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    Amnesty International

    UNITED STATES OF AMERICA;

Summary of concerns for consideration by the Human Rights Committee in relation to

    US counter-terrorism measures since 11 September 2001

    September 2005

In Advance of the 85th session of the Human Rights Committee, Amnesty International

    submits the following briefing outlining the organization‟s principal concerns regarding the

    counter-terrorism measures taken by the USA following the attacks of 11 September 2001 as

    they relate to the state party‟s obligations under the International Covenant on Civil and Political Rights (ICCPR).

This document focuses mainly on measures taken in the context of US security operations

    abroad, including the treatment of detainees in US custody in Afghanistan, Iraq, Guantánamo

    Bay in Cuba, and other locations, although it cites some additional concerns relating to

    domestic law or practice. The organization‟s concerns highlighted in this briefing relate to,

    among other things, prolonged detention without trial or access to the courts in circumstances

    amounting to arbitrary detention; incommunicado detentions and “disappearances”; the

    authorization of interrogation techniques prohibited under international law as “cruel,

    inhuman or degrading” treatment; cruel conditions of confinement; a pattern of torture and ill-

    treatment; deaths in custody and unlawful killings; proceedings which do not meet standards

    for fair trials; and discriminatory treatment.

Additional background information and more details on the organization‟s concerns can be

    found in the various Amnesty International documents referred to in the following sections.

I. CONCERNS RELATED TO SECURITY OPERATIONS ABROAD AND

    “ENEMY COMBATANTS” IN THE USA

Right to judicial review and protection from arbitrary detention Article 9

Since 11 September 2001, tens of thousands of people have been detained in US facilities in

    Afghanistan, Iraq, Guantánamo Bay in Cuba, and other undisclosed locations, many held for

    prolonged periods incommunicado and without access to families, lawyers or the courts.

    Amnesty International considers such detentions violate the ICCPR .

The provision for judicial review of detentions under Articles 9(3) and 9(4), is an important

    safeguard against arbitrary detention and one which the Human Rights Committee and other 1expert bodies have stated is non-derogable, even in states of emergency. The ICCPR applies

    to all persons subject to the jurisdiction of a state party, including non-nationals held in places

     1 Human Rights Committee General Comment 29, States of Emergency (Article 4),

    CCPR/C/21/Rev,1/Add 11, 31 August 2001

    2outside the territory of a state party or under its control. Amnesty International wishes to

    draw the Committee‟s attention to the following current concerns:

Guantánamo

    More than 500 non-US nationals from some 35 countries remain detained without charge or

    trial in the US Naval Base at Guantánamo Bay, Cuba, many held for more than three years

    with virtually no access to the outside world.

    Some of the Guantánamo detainees now have lawyers through which they are pursuing

    habeas corpus appeals in the US courts, following the Supreme Court decision in Rasul v.

    Bush in June 2004 that the US federal courts “have jurisdiction to consider challenges to the 3legality of the detentions”. However, the US courts have thus far given contradictory

    opinions on the extent to which the detainees are entitled to judicial review, and the issue has

    not yet been decided. Meanwhile, the US government continues to argue that “enemy

    combatants” are not entitled to meaningful judicial review. It has tried to circumvent the

    Rasul ruling by setting up its own review procedures. However, neither the Combatant Status

    Review Tribunal (CSRT), an administrative body set up in 2004 to review the status of each

    detainee, nor the annual review by an Administrative Review Board (ARB), established in

    September 2004, satisfy the requirements for a judicial review of the legality of the

    detentions under Article 9(3) and 9(4) of the Covenant (see pages 47-63 of Guantánamo and

    Beyond (AI Index AMR 51/063/2005).

Under international law, when the international armed conflict in Afghanistan ended in June

    2002 all those detained in connection with that conflict were required to be released, unless 4charged with criminal offences. Those transferred to Guantánamo after being detained in countries outside the zone of armed conflict should always have been treated as criminal

    suspects and subject to the relevant detention and fair trial provisions under the ICCPR and

    other international human rights standards. Those transferred to Guantánamo after being

    detained in the context of the internal armed conflict in Afghanistan should at a minimum 5have had their detentions promptly reviewed. The US government has consistently failed to provide the detainees with any of these protections.

