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

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

. ༨;

The State Department also failed to report that another of the men, Mustafa Ait Idir, alleged at his CSRT hearing in 2004 that he has been subjected to torture or ill-treatment at Guantánamo. A lawsuit filed in US court in April 2005 alleges that the following occurred against him during a cell search:

"The guards secured his hands behind his back and, while he was so restrained, the guards picked him up and slammed his body and his head into the steel bunk in his cell. They then threw him on the floor and continued to pound his body and bang his head into the floor. The guards picked him up again and banged his head on the toilet in his cell. The guards picked him up again, stuffed Mr Ait Idir's face in the toilet and repeatedly pressed the flush button. Mr Ait Idir was starting to suffocate, and he feared he would drown. The guards then carried Mr Ait Idir outside the cell and threw him on the ground. His hands still were manacled behind his back. They held him down and pushed a garden hose into his mouth. They opened the spigot. As the water rushed in, Mr Ait Idir began to choke. The water was coming out of his mouth and nose. He could not breathe, and he could not yell to stop or for help. The guards then took the hose out of his mouth and held it approximately 6 to 10 inches in front of his face. He was still being restrained. The water ran full force into his face; he could not breathe."

On another occasion, it is alleged that members of an Immediate Response Force (IRF) at Guantánamo assaulted him:

"While Mr Ait Idir sat on the floor as instructed, the officer sprayed chemical irritant directly into Mr Ait Idir's face. Two or three guards immediately entered the cell while he was lying on the floor. One forced Mr Ait Idir's body onto the steel floor of the cell and jumped on his back, using his knees to pound Mr Ait Idir's body into the floor. The second guard did the same thing. While they had Mr Ait Idir pinned, the guards secured his hands behind his back. He was carried out and thrown onto the crushed stones that surround the cell building. While Mr Ait Idir was lying bound on the stones an IRF member jumped onto the side of Mr Ait Idir's head with his full body weight, causing extreme pain. Another IRF member climbed onto Mr Ait Idir's back and while on his back. the IRF members twisted his middle finger and thumb on his right hand almost to the point of breaking. Two of his knuckles were dislocated and he screamed in pain. His middle finger has almost no strength now He requested and was refused any medical treatment for the permanent injuries inflicted by the guards.

Upon information and belief. as a result of that heating, Mr Aid Idir suffered a stroke. Shortly after that incident, one half of his face became paralyzed. He was in pain. He could not eat normally; food and drink leaked from his non-functioning_mouth. Guards teased him because of his condition. Despite visible impairment and his request to go to the hospital, he did not receive medical treatment for ten days."

54

The six men of Algerian origin had been arrested in October 2001 by the Bosnian Federation police on suspicion of involvement in an alleged plot to bomb the US Embassy in

43 Nechle v. Bush. Unclassified records of Combatant Status Review Tribunal, In the US District Court for the District of Columbia.

"Oleskey v. US Department of Defense and Department of Justice. Complaint US District Court, District of Massachusetts. The lawsuit is seeking enforcement of a Freedom of Information Act request for the government to release any photographic, medical or other evidence on the cases.

USA Guantanamo and beyond - The continuing pursuit of unchecked executive power

Sarajevo. On 17 January 2002, the Investigative Judge of the Federation Supreme Court ordered their release on the basis that there were no further grounds for their detention. Although the US Embassy had indicated that it had evidence linking the men to al-Qa ́ida networks and substantiating the allegations of planning the embassy attacks, the US authorities did not submit any such evidence to the Supreme Court. One of the men, Boudella Al Haji, questioned about the alleged bombing conspiracy at his CSRT hearing in Guantánamo on 18 October 2004, said:

"I've been here for three years and these accusations were just told to me. Nobody or any interrogator ever mentioned any of these accusations you are talking to me about now. I've been here for three years, been through many interrogations and no interrogator ever mentioned any of these accusations, so how did they come up just

Another of the six men told Sabir Lahmar said the same thing at his CSRT hearing on 8 October 2004:

“From my first day in Cuba, I asked the interrogators to question me regarding the bombing of the Embassy. They tried to avoid asking me questions regarding that matter. On occasion, they told me they knew I didn't attempt to blow up the Embassy; they only brought me to Cuba for information. They told me if I gave them information, they would let me go. I refused to talk to them until they addressed the accusation of the bombing of the Embassy. This lasted for eight months before they gave up on me talking. I was punished and placed in solitary confinement for three months.

