A Note on Coercive Interrogation Techniques, Cruel Inhuman & Degrading Treatment and Torture — PDF

2008 Coercive Interrogation Techniques, Cruel Inhuman & Degrading Treatment and Torture

Only days after the Supreme Court argument in April, 2004, the notorious Abu Ghraib pictures were first publicly revealed. It is now clear that abuses, mistreatment, and torture are rampant in other U.S. military prisons. At Guantanamo we know that a variety of coercive techniques amounting to torture were used. Some of this – including dogs, sleep deprivation, stripping, short-shackling, starvation, isolation, misuse of medical information, beatings, and sexual humiliation – have been revealed in an extensive report detailing the experiences of three of the U.K. detainees that were released: Ruhel Ahmed, Asif Iqbal, and Shafiq Rasul, known as the Tipton Three.

Their report documents that interrogation techniques got worse, much worse, once General Geoffrey Miller took over the camp. He was the general, eventually sent to Iraq to “improve interrogation” at those prisons; a few months later, the torture revealed in the Abu Ghraib photos occurred. He was until recently in permanent charge of Abu Ghraib.

The report further demonstrates that the information obtained by this coercion was unreliable and false. The Tipton Three were shown a video in which the interrogators claimed they were pictured in a terrorist training camp with Osama Bin Laden. The three denied it and claimed they could prove their presence in the U.K. when the video was made. They were not believed. After three months of isolation and other means of coercion, they confessed it was them in the video. As public pressure built up in the U.K. for release or at least some rights for the detainees, British intelligence finally did the job it should have done in the beginning. It checked their stories and proved that, indeed, the three were in the U.K. at the time the video was made.

These interrogation techniques all violate the Geneva Conventions as well as other international treaties and U.S. law. This is one of the important reasons the Bush administration early on decided that it would not apply the Geneva Conventions to those detained at Guantanamo. They knew they would be violating the law; U.S. criminal law makes violations of the Conventions a war crime. In a memo dated January 25, 2002, from the President’s Counsel Alberto R. Gonzales to the President regarding application of the Geneva Conventions, Gonzales openly recommends not applying the Geneva Conventions to the Taliban or al Qaeda.

It seems obvious that, as early as January 2002, the Bush administration was planning on using or had already employed interrogation techniques that that it thought might constitute “inhuman treatment” and violate the Conventions, thereby opening itself up to criminal prosecutions. Gonzales concluded that a Presidential determination not to apply the Conventions “would provide a solid defense to any future prosecutions.” This demonstrates that coercive treatment, cruel, inhuman and degrading treatment and torture did not begin with low level military officials; it began at the top.

CCR’s work to expose and stop this torture is only at the beginning. We have filed a case in Germany in an effort to prosecute Rumsfeld and others for war crimes. Officials in the U.S. government, whatever euphemisms they use-such as “stress and duress”-have committed war crimes.


Ratner–May 21, 2005

The Guantanamo Prisoners

It has been called an “American Gulag,” “A Lawless Human Warehouse,” “A Legal Black Hole,” “A Glimpse Into Our Future,” ” A Cold Storage Facility,” and the “First Off Shore Concentration Camp of the Empire.” The entire world knows it by these descriptions: It is the United States prison camp at Guantanamo Bay, Cuba. It has become iconic in the Muslim world for the United States is doing wrong in the “war on terror.” These descriptions were coined even prior to the revelations in April and May 2004 that techniques of interrogation were employed in Guantanamo that are inhumane and may well amount to torture.

Guantanamo is a prison, or rather a number of prisons or rather a number of cages, that, as of this writing, hold approximately 600 human beings from over 40 countries. It is a prison, but it is also an interrogation camp and that is why it exists. Most of the detainees were captured, or kidnapped, or arrested, oftentimes on the basis of unreliable information, during the war against Afghanistan and the Taliban following the attacks of 9/11. Most have been detained for almost three years. They are being held incommunicado. We do not know most of their names, as the United States will not give out this information. Only two have been charged with any crime. Each detainee may have been interrogated 100 times. None have had access to an attorney or any contact with an attorney even by mail or telephone. 1 None have had contact with their families. None have had access to any court or judicial process for asserting their innocence. They could be held forever. These are Executive detentions totally outside both domestic and international Law. The detainees are truly the disappeared in America.

How It All Began: Why Guantanamo?

In the late 1800’s the United States intervened in the Cuban fight for independence against the Spanish. Ostensibly, coming to the aid of the Cubans, the U.S. ultimately took control of Cuba at the end of the Spanish­ American war. As one of the conditions for granting “independence” to Cuba, the United States insisted on what amounts to a perpetual lease on approximately thirty-one square miles of land in southeast Cuba, an area larger then Manhattan. This is the United States Naval Base at Guantanamo Bay. The lease gives the United States “complete jurisdiction and control” over the area and continues in perpetuity unless mutually abrogated.

Despite claims of national sovereignty made by Cuba over the area, the United States insists its occupation is legal and that it will remain in Guantanamo until it decides otherwise. This is unlike any other base the United States has in a foreign country. The United States is essentially sovereign over Guantanamo. Cuba and its courts have no authority over the base in any respect.

Over the years Guantanamo has been used for a number of different purposes. Initially, and according to the lease, the base was to be used solely as a “coaling station,” where ships could refuel. However, for many years the United States has gone beyond the limits of the lease and there is not much Cuba, or anyone else, can do about it. The immediate precursor to the recent post 9/11 detentions was the Guantanamo detention camp for Haitian and Cuban refugees, including the world’s first camp for HIV positive refugees. These detentions set the precedent for the Guantanamo detentions and demonstrate that using the base, as a zone outside the law, was not brainstorm of the current Bush II administration.

During the administration of Bush I, President Aristide was overthrown in Haiti and the ensuing bloodbath caused thousands to flee. The United States did not want these Haitian refugees coming to the United States and decided to hold them at Guantanamo. Guantanamo had great advantages for the United States, apart from its physical location near Haiti in the Caribbean. It could only be visited with the permission of the United States and was therefore off limits to reporters and relatives. It was close enough to the United States for it to shuttle soldiers and officials back and forth with ease. However, most importantly, in the view of the government it was a law free zone. That is to say, the Bush I administration and later the Clinton administration claimed that no court in the world could hear any cases brought on behalf of the refugees at Guantanamo. In effect, this meant that the U.S. government could treat detainees however it wished; it could beat them, punish them, send them back to their oppressors in Haiti and there was nothing any court or anyone could do about it.

This claim was soon tested by lawyers who brought suit in U.S. courts on behalf of refugees in danger of being sent back to Haiti and HIV refugees seeking release from the camp. The cases were bitterly contested by the government and ultimately the decisions were divided on whether or not the courts could hear claims by anyone held at Guantanamo. To the extent those courts concluded that the naval base at Guantanamo was more akin to United States sovereign territory, they permitted review and determined that the refugees had some constitutional protection.2

The courts that permitted review and found that the refuges had some constitutional rights viewed Guantanamo as effectively American territory, much like Puerto Rico or the Canal Zone. The naval base is a self-sufficient and essentially permanent city with approximately 7,000 military and civilian residents–an American enclave with all the residential, commercial, and recreational trappings of a small U.S. city. It has its own schools, generates its own power, provides its own internal transportation, supplies its own water, and has an airfield. Crimes committed by both civilians and foreign nationals living on the base are brought before courts in the mainland United States. Cuba and its courts have no authority over the base in any respect. The United States naval website accurately describes Guantanamo Bay as “a Naval reservation, which for all practical purposes is American territory.”3 This is unlike any other base the United States has in a foreign country. The United States is essentially sovereign over Guantanamo.