In view of the above, Amnesty International believes that all those currently held in

    Guantánamo are arbitrarily and unlawfully detained.

    Detainees in Afghanistan, Iraq and unknown locations There is urgent concern regarding the situation of detainees in other locations where US

    detentions have been subject to even less outside scrutiny than Guantánamo.

    While Guantánamo detainees now have some limited access to review by the US courts and

    to legal counsel, detainees in Afghanistan have no such access at all. As of late April 2005,

    hundreds of detainees remained in US custody in Afghanistan, with some in Bagram US Air

    Base having been detained without charge or trial and virtually incommunicado for more than 6a year. Some of the worst abuses of detainees (including torture and deaths in custody) in

     2 Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant, 21 April 2004,

    para. 10. 3 Rasul v Bush, 000 U.S. 03-334 (2004) 4 Geneva Convention III, Part III, Part IV, Section II; Geneva Convention IV, Art. 133. The

    international armed conflict in Afghanistan is deemed to have ended with the conclusion of the

    Emergency Loya Jirga and the establishment of a Transitional Authority on 19 June 2002. 5 See page 12 of Guantánamo and Beyond for a summary of the legal framework applying under the relevant Geneva Conventions and human rights law. 6 ICRC Operational Update April 2005. It reported that around 450 detainees were being held at

    Bagram and at least 70 at Kandahar

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2002/3 are reported to have occurred in a section of the Bagram facility to which the ICRC

    had no access. Although the ICRC has since had access to detainees at Bagram and Kandahar

    US bases, this has not been immediately after arrest. The ICRC still has no access to detainees

    held in an unknown number of US Forward Operating Bases. Some detainees are believed to

    remain for up to two months at such facilities.

Thousands of detainees are reported to remain in US custody in Iraq, many held for prolonged

    periods incommunicado with no access, or delays in access to families, lawyers or the courts.

    On 27 June 2004, the Coalition Provisional Authority (CPA) issued a memorandum

    (Memorandum No. 3) setting out the process of arrest and detention of criminal suspects as

    well as procedures regarding “security internees” detained by members of the Multi-National 7Force (MNF) after 28 June when the interim Iraq government replaced the CPA.

    The procedures regarding “security internees” as established under the memorandum fail to

    meet international standards for prompt judicial review of the lawfulness of detentions as

    provided by Article 9. The memorandum stipulates regular reviews of the decision to intern a

    person at intervals of at least every six months. Such review is conducted by a non-judicial

    body composed of members of the MNF and Iraqi authorities, reportedly without the internee

    or his or her legal representative being present.

According to the CPA Memorandum No. 3, “security internees” “placed in internment after

    30 June 2004 … must be either released from internment or transferred to Iraqi criminal

    jurisdiction not later than 18 months from the date of induction into an MNF internment 8facility”. However, the memorandum goes on to state that for “continued imperative reasons 9of security” a “security detainee” may be held for longer than 18 months, that is, indefinitely.

As noted, the above procedures apply to detainees taken into custody after 28 June 2004.

    However, an unknown number of security detainees detained before June 2004 remain in US

    custody in Iraq and it is unclear what procedures apply in these cases.

    An unknown number of “high-value detainees,” perhaps several dozen, are allegedly still being held in CIA custody in secret locations outside the USA. There have been reports that

    secret US facilities are located in a number of countries which could include Jordan, Diego

    Garcia, Pakistan, Egypt, Thailand and Afghanistan. Not even the ICRC has access to such

    detainees whose fate and whereabouts remain unknown, leaving them outside the protection 10of the law in what therefore constitute “disappearances”. In June 2005, Amnesty

    International interviewed two Yemeni detainees who separately described having been held

    incommunicado for more than 18 months in US custody in two unknown locations (one 11underground) before being transferred to Guantánamo Bay.

