted that his decision toestablish military commissions metthis criterion. Military commissionsforforeignnationalswererepeatedly justified by seniormembers of his administration interms of national values andhistory, not by reference tointernational standards.On 8December 2001, for example,Secretary of Defense Rumsfeldsaid that the development of themilitary commissions would bedone in “a careful and measuredway that will be respectful ofAmerican values”.168On 21 March2002, the day the Pentagonreleased the commission rules,Deputy Secretary of Defense PaulWolfowitz insisted that the system“trulydoesmeetAmericanstandardsandAmerican169values”.Internationally, theBush military commission systemwas roundly condemned fordisregarding international law evenbefore the US Supreme Court ruledit unlawful in 2006.17 September 2001 –President Bush authorizes the CIA “to set upterrorist detention facilities outside the United States”.160A decadelater, John Rizzo, chief legal counsel to the CIA during the Bushadministration, will write that “A few days after the attacks,President Bush signed a top-secret directive to CIA authorizing anunprecedented array of covert actions against Al Qaeda and itsleadership… [T]he White House directed that details about themost ambitious, sensitive and potentially explosive new programauthorized by the President – the capture, incommunicadodetention and aggressive interrogation of senior Al Qaedaoperatives – could only be shared with the leaders of the House andSenate, plus the chair and ranking member of the two intelligencecommittees.”16123 June 2004 –CIA Inspector General John Helgerson transmitscopies of his review of the CIA’s secret detention and interrogationprogram to the Chairs and Ranking members of the House andSenate Select Committees on Intelligence.162The report reveals,among other things, that Abu Zubaydah and Khalid SheikhMohammed were between them subjected to more than 250applications of water-boarding.1635 March 2009– US Senators Dianne Feinstein and Kit Bond, Chairand Vice Chair of the US Senate Select Committee on Intelligence,announce that the Committee “will review the CIA’s detention andinterrogation program”. The review will include “how the CIAcreated, operated, and maintained its detention and interrogationprogram” and “whether the CIA implemented the program incompliance with official guidance, including covert action findings,Office of Legal Counsel opinions, and CIA policy”. The review isexpected to take about a year.1645 and 16 March 2009– CIA Director Leon Panetta states that theChair and Vice Chair of the Senate Select Committee on Intelligencehave assured him that the goal of their review of the secretdetention program is not accountability for the past but to inform“future policy decisions”, rather than “to punish those who followedguidance from the Department of Justice.”1651 December 2011– During a debate in the Senate, SenatorFeinstein says, “As chairman of the Select Committee onIntelligence, I can say that we are nearing the completion acomprehensive review of the CIA’s former interrogation anddetention program, and I can assure the Senate and the Nation thatcoercive and abusive treatment of detainees in US custody wentbeyond a few isolated incidents at Abu Ghraib. Moreover, the abusestemmed not from the isolated acts of a few bad apples but fromfact that the line was blurred between what is permissible andimpermissible conduct, putting US personnel in an untenableposition with their superiors and the law.”166

same time, however, Dr Rice seems to concede that domestic values can depend on contextrather than core, and that conduct which is consistent with domestic values for one person isanother person’s betrayal of them. In the Bush first term, secret detention was deemedconsistent with domestic values as well as legal, but “early in his second term the Presidentdecided that the time was right to revisit these decisions in light of the progress we had madein the war on terrorism”. For her part, Dr Rice “felt strongly that the time had come toacknowledge that we were holding Khalid Sheikh Mohammed and other notorious terrorists.We couldn’t allow them to remain ‘disappeared’ and outside the reach of the justicesystem… Not everyone agreed, however, and this issue would turn out to be one of the mostcontentious between the Vice President and me”.171In his own memoirs, published a few months earlier, former Vice President Cheney returnedto the subject of a speech he had made in May 2009, re-asserting his view that “Americanvalues” had been upheld throughout the Bush administration’s response to the attacks of 11September 2001: “I also challenged the whole assumption that American values wereabandoned, or even compromised, in the fight against terrorists. For all that we’ve lost in thisconflict, the United States has never lost its moral bearings”. In that 2009 speech, the VicePresident had defended, among other things, “water-boarding” and its use against threedetainees then being subjected to enforced disappearance by the CIA, and now held inGuantánamo.172His remarks illustrated how the concept of “American values” can be amalleable and subjective notion, indeed twisted to imply that full respect for universal humanrights cannot also be an “American value”.In a speech on the same day as the former Vice-President’s, President Obama invoked USvalues in explaining his decisions to close the Guantánamo detention facility and end“enhanced interrogation techniques”, but also to support military commissions and indefinitedetention without criminal trial. President Obama said that the previous administration hadfailed to rely upon “our deeply held values and traditions”. If instead of, or in addition to, hisinvocation of domestic values and tradition, President Obama, together with Congress, hadfully recognized the USA’s failure to live up to its human rights obligations and insisted uponthe fullest respect for such standards (indeed as constitutingitselfa fundamental nationalvalue), we might not be where we are now, with indefinite military detention at Guantánamo,the resuscitation of the military commissions, and the blocking of accountability and remedy.Appeals to national values and tradition is a part of political debate in every country, andreference to domestic values and history can facilitate a country’s constructive self-criticismas much as it can feed unhelpful myth-building and self-satisfaction over domestic laws andinstitutions. Embracing universal human rights values as a key part of national values cancontribute to respect for the rights of all persons within a state’s territory or otherwise underits control. The message that too often continues to emanate from Guantánamo is that theanswers lies in national values,to the exclusion ofinternational human rights standards.

