valenzuelaclan

In recent days, human rights violations perpetrated by the USA throughout the "war on terror" have in effect been given the congressional stamp of approval. With the passing of the Military Commissions Act of 2006 by the US House of Representatives on 27 September and the Senate on 28 September, Congress has turned bad executive policy into bad law. This document looks back on the evolution of the executive’s "war on terror" detention policies, in order to illustrate the sort of violations in which Congress, through inaction and now legislation, has become complicit. Amnesty International will continue to campaign for the USA’s "war on terror" detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.

On 21 September 2001, Amnesty International faxed a letter to President George W. Bush. The organization urged the President to put respect for human rights and the rule of law at the heart of his country’s response to the crime against humanity that was perpetrated on 11 September 2001. "In the wake of a crime of such magnitude", the letter said, "principled leadership becomes crucial… We urge you to lead your government to take every necessary human rights precaution in the pursuit of justice."

Amnesty International deeply regrets that its appeal fell on deaf ears. The past five years have seen the USA engage in systematic violations of international law, with a distressing impact on thousands of detainees and their families. Human rights violations have included: Yet at the same time, US officials have continued to characterize the USA as a "nation of laws" and one that in the "war on terror" is committed to what it calls the "non-negotiable demands of human dignity", including the "rule of law".

It is tempting to resort to accusations of hypocrisy, particularly when the USA itself condemns the very same practices if carried out by other countries. But in seeking to challenge US conduct, perhaps it is more useful to consider how vulnerable the law is to elastic interpretation, manipulation or selective application by the state. And that, for better or worse, a government can use policy to drive the law rather than vice versa. In the USA’s case, a long-held resistance to applying international law to its own conduct compounds the problem.

Under the US administration’s selective application of the laws of war and outright dismissal of international human rights law, for example, the Guantánamo detention camp is the "most transparent facility in the history of warfare" according to the Pentagon, rather than the icon of lawlessness that many outside the USA perceive it to be.

In similar vein, with elastic interpretation of the law, secret detention becomes "legal". In his speech on 6 September 2006 confirming and defending the Central Intelligence Agency’s program of secret detentions, President Bush emphasised that "this program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers; they’ve determined it complied with our laws".

Again, there is a stark "disconnect" between the USA and the international community. After all, President Bush’s speech came only weeks after two expert United Nations bodies – the Committee against Torture and the Human Rights Committee – told the US government that secret detentions violated the USA’s international treaty obligations. In effect, the President was rejecting the conclusions of these UN bodies, as well as admitting that the USA had resorted to enforced disappearance, a crime under international law.

The US administration’s interpretation of the law has been driven by its policy choices rather than a credible postulation of its legal obligations. One core policy choice was to frame its response to the 11 September attacks in terms of a global "war" rather than as a criminal law enforcement effort. The law would have to be made to fit this "new paradigm", as President Bush characterized the situation in a 7 February 2002 memorandum on detentions.

At a press conference in June 2004, with the administration seeking to quell the criticism of its policies following the Abu Ghraib torture revelations, then White House Counsel Alberto Gonzales recalled the administration’s post-9/11 discussions thus: From these questions flowed a number of memorandums written in late 2001 and early 2002 by administration lawyers concocting legal positions on a variety of issues. These issues included the limits of the prohibition on torture or other ill-treatment, whether the choice of Guantánamo as a location for detentions would keep detainees out of the reach of the US courts, and the use of military commissions, to quote a November 2001 Justice Department memorandum, as "entirely creatures of the President’s authority as Commander-in-Chief". The White House Counsel himself drafted advice to the President suggesting that a benefit of not applying the Geneva Conventions to detainees picked up in the Afghanistan conflict would be that prosecutions of US personnel under the US War Crimes Act would become more difficult.

Sure enough, almost five years and numerous alleged war crimes later, there have been no prosecutions under the Act. Similarly there have been no prosecutions under the USA’s extraterritorial anti-torture statute despite the widespread allegations of torture. With the USA’s rejection in 2002 of the International Criminal Court, and its subsequent campaign to have other countries agree never to surrender US nationals to the ICC, a pattern of US impunity had been established even before the Military Commissions Act exacerbated the situation.

