International Human Rights Law Clinic University of California, Berkeley Human Rights Center
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notes 86 U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, G.A. Res. 39/46, UN GAOR. 39 th Sess. Supp. No. 51, entered into force June 26, 1987, U.N. Doc. A/Res/39/46, available at http://www.unhchr.ch/html/menu3/b/h_cat39.htm (accessed September 12, 2008). 87 International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171, entered into force March 23, 1976. 88 European Convention for the Protection of Human Rights and Fundamental Freedoms §1, art. 3 (Nov. 4, 1950): “No one shall be subjected to torture or to inhu- man or degrading treatment or punishment.” 89 Article 3 in each of the conventions (“Common Arti- cle 3”) prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and tor- ture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” See, for example, Geneva Convention IV, art. 3. 90 Hernán Reyes, “The Worst Scars Are In the Mind: Psychological Torture,” International Review of the Red Cross 89 (2007): 591–617. 91 Prosecutor v. Krnojelac, No. IT-97-25 (ICTY Trial Chamber), March 15, 2002, ¶ 182. 92 Reyes, “The Worst Scars Are In the Mind,” 616. 93 Mayer, The Dark Side, 187. 94 The United States government videotaped hours of interrogations conducted by representatives of Guan- tánamo detainees’ home countries. Permitting the ques- tioning of detainees by foreign governments was contin- gent on such videotaping, which was conducted in part to help the United States gather additional intelligence. Such videotapes may ultimately confirm detainee allega- tions that such interrogations were often abusive, and sometimes included death threats and torture. See, for example, “Guantánamo detainees’ foreign interroga- tions were recorded,” Los Angeles Times, August 5, 2008, available at http://www.latimes.com/news/nationworld/ nation/la-na-gitmo5-2008aug05,0,4654363 (accessed Sep tem ber 13, 2008); see also Center for Constitutional Rights, Foreign Interrogators in Guantánamo Bay, available at http://ccrjustice.org/files/Foreign%20Inter- rogators%20in%20Guantánamo%20Bay_1.pdf (accessed September 13, 2008). 4: guantánamo: no exit 1 Camp Delta Standard Operating Procedures (March 1, 2004) §9-1(4) [hereinafter 2004 SOP]. 2 See Chapter 24 of the 2004 SOPs entitled “Immediate Reaction Force (IRF) Operations.” Chapter 25 provides in- structions for “Quick Response Force (QRF) Operations.” This operation was designed “to deter all errant behav- ior from unruly detainees…and react to authorized in- struction into the compound to protect U.S. forces and detainees.” 3 The reactive chemical in the spray is Oleoresin/Cap- sicum. 4 2004 SOP §24-6(b). 5 Solitary confinement is defined as “the physical iso- lation of individuals who are confined to their cells for twenty-two to twenty-four hours a day. In many juris- dictions prisoners are allowed out of their cells for one hour of solitary exercise. Meaningful contact with other people is typically reduced to a minimum. The reduction in stimuli is not only quantitative but also qualitative. The available stimuli and the occasional social contacts are seldom freely chosen, are generally monotonous, and are often not empathetic.” “The Istanbul Statement on the Use and Effects of Solitary Confinement,” Torture 18 (2008): 63–65 (adopted December 9, 2007 at the Inter- national Psychological Trauma Symposium, Istanbul) [hereinafter The Istanbul Statement]. 6 See Amnesty International, United States of Ameri- ca, Cruel and inhuman: Conditions of isolation for de- tainees at Guantánamo Bay, April 5, 2007, 19 (AI Index: AMR 51/051/2007), citing to Joint Task Force 170, De- partment of Defense, Memorandum for Record: Subject: ICRC Meeting with MG Miller on 09 Oct 03, Guantána- mo Bay, Cuba. Also see William Glaberson, “Red Cross Monitors Barred from Guantánamo,” New York Times, November 16, 2007, available at http://www.nytimes. com/2007/11/16/washington/16gitmo.html?_r=1&oref= slogin&ref=world&adxnnlx=1195330242-K/tH1ClxRqC- Zd%20GtREMw%20A&pagewanted=print (accessed Au- gust 1, 2008). 7 See Human Rights Watch, Locked Up Alone: Deten- tion Conditions and Mental Health at Guantánamo, June 10, 2008. 