1. The USA occupies the Guantánamo base under a 1903 lease, in which “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas],” while the “Republic of Cuba consents that during the period of occupation by the United States … the United States shall exercise complete jurisdiction and control over and within said areas.” In 1934, the two parties entered into a treaty whereby, absent their agreement to amend or repeal the lease, it would remain in effect as long as the USA “shall not abandon the … naval station of Guantánamo.”
2. USA: Guantánamo: Trusting the Executive, Prolonging the Injustice, AI Index: AMR 51/030/2005, January 26, 2005 (http://web.amnesty.org/library/Index/ENGAMR 510302005). [See also the comprehensive piece on the torture and abuses at Abu Ghraib and elsewhere by Col. Dan Smith on pp. 509—552 of the present volume.—Ed.]
3. The Foreign Intelligence Surveillance Court was created under the Foreign Intelligence Surveillance Act (FISA) of 1978. It used to have seven judges on it, but the USA PATRIOT Act of 2001 amended FISA to increase the number to 11. Among the current 11 are Judges Coleen Kollar-Kotelly and James Robertson of the D.C. District Court. The former ruled against the Guantánamo detainees on the question of jurisdiction which was subsequently reversed by the U.S. Supreme Court in Rasul v. Bush on June 28, 2004. She noted at the time that her opinion “should not be read as stating that these aliens do not have some form of rights under international law.” The ruling of Judge Robertson in November 2004 led to suspension of trials by military commission (see p. 477ff).
1. In re Guantánamo detainee cases, Memorandum Opinion Declining in Part and Granting in Part Respondents' Motion to Dismiss or Grant for Judgment as a Matter of Law in the U.S. District Court for the District of Columbia, January 31, 2005 (http://www.dcd.uscourts.gov/opinions/2005/Green/2002-CV-299~8:57:59~3–2–2005-a.pdf).
2. Despite the administration's claims about “multiple levels of review,” it appears that numerous individuals have been detained in Guantánamo on flawed intelligence, their release only coming after many months if not years of detention. Some detainees, for example Salim Ahmed Hamdan (see below), were reportedly “sold” to the USA by individuals in Afghanistan and Pakistan – the CIA was reportedly offering U.S.$5,000 for al-Qaeda suspects.
3. The final CSRT hearing was held on January 22, 2005.
1. Benchellali et al v. Bush et al. Transcript of motion hearing before the Honorable Richard J. Leon, U.S. District Judge, in the U.S. District Court for the District of Columbia, December 2, 2004.
1. Ahmed et al. v. Bush et al. CSRT unclassified factual returns. In the U.S. District Court for the District of Columbia.
2. Principle 19 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states: “A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.” Rule 37 of the UN Standard Minimum Rules for the Treatment of Prisoners states: “Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.”
1. Al Odah et al. v. USA et al. Opening brief for the United States et al. In the United States Court of Appeals for the District of Columbia Circuit, April 27, 2005 (internal quotation marks omitted).
1. Amnesty International has spoken to many relatives of Guantánamo detainees who themselves are in deep distress from the lack of transparency and information about their loved ones and their inability to visit them. In other contexts, the suffering of the relatives of the “disappeared” has been found by the UN Human Rights Committee to amount to torture or cruel, inhuman, or degrading treatment. Similar cruelty is inflicted upon the relatives of people held in indefinite virtual incommunicado detention without charge or trial. See Maria del Carmen Almeida de Quinteros, on behalf of her daughter, Elena Quinteros Almeida, and on her own behalf v. Uruguay, Communication No. 107/1981 (September 17, 1981), UN GAOR Supp. No. 40 (A/38/40) p. 216 (1983), para. 14. Regional human rights courts reached similar conclusions, see for instance Velasquez Rodriguez Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgment of July 21, 1989 Inter-Am.Ct.H.R. (Ser. C) No. 7 (1990), para. 51; Kurt v. Turkey, Case No. 15/1997/799/1002 Judgment of 25 May 1998, paras. 133–4.
2. Implementation of administrative review procedures for enemy combatants detained at U.S. Naval Base Guantánamo Bay, Cuba. Department of Defense, September 14, 2004.
1. For example, at a military commission pre-trial hearing for Salim Ahmed Hamdan in Guantánamo Bay on August 24, 2004, the military prosecutor asked a military commission panel member, “Do you understand that just because someone was transported to Guantánamo does not mean that they are guilty of an offense?”
2. Potential legal constraints applicable to interrogations of persons captured by U.S. Armed Forces in Afghanistan. Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, February 26, 2002.