The legal advice in these early administration memorandums thus seemed tailored to fit desired policy outcomes. Precedents that suited the policy were emphasised, laws that did not were ignored or downplayed. The indefinite detention regime in Guantánamo and the denial of habeas corpus was one result. A less than absolute ban on torture or other ill-treatment was another. Secret detention was a third. And unfair trial by military commissions still threatens to be a fourth.

The government’s policy of indefinite detention without charge, as practiced in Guantánamo and elsewhere, is thus a direct consequence of the war paradigm. Instead of treating these detainees as criminal suspects, the US authorities have branded them as loosely-defined "enemy combatants" in a global conflict. That the USA sees the world as the "battlefield" is illustrated by the fact that those currently held in Guantánamo include individuals picked up in Gambia, Bosnia, Mauritania, Pakistan, Egypt, Indonesia, Thailand, and United Arab Emirates, as well as Afghanistan.

Under the administration’s conceptualization, such detainees are both a potential source of intelligence and a potential threat to national security. Access to lawyers is perceived as detrimental to the interrogation process. Access to the courts is seen as disruptive of military operations. In the version of the Military Commissions Act which President Bush sent to Congress on 6 September 2006, the administration argued that trials with lower standards of justice than apply in existing US courts were necessary because "the terrorists with whom the United States is engaged in armed conflict have demonstrated a commitment…to the abuse of American legal processes". In this argument, the administration seemed to be putting the US lawyers who have litigated on behalf of the Guantánamo detainees on the wrong side of President Bush’s "with us or with the terrorists" divide. In this nation of laws, it seemed, you were either with the administration’s lawyers or you were with the terrorists.

Although branded as "terrorists" and "killers" by the Commander-in-Chief, and as "evil" by Vice President Cheney, the Guantánamo detainees are not necessarily considered as individuals bearing responsibility for specific criminal conduct. Indeed, the question of trials of "alien unlawful enemy combatants" is viewed by the administration as an entirely separate issue, one that does not affect the detention regime itself. According to the administration, detentions may last until the end of the conflict, the definition and timing of which – like the detentions themselves – is a matter of executive discretion, and potentially indefinite. Even if acquitted by a military commission, a detainee could still be returned to indefinite detention as an "enemy combatant".

The vast majority of those held by the USA in the "war on terror" are unlikely ever to face US judicial proceedings. As noted above, that is not why they are detained. Even the small number of detainees who have been charged have not come to trial. Part of the reason is that the administration’s policy-driven interpretation of the law has inevitably collided with that of much of the legal community, including judicial authorities such as the US Supreme Court in the Hamdan v. Rumsfeld ruling of 29 June 2006. But relatively narrowly-framed judicial decisions interpreted narrowly and in self-serving fashion by the executive make for slow progress towards full respect for human rights. Thus, more than two years after the Supreme Court ruled in Rasul v. Bush that the US courts had jurisdiction to consider habeas corpus appeals from the Guantánamo detainees, not a single one of them currently held there has had the lawfulness of his detention judicially reviewed.

The response of the US administration to the Hamdan v. Rumsfeld ruling has perhaps been even more shocking, although apparently not shocking enough to nudge Congress finally into calling the executive to account for "war on terror" abuses. Indeed, President Bush’s defence of the CIA’s program of secret detention and "alternative" interrogation techniques policy, which he said had been called into question by the Hamdan ruling and therefore needed congressional approval, showed an administration in assertively unapologetic mood.

Again, one can begin to trace the administration’s manipulation of the law to fit its policy. According to a document recently issued by the Director of National Intelligence, after "high-value" detainee Abu Zubaydah was captured in Pakistan in March 2002 and handed over to the USA, he stopped "cooperation" with his US interrogators. In order to overcome this lack of cooperation, "over the ensuing months, the CIA designed a new interrogation program" and "sought and obtained legal guidance from the Department of Justice that none of the new procedures violated the US statutes prohibiting torture."

