mang pursuit of unchecked executive power addition to being inherently unreliable, morally questionable and in practice ineffective several of the above cases have illustrated. 489 As Amnesty International reported in its October 2004 report, the CIA's activities remain shrouded in secrecy. The Schlesinger Panel report noted that it “did not have full access to information involving the role of the Central Intelligence Agency in detention operations; this is an area the Panel believes needs further investigation and review”. However the CIA is not being investigated outside the office of the CIA Inspector General. In his responses to US Senators questioning him prior to his confirmation as US Attorney General, Alberto Gonzales refused to give information about the CIA saying that information about "standards for interrogation by the CIA would be classified, as would be information about any particular methods of questioning approved for use by the CIA". The Church report noted that it was beyond the scope of its investigation to look into the question of "the existence, location or policies governing detention facilities that may be exclusively operated by OGA's [other government agencies, e.g. the CIA)". It said that the CIA had cooperated with its investigation “but provided information only on activities in Iraq". "490 There have been allegations of torture and ill-treatment by the CIA. Indeed, senior officials at the FBI were reportedly so concerned about the severity of interrogation techniques used by the CIA in the “war on terror", that they warned their operatives to stay out of interrogations of high-level detainees interrogated by the CIA." The Schlesinger Panel report on Department of Defence Detention Operations, dated August 2004, noted that the "CIA was allowed to operate under different rules" from the military." 491 492 The current director of the CIA, Porter J. Goss, nominated by President Bush in August 2004 and sworn in to office the following month, recently told the US Senate Armed Services Committee that the US government "does not engage in or condone torture". His written statement did not mention crucl, inhuman or degrading treatment, cqually prohibited under international law. Porter Goss told the Committee that although all current interrogation methods being used by the CIA were legal and none constituted torture, he could not vouch for techniques employed by the agency carlier in the “war on terror". The CIA public affairs office quickly put out a statement to correct the "false impression that US intelligence may have had a policy in the past of using torture against terrorists captured in the war on terror". The statement continued: "All approved interrogation techniques, both past and present, are lawful and do not constitute torture. The truth is exactly what Director Goss said it was: 'We don't do torture'. CIA policies on interrogation have always followed legal guidance from the Department of Justice. If an individual violates the policy, then he or she will be held accountable. Lawful interrogation of captured terrorists is a vital tool in saving American lives. It works and it is done with Congressional oversight, in keeping This is hardly reassuring, given that for almost two years, "legal guidance from the Department of Justice" explicitly considered torture a legitimate - and legal - tool, to be used at the President's discretion, in the "war on terror". Questions that also arise include what 489 490 See Human dignity denied, supra, note 17, pages 100-116 and pages 181-190. Likewise, the Schlesinger panel had not had full access to information about the CIA's detention operations or full cooperation from the agency. 401 Harsh CIA methods cited in top Qaeda interrogations. New York Times, 13 May 2004. 492 Final Report of the Independent Panel to Review Department of Defense Detention Operations, August 2004. 493 Statement by CIA Director of Public Affairs, Jennifer Millerwise, 18 March 2005. USA Guantanamo and beyond - The continuing pursuit of unchecked executive power interrogation techniques or detention conditions does the administration consider to constitute torture, what does it consider to amount to cruel, inhuman or degrading treatment (equally and absolutely prohibited under international law), and what has been the legal guidance offered to the CIA by the Justice Department? On the first question, for example, it was shocking that in their Senate confirmation hearings to the posts of US Attorney General and US Secretary of State respectively, neither Alberto Gonzales nor Condoleezza Rice were willing to describe “water-boarding" as torture. This has been described as an interrogation technique by which a detainee's head is forced under water to the point where he believes he will drown. The Church Report describes it as a technique in which water is poured on a detainee's towelled face to induce the misperception of suffocation. Either way, it would amount to torture. Yet Porter Goss told the Senate Armed Services Committee that the technique fell under “an area of what I will call professional interrogation techniques".