intending to execute detainees convicted by such tribunals applying lesser standards ofjustice than its ordinary courts? Or asserting the right to hold detainees indefinitely aftertheir acquittal? Or holding detainees for months after judges had ruled their detentionunlawful? Or morphing the notion of a “prompt” habeas corpus hearing into one that takesplace after years rather than days of detention? Or systematically blocking remedy andaccountability for past human rights violations, including the crimes under international lawof torture and enforced disappearance? What would the USA say if it was another countryrunning the Guantánamo detention facility?We can make an educated guess as to what it would say. Each year, the USA publishes itsassessment of the human records of other countries, as measured against the provisions ofthe Universal Declaration of Human Rights (UDHR), the ICCPR and other internationalinstruments. Consider the following, for example:“The Government’s human rights record remained poor, and it continued to commitnumerous, serious abuses. The security forces committed many unlawful killings, andthey were accused of the disappearances of numerous persons... Security forcesfrequently tortured, beat, and otherwise abused or humiliated citizens. The Governmentinvestigated some of the alleged abuses by the security forces; however, abusers rarelywere charged or disciplined… Security forces continued to use arbitrary arrest anddetention, and lengthy pretrial detention remained common… Political prisoners heldfrom previous years were released; however, numerous persons during the state ofemergency were denied habeas corpus and held indefinitely as ‘illegal combatants’…”174At the time it published this critique of Liberia’s human rights record in March 2003, theUSA was using torture and other ill-treatment, enforced disappearance and arbitrarydetention against detainees in what it then called the “war on terror”. It was denying habeascorpus to hundreds of detainees held at Guantánamo and elsewhere and building impunityinto its detention and interrogation programs.In 2004, in a then secret report on the USA’s secret detention program, the CIA InspectorGeneral, John Helgerson, accused the government of double standards. The “enhanced”interrogation techniques used in the program, he said, were “inconsistent with the publicpolicy positions that the United States has taken regarding human rights”. He noted that theState Department’s annual assessments of human rights in other countries condemned suchtechniques when used by other governments. He noted that President Bush – under whoseauthority the CIA program was operating – had in June 2003 made a public proclamationthat “torture anywhere is an affront to human dignity everywhere” and that the USA was“committed to building a world where human rights are respected and protected by the ruleof law”. A matter of weeks earlier, Khalid Sheik Mohammed had been subjected to 183applications of waterboarding, one of the “enhanced” interrogation techniques carried out,according to the former President, with his express authorization.The Department of Justice sought to address the question of double standards, albeit insecret. In a classified memorandum in 2005, the Justice Department wrote in a memo to theCIA: “Each year, in the State Department’s Country Reports on Human Rights Practices, theUnited States condemns coercive interrogation techniques and other practices employed byother countries. Certain of the techniques the United States has condemned appear to bearsome resemblance to some of the CIA interrogation techniques… nudity, water dousing,sleep deprivation, and food deprivation… We recognize that as a matter of diplomacy, theUnited States may for various reasons in various circumstances call another nation to accountfor practices that may in some respects resemble conduct in which the United States mightin some circumstances engage, covertly or otherwise”175

Two years after that, the tendentious line taken by the Justice Department continued inanother secret memorandum. The Department of State, it wrote, had “informed us” that itsannual human rights assessments “are not meant to be legal conclusions, but instead theyare public diplomatic statements designed to encourage foreign governments to alter theirpolicies in a manner that would serve United States interests.” The USA’s publiccondemnation of torture and of the “coercion of confessions in ordinary criminal cases”, itsaid, “is not inconsistent with the CIA’s proposed interrogation practices”. The CIA program,it continued “is designed to subject detainees to no more duress than is justified by theGovernment’s paramount interest in protecting the United States and its interests fromfurther terrorist attacks.” As such, it concluded, the CIA’s conduct “fundamentally differsfrom the conduct condemned in the State Department reports”.176A reluctance to acknowledge the equalapplication of international human rightsstandards to the USA has been describedas a form of “American exceptionalism”.Such exceptionalism may be based inpart on an assumption that universalhuman rights rules or values are somehowinferior to or less worthy than theconstitutional and other laws and valuesof the USA. As outlined in the previoussection, the grave dangers of reliance onany such assumption was starklydemonstrated in recent years when theinvocation of “American values” as a solepoint of reference by public officialsbecame a familiar refrain even as the USAadoptedcounter-terrorismdetentionpolicies that clearly contradicted basicrules of international human rights andhumanitarian law.In 2003, 2004 and 2005, the entry on Bosnia andHerzegovina in the US State Department’s annual humanrights assessment, under the heading ‘arbitrary arrest,detention or exile’, reported the case of ‘six Algerianterrorism suspects’ who had been transferred ‘to thecustody of a foreign government’ in January 2002. Thetransfer had bypassed the courts and an order of theHuman Rights Chamber of Bosnia and Herzegovina, andviolated international law. The US Department of Statereported that in 2002 and 2003, the Human RightsChamber had ruled that the treatment of the men hadviolated their treaty-based human rights, including theright not to be arbitrarily deported in the absence of a fairprocedure.What the State Department failed to point out was that themysterious “foreign government” in question was that ofthe USA. It failed to report that the men in question,extrajudicially removed from the sovereign territory ofBosnia and Herzegovina, were and continued to bedetained virtually incommunicado, without charge or trial,in the US Naval Base at Guantánamo. It failed to mentionthat USA was holding the men as “enemy combatants” in awar defined by the USA, although they had not beencaptured on any battlefield, but arrested by civilian policeon territory of an allied government far from any armedconflict. It did not report that the authorities there hadhanded them over to US military forces, fearing negativediplomatic and other consequences, including to thecountry’s peace process, if it refused to do so.177

It remains to be seen how futurePresidents will act. Rick Perry, forexample, was at the time of writing one ofthose seeking to become the nextPresident of the USA. “Perry believes inAmerican exceptionalism”, asserts hispresidential bid website.178Among otherIt was not until the US Supreme Court ruled in June 2008things, he has said that he would considerthat the Guantánamo detainees had the right to challengethe lawfulness of their detention that the men obtainedthe use of “enhanced interrogationrulings on their habeas corpus petitions. The decisiontechniques” in the counter-terrorismcame nearly seven years after these six men werecontext, including “waterboarding”, andtransferred to Guantánamo. The federal judge ruled thatthat he would keep the Guantánamofive of them were unlawfully held, even under the broaddetention facility open, if he were to“war” detention powers claimed by the government. Thebecome President.Newt Gingrichfive have since been released. The sixth, Algerian national“advocates sound policies to keepBelkacem Bensayah, remains in Guantánamo today,Americans safe based on timelesswithout charge or criminal trial, nearly a decade after heAmerican principles”.179As noted above,was first taken to the base.he has suggested that “by every technicalrule” and “under the normal rules internationally”, waterboarding is “not torture”.

