TABLE OF CONTENTS Summary........................................................................................................................1 1. Elastic, policy-driven interpretation of the law..........................................................7 2. Human rights do not vanish in “war” ......................................................................15 2.1 Non-derogable rights; the USA has not derogated ............................................19 3. Status of detainees: implications for trial.................................................................22 3.1 Detained in international armed conflict............................................................25 3.2 Detained in non-international armed conflict ....................................................28 3.3 Detained outside of zones of armed conflict......................................................29 3.4 No military trials for children............................................................................30 3.5 No military trials for civilians ............................................................................32 3.6 Civilian trials for all those charged? ..................................................................34 4. In all courts, adherence to fair trial standards ..........................................................35 4(a) Trial by a competent, independent and impartial tribunal established by law.38 4(b) The right to equality and non-discrimination...................................................42 4(c) Presumption of innocence ................................................................................43 4(d) The right to a trial within a reasonable time.....................................................46 4(e) Right to lawyer of choice and to defend oneself in person..............................47 4(f) The right to adequate time and facilities...........................................................50 4(g) The right to be tried in one’s presence .............................................................50 4(h) The rights to challenge and to present evidence...............................................52 4(h)(1) Hearsay evidence.....................................................................................54 4(h)(2) Classified evidence ..................................................................................56 4(i) Exclusion of coerced evidence..........................................................................59 4(j) Right to appeal ..................................................................................................63 5. No death penalty......................................................................................................65 6. Indefinite detention without charge or trial..............................................................67 6.1 Habeas corpus after the DTA and Hamdan.......................................................71 7. A pattern of impunity...............................................................................................75 7.1 No narrowing of the War Crimes Act................................................................78 8. Broader protections against torture & ill-treatment .................................................82 9. AUMF – surely not meant to be a “blank check”? ..................................................85 10. Conclusion.............................................................................................................92 11. Recommendations ..................................................................................................93 Appendix 1: Detainees named under Military Order...................................................96 Appendix 2: Transferred from secret CIA custody......................................................98 Appendix 3: Persons taken into detention outside of zones of armed conflict..........100 Appendix 4: Rendition – torture – trial? ....................................................................102 Appendix 5: A framework for closing Guantánamo..................................................111 AI Index: AMR 51/146/2006 Amnesty International 18 September 2006 UNITED STATES OF AMERICA Justice at last or more of the same? Detentions and trials after Hamdan v. Rumsfeld Summary The eyes of the world are on this nation as to how we intend to handle this type of situation and handle it in a way that the measure of legal rights and human rights are given to detainees. Chairman of the US Senate Armed Services Committee, 13 July 20061 On 29 June 2006, the United States Supreme Court delivered its judgment in the case of Hamdan v. Rumsfeld . The case concerned Salim Ahmed Hamdan, a Yemeni national captured in 2001 during the international armed conflict in Afghanistan, and detained without trial since June 2002 in the US military base at Guantánamo Bay, Cuba. He was charged in July 2004 for trial by military commission under the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism signed by President George W. Bush on 13 November 2001. By five votes to three, the Supreme Court concluded that the military commissions as constituted under the Military Order were unlawful, as they had not been expressly authorized by Congress, and violated international law and US military law. By finding Article 3 common to the four Geneva Conventions of 1949 to be applicable in this case, the Supreme Court punctured a central tenet of the administration’s policy implemented after its invasion of Afghanistan when President Bush determined that common Article 3 would not apply to al-Qa’ida or Taleban detainees. Common Article 3 – which reflects customary international law applicable to international and non-international conflicts – guarantees minimum standards of humane treatment and fair trial. Four of the Justices also pointed to the fair trial rights set out in the International Covenant on Civil and Political Rights (ICCPR) and international humanitarian law. The USA ratified the ICCPR in 1992 and considers it to be “the most important human rights instrument adopted since the UN Charter and the Universal Declaration of Human Rights”.2 However, it has refused to apply the ICCPR outside US sovereign territory. Amnesty International welcomed the Hamdan decision as the organization had campaigned for an end to the military commissions and for revocation of the Military Order 1 Senator John Warner, opening hearing of the Senate Committee on Armed Services on Military Commissions in light of the Supreme Court decision in Hamdan v. Rumsfeld, 13 July 2006. 2 Matthew Waxman, Head of the US Delegation and Principal Deputy Director, Policy Planning Staff, US Department of State. Opening statement to the UN Human Rights Committee, Geneva, Switzerland, 17 July 2006, available at http://www.state.gov/s/p/rem/69126.htm. Mr Waxman added that the USA “played a significant role in drafting those foundational instruments”. AI Index: AMR 51/146/2006 Amnesty International 18 September 2006 2 USA: Justice at last or more of the same? Detentions and trials after Hamdan since November 2001. 3 Recalling that the US administration had sought to drain the Supreme Court’s earlier Rasul v. Bush judgment of any real meaning for the Guantánamo detainees, the organization called on the government to adopt a good faith interpretation of the Hamdan ruling in the interest of justice and respect for human rights and the rule of law. The organization urged the President not to seek to resurrect the military commissions in other forms or by other means. Instead, the ruling should be used as a springboard for real change in the USA’s “war on terror” detention policies and practices which to date had systematically violated international law and standards. 4 The administration’s response to the Hamdan “We, the States Members of the ruling indicates an unwillingness to abandon military United Nations, resolve…to commissions or the other core aspect of the Military Order recognize that international – indefinite detention without charge or trial. Indeed, cooperation and any measures President Bush’s announcement on 6 September 2006 that we undertake to prevent and combat terrorism must comply confirming what had long been reported – that in the “war with our obligations under on terror” the Central Intelligence Agency (CIA) has been international law, including the operating a policy of secret detentions and “alternative” Charter of the United Nations and interrogation techniques – suggests an administration in relevant international 5 unapologetic mood. President Bush has said that conventions and protocols, in “unfortunately, the recent Supreme Court decision put the particular human rights law, future of this program in question, and we need this refugee law and international legislation to save it”.6 humanitarian law”. From Global Counter-Terrorism The legislation referred to by President Bush is the Strategy, adopted by the United “Military Commissions Act of 2006” he sent to Congress Nations General Assembly on 8 on 6 September. President Bush stated that if Congress September 2006 were to authorize the Act, the 14 alleged leading al-Qa’ida members he announced had been newly transferred from secret CIA custody to Guantánamo could be put on trial in connection with the attacks of 11 September 2001. The administration appears prepared to use these high-profile detainees to apply pressure on Congress – in the lead-up to congressional elections