Any such claim of legality rings hollow. For until the Detainee Treatment Act was passed in December 2005 (in the face of executive opposition), Department of Justice lawyers took the position that because of the reservation attached to the USA’s ratification of the Convention against Torture in 1994, the USA had no treaty obligation on cruel, inhuman or degrading treatment with respect to foreign nationals held in US custody overseas. In addition, in August 2002, the Justice Department provided legal advice in a memorandum which only came to light in mid-2004 after the Abu Ghraib torture revelations. It was reportedly written in response to a CIA request for legal protections for its interrogators. The memorandum stated among other things that interrogators could cause a great deal of pain before crossing the threshold to torture, that there were a "significant range of acts" that might constitute cruel, inhuman or degrading treatment but would not rise to the level of torture and be prosecutable under the US torture statute, and that the President could override international or national prohibitions on torture.(1)

The administration has not elaborated upon what the CIA "alternative" interrogation techniques have entailed, simply relaying the politically expedient claim that the resistance of Abu Zubaydah and the other detainees had been broken. Sued in court, the CIA has so far been successful in its ploy of refusing to confirm or deny the existence of an alleged presidential directive and an alleged Justice Department memorandum authorizing and outlining the secret detention program and its interrogation methods. However, the methods are widely reported to have included techniques that would clearly violate international law.(2)

Even now, more than two years after the Abu Ghraib revelations, the USA’s protections against torture or other cruel, inhuman or degrading treatment are less than adequate. Among other things, the USA’s treaty reservations mean that the USA considers itself, including under the Detainee Treatment Act, bound by the prohibition on cruel, inhuman or degrading treatment or punishment only to the extent that it matches existing US law. Under US Supreme Court jurisprudence, conduct is banned that "shocks the conscience". Justice Department lawyers reportedly view this as allowing consideration of the context in which abuse of detainees occurs. Under such consideration, if a detainee is believed to have information considered by the government to be important to national security, the "shocks the conscience" test could be interpreted by the government as permitting conduct that would be otherwise be unlawful. As Chairman of the House Homeland Security Committee, Representative Peter King, said: "If we capture bin Laden tomorrow and we have to hold his head under water to find out when the next attack is going to happen, we ought to be able to do that".(3) Or as Senator John Thune from South Dakota said in an earlier hearing of the Senate Armed Services Committee, "when you talk about humiliating or degrading or those types of terms and applying them to terrorists… I think that’s not something that people in my state would be real concerned [about]".

Thus the USA adheres to a less than absolute ban on torture and other ill-treatment. It is clearly a long way from leading the world in fighting torture, as President Bush claimed in 2003.(4)

Indeed it would appear that the President himself remains at square one, namely the position articulated in his 7 February 2002 memorandum on detention policy. This memorandum indicated that for some detainees at least, the administration viewed humane treatment as a policy choice rather than a legal obligation, and one that did not apply to the CIA.(5) Four and a half years later, on 6 September 2006, President Bush justified the past use and continued existence of the secret CIA detention and interrogation program for use against certain "high-value" detainees on the grounds of necessity. He said that "it has been "necessary to move these individuals to an environment where they can be held secretly [and] questioned by experts" using unspecified "alternative" techniques to extract information from detainees allegedly resistant to interrogation. "Military necessity" has also been used to justify torture or ill-treatment at Guantánamo under at least one of two "special interrogation plans" authorized by Secretary of Defence Rumsfeld.(6)

In the lead-up to the 2002 congressional elections, President Bush requested authorization for use of force against Iraq. On 10 October 2002 Congress passed a broadly-framed and controversial resolution to this end.(7) The full ramifications of this resolution and the ensuing invasion of Iraq remain to be seen, but four years later, with congressional elections again looming, President Bush presented Congress with the Military Commissions Act. He stated in his 6 September speech that as soon as Congress authorized military commissions acceptable to the administration, Abu Zubaydah and the 13 other men newly transferred to Guantánamo from years in secret CIA custody could "face justice", including the possibility of execution. It seems clear that the administration set out to use these high-profile detainees to apply pressure on legislators – in the context of mid-term elections and in the charged atmosphere of the fifth anniversary of the 11 September attacks – to adopt legislation authorizing a revised version of the military commissions struck down by the Hamdan ruling, and to endorse other aspects of the administration’s detention policy. The resulting Military Commissions Act of 2006 is bad for the USA and bad for human rights.