956

In similar vein, Mohammad Nechle told the CSRT on 19 October 2004:

"We came to this place so they could interrogate us. Now I have been here three years. Unfortunately I thought the case was about an American embassy and up until now, no one has directed one question towards me regarding this case. Believe me, I came to this place as a mistake and I think that I was wronged. It was unfair to me... I have a clear conscience that I am not part of these terrorist organizations. I am not afraid of anything because I am not a terrorist. If you interrogated me for 20 years you would find that I am Mohammed Nechle..."

In March 2005, the Bosnia and Herzegovina Council of Ministers sent an official request to the USA calling for the release of the detainees. The US Secretary of State reportedly responded in a letter indicating that the men would not be released as the US authorities needed to investigate them further. It remains to be seen how the State Department will report on these developments in its next human rights publication.

As this case suggests, three and a half years into its broadly-defined “war on terror”, the United States administration is still seeking and assuming carte blanche to detain without judicial review any foreign national it broadly defines as an "enemy combatant", regardless of where outside the USA the detention takes place, and regardless of whether the person seized was directly involved in any armed hostilities. According to the administration, such a detainee can be detained without charge or trial until it, the executive, determines that he or she has no "intelligence value" or poses no threat to the USA or its allies, or until the end of the "war", which, even if recognized, could occur after a detainee's natural lifespan.

Meanwhile, the USA criticizes other countries for their failure to comply with international human rights law and standards. For example, the State Department's latest

$$ Al Haji v. Bush, Factual return from CSRT hearings. US District Court for the District of Columbia. 56 Lahmar v. Bush. CSRT unclassified factual return. US District Court for the District of Columbia.

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

entry on human rights in North Korea includes the following under the heading "arbitrary arrest or detention":

"There are no restrictions on the ability of the Government to detain and imprison persons at will and to hold them incommunicado. Family members and other concerned persons reportedly find it virtually impossible to obtain information on charges against detained persons or the length of their sentences. Judicial review of detentions does not exist in law or practice”.

Iran is likewise criticized by the USA for the lack of a time limit, in practice, on incommunicado detention and the absence of “any judicial means to determine the legality of detention". In similar vein, Myanmar (Burma) is brought to task by the US State Department for its record of arbitrary arrest and incommunicado detention facilitated by the fact that "there is no provision in the law for judicial determination of the legality of detention”.

Amnesty International welcomes the State Department reports in principle. Under the Universal Declaration of Human Rights, countries are required to "promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance". A government makes a mockery of this commitment, however, when it violates the same rights it says it expects others to respect. Moreover, such an approach undermines the whole system of legal protections. Why should any other government not then follow the example set, especially if that example is being set by one of the most powerful and influential countries in the world?

57

The US Supreme Court's ruling in Rasul v. Bush on 28 June 2004 that the federal courts have jurisdiction to consider habeas corpus appeals from foreign detainees held in Guantánamo Bay raised hopes that, at a minimum judicial review of the lawfulness of these detentions, and eventually the detention of foreign nationals held in incommunicado or secret detention elsewhere outside US sovereign territory, would occur forthwith. These hopes have been put on hold in the face of an executive arguing for the courts to effectively empty the Rasul decision of any real meaning.

In January 2005, two federal judges issued the first interpretations of the Rasul ruling when they responded to habeas corpus petitions from Guantánamo detainees, some of whom by now had been held for three years without charge or trial. One of the judges ruled in favour of the government, while the other showed respect for the fundamental human rights of the detainees (see further below). The administration is appealing to have the conflict between the two rulings resolved in its favour. Its refusal to recognize international law and standards relating to detention is keeping the detainees in their legal limbo and their families in distress. Even if the government eventually loses again in the US Supreme Court, such a ruling may not occur until some time in 2006, and only then would judicial review on the merits begin.