For its part, the Obama administration has promised an end to double standards. In 2009, itarticulated its approach:“The deep commitment of the United States to championing the human rights enshrinedin the Universal Declaration of Human Rights is driven by the founding values of ournation and the conviction that international peace, security, and prosperity arestrengthened when human rights and fundamental freedoms are respected andprotected. As the United States seeks to advance human rights and fundamentalfreedoms around the world, we do so cognizant of our own commitment to live up to ourideals at home and to meet our international human rights obligations.180According to Secretary of State Hillary Clinton later in 2009: “A commitment to humanrights starts with universal standards and with holding everyone accountable to thosestandards, including ourselves… When injustice anywhere is ignored, justice everywhere isdenied. Acknowledging and remedying mistakes does not make us weaker, it reaffirms thestrengths of our principles and institutions.”181The US Department of State’s Legal Adviserhas since pointed to an emerging “Obama-Clinton Doctrine” under which the USA wouldfollow “universal standards, not double standards”.182The USA does not conduct the same assessment of itself that it does of other countries in itsyearly State Department reports. However, it has at least now recognized this gap, a verypositive step, and said that subjecting itself to the Universal Periodic Review (UPR) processat the United Nations Human Rights Council has filled it.183It remains to be seen to whatextent the USA will change its approach to respect for international standards, in practiceand not just in theory, as a result of the scrutiny applied to it under the UPR.In its 2010 UPR report to the UN Human Rights Council, the USA asserted: “From theUDHR to the ensuing Covenants and beyond, the United States has played a central role inthe internationalization of human rights law and institutions”.184While the USA indeedplayed a key role in the development of many of the relevant international standards, forwhich it can rightly be proud, the track record on its own compliance with those standards,particularly in the field of counter-terrorism measures, is far less worthy of celebration. TheBush administration’s approach to “war on terror” detentions, interrogations and trialsproceeded as if the UDHR and the International Covenant on Civil and Political Rights hadnever happened. The USA’s failure to end the detentions at Guantánamo, and to ensure fairtrials, accountability, and remedy, as well as the continuing resistance by officials of theadministration to acknowledge that these same human rights instruments have anyapplication at all to its counter-terrorism measures, particularly outside ordinary US territory,are a continuing insult to the Universal Declaration and the international human rightsframework as a whole.There is a further stark double standard being applied by the USA to the question of how togo about ending the detentions at Guantánamo. The USA expects other countries to do whatit itself refuses to – namely to receive released detainees who cannot be returned to theirhome countries for fear of the human rights violations they would face there. The USAcreated the Guantánamo detention facility, committed systematic human rights violationsagainst detainees held and transferred there, and yet has never allowed a single detainee tobe released in US territory, even when their detention has been ruled by the judiciary to havebeen baseless and unlawful.Five of the detainees remaining in Guantánamo today are Uighurs from China. It is now overthree years since their detention was ruled unlawful by the US District Court.

Of the nearly 800 detainees the US authorities say have been taken to Guantánamo sinceJanuary 2002 when the detention facility began operating, 22 were Uighurs, most of themdetained in Pakistan in late 2001 and handed over to the USA in January 2002. Their plightcame to illustrate the detrimental impact on human rights of the USA’s global “war” theory,particularly with respect to detentions.Between the US Supreme Court’s 2004Rasul v. Bushruling that the District Courts hadjurisdiction to consider habeas corpus petitions filed on behalf of detainees held atGuantánamo and itsBoumediene v. Bushruling four years later that the detainees had theconstitutional right to challenge the lawfulness of their detention, the only cases reviewed onthe merits by the District Court occurred in the case of two Uighur detainees whose “enemycombatant” status had been rejected by the Combatant Status Review Tribunals (CSRTs), setup by the Bush administration to seek to minimize judicial review of the Guantánamodetentions after the US Supreme Court’sRasulruling in 2004.The Bush administration asserted that the District Court did not have the authority to orderthe Uighur detainees to be produced at a habeas corpus hearing in Washington, DC, arguingthat “the power to admit aliens into the United States lies solely with the Executive Branch”.Moreover, to order the detainees into the USA for such a hearing “would interfere with theExecutive’s power, inherent in its authority to engage in war and detain suspected enemycombatants, to wind up such detentions in an orderly fashion and to engage in foreigndiplomacy to achieve appropriate solutions with respect to individuals who cannot be sentback to their home country”.185On 22 December 2005 a federal judge ruled that the continued indefinite detention of AbuBakker Qassim and Adel Abdul Hakim at Guantánamo was unlawful. He ruled that even iftheir initial detention was lawful (“the government’s use of the Kafka-esque term ‘no longerenemy combatants’ deliberately begs the question of whether these petitioners ever wereenemy combatants”), the fact that more than six months had passed since the CSRTdecisions in their cases meant that their detention had become indefinite and was thereforeunlawful. However, the judge ruled that he could not order their release into the USA – theonly current option given that they could not be returned to China due to the risks they wouldface there at the hands of Chinese authorities, and no third country had been found – and todo so would have “national security and diplomatic implications beyond the competence orauthority of this Court”. He added that he believed that the law did not give him “the powerto do what I believe justice requires.”186The case was scheduled to be argued in the DC Circuit Court of Appeals at 9.30am onMonday 8 May 2006. At 4.30pm on Friday 5 May 2006, the detainees’ lawyers received atelephone call from the US Department of Justice informing them that their clients, alongwith three other Uighur detainees, had been transported to Albania. At 4.39pm on 5 May2006, the administration filed an emergency motion that the appeal should be dismissed asmoot because the detainees were now in Albania. The government’s motion was granted.This left 17 Uighur detainees still held in Guantánamo, most of whom had been cleared forrelease since 2003. On 7 October 2008, a US District Court judge ruled that their detentionwas unlawful as “the Constitution prohibits indefinite detention without just cause”. Notingthat the government was unable to point to any security risk posed by the Uighurs, and hadbeen unable to find a third country solution in years of trying, he ordered the government torelease the 17 into the USA and to bring them before the court at 10am on 10 October. TheUighurs were then to be released, with the assistance of members of the local Uighurcommunity, religious groups and refugee settlement agencies who had offered their supportto help the detainees adjust to their lives outside Guantánamo. The government appealed.

On 18 February 2009, the US Court of Appeals for the DC Circuit overturned the DistrictCourt ruling. The Court of Appeals said that “it is not within the province of any court, unlessexpressly authorized by law, to review the determination of the political branch of theGovernment to exclude a given alien”. In the case of the 17 Uighurs, it continued, “theExecutive Branch has determined not to allow them to enter the United States”. It said thatit had no reason to doubt that the government was continuing diplomatic efforts to find thirdcountry solutions, “nor do we have the power to require anything more”.Even if as a matter of domestic US law,the courts concluded they could not orderthe government to release the Uighurs inUS territory, no law prevented theexecutive government from doing so of itsown free will following the court’s rulings.For political reasons, however, the Bushadministration refused to countenancethe release of the Uighurs into the USA.The Obama administration failed to breakfrom this indefensible stance. The USAcontinued to turn to other countries to dowhat it would not. Four of the Uighurmen were transferred to Bermuda in June2009, six to Palau in October 2009, andtwo to Switzerland in March 2010.In its assessment of China’s human rights record in 2002,the USA reported, among other things, “torture andmistreatment of prisoners, forced confessions, arbitraryarrest and detention, lengthy incommunicado detention,and denial of due process. Conditions at most prisonsremained harsh.” It also noted evidence of the Chinesegovernment's “use of the international war on terror as ajustification for cracking down harshly on suspectedUighur separatists expressing peaceful political dissent”187In May 2004, Amnesty International reported that agents ofthe Chinese government had apparently been inGuantánamo in 2002 and had participated in the ill-treatment of Uighur detainees, including by sleepdeprivation, threats and environmental manipulation.188The US government never directly responded to theorganization’s written concerns to it on this matter, but aMay 2008 report of the Office of the Inspector General atthe US Department of Justice revealed that an FBI agenthad reported that “several Uighur detainees weresubjected to sleep deprivation or disruption while beinginterrogated at Camp X-Ray by Chinese officials prior toApril 2002”. The agent stated that he had understood thatthis ill-treatment had been “either carried out by theChinese interrogators or was carried out by US militarypersonnel at the behest of the Chinese interrogators”. Oneof the detainees had alleged that “the night before hisinterrogation by Chinese officials, he was awakened at 15-minute intervals the entire night and into the next day”.The Inspector General’s report stated that “some Chineseofficials visited GTMO and were granted access to thesedetainees for interrogation purposes”.189