However, some courts found Guantanamo more akin to a foreign country, denied review and found that the refugees had no constitutional rights.4 Until recently, the Supreme Court had never dealt with the Guantanamo issue and therefore it remained an open question-but not in the administration’s view. As we are writing this, in a surprising development, the Supreme Court has agreed to review the 9/11 Guantanamo detentions and heard argument on April 20.

The issue before the court is whether or not any court in the U.S. can exercise jurisdiction over the claims of those Guantanamo detainees. The case will be decided by early July 2004.

Guantanamo, as an island insulated from court review, explains Guantanamo today. What a wonderful place for the Bush administration to imprison and interrogate people from the war in Afghanistan and from other places around the world: no reporters, no family, no lawyers and no courts. If Guantanamo were off the coast of Chile during the Pinochet years, it would be called a dictator’s dream.

Considering the status of Guantanamo, which for all intents and purposes is United States- controlled territory, it is difficult to accept an argument that what occurs there, should be exempt from United States court review. It is also difficult to accept the view that the United States can imprison people anywhere in the world, even in a foreign country, and be free from judicial oversight. In fact, judicial oversight should not depend on the location of where the United States government decides to imprison people. That would allow it to simply move detainees out of the U.S, and evade court oversight. Suppose, for example, the Supreme Court finds that Guantanamo is more akin to the U.S. and the 9/11 detainees have constitutional rights while imprisoned there. Should the U.S. be permitted to move the detainees to Bagram–the U.S. prison in Afghanistan- deny them rights? It does seem that if the U.S. government anywhere in the world detains someone, the courts ought to be there to insure the process is just and fair.

Who Was Captured and Taken to Guantanamo?

As of this writing there are approximately 600 people detained at Guantanamo from forty-four countries. Not all of these people were detained during the war against Afghanistan nor was Guantanamo necessarily the first place they were held; nor will it be the last place for a number of them. The detentions began in January 2001 shortly after the end of the war against Afghanistan.

On October 7, 2001, the United States and its allies began their war against the Taliban rulers of Afghanistan and al Qaeda members who were present in that country. The United States allied itself with the Northern Alliance forces that had been opposing the Taliban for many years. During that brief war, thousands of Taliban and al Qaeda fighters were captured, primarily by the Northern Alliance. Many of these were detained in Mazar-e-Sharif prison and in Shibarghan prison under appalling conditions.5 CIA and other United States officials carried out extensive interrogations of the prisoners. The Northern Alliance later freed some of these prisoners; others remain in prison in Afghanistan. 6 A number of prisoners are in Bagram, Afghanistan, a U.S. detention facility where abuse and torture of prisoners is apparently commonplace.7 In May of 2004 charges made earlier–that abuse and torture by U.S. forces occurred at prisons in Afghanistan–have been confirmed.

On January 11, 2002, the United States military began transporting some of these prisoners captured in Afghanistan to Camp X-Ray at the United States Naval Base, Guantanamo Bay, Cuba. Camp X-Ray is located in an isolated part of the naval base which itself is in a remote part of Cuba. The name, which is like a sick joke, accurately describes the camp; the guards could see everything a prisoner did at Camp-X-Ray as the cells are wire cages where the lights were on 24 hours a day. Prisoners were ill treated both in transit and upon arrival at Guantanamo. They were shackled, hooded and sedated during the 25-hour flight from Afghanistan, their beards and heads were forcibly shaved and physical force was employed.

Over the next months, more prisoners were taken to Guantanamo. It is assumed that at least in the early days most of these were allegedly associated with the Taliban or al Qaeda and taken from Afghanistan or Pakistan-essentially out of the theatre of the war. 8 However, prisoners from other places have been imprisoned in Guantanamo, including five Algerians, two British residents captured in The Gambia, and a Yemeni from Bosnia. 9 These prisoners are obviously not combatants captured in the theatre of war and it unknown how many similar prisoners there are. They may have been suspected terrorists or people from whom the U.S. thought it could get information. These detentions indicate that Guantanamo is being used for more than just those picked up in Afghanistan and Pakistan, but will be used to detain others that United States officials suspect are dangerous, might have information, are allegedly involved in terrorism or with al Qaeda.

The fact that the government is using Guantanamo for prisoners other then those detained during wartime is especially frightening. Detainees who have no connection with the war against Afghanistan are now held there.

The United States is going around the world, as a roving police force, kidnapping whom it chooses, ignoring extradition laws and taking those detained to Guantanamo or other detention facilities. Apart from the laws it is breaking in doing so, if those it detains are alleged criminals, then they ought to charged and tried as such and not taken to a detention camp where they are given no rights.

In late April 2002, the United States transferred the prisoners from Camp-X-Ray to nearby Camp Delta, a new longer-term prison camp that is designed to house as many as 2000 prisoners. 10 It is heavily secured with guard towers, searchlights and barbed wire and is described below. Every move by the inmates is watched by the military even in their cells where almost all their time is spent.

What We Know About the Detainees

Not much is known about those that remain imprisoned in Guantanamo; certainly, nothing is known publicly as to whether particular detainees have allegedly committed crimes, are affiliated with the Taliban or al Qaeda, or are there by mistake. No attorneys, family or press are allowed to visit, but the International Committee of the Red Cross has a regular presence in Guantanamo and presumably has visited the prison and the detainees. As is standard with the Red Cross, it has said nothing regarding particular detainees. However, approximately 140 detainees have been released as of May 2004. Information regarding some of these detainees, which contradicts the administrations statements, is set forth below.

The U.S. administration has made general statements regarding the alleged character of those detained, without allowing any of the detainees access to attorneys and without anyone bringing anyone before any kind of trial proceeding that could determine their status or their involvement with terrorism. At the time of the transfers to Guantanamo, Secretary of Defense Donald Rumsfeld called the detainees “hardened criminals willing to kill themselves and others for their cause.”11 He emphasized their dangerousness: “Every time people have messed with these folks, they’ve gotten in trouble. And they are very well trained. They’re willing to give up their lives, in many instances.”12

The United States military officials in charge of the prison said they were told to expect “the worst of the worst. 11 “These are the worst of a very bad lot,” said Vice-President Cheney. “They are very dangerous. 11 13 There may well be some terrorists among those imprisoned. However, the Bush Administration has refused to bring anyone before any kind of tribunal or court that can determine whether some are alleged terrorists, POWs, or innocent.14 Based on the statements of some of the one hundred and forty or so persons that have been released, it appears that the administration is exaggerating by painting many of those at Guantanamo as terrorists. These releases, sometimes after two years in Guantanamo, demonstrate that the Administration’s sweeping rhetoric is just that and is false. It should not have taken up to two years to determine that these men were not alleged terrorists.

In March of 2003 after over a year at Guantanamo the Bush administration freed prisoner number 671, Abassin Sayed.15 Who he was says a lot about those imprisoned in Guantanamo. After his release, the reporter who interviewed him found him in Afghanistan driving his taxi and playing Hindi music on his radio. While driving his taxi in April 2002 he had been stopped at a checkpoint by a gang of local Afghans. American soldiers were being ambushed in the area wanted to capture those responsible. The local Afghans were only too glad to help out even if those stopped were not involved in the attacks. Although he protested that he was only a taxi driver, he was turned over to the Americans.