In its recent report to the UN Commission on Human Rights, the UN Working Group on

    Enforced or Involuntary Disappearances stated that it was “deeply concerned” by the reports

    of the USA‟s use of secret detentions. It reminded the US government that secret detention

    facilities are “typically associated” with the phenomenon of “disappearance”. In a case

    concerning a person “disappeared” in circumstances not unlike those in US undisclosed

     7 CPA Memorandum No 3 (revised): Criminal Procedures, 27 June 2004 8 Ibid, para 5. 9 Ibid, para 6. 10 See pages 108-114 of Human Dignity Denied (AI Index AMR 51/145/2004),and pp 118-120 of Guantánamo and Beyond AI Index AMR 51/063/2005, 11 USA/Jordan/Yemen: Torture and secret detention: Testimony of the ‘disappeared’ in the ‘war on

    terror’ (AI Index AMR 51/108/2005),

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locations, the Human Rights Committee has determined that the “disappearance” (“prolonged 12incommunicado detention in an unknown location”) amounted to torture.

Enemy combatants in the USA

Two individuals, José Padilla, (a US citizen) and Ali Saleh Kahlah al-Marri (a Qatari national)

    remain detained as “enemy combatants” without charge or trial in military custody in

    Charleston, South Carolina. Both were detained in the USA and transferred from the

    jurisdiction of the Justice Department to military custody on the basis of executive orders

    signed by President Bush. Both were denied access to attorneys for substantial periods

    following their transfer to military custody (nearly two years in Padilla‟s case and more than a

    year in the case of al-Marri). While they have been visited by the ICRC, they remain without

    visits from their families.

Both men have habeas corpus petitions pending in the US courts. Although the US Supreme 13Court ruled in 2004 that a similar detainee, Yaser Hamdi, was entitled to judicial review, the

    government continues to maintain its authority to detain individuals, including US citizens, as

    “enemy combatants” under the President‟s wartime powers. On 9 September 2005, a federal

    appeals court ruled that the President had such authority to detain José Padilla without charge 14or trial. The ruling reversed an earlier decision by a US district court that his detention was

    unlawful. An appeal against this decision is pending.

Torture and cruel, inhuman or degrading treatment Articles 7, 10

As Amnesty International has documented in various reports, there has been a pattern of

    torture and other ill-treatment of detainees held in US custody in Afghanistan, Iraq,

    Guantanánamo and other locations, both pre-dating and post-dating the torture and other ill-

    treatment in Abu Ghraib. Evidence continues to emerge and derives from a wide range of

    sources, including official investigations; information from agents who witnessed

    interrogations; human rights bodies; victim testimony and documents obtained pursuant to

    Freedom of Information Act requests by organizations such as the American Civil Liberties

    Union. Reported methods of torture and other ill-treatment include prolonged incommunicado

    detention; “disappearances”; beatings; death threats; threats of torture; electric shocks; forcing shackled detainees into painful stress positions; sexual humiliation; threats of rape; forced

    nudity; exposure to extreme heat or cold; denial of food or water; immersion in water; use of

    dogs to inspire fear; racial and religious insults; sensory deprivation techniques such as

    hooding and blindfolding; sleep deprivation; exposure to loud music and prolonged isolation.

    These methods are often used in combination and over long periods of time.

In its second periodic report to the Committee against Torture, the USA asserts its

    unequivocal opposition to the use or practice of torture under any circumstances, including

    war or public emergency. While this assertion is welcome, Amnesty International remains

    concerned that the US has taken measures which undermine this commitment in practice, and

    has authorized interrogation techniques which, even if they did not amount to torture, have

    constituted cruel, inhuman and degrading treatment equally prohibited under international law.

In Section 1.2.of the Amnesty International report Human Dignity Denied (AI Index

    51/145/2004, pages 57-73) Amnesty International describes in detail the interrogation

    techniques authorized for use by US forces at various times in Afghanistan and Guantánamo,

     12 El-Megreisi v Libyan Arab Jamahiriya, Communication No. 440/1990, UN Doc. CCPR/C/50/D/440/1990 (1994) 13 Hamdi v. Rumsfeld, No. 03-6696, decision of 28 June 2004. Hamdi was eventually released to Saudi

    Arabia while court proceedings were still pending 14th Padilla v. Hanft, No. 05-6396, US Court of Appeal for the 4 Circuit, Opinion, 9 September 2005.