The US system of government enshrines three separate branches of government – the executive, the legislature and the judiciary. In an opinion written eight decades ago, US Supreme Court Justice Louis Brandeis explained that: "The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy."(8)

Friction or no friction, viewed from an international perspective, the executive, legislative and judicial branches of government all have roles to play in ensuring the USA’s adherence to its international legal obligations. The executive has singularly failed to meet its obligations in this regard. The judiciary, headed by the Supreme Court, has moved to rein in executive excess but as already noted, its rulings on the relatively narrow questions brought before it are vulnerable to narrow and self-serving interpretations by the executive.

Three days after the 11 September 2001 attacks, Congress had the opportunity to put down a marker against executive excess in the "war on terror". It failed to do so when it passed the broadly framed Authorization for the Use of Military Force (AUMF), which has since been used by the administration to justify violations of international law. Amnesty International believes that Congress should repeal or substantially amend the AUMF. Congress has failed to establish a commission of inquiry into the USA’s "war on terror" detention policies and practices, despite a compelling need for such an inquiry. In December 2005, Congress passed the Detainee Treatment Act, but included in it an impunity clause (§1004) and a severe curtailment of habeas corpus (§1005). Amnesty International has called for these sections of the Act to be repealed or substantially amended.

Now Congress has passed the Military Commissions Act. Amnesty International will work for the repeal of this legislation which violates human rights principles. Among other things, the Military Commissions Act will: Meanwhile the human rights violations continue. The CIA’s secret detention and interrogation program retains the full support of President Bush. During the debates on the Military Commissions Act, members of Congress expressed their support for the program, despite the fact that it violates international law. Thousands of detainees remain in indefinite detention without charge or trial in US custody in Iraq, Afghanistan and Guantánamo. In passing the Military Commissions Act, Congress has failed these detainees and their families.

Those defending human rights should be prepared for a long struggle.

********

(1) "That memo represented the position of the executive branch at the time it was issued"; and: "It
represented the administrative branch position". "I accepted the August 1, 2002, memo". Alberto
Gonzales, White House Counsel, in response to oral questions from Senator Patrick Leahy and Senator
Edward Kennedy and written questions from Senator Richard Durbin during the US Attorney General
nomination hearings before the Senate Judiciary Committee, January 2005.

(2) CIA’s harsh interrogation techniques described, ABC News, 18 November 2005, available at http://abcnews.go.com/WNT/Investigation/story?id=1322866. (listing techniques grabbing, slapping, and: "Long Time Standing: …Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions… The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water… Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

(3) An unexpected collision over detainees, New York Times, 15 September 2006.

(4) "The United States is committed to the worldwide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment." Statement by the President, 26 June 2003 http://www.whitehouse.gov/news/releases/2003/06/20030626-....

(5) "Our values…call for us to treat detainees humanely, including those that are not legally entitled to such treatment… As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely".

(6) See USA: Rendition – torture – trial? The case of Guantánamo detainee Mohamedou Ould Slahi, http://web.amnesty.org/library/Index/ENGAMR511492006. In the case of Mohamed al-Qahtani (see end of above report), the interrogation plan "outlines the military necessity for doing this [harsh interrogation]". Department of Defense Deputy General Counsel. Press briefing, White House, 22 June 2004. http://www.whitehouse.gov/news/releases/2004/06/20040622-....