Abassin Sayed never had a chance to prove that he was innocent and was never given any legal process. 16 He was taken to the U.S. airbase base at Bagram, Afghanistan, spent a month in an Afghan jail, and then flown to Guantanamo where he arrived tied, gagged, masked and wearing dark goggles. As he said of his arrival, “It was the act of an animal to treat a human being like that. It was the worst day of my life.” He was put into small cell with the lights on 24 hours a day. As he said, “the lights were so strong, you couldn’t differentiate between day and night. If you tried to cover your face to sleep the soldiers came in and told you not to do that.” Once he exercised in his cell and was punished by being sent to solitary confinement for five days n a container where he had no blankets or anything else. He was interrogated 11 times for six or seven hours. He was punished in a similar fashion for not knowing the answers to questions. This number of interrogations is far fewer then others were subjected to; reports are that prisoners have been interrogated over 100 times. Abassin Sayed’s best friend, also a taxi driver, remains in Guantanamo. That friend had asked about what happened to Abassin Sayed after his arrest; just for asking the friend was turned over to the United States and is now in Guantanamo.

Abassin Sayed case is not unique. Others wound up in Guantanamo because rewards were paid to persons who identified members of Al Qaeda, and often innocents were detained to obtain bribe money. Leaflets were dropped by the U.S. military offering $5,000 to Afghans who turned in alleged terrorists. Many apparently took up the offer and turned in the innocent. a military interrogator at Camp Delta estimates that as many as 20% may be innocent. 17 Dozens if not more of prisoners are described in U.S. intelligence reports as taxi, drivers, farmers, laborers and shoemakers.18

According to these reports at least 59 persons from Afghanistan and Pakistan were take to Guantanamo although they did not fit the screening criteria for such a transfer.19 A number were picked up because of the offer of bounties . As one military official who was an interrogator said, “If they weren’t terrorists before, they certainly could be now.”20

In October 2002 three Afghani men were released, after almost a year at Guantanamo. One of the men released said that he was 105 years old.

David Rhode, a New York Times reporter described him: “Babbling at times like a child, the partially deaf, shriveled old man was unable to answer the simplest questions.”21 When asked if he was angry with American soldiers he said that he did not mind, because they “took my old clothes and gave me new clothes.” A second Afghani man, released at that time, said that he was 90 years old and was described as a “wizened old man with a cane” who had been arrested in a raid on his village. 22

A third younger man said that he had been cut off from the outside world for eleven months and had only received a letter from his family three days before he was to leave Guantanamo. He said he was kept in his cell 24 hours a day with only two 15-minute breaks for exercise a week. This third man admitted that he had fought with the Taliban, but said that he had been forced to do so. After he surrendered, he said, soldiers of the warlord Abdul Rashid Dostum falsely told the United States that he and nine others were officials of the Taliban.23 His release appears to confirm the essential elements of his story. These men are hardly the “worst of the worst.” Here were men who should have never been taken to Guantanamo and yet they were imprisoned. Here were men, who had there been a hearing before some form of a tribunal, would have been freed long ago.

In early 2004 five prisoners from the U.K. were freed. All were released within 24 hours of their arrival in the U.K. All of them have now given extensive statements regarding their capture and treatment. Three of them known as the Tipton three, from the Midlands in England Ruhal Ahmed, 22, Asif Iqbal, 22, and Shafiq Rasul, 26, said they were captured in Afghanistan by one of the warlords of the Northern Alliance. They were not combatants, but in the wrong place at the wrong time. They almost died while in custody of the warlord, as they were imprisoned in over heated shipping containers and were among the few survivors. Eventually they were turned over to the Americans, interrogated with guns held to their heads and beaten at a prison in Afghanistan. In early 2003 sent to Guantanamo.24

The fourth man from the U.K. who was freed, Tarek Dergoul, 26, has a similar story. He and two friends went to Afghanistan after September 11. They took with them 5000 British pounds in the hopes that they could buy some cheap property far from the bombing and sell it at a profit after the end of the war. They looked at several houses and just before making a purchase he was injured by shrapnel from a bomb. He was taken prisoner by the Northern Alliance, and sold to the Americans for $5000. Human Rights watch says that was the standard fee for a suspected terrorist. 25 The fifth Brit released Jamal Al Harith had gone to Pakistan to study and after he had been there four days the war began. He paid for a ride on a truck that he thought would get him to Iran and did not know it was going through Afghanistan. He was stopped by an armed gang and taken to a Taliban jail, apparently it was thought he was spying for the British against the Taliban.

After the Taliban fell he stayed with the Red Cross but was eventually turned over to the Americans and sent to Guantanamo.26 As will be seen in the next section all five of these men from the U.K. suffered mistreatment at the hands of their interrogators in Guantanamo.

Information about other detainees is also known from families of the detainees and from delegations of officials from various countries. Some of the prisoners have been able to send short, censored letters through the Red Cross to their families. These letters appear to be few and far between. One reason for the few letters, according to inmates that have been released, is that writing and receipt is conditioned upon whether the detainees cooperates with his interrogators. A few families that received letters have contacted lawyers, and lawsuits have been filed from which some information is known about the detainees.

For example, according to his family, Mamdouh Habib, an Australian citizen, traveled to Pakistan in August 2001 to look for work and a school for his two teenage sons. On October 5, 2002, just before he was about to return to Australia and two days prior to the war, Pakistani officials detained him. He was transported to Egypt where Egyptian authorities detained him. In Egypt Habib was reportedly stripped naked, electro shocked and had dogs set upon him. Eventually he was turned over to the United States and taken to Guantanamo. Obviously, he was nowhere near the fighting in Afghanistan. A delegation from Pakistan that visited its citizens on Guantanamo for purposes of interrogation has also questioned the continued detention of many of the Pakistanis. The delegation concluded that almost all of the 58 Pakistanis detained were low-level foot soldiers and had no link to al Qaeda. Some of these may have been imprisoned because of United States reward money given to the members of the Northern Alliance in exchange for alleged member of al Qaeda. Because of its visit, Pakistan requested the release nearly all of the Pakistani prisoners.

Amazingly, it is not only adults that have been imprisoned in Guantanamo. Children are there as well. The number is unknown, but until late January of 2004, there were at least three children between 13 and 15. These three were recently freed. There remain an unknown number of children under 18 years old. The International Committee of the Red Cross said that Guantanamo was an inappropriate place to detain juveniles and that their detention was a grave risk to their well-being. In addition, detentions of juveniles under the conditions of Guantanamo violated the Optional Protocol to the Convention on the Rights of Children, which requires governments to rehabilitate former child soldiers (assuming this is what the captured children are). As Human Rights Watch said, “Rehabilitation does not happen at Guantanamo.”27

International law also requires that families are permitted to maintain contact with their children, the right to a speedy determination of their case, the separation of children from adults and that detention be used only as a last resort. It appears that the United States violated and is violating each of these requirements. (After a protest from human rights groups, the U.S. separated the youngest children into a separate house called Camp Iguana.)

These stories of the innocent, of detainees not involved in any fighting, of detainees who were no more than lowly foot soldiers, and of young children demonstrates the importance of a legal process for determining the status of those imprisoned on Guantanamo and of the callousness and inhumanity with which the United States is running Guantanamo.