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and later exported to Iraq. They include many of the interrogation techniques recommended in

    the April 2003 final report of the Pentagon‟s Working Group on Detainee Interrogations in

    the Global War on Terrorism (a document that has never been rescinded), some of which

    went beyond standard US army interrogation doctrine. They include: hooding; stress positions;

    “mild physical contact”; forced grooming; dietary manipulation; environmental manipulation

    (e.g. adjusting temperature); removal of clothing; sleep deprivation; prolonged standing;

    isolation (for longer than 30 days); threat to transfer to a third country (where the subject is

    likely to fear he would be tortured); increasing anxiety by use of aversions (e.g. presence of

    dogs).

Many of the interrogation techniques listed above, even if applied in isolation or for limited

    periods, would in Amnesty International‟s view violate Article 7 of the Covenant. Such

    techniques have reportedly been used against “war on terror” detainees in combination and for prolonged periods, causing severe pain and suffering (physical, mental or both) and 15thereby amounting to torture. They can also open the door to further abuse. Forced nudity,

    for example, while humiliating in itself, was reportedly a prelude to sexual abuse of some 16detainees in Abu Ghraib. Some of the approved techniques, such as forced shaving of facial

    and head hair, stripping and the use of dogs to inspire fear, appear to have had a specific

    discriminatory or racist application in the case of Muslim detainees.

At least 27 detainees who died in US custody have had their deaths listed by the army as

    confirmed or suspected criminal homicides, in some cases after substantial evidence of torture. 17In some cases authorized techniques appear to have played a role in the ill-treatment.

According to reports, a revised version of the 1992 military interrogation field manual (FM-

    34-52), which was in final draft form in June 2004 and is still under review, will expressly

    prohibit the use of dogs in interrogation and other practices such as stress positions, stripping

    and sleep deprivation. However, it will reportedly include methods which amount to cruel,

    inhuman or degrading treatment even when applied strictly, notably treatment described as 18“fear up harsh” whose application in the past has led to torture and even death. In addition,

    the new field manual would only govern interrogations by Department of Defense personnel

    and not, for example, the CIA (although it would reportedly prohibit other agencies such as

    the CIA from holding unregistered detainees in Department of Defense facilities).

Renditions

The organization is also concerned that the US government practices “renditions” (secret

    transfers) of detainees to third countries with a record of torture and other ill-treatment, in

    grave disregard for its obligations under Article 7 of the Covenant. Some detainees have

     15 For example, detainees in Bagram airbase, Afghanistan, were forced to remain standing for days,

    naked and hooded, chained to a ceiling; Guantánamo detainees have described being subjected to

    prolonged sleep deprivation, exposure for days or hours to extreme temperatures, painful “short-

    shackling” during interrogations (in which they had to squat with their hands and feet chained to the

    floor during interrogation) and prolonged isolation in harsh conditions as punishment for not providing

    information during interrogations; in occupied Iraq, the ICRC expressed concern about the USA‟s

    systematic resort to keeping detainees “completely naked in totally empty concrete cells and in total darkness” for days. 16 See pages 36-40 of Human Dignity Denied (AI Index AMR 51/145/2004) 17 Deaths in custody in Afghanistan and Iraq are described on pages 146-15 of Human Dignity Denied and pages 109-116 and in Appendix 1 of Guantánamo and Beyond. They include the death of a man called Dilawar in Bagram, Afghanistan, in December 2002, beaten over days and kept hooded and

    chained to a ceiling; and Hamad Mawhoush, who died in Iraq in November 2003 after being beaten,

    then tightly wrapped in a sleeping bag, the latter part of approved “fear-up” tactics found in military operations; he died of asphyxia. 18 See reference to Mawhoush case, note 19, ibid.

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    reportedly been sent by the USA, or with US collusion, to countries where they have been 19tortured before being transferred to US custody. In doing so, the USA has sometimes relied on “diplomatic assurances” from receiving states promising that the persons in question

    would not be ill-treated by them.

    Amnesty International considers that before a person is involuntarily sent to a particular

    country, they should have access to a competent, independent and impartial court, which

    should make the final decision, in a fair proceeding, about the presence or absence of such a

    risk. In the face of allegations that a person will be at risk of torture or other ill-treatment in

    the country to which they will be sent, the burden of proof should be on the sending

    authorities to show that they would not be at risk.