1. During a hearing in her court on December 1, 2004, Judge Green had asked the government a series of hypothetical questions to ascertain how broadly it interpreted its detention powers. The government responded that it could subject to indefinite executive detention: “'A little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan, but [what] really is a front to finance al-Qaeda activities'; a person who teaches English to the son of an al-Qaeda member; and a journalist who knows the location of Osama bin Laden, but refuses to disclose it to protect her source.” In front of Judge Leon, the Principal Deputy Associate Attorney General suggested that in the example of the Swiss woman, he had been misquoted and that what he had said was that “in the fog that is often the case in these situations that it would be up to the military applying its process and in going through its classification function to determine who to believe. If in fact this woman, there was some reason to believe this woman did know she was financing a terrorist operation, that would certainly merit a detention both theoretically and practically.” The government's position would still be that she could be held indefinitely without charge or trial or judicial review of the merits of her case.
2. UN Doc. E/CN.4/2005/103, February 7, 2005, para. 17.
1. Department of Defense. Military commission instruction no.2: Crimes and elements for trials by military commission. Section 5(c).
2. According to the Pentagon, President Bush decided on July 18, 2003, “to discuss and review potential options for the disposition of British detainee cases and not to commence any military commission proceedings against British nationals pending the outcome of those meetings [with the U.K. authorities].” DoD statement on British detainee meetings, Department of Defense news release, July 23, 2003.
3. Presidential military order applied to nine more combatants. Department of Defense news release, July 7, 2004. [Navy Lt. Cmdr. Charles Swift confirmed AI's report of the status of those charged under the military commission in his June 15, 2005, testimony before the Senate Judiciary Committee. “It has been nearly four years since the horrific attacks of September 11, 2001. Not a single person has been prosecuted in the Military Commission. Only four people have been charged. Of those four, none can be said to be a high-ranking member of al Qaeda or anything close to it.” See http://judiciary.senate.gov/testimony.cfm?id=1542&wit_id=4361.—Ed.]
1. USA's Second Periodic Report to the UN Committee against Torture.
1. Including under Art. 14 of the International Covenant on Civil and Political Rights (ICCPR) and Art. 75 of Protocol Additional I to the Geneva Conventions. The latter has long been considered by the USA to reflect customary international law, but the current admi
nistration, as part of its pursuit of unfettered executive power and disregard for international law, has refused to accept the applicability of this norm. The Pentagon's Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, April 4, 2003 (http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf), states that among the international instruments not binding on the USA is Art. 75 of the First Additional Protocol to the Geneva Conventions, overturning the USA's long-held recognition of the “fundamental guarantees” of Art. 75 as reflecting customary international law. (Cf. remarks by M. Matheson, U.S. State Department deputy legal adviser, in “The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions,” American University Journal of International Law & Policy, Vol. 2, 1987, pp. 415, 425—426, cited in Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (New York: Clarendon Press, 1989), p. 65. The deputy legal adviser stated that “the United States will consider itself legally bound by the rules contained in Protocol I only to the extent that they reflect customary international law, either now or as it may develop in the future” (ibid., p. 420). Similarly, the U.S. Army's Judge Advocate General's School has indicated that Art. 45 of Protocol I is consistent with customary international law. Judge Advocate General's School, U.S. Army, Operational Law Handbook, JA 422, p. 18—2 (1997) (stating that “the U.S. views [Art. 45] as customary international law”). Five years later, a revised version of this manual (Judge Advocate General's School, U.S. Army, Operational Law Handbook, ch. 2 (2002)) stated that the U.S. viewed Art. 45 as “customary international law or acceptable practice though not legally binding,” but no evidence was cited or exists demonstrating that the customary rule of international law codified in Art. 45 has been abrogated.) Art. 75 prohibits, inter alia, physical and mental torture, outrages upon personal dignity, in particular humiliating and degrading treatment, as well as trial by any tribunal other than “an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure.” While not expressly referring to the right to appeal to a higher tribunal, it states that “no provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law.” Consistent with the Human Rights Committee's General Comment 31, then, this would include the provisions of the ICCPR, which does include such right to appeal.
CHAPTER
29
postscript
An Illusion of Lawful Process
………
Joseph Margulies, Esq.
MY COMMENTS IN what follows are directed at the unlawful nature of the Combatant Status Review Tribunals, or CSRTs, held in Guantánamo. They take Rasul as the starting place, and consider some of the problems that have arisen since the case was decided by the Supreme Court roughly one year ago. Rasul reaffirmed a simple, but indispensable principle of constitutional democracy: there is no prison beyond the law. After Rasul, prisoners seized in ostensible connection with the war on terror cannot be held in a legal black hole, subject to whatever conditions the military may devise for so long as the President sees fit, with no opportunity to demonstrate their innocence and secure their release. Instead, federal courts have the authority and responsibility to determine for themselves the lawfulness of a prisoner's continued incarceration.
But the promise of Rasul remains unfulfilled. Within days of the decision, the military announced the creation of the Combatant Status Review Tribunals. The CSRTs create nothing more than the illusion of a lawful process. As I said in my argument to Judge Joyce Hens Green in the federal district court in December 2004, the CSRT mocks this nation's commitment to due process, and it is past time for this mockery to end.
I will address three aspects of the CSRTs: the failure to provide an adequate process; the willingness to rely on evidence secured by torture; and the superficial similarity to so-called Article 5 hearings.