The five Uighurs who remained inGuantánamo were offered transfer toPalau but rejected it. The case came backto the Court of Appeals in 2010, and athree-judge panel of the court affirmed itsearlier decision saying that even if the fivedetainees “had good reason to reject theoffers they would have no right to bereleased into the United States”.Moreover, the court continued, “it is forthe political branches, not the courts, todetermine whether a foreign country isappropriate for resettlement”. It furthernoted that in the period since it first ruled on the case in 2009, “the Legislative Branch hasspoken”, explicitly to prohibit the “expenditure of any funds to bring any Guantánamo to theUnited States”. Dismissing the claim that the congressional actions violated the USConstitution, the Court of Appeals concluded that because the detainees never had aconstitutional right to be brought to the USA and released, the statutes passed by Congress“suspend nothing” and “deprive petitioners of no right they already possessed”.190The Uighurs continued to seek judicial relief and to be allowed to pursue litigation to showthat they were “still detained and are not ‘volunteers’ at Guantánamo merely because theydid not volunteer to resettle in another remote island” (i.e., Palau). If the detainees were tobe offered “resettlement in Antarctica”, the lawyers for the Uighurs argued in July 2010, “acourt would have no trouble concluding that rejection of the offer does not demonstrate thatPetitioners are volunteers who prefer Guantánamo to release. Palau is not Antarctica, but thequestion is one of degree, and necessarily of fact: whether the facts show that rejecting theoffer rises to the level of volunteering to live at Guantánamo.” That determination could not

be made without the development of a factual record, which the courts had now precluded bydeferring to the executive.Their appeal presented a question of “exceptional importance”, namely about whether thejudiciary has the power to grant relief in such cases. The ruling by the Court of Appeals wentwell beyond the cases of the five Uighurs, the appeal argued, “because it bars a districtjudge fromeverexercising the judicial power to direct release for a successful Guantánamopetitioner”. The “courts have not merely lost the judicial power”, it continued, but the Courtof Appeals had “cede[d] it to the Executive Branch. This is inimical to an independentjudiciary”.191By seven votes to two, the Court of Appeals refused to reconsider the panel ruling, sitting as awhole court. On 18 April 2011, the US Supreme Court refused to intervene. This rulingleaves the USA in continuing violation of its obligations under the ICCPR, article 9(4) ofwhich explicitly states: “Anyone who is deprived of his liberty by arrest or detention shall beentitled to take proceedings before a court, in order that that court may decide without delayon the lawfulness of his detentionand order his release if the detention is not lawful”[emphasis added].The five Uighur detainees remain in Guantánamo where they have beenheld since various dates in 2002.In a key speech in September 2006, confirming that his administration had been usingsecret detention and was transferring a number of detainees held at undisclosed locations toGuantánamo, then President Bush blamed refusals by others to receive former detainees, butnot the refusal of the USA to do so, for the fact that the Guantánamo detention facilityremained in operation:“America has no interest in being the world’s jailer. But one of the reasons we have notbeen able to close Guantánamo is that many countries have refused to take back theirnationals held at the facility. Other countries have not provided adequate assurancesthat their nationals will not be mistreated or they will not return to the battlefield, asmore than a dozen people released from Guantánamo already have. We will continueworking to transfer individuals held at Guantánamo and ask other countries to work withus in this process. And we will move toward the day when we can eventually close thedetention facility at Guantánamo Bay.”192The US political branches continue to block the release of any Guantánamo detainee into theUSA. While the administration continues to blame Congress for the unmet promise to closethe facility, President Obama’s March 2011 order on annual executive review of Guantánamodetentions, including in those cases where a judge has ruled the detention unlawful butwhere the detainee has not been released, states that “nothing in this order, and nodetermination made under this order, shall be construed as grounds for release of detaineescovered by this order into the United States.”193

Two commanders in charge of the detentions subsequently adopted the “Battle Lab” labeland were among those officials who sought approval for, or approved, interrogation methodsthat violated the prohibition of torture and other ill-treatment.196In 2008, the Senate ArmedServices Committee found that interrogation policies approved for use in Guantánamomigrated to Afghanistan and Iraq where they contributed to abuses against detainees.197Today interrogations are believed to have all but ended at Guantánamo. With no newdetainees being transferred to the detention facility for nearly four years – the last arrival wasin March 2008 – Guantánamo has continued as a location for indefinite militaryincarceration and occasional military commission trials, rather than intelligence-gathering. Ifthe prison’s original status as a strategic interrogation facility has essentially beenmothballed, its continued existence has become a political football, with any prospect of thedetentions being addressed by the USA within a human rights framework kicked into the longgrass. Three years after President Obama signed an executive order to close the Guantánamodetention facility, his administration’s failure to meet this commitment has encouraged anumber of his would-be successors to make campaign promises to keep the prison open oreven to expand it.In addition, although the Obama administration has attempted to draw a line under the CIA’sprogram of long-term secret detention and use of “enhanced” interrogation techniques, itcannot do so because the injustices committed in that program continue to fester. Not onlyshould the US authorities immediately set about identifying and bringing to justice thoseresponsible for crimes under international law committed in the CIA program, includingagainst a number of men who remain in Guantánamo today, they should also finally confirm,among other things, whether or not the base was itself the location for a CIA “black site” forso-called “high-value” detainees. Four of the 14 men transferred to Guantánamo from secretCIA detention at undisclosed locations on 4 September 2006 said that they had been held atthe naval base for periods ranging from a week to a year during 2003/2004.198The allegedcommission of crimes under international law at Guantánamo was not limited to the CIA. Thetorture and other ill-treatment of Mohamed al-Qahtani and Mohamedou Slahi at the base in2002 and 2003, for example, were carried out by military personnel for which there has beenno criminal accountability either. A former FBI interrogator has recently revealed anotherpossible case of secret detention at the base. He has written that in 2004, Abdul Aziz al-Matrafi, a Saudi Arabian national held in Guantánamo from February 2002 to late 2007, wastaken by a “specialized military team to a black site (a secret location) and interrogated.”199It is not clear whether the detainee was taken out of Guantánamo entirely or simplytransferred to a secret site at the base, as apparently occurred in the case of MohamedouSlahi described above.The Bush administration’s decision to locate a “war on terror” detention facility atGuantánamo was motivated by its desire to keep the detainees away from the ordinary courtsand the legal protections they provide. Locating secret CIA “black sites” outside the USA wassimilarly motivated – keeping the detainees off “American soil” was used to allow aggressiveinterrogation, prolonged incommunicado detention and solitary confinement. Gradually, legalchallenges brought the judiciary into the equation, but to this day the damage done to rulesof ordinary criminal justice by Guantánamo and the wider detention regime run by the USA isbeing cemented into a permanent part of the US legal and policy landscape rather than beingremedied.The CIA’s use of Guantánamo as a “black site” is believed to have ended shortly after oralargument in late April 2004 in the Supreme Court in theRasul v. Bushcase. This wasfollowed two months later by the ruling that the US federal courts could consider habeascorpus petitions filed for Guantánamo detainees. After the Supreme Court ruled inHamdan v.