    The court should require the sending authorities to present reliable and credible evidence as to

    the absence of a risk. Amnesty International considers „diplomatic assurances‟ to be

    unacceptable as evidence to that effect, being both evasive of and erosive of the absolute

    prohibition, including in Article 7 of the Covenant, of torture and ill-treatment in general and

    on refoulement in particular, in addition to being inherently unreliable, morally questionable

    and in practice ineffective.

    Conditions of detention amounting to torture or cruel, inhuman or degrading treatment

The UN Commission on Human Rights has stated that “prolonged incommunicado detention

    may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman 20or degrading treatment or even torture”. The Human Rights Committee has stated that

    provisions should be made against the use of incommunicado detention, and the Committee 21against Torture has called for its elimination. “Disappearances” can also amount to torture (see above). Other conditions under “which war on terror” detainees may also constitute cruel, inhuman or degrading treatment.

For example, most Guantánamo detainees have spent much of their detention confined to

    small, solitary cells with minimal opportunities for exercise, conditions which, together with

    their lack of contact with the outside world, Amnesty International considers constitute cruel,

    inhuman or degrading treatment in violation of Articles 7 and 10 of the ICCPR. Some

    detainees continue to be detained in extreme isolation in a maximum security detention

    facility at the facility (Camp Five). The uncertainty about their fate has reportedly contributed 22to severe mental and emotional stress. There have also been complaints of guards showing

    disrespect for detainee‟s religious beliefs in violation of Articles 2(1) and 18 of the ICCPR: these include allegations of guards damaging copies of the Qu‟ran, laughing at detainees while they were praying and playing loud music during the call-to-prayer.

As of late September 2005, some 200 Guantánamo detainees were reported to be on hunger

    strike, some critically ill, in protest at their continuing lack of access to a court as well as ill-

    treatment (including alleged beatings) by guards. Amnesty International has expressed

    concern at attempts by the US authorities to downplay the numbers on hunger strike and the

    lack of transparency about conditions at the camp. (The organization has called on the US to

    open up all “war on terror” detention facilities to independent scrutiny.)

     19 See pages 20-22 of Guantánamo and Beyond and pages 182-183 of Human Dignity Denied. 20 Resolution: 2004/41. para 8, 19 April 2004 21 Human Rights Committee General Comment 20. Committee against Torture : UN Doc. A/52/44

    (1997), para. 121 (d). 22 In its April 2005 Operational Update, the ICRC expresses its concern inter alia that: “the uncertainty

    of their fate has been a contributing factor to the mental and emotional health problems among the

    detainees at Guantánamo Bay observed by its delegates and reported by other sources.”

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The conditions of isolation under which enemy combatants in the USA are held also amount

    to cruel, inhuman or degrading treatment which, in the case of Ali Saleh Kahlah al-Marri may

    constitute torture. According to a recent lawsuit filed in his case, al-Marri has been subjected

    to treatment which includes sleep deprivation, sensory deprivation, punitive shackling,

    exposure to cold, denial of a prayer rug and clock and disrespectful handling of the Qu‟ran, 23treatment which has resulted in severe physical and mental health problems.

    Government response to allegations of torture and other ill-treatment Article 2

The US government has failed to provide an effective remedy for violations of the Covenant

    as required under Article 2 (3) in the case of “war on terror” detainees. With respect to the allegations of torture and other ill-treatment exposed at Abu Ghraib and elsewhere, a number

    of administrative and criminal inquiries have taken place. However, these have lacked the

    necessary independence and scope to address the extent of torture and ill-treatment. The

    investigation by Naval Inspector General Vice Admiral Church into Department of Defense

    interrogation operations worldwide, for example, (which the US government has described in

    its report to the Committee against Torture as “the most comprehensive [investigation] to 24date”) found “no link between approved interrogation techniques and detainee abuse”, despite many of the former violating international standards, including the Covenant, which

    prohibit torture and other ill-treatment. The Church investigation did not interview a single 25detainee or former detainee, nor did it interview Secretary Rumsfeld.