*"* The General Counsel of the Department of Defense had earlier indicated that this technique was "legally available”, even if a blanket approval was not warranted for use by the military at Guantánamo Bay. 495 494 A US military medical report released in April 2005 under the ACLU's freedom of information act lawsuit reveals the following allegations given to a doctor at the US facility, Camp Bucca, in Iraq in June 2004. The detainee said that he was held in Abu Ghraib in May 2004, during which time he alleged, according to the doctor: "He was beaten for 5 days. States he recalls the names [redacted]. Interpreter from Egypt. Two black soldiers. An Iraqi. Started beating him with sticks on the back. Placed in a small room underground. Placed in handcuffs very tight - injuries to both wrists. Had his head kept under water - did it several times to point of passing out. Then he was placed in water and wires placed on him as if to shock him – said he was shocked 3 times.” On the second question, the administration still does not consider itself legally bound by the absolute international prohibition on cruel, inhuman or degrading treatment. Alberto Gonzales said in his written responses to the Senate that the US Justice Department “has concluded that under Article 16 [of the Convention against Torture (CAT)] there is no legal prohibition under the CAT on cruel, inhuman or degrading treatment with respect to aliens overseas. Linked to this is the third question - namely what legal guidance the Justice Department has offered to the CIA. Previously secret documents appear to point to an attempt within the executive to immunize the CIA from prosecution for torture and war crimes. In one memorandum, written in response to a CIA request for legal protections, the Justice Department argued that the President can override national and international prohibitions on torture, offered legal defences for anyone accused of torture, narrowed to almost vanishing point the definition of torture, and suggested that there was a "significant range of acts that though they might constitute cruel, inhuman or degrading treatment or punishment fail to rise to the level of torture" and could therefore not lead to prosecutions under the Anti-Torture Act. This represented the administration's position for some two years until the memorandum emerged into the public domain following the Abu Ghraib scandal. The December 2004 memorandum, rather than explicitly rejecting this position and stating, in 496 194 Questions are left by CLA chief on the use of torture. New York Times, 18 March 2005. 495 Action memo. For Secretary of Defense, from William J. Haynes. General Counsel, CounterResistance Techniques. 27 November 2002. Approved 2 December 2002. http://www.defenselink.mil/news/Jun2004/d20040622doc5.pdf. 496 Memorandum for Alberto R. Gonzales, Counsel to the President. Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A., Signed by Assistant Attorney General Jay S. Bybee, Office of Legal Counsel, US Department of Justice, 1 August 2002. http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf. Guantanamo and bey The continuing checked executive power accordance with international law, that no one has the authority to order torture, chose to evade the issue, and to this day the US administration's position remains unclear. In another memorandum, the White House Counsel advised the President that not applying the Geneva Conventions to detainees captured in the Afghanistan conflict would make future prosecutions of US agents under the War Crimes Act less likely. Another leaked memorandum on legal discussions in the government in early 2002 stated that administration lawyers agreed that "the CIA enjoys the same high level of protection from liability under the War Crimes Act as the US military. It added that to the extent that Geneva Convention protections were not applied as a matter of law but were applied as a matter of policy, “it is desirable to circumscribe that policy so as to limit its application to the CIA" 497 No-one in the CIA has yet been prosecuted.* 498 499 There is reported to be concern within the CIA that withdrawal of the August 2002 memorandum has withdrawn the legal protections that it purportedly provided to the agency's interrogators, opening them up to prosecution.* Under international law, however, there can be no impunity for torture or other cruel, inhuman or degrading treatment. Those who commit such violations and those who authorize such conduct must be brought to account, and may not invoke any justification (such as "necessity", "self-defence" or "superior orders" in their defence. Dan Coleman, a former FBI agent believes that torture "has become bureaucratized" under the Bush administration. He considers that since 11 September 2001, the CIA has operated under the presumption that "it has extralegal abilities outside the US... Whatever they do is all right. It all takes place overseas", 500 The CIA may be operating under more than a presumption. It may be acting under presidential authorization. If reports to this effect are accurate, ultimate responsibility for any resulting "disappearances", torture or other cruel, inhuman or degrading treatment would lic squarely at the President's door. To this day, the White House is reported to be maintaining extraordinary levels of secrecy about the CIA's detentions, placing unprecedented restrictions on congressional oversight of this issue. 