8 Leila Zerrougui et al, Situation of the Detainees at 116 GUantÁnamo and Its aftermath Guantánamo, UN Doc. E/CN.4/2006/120 (2006) (report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention; the Special Rapporteur on the independence of justices and lawyers; the Special Rap- porteur on torture and other cruel, inhuman or degrad- ing treatment or punishment; the Special Rapporteur on freedom of religion or belief; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health). 9 See Stuart Grassian, “Psychiatric Effects of Solitary Confinement,” Washington University Journal of Law and Policy 22 (2006): 325–83. 10 “The Istanbul Statement,” 63. 11 See generally Grassian, “Psychiatric Effects.” See also Peter Scharff Smith, “The Effects of Solitary Con- finement on Prison Inmates: A Brief History of the Lit- erature,” Crime and Punishment 34 (2006): 441–528. A longitudinal study of prisoners in Denmark found that the incidence of psychiatric disorders developed “was significantly higher in SC [solitary confinement] prison- ers (28%) than in non-SC prisoners (15%).” See H.S. Ander- son et al, “A Longitudinal Study of Prisoners on Remand: Psychiatric Prevalence, Incidence, and Psychopathology in Solitary v. Non-Solitary Confinement,” Acta Psychiat- rica Scandinavica 102 (2001): 19–25. 12 “The Istanbul Statement,” 63. 13 Kieran McEvoy, Paramilitary Imprisonment in Northern Ireland: Resistance, Management, and Re- lease (Oxford: Oxford University Press, 2001), 74. 14 Ibid., 82–83. 15 Of the remaining strikers, one had refused food for “for more than eight hundred days, and another for nine hundred days.” Jeffrey Toobin, “Camp Justice,” The New Yorker, April 14, 2008. 16 Larry C. James (with Gregory A. Freeman), Fixing Hell: An Army Psychologist Confronts Abu Ghraib (New York: Grand Central Publishing, 2008) 66–67. 17 The remaining respondents did not explicitly dis- cuss healthcare at Guantánamo. 18 U.S. Dept. of Justice, Office of the Inspector General, A Review of the FBI’s Involvement in and Observations of Detainee Interrogations in Guantánamo Bay, Afghan- istan, and Iraq, May 2008, 193-194 [hereinafter OIG/DOJ Report], available at http://www.dodig.osd.mil/fo/Foia/ ERR/06-INTEL-10-PublicRelease.pdf (accessed August 22, 2008). 19 Our media database also contains reports regard- ing the deprivation of medical care at Guantánamo. The most frequently cited case was that of a detainee who alleged that he had been sent to Egyptian prisons for six months of torture prior to his arrival at Guantánamo, a practice known as “secret or extraordinary rendition.” Fellow former detainees reported that he was in “cata- strophic shape” when he arrived at Guantánamo. “Most of his fingernails were missing, and while sleeping he regularly bled from his nose, mouth and ears, but U.S. officials denied him treatment.” Dana Priest and Dan Eg- gen, “Terror Suspect Alleges Torture; Detainee Says U.S. Sent Him to Egypt Before Guantánamo,” The Washington Post, January 6, 2005, A1. 20 See James, Fixing Hell. Also see the leaked copy of the Department of Defense memorandum relating to an October 2003 meeting between Guantánamo authori- ties and members of the ICRC. Department of Justice, Joint Task Force 170, “Memorandum for Record: Subject: ICRC Meeting with MG Miller on 09 Oct 03, Guantánamo Bay, Cuba.” 21 Thirteen detainees profiled in the media database reported that they forcibly had been given medication, often prior to interrogation. For example, a Pakistani de- tainee alleged that the Americans had given him injec- tions and tablets prior to interrogations. “They used to tell me I was mad. I was given injections at least four or five times as well as different tablets. I don’t know what they were meant for.” Haroon Rashid, “Pakistani relives Guantánamo ordeal,” BBC, May 22, 2003, available at http://news.bbc.co.uk/2/hi/south_asia/3051501.stm (ac- cessed August 26, 2008). 22 See Mona Lynch, “The Disposal of Inmate #85271: Notes on a Routine Execution,” Studies in Law, Politics and Society 20 (2000): 14–15. 23 NCIS Statement on Suicide Investigation, available at http://www.dod.mil/pubs/foi/detainees/NCISstate- ment_suicide_investigation.pdf (accessed September 13, 2008). 