To date, a relatively small number of low-ranking officers accused of abusing “war on terror”

    detainees have been court-martialled for offences under the Uniform Code of Military Justice.

    No US agent has been prosecuted for “torture” or “war crimes” under available US legislation.

    High ranking officers, including commanders who may have been responsible for authorizing

    or turning a blind eye to torture and other ill-treatment have not been prosecuted. Where

    soldiers have been charged, penalties have often been extremely lenient in view of the gravity

    of the acts. In over 70% of official investigations conducted in response to substantiated

    allegations of abuse, the punishment has been non-judicial or administrative.

Most of the investigations to date have consisted of the military investigating itself, and none

    has investigated the higher echelons of the administration, or the USA‟s involvement in secret transfers to and secret detention centres in other countries. The involvement of the CIA in

    these and other cases has not been scrutinized. No criminal investigation has been conducted

    into the role of senior government officials who may have engaged in a conspiracy to sanction

    acts which constitute torture and other war crimes and/or to immunize officials from criminal

    liability for torture or other ill-treatment (see below). There are also concerns about the

    adequacy of investigations into deaths in custody, with delays and possible cover-ups and/or 26an absence of autopsies in some cases which have hindered investigations.

Amnesty International has called on the US Congress to establish an independent, impartial

    and non-partisan commission of inquiry into all aspects of the USA‟s “war on terror”

    detention and interrogation policies and practices, and for a Special Counsel to be appointed

    to carry out a criminal investigation into the possible involvement of administration officials

    in crimes.

     23 Preliminary Statement in the case of Ali Saleh Kahla al-Marri v Donald H Rumsfeld and

    Commander C. T. Hanft, in the US District Court for the District of South Carolina, 8 August 2005. 24 Unclassified executive summary of review of Department of Defense interrogation operations,

    conducted by the Naval Inspector General, Vice Admiral Albert T. Church, III, 10 March 2005,

    http://www.defenselink.mil/news/Mar2005/d20050310exe.pdf,p.13. 25 A detailed review of the US government‟s response to the allegations of torture and ill-treatment, and the inquiries conducted, is given on pages 49-58 and 142-160 of Human Dignity Denied (AI Index AMR 51/145/2004) updated in Guantánamo and Beyond, AI Index AMR 51/063/2005). 26 See pages 146-152 of Human Dignity Denied, ibid

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Amnesty International remains concerned that the US government has not taken adequate

    steps to prevent abuses from occurring in the future, consistent with its obligations under

    Article 2(2). In particular, thousands of detainees remain in US custody, many in conditions

    (such as incommunicado detention and undisclosed locations) which are conducive to torture

    and other ill-treatment and may in themselves constitute such treatment.

Amnesty International is concerned that the US government has shown reluctance to call the

    abuses in Abu Ghraib “torture” or to make clear that practices amounting to “cruel, inhuman

    or degrading treatment” are equally prohibited under international law. While the government

    has replaced a controversial memorandum which narrowed the definition of torture and

    advised that the President had authority, in wartime, to override international treaties 27prohibiting torture, there remain concerns about the replacement memorandum. While

    undoubtedly an improvement on its predecessor, the replacement memorandum leaves

    numerous questions unanswered and the door open to possible future abuses. Specifically, it

    sets aside (as “unnecessary” for discussion) rather than rejects the notion that the President

    has the authority to order torture and that torturers can be immune from prosecution or 28conviction through defences of “necessity” and “self-defense”. Furthermore, it does not

    address the question of cruel, inhuman or degrading treatment, which the previous

    memorandum dismissed as not warranting criminalisation. The US government continues to

    take the view that non-US nationals held in US custody outside the USA are not legally 29entitled to protection from “cruel, inhuman or degrading treatment”.

The USA must clarify to the Committee, in no uncertain terms, that under its laws no one, the

    President included, has the right or the authority to torture or ill-treat detainees or to order

    their torture or ill-treatment, under any circumstances whatsoever; that every one, the

    President included, who does so will have committed a crime; and that the defences of

    “necessity,” “self-defence” and “superior orders” are categorically not available to those who

    torture or ill-treat detainees. Amnesty International is deeply concerned that anything short of

    this clarification will indicate that there are “grey areas” in US law, policy and practice where

    torture and other ill-treatment are considered acceptable.