501 Michael Scheuer, a former CIA officer in the agency for 22 years, said recently in an interview about the CIA's alleged involvement in secret transfers and torture of detainees: "The thing you have to remember, especially about the US clandestine service, is that it is peculiarly the tool of the executive branch and of the President. There is no operation in which the CIA has been involved, for example, against either al Qa'ida or other Sunni terrorists that has not heen approved by the legal authorities... Human rights is a very flexible concept. It kind of depends on how hypocritical you want to be on a particular day”” 502 Hypocrisy remains a part of the USA's “war on terror". The US government recently wrote the following: "[1]n recent years, government officials have inflicted severe prisoner abuse and torture in a series of 'unofficial' secret prisons and detention centers outside the 197 Status of legal discussions re application of Geneva Conventions to Taliban and al Qaeda. 498 One civilian contractor working with the CIA is being prosecuted for assault in the case of an Afghan detainee who died in custody in 2003. 499 CLA is seen as seeking new role on detainees. New York Times, 16 February 2005. Within CIA. worry of prosecution for conduct. New York Times, 27 February 2005. 500 Outsourcing torture. By Jane Mayer. The New Yorker, 14 February 2005. 501 White House has lightly restricted oversight of CL4 detentions. New York Times, 6 April 2005. 502 Michael Scheuer, interviewed for "Rendition" - Filc on 4. BBC Radio 4, 8 February 2005. USA Guantánamo and beyond - The continuing pursuit of unchecked executive power national prison system". It was writing about Iran. If the US government were to be honest, could it say the same thing about itself? The government is resisting answering this question. Maher Arar, who was secretly transferred in October 2002 from the USA via Jordan to alleged torture in Syria, is suing the USA and US officials, including former Attorney General John Ashcroft, in the US courts. A legal brief filed on his behalf in opposition to those officials` motion to dismiss the lawsuit, states that "the fundamental question underlying this case" is: "Why would United States officials intercept a Canadian citizen on his way home to Canada, detain him a JFK [airport], international obstruct his access to a lawyer, order him removed, and then place him not on a connecting flight to his home in Canada, but on a federally chartered jet to Syria where he would he detained without charges, interrogated and tortured for nearly one year?” The government responded that this "fundamental question" cannot be litigated because doing so would jeopardize national security interests. 504 15. Transfers from Guantánamo and a return from Saudi Arabia Security forces continued to ahuse detainees and prisoners, arbitrarily arrest, and hold persons in incommunicado detention. US State Department, on human rights in Saudi Arabia, 20045 ར་།H; On 18 September 2004, the Pentagon announced the transfer of 29 Pakistan nationals from Guantánamo to the "control of Pakistan for continued detention". More than six months later they were indeed still detained in Pakistan without charge or trial, their years of being in a legal vacuum in US custody now stretching into an indefinite future at the hands of their own government. In March 2005, the men staged a peaceful protest at Adiala jail near Islamabad, seeking an end to their legal limbo. 507 While the US administration continues to resist efforts to have the Guantánamo detentions subjected to full judicial review, it seems that in the wake of the Rasul ruling, the subsequent decisions by Judges Robertson and Green, and the prospect of further losses in the courts, the Pentagon may be intending to transfer scores of detainees out of Guantánamo. Some of them may be transferred to detention in other countries. including Afghanistan, Saudi Arabia and Yemen. Lawyers who have been filing habeas corpus petitions for the detainees have responded by seeking temporary restraining orders and injunctions in the US courts preventing the transfers of detainees where there is concern that they may face torture or other ill-treatment. Incommunicado or secret detention can per se amount to such illtreatment. 