(7) See, for example, chapter 5 of Neal Devins and Louis Fisher, The Democratic Constitution. Oxford University Press, 2004 ("…Congress chose to vote under partisan pressure with inadequate information, to pass an authorizing resolution. As with the Tonkin Gulf Resolution (in 1970, expanding intervention in Vietnam), Congress acted hurriedly in the middle of an election without the information it needed. The Iraq Resolution did not decide either for or against military action; it left that decision solely with the President…").

(8) Myers v. United States, 272 U.S. 52 (1926), Justice Brandeis dissenting.

 

AI Index: AMR 51/154/2006

29 September 2006

The Bush regime is in a desperate attempt to rush laws that legalize illegal activities related to the "war on terror", which include torture, illegal wire tapping (domestic and foriegn), secret detention camps all over the world, suspension of civil liberties, warrantless searches, use of ban weapons (phosphorus incendiary bombs), etc..etc...  Now they want to pass laws which protect them from the laws they broke in previous years...why?  because they broke the law and want to protect themselves!!!.  It looks as if democrates will win the house back from the republicans.  This means after november it will be much more difficult for bush and his cronies to pass draconian measures.  They need these protection now, before the elections.  We have seen this before in Germany and other countries around the world......and unfortunately in chile too it happened...Those who vote for these laws will not be forgotten.  Just as people have not forgotten what really happened in Chile....The truth always surfaces, its a matter of time.


Pinochet Also Thought He Could "Legalize" Torture
Friday, 29 September 2006, 10:24 am
Opinion: Mark G. Levy

Pinochet Also Thought He Could "Legalize" Torture And Immunize Himself

By Mark G. LeveyOn September 11, 1973, Gen. Augusto Pinochet headed a military coup that overthrew the democratically-elected government of President Salvador Allende. Chile at that time was one of the world's oldest constitutional democracies.

In the months that followed, in a round up of "terrorists", Chilean military and intelligence officers arrested 30,000 Chileans and some foreign nationals. Virtually all were tortured, and 3,000 "disappeared", many dumped alive from military aircraft into the Pacific Ocean. The Junta's secret police also sought out its critics abroad, a few weeks later blowing up the former Ambassador, Orlando Letelier, in his car as he drove through downtown Washington, DC.

In the years that followed, "President" Pinochet ruled through emergency "anti-terrorism" decrees, before he retired as a Senator for life. Before he left the presidential palace, however, the General assured himself that he would never be brought to trial for his crimes. While the country was still effectively controlled by the military Junta he headed, the runner-stamp legislature passed laws granting amnesty to those officials who had committed torture and murder during the "state of exception" to constitutional rule. The amnesty laws also granted lifetime "legislative immunity" to members of Parliament, including, of course, Senator Pincochet.

Even though Spain, France and several other countries had issued warrants for Pinochet's role in commanding the murder of their citizens in Chile following the coup, Pinochet travelled the world in luxury and, he thought, security from arrest. As former "head of state", most countries would not touch him. But, that changed in 1998, when during a visit to former Prime Minister Margaret Thatcher and other Right-wing friends in Britain, he was detained on an extradition request from Spain.

After a long court battle, a three-member Court of the House of Lords, the highest appellate tribunal in the UK, found that Pinochet's claims to immunity as former head of state and to legislative immunity were invalid in the face of charges of violation of international laws against genocide, torture and crimes against humanity. The Blair Government ended up sending him back to Chile, where the new democratic government and courts stripped his immunity, and placed Pinochet, now 87 years old, under indefinite house arrest.

There should be a lesson here for Bush and the GOP Congress. While you might believe today that you can legalize torture and other crimes against humanity, some day they will come for you. Power does not trump the law forever. You are naked before the world, and it's only a matter of time.

A list of UN Resolutions against "Israel"

Here is a list of UN resolutions that Israel has not complied. As far as I know they have ignored every single resolution. But the situation is far worse than would at first appear, it involves the serious distortion of the official Security Council record by the profligate use by the United States of its veto power. (See Table)

Israel’s, defiance goes back to its very beginnings. This collection of resolutions criticizing Israel is unmatched by the record of any other nation.

A list of UN Resolutions against "Israel"