24 The Center for Constitutional Rights and others have raised questions about the responsibility of the U.S. government for the deaths of detainees and its han- dling of these incidents. On May 30, 2007, military of- 117 notes ficials at Guantánamo announced the “apparent suicide” of a detainee, Abdul Rahman Ma’ath Thafir al-Amri. He was reportedly found unresponsive in his cell. A hunger striker, he dropped over 60 pounds during his detention. The military promised to complete an autopsy before re- turning his body to Saudi Arabia but have yet to release the findings. William Glaberson, “Guantánamo Prisoner Cuts His Throat With Fingernail,” New York Times, Decem- ber 5, 2007; Center for Constitutional Rights, “Govern- ment Conclusions on Guantánamo Deaths Do Not Ab- solve Government of Responsibility,” available at http:// ccrjustice.org/newsroom/press-releases/government- conclusions-Guantánamo-deaths-do-not-absolve-gov- ernment-responsib (accessed October 1, 2008). 25 Center for Constitutional Rights, “Government Con- clusions on Guantánamo Deaths;” Mahvish Rukhasana Khan, My Guantánamo Diary: The Detainees and the Stories They Told Me (New York: PublicAffairs, 2008), 153–165. 26 The Oxford Dictionary of Islam, ed. John L. Esposito (USA: Oxford University Press, 2003), s.v. “Suicide.” 27 Mark P. Denbeaux et al, June 10 th Suicides at Guan- tánamo: Government Words and Deeds Compared, Seton Hall Law School, 2006, 13–14. 28 See “23 Detainees Attempted Suicide in Protest at Base, Military Says,” Associated Press, January 25, 2005; GlobalSecurity.org, “Guantánamo Bay Detainees,” http:// www.globalsecurity.org/military/facility/Guantánamo- bay_detainees.htm (accessed August 26, 2008). 29 “Guantánamo Suicides ‘Acts of War,’” BBC News, June 11, 2006, available at http://news.bbc.co.uk/2/hi/ americas/5068606.stm (accessed August 26, 2008). 30 See Khan, My Guantánamo Diary, 163 (quoting fo- rensic pathologist Dr. Patrice Mangin). 31 According to the 2004 SOPs, guards are required to secure surrounding detainees when responding to sui- cide attempts. 2004 SOP §32-1(e)(2). The safety and secu- rity of the guards are the top priority. 2004 SOP §32-(e) (1); §30-4(c)(10). During mass suicide attempts, especially, guards are expected to take precautions against any po- tential “clandestine plan[s] to overpower the guard[s] and psych staff.” 2004 SOP §30-4(c)(14). 32 Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), 183; see also Tim Golden and Don Van Natta, “The Reach of War: U.S. Said to Over- state Value of Guantánamo Detainees,” New York Times, June 21, 2004; Christopher Cooper, “Detention Plan: In Guantánamo, Prisoners Languish in Sea of Red Tape,” Wall Street Journal, Jan. 26, 2005. 33 Mayer, The Dark Side, 183. 34 Ibid., 184. 35 Ibid., 187. 36 Mayer, The Dark Side, 183–212; Golden and Van Nat- ta, “The Reach of War.” 37 OIG/DOJ Report, 187. 38 The Combatant Status Review Tribunals were charged with determining whether a detainee fit the criteria of enemy combatant, defined as “an individual who was part of or supporting Taliban or Al Qaeda forc- es, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” Secretary of Defense, Memorandum for Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Undersecretary of Defense for Policy, Combatant Status Review Tribunal Process (July 14, 2004). 39 Secretary of the Navy Gordon England announced the results of the review tribunals and explained the significance of the “No Longer an Enemy Combatant” (NLEC) determination: “It should be emphasized that a CSRT determination that a detainee no longer meets the criteria for classification as an enemy combatant does not necessarily mean that the prior classification as EC [Enemy Combatant] was wrong.” Gordon Eng- land, Defense Department Special Briefing on Combat- ant Status Review Tribunals (March 20, 2005), avail- able at http://www.defenselink.mil/utility/printitem. aspx?print=http://www.defenselink.mil/transcripts/ transcript.aspx?transcriptid=2504 (accessed September 13, 2008). By the end of November 2006, all 38 designated NLECs had been transferred from Guantánamo. 40 Secretary of Defense, Memorandum for Secretar- ies of the Military Departments, Chairman of the Joint Chiefs of Staff, Undersecretary of Defense for Policy, July 14, 2006, available at http://www.defenselink.mil/news/ 118 GUantÁnamo and Its aftermath Aug2006/d20060809ARBProceduresMemo.pdf (accessed August 26, 2008). 