Conditions of Detention and Interrogation

Michael Ratner, one of the writers of this book, has had some personal experience with the living conditions in Guantanamo. In the early 1990’s, he represented Haitian refugees who were held there and visited the base a number of times. As he said then: “Its land is bleak and hardscrabble; little grows except cacti; the heat is intense, and scorpions, mosquitoes, and banana rats are abundant. It is out of the ninth circle of Dante’s Hell. For 14 months, the refugees have used portable toilets that are rarely cleaned, that are filled wit feces and urine. The camp is bleak-no grass, hardscrabble ground and temporary wooden barracks on concrete slabs. Within those ‘homes’ 15 to 20 Haitians are huddled with only sheets hanging from the rafters. Rain, vermin and rats are other occupants.”28

Imagine, if refugees were so treated, what could be expected of the U.S. treatment of what the Bush administration claims are alleged terrorists. When the Guantanamo detainees arrived at Guantanamo, the environment was much the same, but the conditions of detention were far harsher. Initially, they were housed in makeshift, small (8 feet by 8 feet), open air, wire cages that failed to protect against the elements.29 The cages were surrounded with fences topped by razor barbed wire, and the compound was encircled with watchtowers. In this early period, the detainees remained shackled when using the portable toilets or showers and temperatures frequently went above 95 degrees Fahrenheit. Halogen floodlights blazed all night so that they could be continuously monitored. The pictures released in January 2002 of the prisoners at Guantanamo show them kneeling in blazing Cuban sun, wearing blackened goggles, masks, ear covers and shackles.

These photos caused a public outcry, as did the conditions under which they were being held.

Camp Delta, the longer-term prison camp, is apparently divided into a number of cellblocks. Within four of the five cellblocks there are four levels and depending on the prisoners cooperation in interrogation he will be moved up a level. For those who do not tell the interrogators what they want to hear, it is isolation or a cell without even a cup, mattress or toothbrush. A smaller fifth cellblock or camp is for the prisoners who cooperate. Judging from the few photographs that have been released, Camp Delta looks like rows of one-story, self-storage facilities. The cells for the majority of the detainees are small (8 feet by x 6 feet, 8 inches), but they have running water and apparently better protect the prisoners from sun and rain. Each holds one prisoner dressed in an orange jump suit. The toilet is a hole in the ground.

David Rose, a Vanity Fair reporter who visited Camp Delta in October of 2003, described a cell as a “faded green metal box a little larger than a king-size mattress.” The cells are chain-link on three sides so that the guards, who are sometimes women, have a clear view of inmates at all times even when using the bathroom. Guards pass the cells twice every minute.

The camp for cooperators is in a separate wing where the prisoners are housed ten to a dormitory type room and provided with more exercise, better food (McDonald’s from the base restaurant), thicker mattresses and books.

These detainees are dressed in white jump suits. Not that much is known about Camp Delta as reporters only see it is on conducted tours where they views are limited and they cannot see (except at a distance) or speak with the detainees. In general, the press cannot see the building as a green screen has been erected to block any view.

The military and the Bush administration brag that the food and medical treatment at Guantanamo is good and that the prisoners are treated humanely. This is a lie. The prisoners are not treated humanely. It is clear that Guantanamo has but one major purpose: to break prisoners spirits so that they can be interrogated and it done with coercion. This is what has been said by those released in 2004. They also state that the entire prison is run by intel or intelligence.

This next sentence was written prior to some of the statements by those released in March 2004 and before the March-May 2004 revelations regarding Abu Ghraib, Bagram and Guantanamo. It grossly underestimates what was occurring at Guantanamo. It was what we thought at the time, but appears naive in retrospect. It is hard to believe that in February 2004 we wrote the following sentence: “At Guantanamo this may not be done with physical torture or coercion, but it is nonetheless, mental torture.” We now know, as is described below, that this statement was wrong.

We have already noted the size and nature of the cells. Prisoners are isolated and not allowed to speak to other prisoners or guards. If they are deemed uncooperative, as are the majority, they exercise for only 15 minutes twice a week, and shower just twice a week; both activities undertaken while they are shackled at the hands and legs. There are some uncooperative prisoners who are not allowed exercise of showers. Temperatures in the cells can reach more than 100 degrees and the lights are on all night making it difficult to sleep.

As one of the inmates, Mozzam Begg, wrote to his parents, in one of the few, heavily censored, letters they received from him through the Red Cross: “Boredom here is extreme. I have not seen the sun for over seven months except once for around two minutes.” Begg also described the camel spider, the only 10-legged spider in the world. He said, “it moves like a race car and has a bite that causes flesh to decay-if left untreated …and in the summer there were plenty here, running into the cells and clambering over people …Thank God it’s winter!” Begg may well have been tortured of suffered coercive interrogations, but, of course, any such information would have been censored from the letter.

Some information is known about the interrogation system, which occurs in separate trailers in Camp Delta. Detainees have been interrogated by as many as seven different U.S. intelligence agencies and have faced interrogation over a hundred times. Interrogations last for as long as 16 hours and possibly longer, while detainees are chained to a ring on the floor of the interrogation room; sometimes an inmate is subjected to such interrogation on a daily basis. Sleep deprivation, stripping, sexual humiliation, stress positions, temperature variation, strobe lights, loud music and food deprivation are the normal course. Beatings occur with regularity. There is a reward system for cooperation, which could include food eg. dates, exercise, even a toothbrush and eventually removal to the cooperators camp.

Prisoners recently released have given details of the interrogation/discipline system and it is truly horrible. Tarek Dergoul’s described the brutality of having his beard and hair shaved and the infamous ERF squad:

“l heard a guard talking into his radio, “ERF, ERF, ERF,” and l knew what was coming – the Extreme Reaction Force. The five cowards, I called them – five guys running in with riot gear. They pepper-sprayed me in the face and I started vomiting; in all I must have brought up five cupfuls. They pinned me down and attacked me, poking their fingers in my eyes, and forced my head into the toilet pan and flushed. They tied me up like a beast and then they were kneeling on me, kicking and punching. Finally they dragged me out of the cell in chains, into the rec yard, and shaved my beard, my hair, my eyebrows.”30

Two of the Tipton three, Rasul and Iqbal sent an open letter to President Bush describing some of the conditions:

For instance, we read that these techniques “are meant to wear down detainees but the rules forbid the kind of tortures coming to light in Iraq”. The techniques, it is said, are “designed to cause disorientation, fatigue and stress”. “but there is no stripping detainees naked ‘ . There is “no physical contact at all…our procedures prohibit us from disrobing a prisoner for any reason at all” (Army Colonel David McWilliams). It is said that “more extreme methods such as near day long interrogations require superior authorisation and medical monitoring” and that there is “no stripping or humiliation or physical abuse at Camp Delta.”

Our own experience, and our close know ledge of the experience of other men detained beside us, demonstrates that each of these claim s is completely untrue.

From the moment of our arrival in Guantanamo Bay (and indeed from long before) we were deliberately humiliated and degraded by the use of methods that we n ow read U.S. officials denying.

At Kandahar, we were questioned by U.S. soldiers on our knees, in chains, with guns held to our heads, and we were kicked and beaten. They kept us in “three-piece suits” made up of a body belt with a chain down to leg irons and hand shackles attached. Before we boarded the plane to Guantanamo, they dressed us in earmuffs, painted-out goggles and surgical masks so we were completely disoriented. On the plane, they chained us to the floor without access to a toilet for the 22-hour flight.

Our interrogations in Guantanamo, too, were conducted with us chained to the floor for hours on end in circumstances so prolonged that it was practice to have plastic chairs for the interrogators that could be easily hosed off because prisoners would be forced to urinate during the course of them and were not allowed to go to the toilet. One practice that was introduced specifically under the regime of General Miller was “short shackling” where we were forced to squat without a chair with our hands chained between our legs and chained to the floor. If we fell over, the chains would cut into our hand s. We would be left in this position for hours before an interrogation, during the interrogations (which could last as long as 12 hours), and sometimes for hours while the interrogators left the room. The air conditioning was turned up so high that within minutes we would be freezing. There was strobe lighting and loud music played that was itself a form of torture. Sometimes dogs were brought in to frighten us.

We were not fed all the ti me that we were there, and when we were returned to our cells, we would not be fed that day.