508 On 29 March 2005, Judge Henry H. Kennedy on the DC District Court granted such a request and ordered the government to provide the lawyers for 13 Yemeni detainees and the court "with 30 days notice prior to transporting or removing any of them from Guantánamo 503 "Iran" in Country Reports on Human Rights Practices - 2004. US State Department. Released by the Bureau of Democracy, Human Rights, and Labor, 28 February 2005. http://www.state_gov/g/drl/rls/hrrpt/2004/41721.htm. 501 Arar v. Ashcroft, et al. In the United States District Court for the Eastern District of New York. Declaration of James B. Comey, Deputy Attorney General, US Department of Justice. 505.. "Saudi Arabia" in Country Reports on Human Rights Practices - 2004. US Department of State. 28 February 2005, http://www.state.gov/g/drl/rls/hrrpt/2004/41731.htm. Transfer of detainees completed. Department of Defense news release. 18 September 2004. 507 Gitmo-freed Pakistanis jailed at home. Associated Press, 29 March 2005. 508 Pentagon seeks to transfer more detainees from base in Cuba. New York Times, 11 March 2005. See also Amnesty International Urgent Action suit of unchecked executive power 309 Bay." The government had asserted that the claims of detainees facing transfer that they may be subjected to torture or ill-treatment or indefinite detention without due process in other countries were based upon "hollow speculation" and "largely anonymous sources and innuendo". However, Judge Kennedy, appointed to the Court in 1997, ruled that the government's “declarations concerning general policy and practice do not entirely refute Petitioners' claims or render them frivolous". He noted the numerous reports from multiple sources which suggested that such transfers had indeed taken place. In any event, Judge Kennedy agreed that even if they were not facing torture, transfer out of Guantánamo would extinguish the detainees' habeas corpus claims by executive fiat, an irreparable harm. The government had also argued that granting an injunction against the government would "illegitimately encroach upon the foreign relations and national security prerogatives of the Executive Branch" and harm the executive in a "myriad" of ways. Judge Kennedy rejected such "vague premonitions", noting that there was no indication that notifying the detainees' lawyers 30 days ahead of any planned transfer would "intrude upon executive authority"." Amnesty International welcomes Judge Kennedy's assertion of judicial oversight, which was followed by other similar orders. However, the organization is concerned by rulings from two other judges on the same court on 14 and 21 April 2005. .⪜$10 US District Judge Reggie B. Walton, appointed to the Court by President George W. Bush in 2001, was faced with a similar petition filed on behalf of six Bahraini detainees seeking that they would not be transferred without 30 days notice being given to the court and to the lawyers, including notice of the intended transfer destination. Again the government opposed the detainees' motion on the grounds that the detainees' fears that they would be transferred to situations where they risked torture, death or continued detention without trial were "based on rumors, myths, and hype". Judge Walton took a position that was in marked contrast to that of Judge Kennedy two weeks carlier: "It is clear that the underlying basis for the claims advanced by the petitioners is their basic distrust of the Executive Branch. And, the predicate for their distrust is based on nothing more than speculation, innuendo and second hand media reports. This is not the stuff that should cause the court to disregard declarations of senior Executive Branch officials... In the context of the situation now before the Court, requiring the respondents to provide notice as requested prior to carrying out the transfer of the detainees from Guantánamo Bay on the record before it, would be tantamount to an unconstitutional encroachment on the authority of the Executive Branch to determine when it should continue to detain an individual it has no further interest in detaining. This Court simply does not have authority to require the Executive Branch to provide thirty day notices prior to effecting the transfer of the petitioners.... [I]t is a fundamental principle under our Constitution that deference to the Executive Branch must be afforded in matters concerning the military and national security matters" 511 The administration had argued to the court that granting such an injunction would "undermine the United States' ability to reduce the number of individuals under [its] control and [its] effectiveness in cliciting the cooperation of other governments in the war on terrorism". Ignoring this suggestion that the US administration views the fundamental human rights of detainees as negotiable in the context of building alliances in the "war on terror”, Judge Walton ruled that these were “weighty and sensitive governmental interests that surely 516 509 Abdah et al. v. Bush et al. Order. US District Court for the District of Columbia, 29 March 2005. 'Abdah el al. v. Bush et al. Memorandum Opinion. US District Court for the District of Columbia, 29 March 2005. 511 Almurbati et al. v. Bush et al. Memorandum Opinion, US District Court for the District of Columbia, 14 April 2005. |