41 Boumediene v. Bush, 553 U.S. __, *58 (2008). 42 Ibid., 41–42. 43 The government was only obligated to bring wit- nesses to testify who are “reasonably available.” How- ever, the organization that oversaw the review process, the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC), did not have a bud- get to bring witnesses to testify at panels, according to former Tribunal Officer Stephen Abraham. And no other government organization was obligated to pay to bring witnesses. 44 U.S. Dept. of Defense, “News Release: Detainee Trans- fer Announced,” October 8, 2008, available at http://www. defenselink.mil/releases/release.aspx?releaseid=12275 (accessed October 8, 2008); Human Rights Watch, Locked Up Alone, 24–40. 5: return: the legacy of guantánamo 1 U.S. Dept. of Defense, “News Release: Detainee Trans- fer Announced,” October 8, 2008, available at http://www. defenselink.mil/releases/release.aspx?releaseid=12275 (accessed October 8, 2008). 2 Declaration of Clint Williamson, Ambassador-at- Large for War Crimes Issues, U.S. Department of State, ¶2, Rimi v. Bush, No. 1:05-cv-02427-RJL (D.D.C. 2008) Status Report In Response to Court’s July 3, 2008 Order, filed July 14, 2008; Declaration of Sandra L. Hodgkinson, Deputy Assistant Secretary of Defense for Detainee Af- fairs, U.S. Department of Defense, ¶3, Rimi et al. v. Bush et al., No. 1:05-cv-02427-RJL (D.D.C. 2008), Status Report In Response to Court’s July 3, 2008 Order, filed July 14, 2008. 3 According to data collected by attorneys represent- ing detainees, “a significant number of men have been transferred out of Guantánamo without [ever] having been officially cleared” by an annual review board. For more information on the Annual Review Boards (ARB) at which such determinations were made, see Chapter Four of this report, “Lack of Due Process and Indeterminate Legal Status.” 4 Center for Constitutional Rights, Background Infor- mation: Relevance of the Administrative Determination that a Detainee is “Cleared” for Transfer, June 2008, 3. 5 Declaration of Sandra Hodgkinson ¶5. 6 Declaration of Clint Williamson ¶9. 7 Declaration of Sandra Hodgkinson ¶5. 8 U.S. Dept. of Defense, “News Release: Detainee Trans- fer Announced,” October 8, 2008, available at http://www. defenselink.mil/releases/release.aspx?releaseid=12275 (accessed October 8, 2008). 9 Declaration of Sandra Hodgkinson ¶¶3–5. As of June 2005, the United States had transferred at least 65 de- tainees to other countries for “further detention, inves- tigation, and prosecution, as appropriate.” Declaration of Matthew C. Waxman, Deputy Assistant Secretary of Defense for Detainee Affairs, U.S. Department of Defense, ¶4, Zalita v. Bush, No. 1:05-cv-01220-UNA (D.D.C. 2005), Response to Petitioner’s Motion for Preliminary Injunc- tion Preventing Transfer, filed January 20, 2007. Several transferred detainees have been subsequently tried by their home countries. For example, in 2007, French courts convicted four French detainees and acquitted one on charges of “criminal association with a terror- ist enterprise” in Afghanistan. Pierre-Antoine Souchard, “France convicts 5 ex-Guantánamo inmates,” USA Today, December 19, 2007. The men had served provisional sen- tences upon their return to France and were released by the time the trial concluded. 10 Declaration of Clint Williamson ¶6. 11 See, for example, Human Rights Watch, Ill-fated Homecomings: A Tunisian Case Study for Reparations, September 2007; “Russia ‘abused returned suspects,’” BBC News, March 29, 2007; “Former Detainees Abused Back Home: ‘I’d Rather Return to Guantánamo,’” Spiegel Online International, September 6, 2007. 