Rumsfeldin June 2006 that Article 3 common to the Geneva Conventions was applicable toUS detentions in the “war on terror”, Guantánamo became integral to the Bushadministration’s efforts to protect the CIA’s secret program and reinforce the wall of impunityit had attempted to build around it. In a major speech on 6 September 2006, two days afterhis administration moved 14 of the detainees held in the CIA program to Guantánamo,President Bush exploited their cases to seek passage of the Military Commissions Act (MCA).In the charged climate of looming congressional elections, Congress failed in its duty to bringthe USA into line with its human rights obligations on detentions, trials and accountability.The MCA amended the War Crimes Act, resuscitated the military commissions struck downbyHamdan,and sought to strip the courts of habeas corpus jurisdiction in the case ofGuantánamo and other detainees held as “enemy combatants”. Signing the MCA into law on17 October 2006, President Bush emphasised that it would “allow the Central IntelligenceAgency to continue its program for questioning key terrorist leaders” and the administrationto “prosecute captured terrorists for war crimes through a full and fair trial.”200It took another two years for theBoumediene v. Bushcase to reach the US Supreme Courtand for the court’s subsequent ruling that the Guantánamo detainees had the right tochallenge the lawfulness of their detention before a judge. By the time the decision came,the global “war” paradigm had taken root, including within substantial parts of the federaljudiciary. Today, for detainees held at Guantánamo, a “prompt” habeas corpus hearingmeans one that is conducted years after arrest – and perhaps years after theBoumedieneruling itself – and a judicial order for the government to release an unlawfully held detaineehas effectively become a request.Meanwhile – after a decade of detentions at Guantánamo – only one detainee has beentransferred to the USA for prosecution in ordinary federal court. Clearly among the detaineesstill held at the base there are individuals who should be brought to justice – in the sense ofbeing brought before the ordinary courts for fair criminal trial – on charges of responsibility inrelation to the 11 September 2001 attacks. Indeed, from the perspective of respect for therights of the victims of the attacks, those individuals should been charged and brought to fairtrial years ago. Currently, however, those accused of involvement in the 9/11 attacks andother serious crimes face capital trial at Guantánamo before military commissions that do notmeet international fair trial standards.A month before the 10thanniversary of the Guantánamo detentions, two retired US Marinegenerals characterized the detention facility as a “morally and financially expensive symbol ofdetainee abuse”.201It is not just a symbol of past abuse, however, but of a continuing assaultby the USA on human rights principles. Two and a half years ago, President Obama said thatthe Guantánamo detentions were a “misguided experiment”, but his administration has keptthe laboratory operating. Also in 2009, Attorney General Eric Holder said that he andPresident Obama were in agreement that “Guantánamo has come to represent a time and anapproach that we want to put behind us”.202How much longer does the world have to waituntil the USA steps into a future without the Guantánamo detention facility, and adopts anapproach to countering terrorism that incorporates full respect for its international humanrights obligations?

Remarks by the President on National Security, National Archives, Washington, DC, 21 May 2009,http://www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09By early December 2011, there were 171 men held at Guantánamo, four of whom (one Yemeni, oneCanadian, and two Sudanese nationals) were serving sentences after being convicted by militarycommission (three as a result of guilty pleas in return for reduced sentences). The remaining 167detainees were men of some 21 nationalities: Afghan, Algerian, Chinese (Uighur), Egyptian, Indonesian,Kenyan, Kuwaiti, Libyan, Malaysian, Mauritanian, Moroccan, Pakistani, Palestinian, Russian, SaudiArabian, Somali, Sudanese, Syrian, Tajikistani, Tunisian, UAE, and Yemeni. See Who’s still being held atGuantánamo, Miami Herald, athttp://www.miamiherald.com/2011/04/29/v-fullstory/2192896/who-is-still-at-guantanamo.html“You have also asked us about the potential legal exposure if a detainee successfully convinces afederal district court to exercise habeas jurisdiction. There is little doubt that such a result couldinterfere with the operation of the system that has been developed to address the detainment and trial ofenemy aliens. First, a habeas petition would allow a detainee to challenge the legality of his status andtreatment under international treaties, such as the Geneva Conventions and the International Covenanton Civil and Political Rights…” Possible habeas jurisdiction over aliens held in Guantanamo Bay, Cuba.Memorandum for William J. Haynes, II, General Counsel, Department of Defense, From Patrick F. Philbinand John C. Yoo, Deputy Assistant Attorneys General, US Department of Justice, 28 December 2001.A March 2003 US Department of Justice memorandum on the interrogations of foreign nationals heldoutside the USA, including at Guantánamo, advised the Pentagon that the UN Convention againstTorture or other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), which the USA ratifiedin 1994, “places no legal obligations under domestic law on the Executive Branch, nor can it create anycause of action in federal court. Similarly, customary international law lacks domestic legal effect, and inany event can be overridden by the President at his discretion”. UNCAT, the memo advised, did notpreclude “justification” of cruel, inhuman or degrading treatment or punishment in “exigentcircumstances”. Interrogation methods that constituted such ill-treatment could be justified by “self-defense or necessity”. The memo entirely ignored the fact that under the ICCPR, even “in time of publicemergency which threatens the life of the nation”, there can be no derogation from the prohibition ofcruel, inhuman or degrading treatment or punishment (articles 4 and 7). Because the memo consideredthe 1949 Geneva Conventions to be entirely inapplicable to members of al Qaeda and the Taliban, it also1098