The CSRT Is the Perfect Storm of Procedural Inadequacy
Drawing from a universe of potential procedures, the military has adopted the worst features available to it, and combined them in a grotesque parody of due process.
First, the CSRT applies an overly expansive definition of “enemy combatant,” one that sweeps within its reach wholly innocent or inadvertent conduct. In the Supreme Court in this case, the government defined “enemy combatant” as a person who “is part of or supporting forces hostile to the United States and engaged in an armed conflict against the United States.”1 But in the CSRT, the military unilaterally took it upon itself to change this definition from the conjunctive to the disjunctive, and now an “enemy combatant” is anyone who is part of or supporting forces or who engaged in armed conflict. Moreover, that “support” may be entirely accidental or unintentional, as for instance, contributing to a charity without realizing its connection to the Taliban.2 No amount of due process can rescue a system that simply asks the wrong question.
Second, using this expansive definition, the CSRT presumes the accuracy of the military intelligence it receives, placing the burden on the prisoner to disprove his status.3
Third, though the prisoner has the burden, the tribunal relies on secret evidence withheld from him.4
Fourth, this evidence may have been secured by torture or other forms of coercive interrogation. I discuss this particular problem in more detail below.
Fifth, the prisoner – a foreign national who has been held for months or years virtually incommunicado – must confront and overcome this secret evidence without the benefit of counsel.5
And finally, the CSRT routinely denies the prisoner the opportunity to uncover and present evidence that would prevent a miscarriage of justice. In the same way, the CSRT consistently refuses to inquire into the reliability or provenance of the evidence offered by the military.6
The result is simply this: the CSRT asks the wrong question, and then applies a wholly deficient process to produce consistently unfair and arbitrary results.
• • • •
In its court papers, the government makes much of the fact that, viewed in isolation, each procedural piece of the CSRT has been applied in other hearings. It is worth examining that contention in more detail.
Certainly it is true, for instance, that some proceedings do not provide for the assistance of counsel. But not where the government also places the burden on the prisoner to disprove secret evidence, or where an adverse determination may lead to permanent loss of liberty.
Likewise it is true that some proceedings rely, although very rarely, on secret information withheld from the claimant. But not where the prisoner has the burden of disproving the very evidence he cannot see, must do it without the assistance of counsel, and where his failure may lead to his permanent incarceration. And even in the examples relied on by the government, the entire body of evidence was at least reviewed by an Article III court. Here it is not.
Certainly there are cases where the government places some restrictions on the right to prepare and present evidence. But not where the government may rely on evidence secured by torture, then prevent any impartial inquiry into the reliability of this evidence.
There are cases where the issue was decided by a 3-member panel, whether military or otherwise. But not where superiors have explicitly and repeatedly prejudged the issue, and the burden is on the prisoner to rebut that prejudgment.
In sum, let me be as blunt as I can. I am aware of no case, and the government has cited none, where a potentially permanent loss of liberty is made to depend on a process so devoid of procedural fairness, a process so apt to produce an unjust or arbitrary result. Whether viewed in isolation or in their entirety, the procedures used by the CSRT are a mockery of our commitment to due process.
For the First Time i
n U.S. History, the Government Is Allowed to Imprison People Based on Evidence Secured by Torture
Each of the various pieces of the CSRT puzzle could be the subject of considerable testimony. Let me focus on one: the CSRT relies on evidence that may have been secured by torture or other forms of coercive interrogations, with no inquiry into its reliability.
The record in these cases indicates the “evidence” against most prisoners consists largely of their uncorroborated statements to interrogators, or the uncorroborated statements of other prisoners. Yet we know several things that should give us pause: we know the government uses interrogation techniques beyond that authorized by the Geneva Conventions;1 we know the government has repeatedly revised and expanded the permissible interrogation techniques allowed at Guantánamo;2 we know from the government that a number of prisoners have been abused in various ways;3and we know that a substantial number of prisoners allege they have been tortured and mistreated, at Guantánamo and elsewhere.4
Despite this, the CSRT makes no provision to exclude this evidence – or even to inquire into its reliability – nor does the government suggest otherwise.
Let me discuss one case in particular. I represent Mr. Mamdouh Habib. Mr. Habib was seized in Pakistan and rendered to Egypt, where he was held for 6 months. The U.S. government, through the Department of State, has long decried use of torture by Egyptian authorities. While he was in Egypt, Mr. Habib was subjected to diabolical tortures that have now been described in a number of public documents, including the decision by Judge Green.5
Yet the CSRT, based entirely on his uncorroborated statements, found him to be an “enemy combatant.” Mr. Habib told the CSRT that his statements had been secured by torture, and the CSRT took his allegations seriously enough that it directed the government to investigate, but that investigation is not part of the CSRT, which merely presumed the accuracy of the military's evidence, as it must do under the rules.6
Neo-Conned! Again Page 67