12 Seven Russian detainees were flown home in March 2004, and were immediately jailed on criminal conspiracy charges and subsequently released for lack of evidence. Human Rights Watch, The “Stamp of Guantánamo”: The Story of Seven Men Betrayed by Russia’s Diplomatic Assurances to the United States, March 2007, 20. Since then, three have fled the country or remain in hiding. Three others have been rearrested on suspected ter- rorism charges. A jury unanimously found two of these 119 notes men, Ravil Gumarov and Timur Ishmuratov, innocent in September 2005, only to have the verdict annulled by the Supreme Court of Russia. The men were later convicted by a three-judge panel. Ibid., 38. The third, Rasul Kudaev, was detained on charges related to an attack on a gov- ernment building that killed 150 people. His lawyer re- ported that he emerged from the detention facility with a broken right leg, a swollen and misshapen head, and his eye full of blood. Ibid., 23. He remains in custody and no charges have been filed. The final former detainee was killed in June 2007 in a police raid. C.J. Chivers, “Russian Freed From Guantánamo Is Killed by Police Near Chech- nya,” New York Times, June 28, 2007. 13 Human Rights Watch, Ill-fated Homecomings. 14 Sworn Statement of Samir Ben Amor, Attorney (July 29, 2007), ¶¶18–19. 15 Ibid., 1. 16 Human Rights Watch, Libya: Rights at Risk, March 2008, available at http://hrw.org/english/ docs/2008/01/03/libya17674_txt.htm (accessed August 28, 2008). 17 Declaration of Sandra Hodgkinson ¶5. 18 In April 2007, Australian detainee David Hicks en- tered into a plea agreement with U.S. military officials; Hicks pleaded guilty to one charge of material support of terrorism in exchange for a nine-month sentence, which he completed in Australia. Scott Horton, “The Plea Bargain of David Hicks,” Harpers Magazine, April 2007, available at http://harpers.org/archive/2007/04/horton- plea-bargain-hicks (accessed August 28, 2008). Hicks was released from Australian prison on December 29, 2007. Attorney General for Australia, “Media Release: David Hicks Is Released from Yatala Labour Prison,” available at http://www.attorneygeneral.gov.au/www/ministers/ RobertMc.nsf/Page/RWPFC12EBADA9ACAC55CA2573- C00018B1A3 (accessed August 28, 2008). Salim Hamdan, one of Osama bin Laden’s former drivers, was convict- ed of providing “material support for terrorism” at the conclusion of his military trial in August 2008. He was given a five-and-a-half-year sentence, five years and one month of which had already been served during his time at Guantánamo. Amnesty International, “Hamdan Convicted at Guantánamo,” August 6, 2008, available at http://www.amnesty.org/en/news-and-updates/news/ hamdan-convicted-Guantánamo-20080806 (accessed October 2, 2008); Associated Press, “Hamdan Gets 5 Years on Terror Charge,” MSNBC.com, August 7, 2008, available at http://www.msnbc.msn.com/id/26055301/ (accessed October 2, 2008). Hamdan remains in Guantánamo. 19 U.S. Dept. of Defense, “List of Individuals Detained by the Department of Defense at Guantánamo Bay, Cuba,” as updated by the Center for Constitutional Rights. 20 Neil Arun, “Albanian Fix for Guantánamo Dilemma,” BBC News, January 11, 2007, available at http://news. bbc.co.uk/2/hi/europe/6189517.stm (accessed August 28, 2008). 21 Researchers were unable to obtain permission from Saudi authorities to travel to the country and therefore did not interview any former detainees in Saudi Arabia. 22 Josh White and Robin Wright, “After Guantánamo, ‘Reintegration’ for Saudis,” Washington Post, December 10, 2007. 23 Christopher Boucek, “Extremist Reeducation and Rehabilitation in Saudi Arabia,” Terrorism Monitor 16 (2007): 2; Caryle Murphy, “Saudis use cash and counsel- ing to fight terrorism,” The Christian Science Monitor, August 20, 2008. 24 In the program, they are taught that only the Saudi state can declare a holy war, thereby breaking any al- legiance to Al Qaeda or groups who call for jihad. Shiraz Maher, “Perks of Penance for Saudi Jihadis,” BBC News, July 9, 2008, available at http://news.bbc.co.uk/1/hi/ world/middle_east/7496375.stm (accessed August 28, 2008). 25 Shiraz Maher, “A Betty Ford Clinic for Jihadis,” Times Online, July 6, 2008. 26 Murphy, “Saudis use cash and counseling to fight terrorism.” 27 Farah Stockman, “Nationality Plays Role in Detainee Release: More Saudis Are Freed from Guantánamo,” The Boston Globe, November 22, 2007. 28 In the case of Afghan detainees returned home, re- cent developments have increased the role that the U.S. government plays in determining their fate. Prior to April 2007, Afghan detainees were released through partici- pation in the Peace and Reconciliation Commission. As part of a U.S.-Afghan agreement reached in 2005, the U.S. financed construction of a special security wing at a Pul- |
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