Rasul and Iqbal also described the beatings they witnessed the use of sexual humiliation, particularly by women. As the said in the letter:

We received distressed reports from other detainees of their being taken to the interrogation room, left naked and chained to the floor, and of women being brought into the room who would inappropriately provoke and indeed molest them. It was completely clear to all the detainees that this was happening to particularly vulnerable prisoners, especially those who had come from the strictest of Islamic backgrounds.

Another of the released Britons also spoke of the use of sexual humiliation: A Mirror story about Jamal al-Harith reports:

But Jamal’s most shocking disclosure centered on the use of vice girls to torment the most religiously devout detainees. Prisoners who had never seen an “unveiled” woman before would be forced to watch as the hookers touched their own naked bodies. The men would return distraught. One said an American girl had smeared menstrual blood across his face in an act of humiliation. 31

This use of sexual humiliation is confirmed by the revelations of similar humiliations at Abu Ghraib.

Not surprisingly after months of this kind of treatment and three months in isolation, Rasul and Iqbal confessed to meeting with Osama bin Laden at a training camp in Afghanistan. The confessions were false. Here is how it occurred. The interrogators claimed that young men that appeared in a video of Osama bin Laden were Rasul and Iqbal. Rasul and Iqbal denied it, pointed out that they did not resemble the men and that they had been in the U.K. at the time the film was made. The interrogators would not even try and examine the alibi saying that the detainees had friends in the U.K. who could forge the records of their employment. Instead Iqbal and Rasul were placed in solitary confinement for three months and subjected to the interrogation techniques described above. Eventually they confessed that it was them with bin Laden. Only after a stink was make in the U.K. about the detentions did British intelligence examine the alibis and proved conclusively that it could not have been Rasul and Iqbal in the video-they were living in the U.K. at the time. The danger of using coercive interrogation techniques that range from cruel, inhuman and degrading treatment to torture is not just the physical and mental effects on the victim, but the unreliability of the information gained.

The use of these coercive techniques is compounded by the desperation and hopelessness felt by detainees who have no rights and no idea of what is going to happen to them. They have been imprisoned for over two years, have not seen their families or lawyers and never had a trial. As a result of these conditions there have been over 30 suicide attempts and as much of one-third of the 640 detainees are on anti-depressants.

In November of 2002, the Red Cross denounced the indefinite detentions, the failure to tell the detainees about their futures and the use of Guantanamo as an interrogation camp. Christopher Girod, the senior Red Cross official in Washington, said “One cannot keep these detainees in this pattern, this situation, indefinitely.” He said that it was intolerable that Guantanamo was used as “an investigation center, not a detention center. . .and that the open-ended-ness of the situation and its impact on the mental health of the population has become a major problem.” Mr. Girod said that detainees regularly ask about what was going to happen to them. “It’s always the No. 1 question,” he said. “They don’t know about the future.” He said he was speaking out because of the failure of the United States to heed what the Red Cross had said privately to the United States.

Scott McClellan, the White House Press secretary was asked about the criticism by the International Red Cross about the conditions of the prisoners at Guantanamo Bay. Here is what he said:

“Let us remember these individuals are enemy combatants. These individuals are terrorists, or supporters of terrorists, and we were at war with terrorism.” And, the reason for detaining enemy combatants in the first place during a war is to gather intelligence, is to make sure these enemy combatants do not return to help our enemies plot attacks, or carry out attacks on the United States.”

In effect, he is saying, they are all guilty and can be treated inhumanely. How does he know? How does the Bush administration know? Those imprisoned have never had any lawyers or hearings. They were assumed to be guilty. It has already been shown that many were not-yet most have spent almost three years of their lives in Guantanamo. Some­ those handful that may be tired– may someday be found guilty of some crime, does that allow the Bush administration to treat people inhumanely? Does it allow the Bush administration to assume guilt and strip people of fundamental rights-rights enshrined in law for hundreds of years?

In May of 2004 it was revealed that General Geoffrey Miller, the commander of the Guantanamo camp until May had traveled to Iraq and Abu Ghraib to give advice on improving the flow of information from those interrogated. He made the trip is August 2003. He created a single interrogation unit at the prison and apparently implemented the procedures he was using at Guantanamo. Within weeks of his trip the very unit he had set up was engaging in the inhuman practices seen in the photographs. This “coincidence” should raise major concerns about torture at Guantanamo and calls for a full investigation. Amazingly and in a major act of chutzpah, General Miller was appointed in May to run Abu Ghraib. Talk about the fox guarding the chicken coop. (A demonstration of the character of General Miller was the prosecution of Captain and Chaplain James Yee who worked at Guantanamo. Recall that he was charged with espionage apparently with Miller’s consent. After those charges were dismissed, charges of pornography were lodged and he received a reprimand, upheld by Miller. Then, someone the head of Southern Command, dismissed those charges as well.)

What Rights Should the Detainees Have?

Humane Treatment and Torture

There has been a lot of discussion and argument regarding whether or not the Geneva Conventions apply to those held at Guantanamo. However, no matter the regime of law applied to the detainees-the laws of war or human rights law/criminal law–every detainee has an absolute right to be treated humanely. The Convention Against Torture prohibits both torture and cruel, inhuman and degrading treatment; it applies to everyone on the world no matter their status as soldier, civilian, suspected terrorist, enemy combatant etc. It is a minimum base line; it has clearly been violated with regard to the Guantanamo detainees. Likewise the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States, prohibits torture and cruel, inhuman and degrading treatment; it also requires that: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” These fundamental rights contained in the ICCPR, like those of the Convention Against Torture, apply to all persons even those treated under the laws of war.

That is one of the peculiarities of the claim by the administration that the Geneva Conventions do not apply to Guantanamo. It claims that the prohibitions of Geneva on treatment of detainees are more stringent than those embodied in other laws. The Geneva Conventions defines what are called “grave breaches” against detainees captured in a war, whether POW or otherwise. The prohibitions include torture, inhuman treatment or “willfully causing great suffering.” Even assuming the prohibitions of Geneva are broader, the coercive interrogation techniques at Guantanamo are prohibited under all laws, not just Geneva. Even if the Geneva Conventions do not apply, the conduct that is being engaged in at Guantanamo, much, if not all of it, authorized by those in charge, including apparently Rumsfeld, is still against the law.

One of the most interesting and shocking memos legal memos to surface is that from the President’s counsel, Alberto R. Gonzales, to the President regarding whether the Geneva Conventions ought to apply to those imprisoned in Guantanamo. Dated January 25, 2002, a few days after the first detainees were sent to Guantanamo, it explains the reluctance to apply the Geneva Conventions to Guantanamo. The memo addresses a U.S. criminal statute, 18 U.S.C. sec. 2441, the War Crimes Act. That act states that grave breaches of the Geneva Conventions are war crimes punishable by either imprisonment or the death penalty. The Gonzales memo makes clear that a primary reason for not applying the Geneva Conventions is to avoid possible prosecution of U.S. officials under the war crimes statute. One can therefore read this memo as an acknowledgment that the detainees were to be treated inhumanely, in violation of the Geneva Conventions and that to avoid prosecution of U.S. officials the President should state that it does ·not apply. This is evidence that the coercive and illegal interrogation measures go to the top.

Although, the coercive conduct detailed above is prohibited by Geneva, the Convention Against Torture and the ICCPR, the criminal statutes of the Unites States are more limited when it comes to prosecuting those who violate the latter two treaties then those who violated Geneva. It is only torture that subjects an official to prosecution under Convention Against Torture and the ICCPR and torture can be difficult to prove. On the other hand, the war crimes statute makes criminal all grave breaches of the Geneva Conventions including “inhuman treatment.” By refusing to apply the Geneva Conventions to those at Guantanamo, the administration hoped to avoid prosecution under the war crimes statute.