Reparations - Articles 2(3), 9(5)

There are a range of mechanisms by which persons within the USA and foreign nationals

    outside the USA may seek compensation for human rights violations by US officials. The

    onus is on the victim to initiate lawsuits for financial compensation or reparations. Amnesty

    International is concerned that foreign nationals held outside the USA in the context of the

    “war on terror” lack the means and resources to access these procedures and are thus without

    an effective remedy.

     27 Daniel Levin, Acting Assistant Attorney General, Memorandum for James B Comey, Deputy

    Attorney General Regarding Legal Standards Applicable Under 18. U.S.C. 2340-23404, 30 December

    2004 (replaced Justice Department memorandum of August 200) 28 The HRC has determined, in discussing Israel‟s interrogation policies and justifications thereof, that

    “the „necessity defence‟ argument… is not recognized under the Covenant”. See UN Doc. A/58/40

    (Vol. I, 2002-3), para. 85(18). 29 In January 2005 then White House Counsel Alberto Gonzales reported to the Senate that the Justice

    Department “has concluded … there is no legal prohibition under the Convention against Torture on

    cruel, inhuman or degrading treatment with respect to aliens overseas” (Responses of Alberto R.

    Gonzales, Nominee to be Attorney General, to the written questions of Dianne Feinstein, January 2005;

    see also page 7 of Guantánamo and Beyond (AI Index AMR 51/063/2005).

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As emphasized by the draft Basic Principles and Guidelines on the Right to a Remedy and 30Reparation for Victims of Violations of International Human Rights and Humanitarian Law,

    the issue of reparation should focus not only on monetary compensation, but consider

    restitution, satisfaction, guarantees of non-repetition and rehabilitation. Rehabilitation is an

    important form of reparation in the case of torture survivors. Amnesty International has

    spoken to former Guantánamo detainees who have described ongoing physical and mental

    problems as a result of their treatment in US custody who have received no assistance after

    being peremptorily returned to their home countries.

Right to life Article 6

In November 2002 in Yemen, with Yemen‟s apparent cooperation, an allegedly CIA-

    controlled Predator unmanned aerial vehicle was used to blow up six men in a car, targeted

    because the occupants were alleged members of al-Qa‟ida. Amnesty International considers that international law enforcement standards applied in this case, under which lethal force can

    only be used as a last resort. To the extent that the US authorities deliberately tried to kill,

    rather than attempt to arrest these men, their killing would amount to extrajudicial executions

    in violation of Article 6 of the Covenant.

However, the US government has sought to apply the laws of war to justify its actions in this

    case. In April 2003, it rejected the concern of the UN Special Rapporteur on extrajudicial,

    summary or arbitrary executions that the attacks in Yemen constituted “a clear case of 31extrajudicial killing”. The US government has claimed that, in the context of what it regards

    as legitimate military operations, “enemy combatants may be attacked unless they have

    surrendered or are otherwise rendered “hors de combat” and that any “Al Qaida terrorist who

    continue to plot attacks against the United States may be lawful subjects of armed attacks in

    appropriate circumstances”. It also stated that the mandate of the Special Rapporteur does not

    extend to “allegations stemming from any military operations conducted during the course of 32an armed conflict with Al Qaida”.

The US government took a similar position when it rejected the Special Rapporteur‟s

    concerns, expressed in May 2003, about incidents in Fallujah, Iraq, in which a number of

    civilians were shot dead by US forces during demonstrations in unclear circumstances, on the

    ground that these, too, fell outside the Special Rapporteur‟s mandate.

The US position that it is not bound by human rights law or, therefore, the jurisdiction of the

    Special Rapporteur on extrajudicial, summary or arbitrary executions, has been repudiated by

    international expert bodies, on the ground that international human rights law coexists with 33international humanitarian law even in situations of armed conflict. Amnesty International‟s

    concerns on this issue, with reference to the December 2004 response of the Special

    Rapporteur on extrajudicial, summary or arbitrary executions and to other international

    standard setting bodies, are described in Section 5 of the Amnesty International report

    Guantánamo and Beyond, pages 39-43. Amnesty International is concerned, as noted, that the

    USA will adopt a similar position regarding the applicability of the Covenant to such

    operations.