did not mention that common article 3 to the Geneva Conventions expressly lists “violence to life andperson, in particular murder of all kinds, mutilation, cruel treatment and torture” as well as “outragesupon personal dignity, in particular, humiliating and degrading treatment” as being among those actsthat “are and shall remain prohibited at any time and in any place whatsoever” with respect to alldetainees. Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Re:Military interrogation of alien unlawful combatants held outside the United States. From John C. Yoo,Deputy Assistant Attorney General, Office of Legal Counsel, US Department of Justice, 14 March 2003,pages 33-34, 47.See, for example, United States responses to selected recommendations of the Human RightsCommittee 10, October 2007,http://2001-2009.state.gov/documents/organization/100845.pdf(“TheUnited States takes this opportunity to reaffirm its long-standing position that the Covenant does notapply extraterritorially... Since the time that US delegate Eleanor Roosevelt successfully proposed thelanguage that was adopted as part of Article 2 providing that the Covenant does not apply outside theterritory of a State Party, the United States has interpreted the treaty in that manner”.)1211

Opening statement to the UN Human Rights Committee, Matthew Waxman, Head of US Delegationand Principal Deputy Director of Policy Planning, US Department of State, 17 July 2006, Geneva,Switzerland,http://2001-2009.state.gov/g/drl/rls/70392.htmSee, for example, Memorandum for the Heads of Executive Departments and Agencies. Subject:Classified Information and Controlled Unclassified Information, The White House, 27 May 2009,http://www.whitehouse.gov/the-press-office/presidential-memorandum-classified-information-and-controlled-unclassified-informatRemarks by Assistant to the President for Homeland Security and Counterterrorism John Brennan atCSIS, ‘Securing the Homeland by Renewing American Strength, Resilience and Values’, 26 May 2010,http://www.whitehouse.gov/the-press-office/remarks-assistant-president-homeland-security-and-counterterrorism-john-brennan-csi(“We must not forget what military leaders and national securityexperts from across the political spectrum have said for years, that the detention facility at Guantánamohas served as a powerful recruiting tool for our enemies and must be closed.”) Remarks of John O.Brennan, Assistant to the President for Homeland Security and Counterterrorism, Harvard Law School,‘Strengthening our security by adhering to our values and laws’, 16 September 2011,http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-anFor example, see ‘GOP hopefuls would keep Guantánamo camps’. Miami Herald, 13 November 2011.See also, Republican presidential candidates on terror. Associated Press, 6 December 2011.17161514

Decision points,op. cit.,pages 127 and 137. Andy Card was President Bush’s Chief of Staff at thetime of the 9/11 attacks.See, for example, §948d of the Military Commissions Act of 2009 (“A military commission under thischapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable bythis chapter…, or the law of war, whether such offense was committed before, on, or after September11, 2001…”). ‘Abd al Rahim al-Nashiri, for example, is currently charged with alleged war crimescommitted prior to 11 September 2001. See USA: ‘Heads I win, tails you lose’. Government set topursue death penalty at Guantánamo trial, but argues acquittal can still mean life in detention, 8November 2011,http://www.amnesty.org/en/library/info/AMR51/090/2011/enThe AUMF authorized the President to “use all necessary and appropriate force against those nations,organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacksthat occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent anyfuture acts of international terrorism against the United States by such nations, organizations orpersons.”

Section 1021. A “covered person” is (1) “a person who planned, authorized, committed, or aided theterrorist attacks that occurred on September 11, 2001, or harbored those responsible for the attacks” or(2) “a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces thatare engaged in hostilities against the United States or its coalition partners, including any person whohas committed an a belligerent act or has directly supported such hostilities in aid of such enemyforces”. The “requirement to detain a person in military custody under this section does not extend tocitizens of the United States” or to a “lawful resident alien of the United States on the basis of conducttaking place within the United States, except to the extent permitted by the Constitution of the UnitedStates”.The President’s constitutional authority to conduct military operations against terrorists and nationssupporting them. Memorandum opinion for Timothy Flanigan, the Deputy Counsel to the President, fromJohn C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, US Department of Justice, 25September 2001,http://www.justice.gov/olc/warpowers925.htm(“In light of the text, plan, and history ofthe Constitution, its interpretation by both past Administrations and the courts, the longstanding practiceof the executive branch, and the express affirmation of the President's constitutional authorities byCongress, we think it beyond question that the President has the plenary constitutional power to takesuch military actions as he deems necessary and appropriate to respond to the terrorist attacks upon theUnited States on September 11, 2001. Force can be used both to retaliate for those attacks, and toprevent and deter future assaults on the Nation. Military actions need not be limited to those individuals,groups, or states that participated in the attacks on the World Trade Center and the Pentagon: theConstitution vests the President with the power to strike terrorist groups or organizations that cannot bedemonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to thesecurity of the United States and the lives of its people, whether at home or overseas. In both the WarPowers Resolution and the Joint Resolution, Congress has recognized the President's authority to useforce in circumstances such as those created by the September 11 incidents. Neither statute, however,can place any limits on the President's determinations as to any terrorist threat, the amount of militaryforce to be used in response, or the method, timing, and nature of the response. These decisions, underour Constitution, are for the President alone to make.”)3534

Al Maqaleh et al v. Gates et al,Respondents’ opposition to petitioners’ motion to file supplementalmaterials in further support of petitioners’s opposition to motion to dismiss, In the US District Court forDC, 12 August 2011.Al Maqaleh et al v. Gates et al,Respondents’ motion to dismiss amended petitions for writs of habeascorpus, in the US District Court for DC, 19 May 2011.Tofiq al Bihani had been in Afghanistan before leaving the country after the US invasion. In 2010, theUS District Court ruled that Tofiq al Bihani was lawfully detained under the AUMF. The judge noted that“even assuming the catalyst behind the petitioner’s travel to Afghanistan was to prepare for battle inChechnya, and not against the United States, this fact has no material effect on whether the governmentcan detain the petitioner. Nothing in the AUMF, as construed by this Court and the District of ColumbiaCircuit, requires an individual to be ‘part of’ al-Qaeda and to have engaged in hostile aggression, or tohave desired to engage in such conduct, against the United States in order to be rendered detainable”(emphasis in original).Al-Bihani v. Obama,Memorandum Opinion, US District Court for DC, 22September 2010. On appeal to the Court of Appeals to the DC Circuit in January 2011, the government4140