POW Status and the Right to A Hearing

Most of the detainees, as far as we know, were captured during the war in Afghanistan either by the Northern Alliance or the United States. They were captured in Afghanistan and Pakistan. They included Taliban soldiers, militia fighting alongside them and others picked up in the area. The law that applies to captured soldiers is called humanitarian law or the law of war and it is embodied primarily in The Geneva Conventions of 1949, treaties ratified by the United States and most of the countries of the world. Those Conventions govern the treatment of people captured on the battlefield or in the theatre of war.32

As to detainees not captured as part of the war against Afghanistan such as alleged international terrorists, alleged members of al Qaeda or those civilians picked up outside the war zone, such as those Guantanamo detainees arrested in Bosnia-Herzegovina or The Gambia, the Geneva Conventions do not apply nor should the laws of war of which the Conventions are a part. They are not soldiers and are not treated under humanitarian law or the laws of war. International human rights law and criminal law determines their rights. They must be charged, given lawyers, and tried.

The important point is that some body of law applies to every person detained and gives him or her a legal status and certain rights under international law. No one can be detained arbitrarily; everyone must be detained under some existing body of law. No one can be treated outside of law.

The Conventions establish that captured combatants, as prisoners of war (POWs), can be interned, but not imprisoned, unless it is shown on an individual basis, that they are dangerous-only then can they be imprisoned and more extensively interrogated. POWs cannot be tried by military commissions for war crimes; they must be tried by the same courts as American soldiers would be tried. That would mean trial by courts-martial, which grant substantially more rights than the military commissions the administration is planning to employ.

The Bush administration decided that neither the Taliban fighters nor those fighting alongside them were POWs. That decision was made without following the procedures specified in Article 5 of the Third Geneva Convention. Article 5 requires the convening of a “competent tribunal” to determine the status of each individual captured “should any doubt arise” as to his status. (Such “competent tribunals” are not the military commissions that the United States is establishing to try war crimes.) The United States refused to hold hearings before such “competent tribunals,” but simply decided that that no one captured on the battlefield was a POW. The United States has repeatedly refused requests of the international community to treat all the detainees under the Article 5 procedures established under the Third Convention. 33

The U.S. had used such tribunals in earlier wars. It had adopted regulations for these tribunals, which were run entirely by its military personnel. Such tribunals were used in Vietnam and over a thousand such tribunal hearing were held during the 1991 war against Iraq. Had such tribunals been held, it could have been determined that some of those imprisoned on Guantanamo were wrongly detained. As to the others, it would have been determined that they were POWs with rights and protections afforded them under the Geneva Conventions.

The United States has tried to justify its position legally, but its claims have no merit. It has labeled those detained as enemy combatants and asserts that the military’s authority to capture and detain enemy combatants is well settled. But, enemy combatants are a general category, not a status under the Geneva Conventions or any other body of law. Under the Geneva Conventions, enemy combatants are either prisoners of war with all of the rights that attach to that status or they are not, in which case they come

under the protections of the Fourth Geneva Convention. The Fourth Convention treats such non-POWs as civilians, but if the person is suspected of activities hostile to the state, he can be imprisoned and denied certain rights, such as the right to communicate (write letters). These are called security detainees, and must be treated humanely. However, determinations as to a prisoner’s status must be made individually, prisoner by prisoner.

The U.S. has violated international humanitarian law by failing to adhere to the Geneva Conventions and treat those captured in Afghanistan as POWS. Its position means that the Guantanamo detainees are being held without legal authority. The Geneva Conventions were created to provide, among other things, humane conditions and limits on the duration of confinement. POWs, which is what many of those in Guantanamo appear to be, may only be detained until the “cessation of active hostilities.” That has occurred with regard to the war in Afghanistan. As to non-POWs, they may be held until the “general close of military operations,” which arguably has also occurred in Afghanistan.

The U.S. argues that it was fighting not just a war against Afghanistan but also an international war against al Qaeda that may not end for many years. 34 This argument does not address the rights of former Taliban combatants and militia now in custody. These soldiers must be treated under the Geneva conventions. To the extent those combatants are somehow found to be involved with al Qaeda or any other terrorist organization, then, as explained below, they must be treated under criminal law. However, the U.S. disagrees and believes that because it is fighting a “war” on terrorism it can apply the rules, as it understands them, to any alleged terrorists whether picked up on the battlefield of elsewhere.

There is a serious question as to whether the efforts to destroy al Qaeda constitute a war under international law. A war, other than a civil war, is between states. It is not defined as between a state and a terrorist organization. That is an international law enforcement effort and is subject to international human rights law that requires charges and trials. Imagine, if the U.S. had labeled Timothy McVeigh, the man convicted and executed for blowing up the Federal Building in Oklahoma, as an enemy combatant and treated all his supporters as such. It could have detained them in a brig forever and never brought them to trial. It is likewise with a group like the Irish Republican Army. Or, under its thinking, the U.S. could have decided it was at war against the IRA and detained its alleged members in the U.S. indefinitely and incommunicado without any right to contest their imprisonment. In other words, the U.S. is employing the lesser standards for detentions in a war, to detain people entitled to lawyers, charges and court hearings.

The United States is trying to avoid treating alleged terrorists, alleged members of al Qaeda and others as human rights law requires by calling them all enemy combatants, unlawful combatants or by use of similar terms.

This is obviously incorrect. The United States was fighting a war in one part of the world, Afghanistan against the Taliban and its supporters.

That, however, does not permit it to capture those not fighting in that war or others anywhere in the world and label them combatants without showing they were involved in the armed conflict. The non-Taliban at Guantanamo have been captured because of their alleged role in international terrorism.

They are suspects. Their capture should be treated as a matter of criminal law and the rights that body of law gives them. To do otherwise is to hold them arbitrarily in violation of international human rights law.

The administration has stated that many of those held at Guantanamo will be held indefinitely. 35 According to Secretary of Defense Rumsfeld, this means until the war against terrorism is over, which could be many years, that is, until “we feel that there are not effective global terrorist networks functioning in the world . . ..”36 Rumsfeld has said that even if military commissions acquitted certain detainees, the government could still hold them. In other words, the Administration can capture, arrest, and detain people from anywhere in the world, interrogate them, refuse them access to lawyers and family, not charge them or bring them before any courts, not release them even if tried and acquitted, and imprison them indefinitely, year after year.

At the time of this writing, no trials before such military commissions have taken place. However, in July of 2003 the Bush administration announced that the President had designated six of the Guantanamo detainees for trial before those commissions. Their names and nationalities were not announced. Since that time, three of those detainees have been assigned military counsel. The three are David Hicks, an Australian, Ali Hamza Ahmed Sulayman al Bahlul, of Yemen, and Ibrahim Ahmed Mahmoud al Qosi, of Sudan. The latter two have have been formerly charged, but not tried.

Legal Challenges: The Supreme Court

The primary challenge to the Guantanamo detentions was brought by the Center of Constitutional Rights and will be decided by the Supreme Court in late June or July of 2004. The Center’s case on behalf of English and Australian citizens detained at Guantanamo was combined by the court with a later case brought on behalf of Kuwaiti nationals. 37 The decisions by the lower courts were in favor of the government. Those courts ruled that U.S. courts had no jurisdiction to hear the cases and therefore could not rule on the legality of the detentions. They found that doors to the U.S. courts were closed to cases brought on behalf of aliens held by the United States outside the territory of the United States. They determined that despite the U.S. government’s “complete jurisdiction and control” of Guantanamo Bay, the Naval base was outside the U.S. courts’ authority.