     30 UN Doc. E/CN.4/2005/59, 21 December 2004, Annex I. 31 Report of the Special Rapporteur, Asma Jahangir, UN Doc. E/CN.4/2003/3, 13 January 2003, para.

    39. 32 UN Doc: E/CN.4/2003/G/80, 22 April 2003. 33 Amnesty International disputes the position taken by the USA that the laws of war applied to the

    Yemen killings. In Amnesty International‟s view the Yemen situation was covered solely by

    international human rights law, as there was no armed conflict between Yemen and the USA or internal

    armed conflict (supported by the USA) between Yemen and al-Qa‟ida.

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Amnesty International is concerned that military investigations into possible unlawful killings

    of civilians in Afghanistan and Iraq have not been conducted in accordance with the USA‟s

    obligations under Articles 6 and 2(3) of the Covenant. For example, hundreds of civilians

    were killed by US-led forces when they launched major attacks against insurgents in Falluja,

    Baghdad, Mosul, Samarra and other cities and towns during 2004. Only a minority of killings

    of Iraqi civilians and other alleged abuses involving multi-national forces were investigated,

    and those investigations which did take place were inadequate and shrouded in secrecy.

Military commissions. Articles 2, 14 and 26

Military commissions were established under the Military Order on Detentions, Treatment

    and Trial of Non-Citizens in the War Against Terrorism, signed by President Bush on 13

    November 2001, and provide for the prosecution of “enemy combatants who violate the laws

    of war”. Amnesty International considers that the military commissions which are executive

    bodies, not independent and impartial courts fall far short of meeting international standards for a fair trial as set out, inter alia, under Article 14 of the ICCPR Although the Department of Defense has recently announced some changes to the commission regulations, they remain

    fundamentally flawed on the following grounds:

    ? They lack independence from the executive which determines the rules for the

    commissions, selects the personnel, and vets the final decision which would include,

    in capital cases, deciding whether a person will live or die;

    ? The right to counsel and to an effective defence is restricted

    ? The defendant can face secret evidence which he will be unable to rebut

    ? The commission can admit evidence extracted under torture or other coercion

    ? There will be no right of appeal to an independent court

    ? Only foreign nationals are eligible for such trials, violating the prohibition on the

    discriminatory application of fair trial rights under Article 14 (equal protection of the

    law) and article 26.

    ? The procedures compromise the presumption of innocence, as the US administration

    has repeatedly labelled the Guantánamo detainees in general (and, by implication,

    those named to appear before the commissions) “killers” and “terrorists”.

Four of the Guantánamo detainees have been named to stand trial before the military

    commissions. Following an appeal against the legality of the commissions, a US appeals court 34recently ruled that the commissions could go ahead. Although legal challenges continue, the

    commission hearings could resume as early as October 2005.

II. CONCERNS ABOUT ANTI-TERRORISM MEASURES TAKEN IN THE USA

     Articles 2, 9, 7, 10 and 26

Some 1,200 foreign nationals most of them Muslim men of Arab or South Asian origin

    were detained in the USA as terrorist suspects in the months following the 11 September 2001

    attacks. Many were detained under an “interim” administrative rule issued by the US Attorney

    General on 19 September 2001 extending the time a non-US national could be held in

    immigration custody without charge from 24 hours to 48 hours “or to an additional time, if

    necessary, under an emergency or other extraordinary circumstances”. Hundreds of the

    detainees were arrested for routine immigration violations and were often held for months in

    punitive conditions. Many were denied prompt access to lawyers, their families or the courts, 35and to the rights to non-discrimination, the presumption of innocence and humane treatment.

     34 Hamdan v. Rumsfeld, No. 04-5393, Opinion (D.C. Cir.), 15 July 2005. 35 These violations are described in detail in USA: Amnesty International’s concerns regarding post September 11 detentions in the USA (AI Index: AMR 51/044/2002).

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