and Tofiq al-Bihani jointly moved for summary affirmation of the District Court’s ruling. His lawyersexplained that “Because Mr al-Bihani contends that he did not participate actively and directly in hostileacts against the United States, and did not intend to engage in hostile acts against the United States, inhis view he cannot be lawfully detained under the Authorization for Use of Military Force (AUMF), or thelaws of armed conflict”. They explained that his reason for joining the joint motion was out of recognitionof the futility of pursuing the challenge in the Court of Appeals because his arguments had beenforeclosed by DC Circuit precedent. He therefore wished to seek Supreme Court review of the DistrictCourt ruling “in the most efficient manner possible”. The Court of Appeals granted the motion on 10February 2011. Tofiq al-Bihani’s petition seeking Supreme Court review was filed in that court in May2011 and was due to be considered on 6 January 2012.Abdulmalik v. Obama,Declaration by Mohammed Abdulmalik, In the US District Court for the Districtof Columbia, 13 October 2010.The administration has also cited the AUMF as the domestic law underpinning the USA’s use oftargeted killing in its “armed conflict with al-Qaeda, as well as the Taliban and associated forces”. TheObama administration and international law, 25 March 2010, op. cit.Letter from William K. Lietzau, Deputy Assistant Secretary of Defense for Rule of Law and DetaineePolicy, 23 August 2011. In its letter of 20 July 2011, Amnesty International wrote: “AmnestyInternational welcomes the decision to charge Ahmed Warsame for trial in ordinary federal court, andrecognises the fortitude the administration has shown in doing so in the face of Congressional opposition.We urge the administration to remind members of Congress, as well as its own officials, of how importantit is that the USA fulfil the international human rights obligations it has entered into with theinternational community, including the requirement to ensure criminal suspects receive full and fairtrials within a reasonable time in independent and impartial courts, without discrimination, including onthe basis of nationality. However, the very fact that Amnesty International should find itself welcoming adecision by the USA to use its own ordinary courts to prosecute international terrorism suspects, a courseof action that only a decade ago was seen as routine – indeed, was recognised to be the only legitimateforum for such a criminal trial – illustrates how far the USA has strayed from its commitment to respectfor human rights during that time and how much work remains to be done to change course.”The DFIP replaced the Bagram Theater Internment Facility in late 2009. Most of the detainees held inDFIP are Afghan nationals, taken into custody by coalition forces in southern and eastern Afghanistan,according to the International Committee of the Red Cross. According to the Pentagon, the process of“transitioning detention operations at the DFIP” to the Afghan government began in January 2011, whenone detainee housing unit was handed over to the Afghan Ministry of Defense. This unit has Afghanguards “with the support” of US personnel. Once the DFIP is transferred to Afghan control, it is expectedto become “part of a larger Afghan Justice Center in Parwan (JCIP)”. According to the Pentagon, by May2011 more than 130 trials had been conducted by Afghan authorities at the JCIP and DFIP and morethan 550 additional prosecution cases were in preparation.Maqaleh et al v. Gates et al.Declaration ofWilliam K. Lietzau, 19 May 2011. In the US District Court for DC.After the Court of Appeals refused to reconsider its decision in July 2010, US lawyers for thedetainees returned to the District Court to pursue the litigation, which is continuing.Maqaleh et al v. Gates et al.Declaration of Vice Admiral Robert S. Harward, 13 May 2011, in the USDistrict Court for DC.UN Doc. A/HRC/WG.6/9/USA/1 (23 August 2010). National report submitted in accordance withparagraph 15 (a) of the annex to Human Rights Council resolution 5/1. United States of America, para 5.4948474645444342

See Evan Wallach, ‘Drop by drop: Forgetting the history of water torture in US courts’, ColumbiaJournal of Transnational Law, Volume 45 (2006-2007), pages 468 to 506. See also, for example, USAttorney General Eric Holder at the Jewish Council for Public Affairs Plenum, Washington, DC, 2 March2009 (“As I unequivocally stated in my confirmation hearing before the US Senate, water-boarding istorture. My Justice Department will not justify it, rationalize it, or condone it. The sanction of torture is atodds with the history of American jurisprudence and American principles.”). (See also, for instance,statement to UK Parliament by then-UK Foreign Secretary David Miliband “I consider that water-boarding amounts to torture”, HC Deb, 21 April 2008, col 1726W; statement to the 63rd Session of theUN General Assembly, by the Special Rapporteur on Torture, Manfred Nowak, Thursday, 23 October2008, paragraph 3; Committee against Torture, Concluding Observations on USA, UN DocCAT/C/USA/CO/2 (25 July 2006), para 24; Report of the Special Rapporteur on torture and other cruel,inhuman or degrading treatment or punishment, Manfred Nowak, UN Doc A/HRC/13/39/Add.5 (5February 2010), para 74; Interview with Special Rapporteur on torture, Juan Mendez (12 November2010),http://www.abc.net.au/pm/content/2010/s3065204.htm;Judgment of the International MilitaryTribunal for the Far East (1948). Part B, Chapter VIII, p. 1059. Judgment of the 26 July 2010, theTrial Chamber of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) in the case againstKiang Guek Eav (alias ‘Duch’)1(“Case 001”),http://www.eccc.gov.kh/en/documents/court/judgement-case-001paragraphs 241 and 360.51

Re: Application of United States obligations under Article 16 of the Convention against Torture tocertain techniques that may be used in the interrogation of high value al Qaeda detainees, 30 May 2005,op. cit.Khalid Sheikh Mohammed was allegedly “always kept naked” during this torture and femaleinterrogators were present, “increasing the humiliation aspect”. ICRC report on the treatment of fourteen‘high value detainees’ in CIA custody, International Committee of the Red Cross, February 2007, page 6.Khalid Sheikh Mohammed was held in various undisclosed locations. In his third place of detention,when he was not in interrogation, he has alleged that he was shackled in the “prolonged stress standingposition” for a month, with his wrists shackled to a bar or hook in the ceiling above his head. He has alsosaid that he was kept naked for a month in secret detention in Afghanistan, and during one period waskept shackled continuously for 19 months, even when inside his cell.Decision points,op. cit.,page 166.