These lower court rulings are quite remarkable. Despite the fact that the U.S. has imprisoned the detainees in a prison camp it totally controls, those prisoners cannot avail themselves of any court in the U.S. This would leave their jailers free to hold them for any length of time and under any conditions it chooses and there would be no recourse. There is no check on the government. It can, and apparently is, acting above the law.

The question the Supreme Court will answer is not whether the detentions are legal, but only the preliminary question of whether any court in the United States can hear these cases. Assuming the court decided in favor of the detainees, it will only have decided that they can bring their case to court. The case will most likely be sent to the lower court for a determination as to the rights of the detainees and whether or not the Bush administration violated those rights. This could all take a very long time, but it appears that many of the detainees will be in Guantanamo a very long time. It is at least the beginning of remedy and even the fact of court review has had a salutary effect.

The Supreme Court’s grant of review came as a shock to the Bush administration. The administration had won the in the lower courts and particularly during a time of claimed “war,” it is unusual for the Supreme Court to review a case; it does not like conflicts with the executive branch during a time it perceives as one of insecurity. This is a cause of optimism for the detainees and the rule of law and was seen by many commentators as a setback for the Bush administration. It was the first post 9/11 terror related matter taken up by the court.

The Bush administration reacted quickly to limit the damage of the court’s agreeing to review the case. Shortly after the November 2003 grant of review, the administration announced it was freeing up to 140 of the detainees, and by the time of argument on April 20, 2004 had done so. A few months after the court granted review it freed three of the children that had been imprisoned for over a year. It also allowed three of the detainees who might face tribunals to see lawyers.

And on February 13, 2004, approximately two months before the argument in the Court Defense Secretary Rumsfeld announced that those detained on Guantanamo would be able to avail themselves of an appeal to an administrative review panel that would determine if they are dangerous.

That panel’s decision would not be final; Rumsfeld would decide if the detainee was to be released. He could decide to keep detainees in the camp indefinitely, really forever. He could do so even if a military tribunal acquits detainees or if they served their sentences and he determined they were dangerous. In May 2004 this review process was formalized, although because of secrecy at Guantanamo it is unknown if any detainees has appeared before administrative panels.

Even without detailing all of the deficiencies in these panels the standard employed for continuing imprisonment is glaring enough to demonstrate how meaningless the hearing would be. The order setting up the panels actually gives the administration the unbounded power to detain anyone in Guantanamo for any reason. Detention can be continued if in the opinion of the head of the panel the detainee “remains a threat to the United States” or “if there is any other reason that it is in the interest of the United States and its allies” for the detainee to remain in detention. It is difficult to see how any detainee can meet that standard in defending himself and asking to be freed. The detainee will neither be represented by an attorney nor permitted any review or appeal outside the military.

These recent developments should be seen for what they are: blatant attempts to influence the Supreme Court by saying to the court, “Trust Us.” The administration is trying to persuade the court that it can be trusted to deal fairly with the detainees and that it has a process for doing so.

Hopefully, the court will be unmoved and recognize the opportunism in the administration’s actions. Without court review pending, it is unlikely the administration would have done anything. Remove court review, and again leave the detainees to the unfettered discretion of the administration.

That detainees at Guantanamo or anywhere else in the world should not be left to the unfettered discretion of the administration is best illustrated by the revelations of torture at Abu Ghraib. The photographs of Abu Ghraib were released eight days after the argument in the Supreme Court.

Commentators on the case pointed out how damaging they were to the administration position that it could be trusted in its treatment of the detainees and that court review of the detentions was not necessary.

The Rumsfeld administrative process described above, even were it to be fair-an impossibility considering the almost three years of detention and coerced statements from the detainees-would not solve the problem that Guantanamo represents to the rule of law: an executive that should be

subject to the checks of the U.S. constitution and international law. A primary issue is not just that every person should get a fair hearing, but the administration’s position that the normal protections of the criminal process do not apply to those detained at Guantanamo. When asked why such protections do not apply, Paul Butler, a principal deputy assistant secretary of defense stated that “all of these detainees were captured in the context of the global war on terrorism.” As he said:

But the main insight of the president, and the secretary, and others in the administration, I think, after 9/11, was that we are at war now, and that the criminal justice model, although very important fighting the war on terrorism, is not the sole tool right now, and therefore, enemy combatants are being held for security reasons…38

It is for this reason-the administration’s decision that the U.S. is at war, not just in the political sense, but in the legal sense as well–that it believes it can apply the laws of war to those alleged terrorist detained at Guantanamo.

The premise that using force against a terrorist organization somehow constitutes a war is doubtful to say the least. As was said, wars are between nation states. The U.S. is not involved not in war against al Qaeda, but an international law enforcement/police action and those captured in such an operation should receive the protections of the criminal law.

The administration would rather apply military law because arguably soldiers captured on a battlefield can be detained until the cessation of the war. This makes sense in the normal situations of wars between states that are finite. But, where the “war” is one that is defined by the administration as one that will be over when it says it is-these detentions could last a very long time.

Intentional Legal Challenges

In addition to the case pending before the Supreme Court, there have been two international challenges to the detentions at Guantanamo, 39 one before the Inter-American Commission of the Organization of American States 40 and one in the United Kingdom.41

The request to the Inter-American Human Rights Commission by CCR and various human rights groups was successful. While the Commission is not a court, its mission is to enforce the principal regional human rights treaty, the American Declaration of the Rights and Duties of Man, the provisions of which protect the right to life, fair trial, due process and freedom from arbitrary detention. In its decision of March 13, 2002, the Commission urged the United States to “take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.”42 The Commission explained that everyone that is captured by a state must have a legal status and that it is for a tribunal and not a government to determine that status. In strong language the Commission found that the detainees remain entirely at the unfettered discretion of the United States government. Absent clarification of the legal status of the detainees, the Commission considers that the rights and protections to which they might be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the state.43

Although the Commission has ruled that member states of the OAS are under an “international legal obligation” to comply with its decisions, the United States has refused to do so. The Commission reiterated its order mandating commissions in July 2002 and held a hearing on the failure of the United States to implement this ruling. The United States has still not complied, and there is no power in the Commission to compel compliance.

The challenge to the detentions filed in the courts of the United Kingdom was on behalf of one of the detainees, Ali Abbasi, a citizen of England. Although the British Court could not order a remedy for the detentions because the Untied States government was not a party to the lawsuit, it described the detention situation in stark terms: “[I]n apparent contravention of fundamental principles recognized in both jurisdictions [U.S and U.K.] and by international law, Mr. Abbasi is at present arbitrarily detained in a ‘legal black hole. “’44 The Court was especially critical of the U.S. government’s claim that there was no court in the United States that could review the indefinite detentions in a territory over which the United States had exclusive control. It hoped that the appellate courts in the United States would find otherwise.


As we write this, it is about a month or less until we here from the Supreme Court. It would be surprising if it did not, at a minimum, find that U.S. courts had jurisdiction over the cases of those imprisoned at Guantanamo. That would be a landmark ruling and a real blow to the arrogant overreaching of the Bush administration. It will not end the detentions, but hopefully be the beginning of the end.

Much of the damage will already have been done. It will not remedy the damage to the detainees imprisoned without charges, abused and tortured, and their lives altered forever. It, as said earlier, will not mean their freedom-only that they have right to get into court and test the legality of their detentions. It will not and cannot remedy the immense damage that has been done to the rule of law. The United States and its claimed legal system of rights and protections is no more. And for much of the world, Guantanamo has become iconic of everything wrong with the U.S. war on terror. We are more hated than ever before.