57 The State Department reports do not include an entry on the USA. In the context of the "war on terror", this has led to bizarre gaps in reporting on the countries that the USA has invaded. So. for example. the entry on human rights in Iraq in 2003 covers only up to the fall of the government of Saddam Hussein on 9 April 2003. The next report published in February 2005, picks up only from 28 June 2004 when the Interim Iraqi Government took office. The gap in reporting from 10 April 2003 to 27 June 2004 covers a period when US forces were allegedly responsible for widespread abuses against detainees in Iraq, including the torture scandal at Abu Ghraib prison. The report covering 2003 describes Abu Ghraib as one of the prisons "infamous for routine mistreatment of detainees and prisoners" under Saddam Hussein. When the report was published in February 2004, the photographs of US soldiers torturing and ill-treating detainees in Abu Ghraib had not been leaked, although the US authorities already had them in their possession. However, even in the latest report, no reference to this scandal was made.

USA Guantanamo and beyond – The continuing pursuit of unchecked executive power

Judicial review of the lawfulness of detentions is a fundamental safeguard against arbitrary detention, torture and ill-treatment, and “disappearance". Unsurprisingly, then, with the US courts having been kept out of reviewing the cases for more than three years, there is evidence that all these categories of abuse have occurred at the hands of US authorities in the "war on terror". Indeed, Amnesty International believes that abuses have been the result of official policies and policy failures and linked to the executive decision to leave detainees unprotected by not only the courts, but also by the prohibition on torture and other cruel, inhuman or degrading treatment as defined under international humanitarian and human rights treaties binding on the USA. The US administration still does not believe itself legally bound by the Geneva Conventions in relation to the detainees in Guantánamo, Afghanistan and in secret locations, by customary international law, or by the human rights treaty prohibition on the use of cruel, inhuman or degrading treatment in the case of foreign detainees in US custody held outside of US sovereign territory. Nor has it expressly abandoned the notion that the President may in times of war ignore all the USA's international legal obligations and order torture, or that torturers may be exempted from criminal liability by entering a plea of "necessity" or "self-defence" (see below).

Neither, apparently, does the administration consider itself bound by the international prohibition against transferring or returning anyone to a country where they may face torture or other cruel, inhuman or degrading treatment. Indeed, there is evidence that the USA has turned this prohibition on its head and "outsourced" torture. It is alleged that countries with a record of torture as documented by the US State Department annually have been specifically selected to receive certain "war on terror" detainees for interrogation. A recent report quotes a former counterterrorism agent as saying that after 11 September 2001, "Egypt, Jordan, Malaysia, Thailand, Indonesia, Pakistan, Uzbekistan and even Syria were all asked to make their detention facilities and expert interrogators available to the US.

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58

Numerous detainees are alleged to have been threatened by US interrogators that they will be sent to such countries. For example, Yemeni Guantánamo detainee Abd Al Malik Al Wahab has allegedly been threatened with transfer to Egypt or Jordan where, he says he was told by interrogators, "they will torture you"." A Bahraini detainee in Guantánamo has alleged that he was told that he would be "sent to a prison where he would be raped", and another Bahraini alleged that he was threatened with being sent to a prison that would turn him into a woman"." Threatening to transfer a detainee to a third country that he is “likely to fear would subject him to torture or death" is one of the interrogation techniques recommended by the Pentagon's Working Group report on interrogations in the “war on terror", dated April 2003, which remains operational. Set along side this, the State Department annual report risks becoming a dual-purpose manual - promoting human rights on the one hand, while providing ideas for US interrogators on how to abuse them on the other. An FBI document from December 2004, originally classified as secret for 25 years but released under a freedom of information request in early 2005, included reference to the following observation by FBI agents in Guantanamo Bay. "Agents have seen documentary evidence that a detaince was told that his family had been taken into custody and would be moved to Morocco for interrogation if he did not begin to talk" (see section 12 below).