Marc Thiessen, On waterboarding: Let’s stick to the facts. Washington Post, 15 November 2011,http://www.washingtonpost.com/blogs/post-partisan/post/on-waterboarding-lets-stick-to-the-facts/2011/11/15/gIQAHHiiON_blog.htmlFor another view, see Chapter 22 of Ali H. Soufan, The black banners: The inside story of 9/11 andthe war against al-Qaeda. W.W. Norton (2011). Ali Soufan was an FBI interrogator who, among otherthings, interrogated Abu Zubaydah prior to the CIA employing “enhanced interrogation techniques”.See also, for example, UN Human Rights Committee General Comment 20 (1992) on article 7 of theInternational Covenant on Civil and Political Rights which prohibits the use of torture or other cruel,inhuman or degrading treatment or punishment (para 3: “The text of article 7 allows of no limitation. TheCommittee also reaffirms that, even in situations of public emergency such as those referred to in article4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remainin force. The Committee likewise observes that no justification or extenuating circumstances may beinvoked to excuse a violation of article 7 for any reasons, including those based on an order from asuperior officer or public authority.”) Common article 3 to the 1949 Geneva Conventions expressly lists“violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” aswell as “outrages upon personal dignity, in particular, humiliating and degrading treatment” as beingamong those acts that “are and shall remain prohibited at any time and in any place whatsoever” withrespect to all detainees. Article 2(2) of the UN Convention against Torture provides, “No exceptionalcircumstances whatsoever, whether a state of war or a threat of war, internal political instability or anyother public emergency, may be invoked as a justification of torture.”666564

“increasing the humiliation aspect”. ICRC report on the treatment of fourteen ‘high value detainees’ inCIA custody, International Committee of the Red Cross, February 2007, page 6. He was held in variousundisclosed locations. In his third place of detention, when he was not in interrogation, he has allegedthat he was shackled in the “prolonged stress standing position” for a month, with his wrists shackled toa bar or hook in the ceiling above his head. He has also said that he was kept naked for a month insecret detention in Afghanistan, and during one period was kept shackled continuously for 19 months,even when inside his cell.Remarks on the war on terror. President G. W. Bush, 6 September 2006 (“As soon as Congress acts toauthorize the military commissions I have proposed, the men our intelligence officials believeorchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice”).The President’s News Conference, 15 September 2006 (“This debate is occurring because of theSupreme Court’s ruling that said that we must conduct ourselves under the Common Article Three of theGeneva Convention. And that Common Article Three says that there will be no outrages upon humandignity. It’s very vague. What does that mean, ‘‘outrages upon human dignity’’? That’s a statement that iswide open to interpretation… Now, this idea that somehow we’ve got to live under international treaties,you know – and that’s fine, we do, but oftentimes the United States Government passes law to clarifyobligations under international treaty. And what I’m concerned about is, if we don’t do that, then it’s veryconceivable our professionals could be held to account based upon court decisions in other countries.And I don’t believe Americans want that. I believe Americans want us to protect the country, to haveclear standards for our law enforcement, intelligence officers, and give them the tools necessary toprotect us within the law… So Congress has got a decision to make: Do you want the program to goforward or not?”)9695

At the military commission arraignment at Guantánamo on 9 November 2011, the following dialogueoccurred between the military judge and a prosecutor from the US Department of Justice, Assistant USAttorney Anthony Mattivi. Military Judge, Colonel Pohl: “If the accused were acquitted today, there is nolegal prohibition from the government to take him under the Authorization for Use of Military Forcestraight back to the cell he came from? Today.” US Attorney Mattivi: “Today, just as if the same thinghad happened to Mr [Ahmed Khalfan] Ghailani in the Southern District in the Article III case, that’sabsolutely correct”. Ahmed Ghailani is the only Guantánamo detainee to have been transferred to theUS mainland for prosecution. He was convicted in 2010 and sentenced to life imprisonment in 2011.Final report, Guantánamo Review Task Force, 22 January 2010,op. cit.Obama’s Interview aboard Air Force One, New York Times transcript, 7 March 2009.Interview on 22 May 2009 with Steve Scully, Political Editor, C-SPAN, aired on 23 May 2009.

Homeland Security and Counterterrorism John Brennan, White House, 2 May 2011,http://www.whitehouse.gov/the-pressoffice/2011/05/02/press-briefing-press-secretary-jay-carney-and-assistant-president-homela).Officials subsequently clarified that Osama bin Laden was in fact unarmedwhen he was shot in the head during the raid (See, for example, White House corrects information on binLaden raid. American Forces Press Service, 3 May 2011,http://www.defense.gov//News/NewsArticle.aspx?ID=63803).The US Attorney General told the SenateJudiciary Committee, “If he had surrendered, attempted to surrender, I think we should obviously haveaccepted that, but there was no indication that he wanted to do that and therefore his killing wasappropriate” (http://www.bbc.co.uk/news/world-us-canada-13286312). Administration officials were,however, subsequently reported to have admitted that no real opportunity for surrender was planned foror in fact provided (LA Times, “Osama bin Laden's surrender wasn't a likely outcome in raid, officialssay”, 3 May 2011,http://articles.latimes.com/2011/may/03/world/la-fg-bin-laden-us-20110504).Amnesty International wrote to US officials on 4 May 2011 seeking further information. In a reply dated31 May 2011, the US administration made it clear that the raid was conducted under the USA’s theoryof a global armed conflict between the USA and al-Qa’ida. In a response dated 22 July 2011, AmnestyInternational wrote: “To permit any state to claim that it can act in contravention of human rightsstandards virtually anywhere in the world at any time simply by invoking the concept of a ‘global war’against a diffuse network of non-state actors, a ‘war’ that is without prospect of a clearly recognizableend, would seriously undermine the very foundations of international human rights law. Such a claimfurther finds no explicit basis in the various sources of international humanitarian law itself.” Theorganization wrote that if the legal justification referenced in the administration’s letter of 31 May 2011“represents the USA’s final word on this matter, then we are left with little choice but to conclude thatthe killings in question were committed without a proper legal basis, were carried out in accordance withinstructions that failed to implement the applicable human rights standards, and were thereforeinconsistent with due respect for the right to life.” Relevant in this regard would be the right not to bearbitrarily deprived of life as provided for under article 6 of the International Covenant on Civil andPolitical Rights (ICCPR), and specifically the requirements of prior warning and effective opportunity tocomply, and necessity, as reflected for instance in the UN Code of Conduct for Law EnforcementOfficials, adopted by General Assembly resolution 34/169 of 17 December 1979, and the UN BasicPrinciples on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth UnitedNations Congress on the Prevention of Crime and the Treatment of Offenders, 27 August to 7 September1990. The organization also called on the US administration to conduct an investigation, in accordancewith international human rights standards into the killings in Abbottabad operation, as required underthe ICCPR, and as reflected in the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Economic and Social Council resolution 1989/65 of 24 May1989. By early December 2011, the organization had received no further communication on this matterfrom the US authorities, few details were subsequently provided publicly, and no independentinvestigation is known to have taken place. See also Amnesty International, USA: A reflection on justice,16 May 2011,http://amnesty.org/en/library/info/AMR51/038/2011/en.119