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Thirty-Five Years After the US Supreme Court

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Thirty-Five Years After the US Supreme Court Index: AMR 51/001/2014 9 January 2014 12 YEARS OF GUANTÁNAMO DETENTIONS, 12 YEARS OF DOUBLE STANDARDS In retrospect, the entire detention and interrogation strategy was wrong. We squandered the goodwill of the world after we were attacked by our actions in Guantánamo, both in terms of detention and torture Major General Michael Lehnert (ret.), first commander of detentions at Guantánamo (2002), December 20131 As the US detentions at Guantánamo enter their 13th year, the world should take the USA to task for its abject failure to live up to the international human rights standards it so often demands of others. The recent flurry of detainee transfers from Guantánamo – nine in December 2013, transfers which followed a mass hunger strike at the base during the year2 – cannot disguise the fact that under its flawed “law of war” framework the USA has yet to fully recognize its human rights obligations in this context, let alone apply them. Instead this US detention regime continues to undermine principles of criminal justice and remains an affront to the Universal Declaration of Human Rights and other international instruments, the very same standards against which the USA yearly assesses the human rights records of other countries. Twelve years after the first detainees were brought to Guantánamo, strapped down in planes like cargo, more than 150 men remain held there, most of them held without charge or trial. A few face trial under a military commission system that does not meet international fair trial standards. Meanwhile, impunity for crimes under international law committed by US personnel against current and former Guantánamo detainees is a festering injustice that leaves the USA in serious violation of its international law obligations on truth, accountability and remedy. Any other country responsible for creating and maintaining such a human rights vacuum would surely have drawn the USA’s condemnation. Instead, every year that this notorious prison camp has been in operation, the USA has continued to trumpet its commitment to human rights principles. Even as it authorized torture or other cruel, inhuman or degrading treatment against detainees held at Guantánamo and elsewhere, or denied them access to lawyers and the courts, the Bush administration criticized other countries for such abuses. Among the many targets of its criticism was the government of Cuba, including for comparable abuses against detainees committed in the very same country in which the USA was operating the Guantánamo facility. Four of the 14 men transferred in September 2006 to military custody at Guantánamo after years of secret CIA detention have said that they were held in Guantánamo in 2003 or 2004. In other words, Guantánamo was the location for one of the CIA’s ‘black sites” at which detainees were subjected to enforced disappearance. In 2003 and 2004, the US government criticized the Cuban authorities for a range of abuses, including subjecting prisoners to prolonged isolation, using military tribunals to try civilians in certain cases under a ‘special law’, and denying access to lawyers for certain detainees. The USA itself was carrying out the same or similar violations at Guantánamo. The USA reported that there 1 Here’s why it’s long past time that we close Guantánamo, Detroit Free Press, 12 December 2013, http://www.freep.com/apps/pbcs.dll/article?AID=2013312120025 2 See, for example, USA: ‘I have no reason to believe that I will ever leave this prison alive’: Indefinite detention at Guantánamo continues; 100 detainees on hunger strike, 3 May 2013, http://www.amnesty.org/en/library/info/AMR51/022/2013/en; and USA: ‘I am fallen into darkness’: The case of Obaidullah, Guantánamo detainee now in his 12th year without trial, 25 July 2013, http://www.amnesty.org/en/library/info/AMR51/051/2013/en 1 were no instances of enforced disappearances in Cuba, something it was itself carrying out on Cuban soil and for which there has been zero accountability. Perhaps the Obama administration would say that it has stopped the use of torture and enforced disappearance as carried out under its predecessor and so this issue is old news. But the absence of accountability means that a line USA AND HUMAN RIGHTS: DO AS WE SAY, NOT AS WE DO3 cannot be drawn under these human rights violations, 2002 – “As we defend our security after the tragic events of September 11, we have placed something the USA itself the preservation of human rights and democracy at the foundation of our efforts.” recognizes when it comes to other 2003 – “In a world marching toward democracy and respect for human rights, the United countries. When recording in the States is a leader, a partner and a contributor. We have taken this responsibility with a 2013 State Department human deep and abiding belief that human rights are universal.” rights report in relation to 2004 – “Promoting respect for universal human rights is… a commitment inspired by our Afghanistan, for example, that country's founding values and our enduring strategic interests. As history has repeatedly “official impunity for those who shown, human rights abuses are everybody's concern.” committed human rights abuses” 2005 – “Under the leadership of President Bush the United States has stepped forward was a “serious” problem in that with its democratic allies to reaffirm our commitment to human rights” country, the USA was not applying the standards it set for 2006 – “We must call countries to account when they retreat from their international human rights commitments.” Afghanistan to itself, including in relation to past US human rights 2007 – “These fundamental rights, reflected in the United Nations Universal Declaration of violations in that same country. Human Rights, constitute what President Bush calls the non-negotiable demands of human dignity.” In March 2010, two months after the Guantánamo detentions were 2008 – “The United States’ efforts to promote human rights and democratic freedoms around the world reflect the core values of the American people.” supposed to have been resolved and the detention facility closed 2009 – “Not only will we seek to live up to our ideals on American soil, we will pursue under President Obama’s greater respect for human rights as we engage other nations and people around the executive order of 22 January world.” 2009, the Department of State 2010 – “Human rights are universal, but their experience is local. This is why we are legal adviser described the Obama committed to hold everyone to the same standard, including ourselves.” administration’s relationship to 2011 – “Through these reports, through our diplomacy, and through our example, we will international law as one under continue to press for the universal human rights of all individuals.” which the USA would follow “universal standards, not double 2012 – “The United States stands with all those who seek to advance human dignity, and standards”.4 we will continue to shine the light of international attention on their efforts.” 2013 – “Significant progress is being made in some places, but in far too many others Six Guantánamo detainees are governments fall short of the Universal Declaration of Human Rights’ vision”. currently facing the possibility of death sentences after unfair trials by military commission. Any imposition of the death penalty after a trial that does not meet international standards of fairness would violate the right to life under international law. All six were held in secret CIA custody prior to their transfer to Guantánamo in 2006. All six had been subjected to enforced disappearance, and at least two of them to the torture technique known as “water-boarding”, effectively mock execution by interrupted drowning. No-one has been brought to justice to the abuses to which these men and others held in the CIA programme were subjected. The details of what happened to them and others are still classified at the highest level of secrecy. A 6,000 page report on the CIA programme produced by the Senate Select Committee on Intelligence remains classified also. No government should be permitted to diminish the quality of justice to compensate for its own past injustices, even if that injustice took place under a previous executive and legislature. The human rights violations of the past cannot provide any valid excuse for further disregard of human rights in the present. After 12 years of detentions at Guantánamo, only one detainee has been transferred to the USA for prosecution in ordinary federal court. Among the detainees still held at the base there are individuals who should be brought to justice – in the sense of being brought before the ordinary courts for fair criminal trial – on charges of responsibility in relation to the 11 September 2001 attacks or other serious human rights abuses. Indeed, from the perspective of respect for the right to justice of the victims of such attacks, those individuals should been charged and brought to fair trial years ago. 3 The quotes are taken from the prefaces or introductions to the US Department of State’s annual assessments of human rights practices in other countries. Year given is the year of publication (as opposed to year of coverage). 4 The Obama administration and international law, 25 March 2010, http://www.state.gov/s/l/releases/remarks/139119.htm 2 Any Guantánamo detainee who cannot be brought to fair trial should be released. This is true whether the government does not have enough evidence to bring a prosecution or whether the evidence the government does have has been rendered inadmissible in a fair trial by the way in which it was obtained, for example through torture or other ill-treatment. If a person is released and subsequent investigation generates sufficient admissible evidence that the person is then engaging in criminal activity, he can still be brought to justice in a fair trial.
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