1 Six of the detainees have been designated for trial by a military tribunal. As of May 2004 two of those have been charged with crimes. Those two and a third designated prisoner, David Hicks have seen attorneys in order to prepare for trials and or plea bargains , It is assumed that the other three designated for the tribunals will also see attorneys as the charging process against them goes forward.

2 Haitian Ctr. Council v. McNary, 969 F.2d 1326 (2d Cir. 1992).

3 The History of Guantanamo Bay, Ch. 3, at http://www.nsgtmo.navy.mil/gazette/History98-64/hischp3.htm.

4 Haitian Refugee Ctr. v. Baker, 953 F.2d 1498 (11th Cir. 1992).

One news story described the prisons as “three dank and overcrowded cell blocks, with a stench of unwashed bodies and from which erupt monotonous pleas for help and mercy, that more resemble cattle sheds or ill-kept stables than a jail.” “258 Afghan Taliban Soldiers Released,” Reuters, Mar. 23, 2002, at http://www.dawn.com/2002/03/24/top11.htrn

6 Carlotta GalI, “A Nation Challenged: The Missing; Families Try to Trace Thousands of Missing Taliban, Many Forced to Fight,” New York Times, Feb 21, 2002, p. A14.

7 Dana Priest & Barton Gellman, “US Decries Abuse but Defends Interrogations; ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities,” Washington Post, Dec. 26, 2002, A1.

8 Initially most of the Guantanamo detainees were captured in Afghanistan, but by late 2002 the Department of Defense was unwilling to say from where additional captives were captured as the following dialog demonstrates:

“Did they come from Afghanistan?”

Victoria Clarke, Defense Department spokesperson: “Not saying.”

9 Viola Gienger, “Lawyers Contest Algerians’ Handover,” Chicago Tribune, Apr. 11, 2002, p. 4.

10 Brown and Root Services, a division of the oil services company Halliburton, which was formerly headed by Vice President Cheney, is constructing the new prison. The contract may amount to 300 million dollars. Charles Aldinger, “Halliburton to Build Cells at Guantanamo Base,” Reuters, July 27, 2002.

11 Katherine Q. Seelye, “A Nation Challenged: The Prisoners; U.S. May Move Some Detainees to Domestic Military Bases,” New York Times, Jan. 4, 2002, p. A15.

12 George Edmonson, “‘Gitmo’ Gets A Makeover As POW Camp,” Cox Washington Bureau, Jan. 8, 2002, at http://www.coxnews.com/washingtonbureau/staff/edmonson/010802TER-GUANTANAMO.htmI

13 Rumsfeld: Afghan Detainees at Gitmo Bay Will Not Be Granted POW Status,” Fox News, Jan. 28, 2002, at http://www.foxnews.com/story/0,2933,44084,00.html.

14 As of this writing in May, 2004, the President has designated six detainees for possible trial before military tribunals, two have been charged but not brought to trial.

15 Return From Guantanamo Bay June 6, 2002. http://news.bbc.co.uk/l/hi/programmes/newsnight/2968458.stm

16 He was arrested by the Afghan Northern Alliance. He protested h is innocence and tried to prove that he was merely a taxi-driver and had not partaken in any fighting. However, to no avail, he was handed over to the Americans along with the passenger in the taxi, in return for bounty payments of several thousand dollars each. He was held in Bagram before being transported to Guantanamo. http://www.cageprisoners.com/

17 “Camp Delta: Guantanamo Bay,” 60 Minutes II Sept. 16, 2003 www.cbsnews.com/2003/09/16/6011

18 Greg Miller, “Many Held at Guantanamo Not Likely Terrorists,” LA Times, Dec. 22, 2002

19 Greg Miller, “Many Held at Guantanamo Not Likely Terrorists,” LA Times, Dec. 22, 2002

20 Greg Miller, “Many Held at Guantanamo Not Likely Terrorists,” LA Times, Dec. 22, 2002

21 David Rhode, “Afghans Freed From Guantanamo Speak of Heat and Isolation ,” New York Times, Oct. 29, 2002, at A18.

21 Id

22 Id

23 Article 71 of the Third Geneva Convention states that POWs are permitted to send not less then two letters and four cards monthly; Article 72 of that Convention also allows them to receive individual and collective relief packages containing foodstuffs, clothing, articles of a religious nature and other similar

24 http://www.guardian.co.uk/guantanamo/story/013743,1169147,00.html; and http://www.guardian.co.uk/guantanamo/story/0,13743,1169147,00.htmI

25 http://observer.guardian.eo.uk/international/story/0,6903,12 17969,00.htmI

26 http://www.mirror.co.uk/news/allnews/content_objectid=14042699_method=fu11_siteid=SO143_headline=-1-WAS-IN-THE-WRONG-PLACE-AT-THE-WRONG-TIME-name_page.html

27 U.S.: Despite Releases, Children Still Held at Guantanamo, Human Rights Watch January 29, 2004

29 ratner article=Harvard-intersect ion of law and politics

30 David Rose, The Observer International (May 16. 2004) http://observer.guardian.co.uk/international/story/0,6903,1217969,00.html

31 Rosa Prince and Gary Jones, My Hell in Camp X­ Ray (Mirror, May 12, 2004) Rosa http://www.mirror.eo.uk/news/allnews/content_object id=14042696_method=fulI_siteid=50143_headIine=-MY-HELL-IN-CAMP-X-RAY-name_page.htmI

32 For a detailed look at the law, see Human Rights Watch, “Press Backgrounder, Background Paper on Geneva Conventions and Persons Held by U.S. Forces,” Jan. 29, 2002, at http://www.hrw.org/backgrounder/usa/pow-bck.htm.

33 See, e.g., on February 8, 2002, the day after announcement of the United States’ position, Darcy Christen, a spokesperson for the ICRC, said of the detainees: “They were captured in combat [and] we consider them prisoners of war.” Richard Waddington, “Guantanamo Inmates Are POWs Despite Bush View – ICRC,” Reuters, Feb. 9, 2002.

34 Department of Defense Briefing, Federal News Service, June 21, 2002.

35 See e.g., Richard Sisk, “Airport Gun Battle Firefight Erupts As Prisoners Are Flown To Cuba,” New York Daily News, Jan. 11, 2002, p. 27.

36 Katherine Q. Seelye, “Rumsfeld Backs Plan to Hold Captives Even if Acquitted,” New York Times, Mar. 29, 2002, p. A18.

37 Two cases were filed in federal court in Wash ington D.C. and consol idated for the arguments and the decisions: Rasul v. Bush and Al Odah v. United States, 215 F.Supp. 2d 55 (D.D.C. 2002), cert granted

38 DoD News Briefing, Feb. 13, 2004.

39 These two cases were filed in California: Coalition of Clergy v. Bush, 310 F.3d 1153 (9111 Cir. 2002) Gherebi v. Bush, No. 03-55785 (9th Cir. Dec. 18, 2003). (add what happened)

40 Request By the Center for Constitutional Rights et al. for Precautionary Measures Under Article 25 of the Commission Regulations, filed Feb. 25, 2002.

41 The Queen on the application of Abbasi & Anor. v. Secretary of State for Foreign and Commonwealth Affairs, Case No. c/2002/0617A:0617B (Dec. 6, 2002).

42 Decision of the Inter-American Commission on Human Rights of the Organization of American States, Detainees in Guantanamo Bay, Cuba, (Mar. 13, 2002).

43 Katherine Q. Seelye, “Rumsfeld Backs Plan to Hold Captives Even if Acquitted,” New York Times, Mar. 29, 2002, p. A18.

44 The Queen on the application of Abbasi & Anor v. Secretary of State for Foreign and Commonwealth Affairs, [2002) EWCA Civ. 1598