61

58 'One huge US jail'. The Guardian Weekend (UK), 19 March 2005.

59

He also claims to have been interrogated in Guantánamo by Jordanian intelligence agents, one of whom allegedly whipped him with a belt.

60 See Almurburti et al. v. Bush et al. Memorandum Opinion. United States District Court for the District of Columbia. 14 April 2005.

61 Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, 4 April 2003. http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf.

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

The latest State Department report entry on Sweden notes that "the 2001 repatriation of two Egyptians gained attention during the year as the result of allegations that the deportees were subjected to torture in Egypt". It further notes “calls for a parliamentary inquiry into the legality of the deportations... and alleged improper cooperation with a foreign country in the deportations". What the State Department again fails to record is that the "foreign country" in question was the USA.

The two Egyptians were seized by Swedish security police in Stockholm on 18 December 2001, handed to CIA agents at Bromma airport and flown to Egypt on board a USregistered Gulfstream jet. According to a Swedish police officer who was present at the deportations, "the Americans they were running the whole situation" 62 The detainees had their clothes cut from them by the masked US agents, were reportedly drugged, made to wear diapers and overalls, and were handcuffed, shackled, hooded, and strapped to mattresses on the plane. The alleged torture they subsequently faced in Egypt included electric shocks. While the State Department's entry on Sweden notes that a parliamentary investigation into these events was opened in 2004, its entries on other European countries fail to record that similar investigations were being conducted elsewhere. In Italy and Germany, for example, officials were investigating allegations that individuals were seized and secretly flown by US agents to Egypt and Afghanistan where they were allegedly subjected to torture and other cruel, inhuman or degrading treatment (see Section 14).

Next year, in its report on human rights in 2005, the State Department will be able to report that on 22 March 2005, the Chief Parliamentary Ombudsman in Sweden, having reviewed the Swedish government's role in the transfer to Egypt of the two detainees, concluded that the treatment of the two men by the US agents "must be considered to have been inhuman and thus unacceptable". He was highly critical of the home authorities, saying that "the Swedish Security Police lost control of the situation at the airport and during the transport to Egypt. The American security personnel took charge... Such total surrender of power to exercise public authority on Swedish territory is clearly contrary to Swedish law”.“ His words are echoed in those of a Guantánamo detainee taken from Gambia by US agents in late 2002 and still in the US Naval Base in Cuba more than two years later. He told his Combatant Status Review Tribunal in September 2004, "in Gambia, the Americans were running the show... The US was there and in charge from day one. They were not very respectful to the Gambians"."

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63

International complicity in apparently unlawful activities in the context of the “war on terror" has had other manifestations In November 2002, for example, with Yemen's cooperation, the USA killed six people in a car in Yemen in what appear to have been extrajudicial executions (see also Section 5). They were targeted because Abu Ali alHarithi and the other five occupants of the car were alleged members of al-Qa'ida. A little over a year earlier, the US State Department had said of Israel's resort to targeted killings:

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66

62 Paul Forell, Police Inspector, Bromma Airport, Sweden. Interviewed for Torture: The dirty business. Dispatches, Channel 4 TV (UK), 1 March 2005.

63

Expulsion to Egypt - a review of the execution by the Security Police of a Government decision to expel two Egyptian citizens. The Parliamentary Ombudsman, 22 March 2005,

http://www.jo.se/Page.aspx?Language=en&ObjectClass=DynamX_Document&Id=1625.

64 El-Banna et al. v. Bush et al. CSRT unclassified factual returns for Bisher al-Rawi (see below). 65 Amnesty International wrote to President Bush about the killings. It has never received a reply. See: Yemen USA: government must not sanction extra-judicial executions, AI Index: AMR 51/168/2002, 8 November 2002, http://web.amnesty.org/library/Index/ENGAMR511682002.

66 Although what we now know about the quality of intelligence that the USA has relied upon to detain individuals in the “war on terror" (see, for example, the case of Murat Kurnaz, below), as well as to invade Iraq, all such claims must be treated with caution.