CONFERENCE
ON THE ABUSE OF PRISONERS AT GUANTANAMO
On
April 11, the Center for International Policy hosted a conference
at the National Press Club to discuss the abuse of prisoners at
the Guantanamo Naval Base. Speaking at the conference were: Wayne
S. Smith (Center for International Policy), Robert L. Muse (Muse
& Associates), Michael Ratner (Center for Constitutional Rights),
and Wendy Patten (Human Rights Watch).
While
the Bush Administration continues to claim its senior officials
are not responsible for the actions taken by low-ranking soldiers,
clear and mounting evidence indicates approval for the interrogation
techniques came from the top. In his opening remarks, Wayne Smith
stated that it has become clear these are not isolated cases;
rather, the abuse has been so widespread and the pattern so consistent
that it is obviously systemic in nature. Smith noted that abuses
at Guantanamo, moreover, take on a special connotation in that
they are carried out on territory the U.S. occupies under a treaty
- a treaty which it is violating by using the base for this purpose
What are the implications of the 1903 Base Agreement and the right
to hold "illegal combatants" on the base?
Robert
L. Muse spoke at length about both the historical and legal
aspects of the US Occupation of Guantanamo. He stated, "The
lease agreements are treaties and therefore are subject to international
law. The US is in breach of the terms of the various agreements
in at least two ways: It is using Guantanamo Bay for purposes
other than as "a coaling or naval station" and it
allows commercial enterprises to operate on the base."
Muse noted further that the Cubans would be within their rights
if they took the whole issue to the UN General Assembly and
called for a resolution saying the US was occupying the base
illegally and then call for action by the World Court.
To
view a full transcript of Muse' remarks, click HERE.
How
has the US Administration redefined Guantanamo to fit their needs?
Michael
Ratner explained that the Bush Administration has tried to use
Guantanamo as a "law free zone" and has come up with
legal arguments to fit any contingency - arguments which often
contradict one another.
1.
For example, it first claimed that Guantanamo is outside the
US and therefore that US law simply does not apply there.
2. However, US law makes it illegal to torture outside the US
So, when forced to address the issue of torture, the Bush Administration
released memos saying Guantanamo is inside the US and therefore,
anyone who conducts torture at Guantanamo cannot be prosecuted
in the US
3. On the other hand, to justify detaining prisoners without
a fair trail, the Bush administration says Guantanamo is outside
the US and therefore that the Constitution does not apply.
4. And as for the Geneva Conventions, the Bush administration
simply ruled that they do not apply - whether Guantanamo is
judged to be inside or outside the US
Did the abuses in fact take place? If so, who is responsible
for them?
Evidence presented at the conference made it clear that abuses
had indeed taken place and were condoned by senior levels of
our government. Alberto Gonzales' memos, Secretary of Defense
Rumsfeld's approval of specific interrogation techniques, and
information released by the Freedom of Information Act (FOIA)
all show the abuses have gone down the chain of command.
What
are the three judicial procedures that have been used to review
the Guantanamo cases?
1.
Military Commissions
The military commissions were the first procedures to be implemented.
In the spring of 2002, Rumsfeld issued an order detailing the
structure of military commissions, then the Department of Defense
issued nine instructions to further define the commissions in
2003. After a slow development, they began in August in 2004.
However, they were shut down in November by a federal court
ruling because they failed to meet certain requirements of the
Geneva Conventions and due process.
2. Administrative Review Boards
The Administrative review boards began in late 2004. They serve
as an annual review to determine if a detainee can be released.
3. Combatant Status Review Tribunals
The Combatant status review tribunals were set up in the wake
of the June 2004 Supreme Court decision that said US courts
are open to detainee habeas corpus claims. All combatant status
review tribunals are completed and 38 detainees were not to
be enemy combatants and therefore will be released.
What
are the flaws of the military commissions?
1.
Independent Appeals
Military commissions do not grant independent appeals. Appeals
lie within the jurisdiction of the military review board instead
of civilian courts, with ultimate appeal to the Secretary of
Defense and possibly the President. In this system, the President
acts as judge, jury, and prosecutor.
2. Defendant and his lawyer are not permitted to see classified
or "protected" evidence. This creates a challenge
for the defendant to confront the evidence against him.
3. Evidence gained through torture can be used against the defendant.
This goes against the Convention Against Torture.
By
any objective standard military commissions have been a failure.
True accountability requires fair trials. The military commissions
are an attempt to turn the clock back to World War II era notions
of military justice, which pre-date the development of international
human rights law (starting with the Universal Declaration on
Human Rights in 1948), the Geneva Conventions (1949) and the
US Uniform Code of Military Justice (1950).
The current power and authority in military judicial actions
and war-crimes
1. The US government is advocating the absolute authority of
the President to set rules without any judicial review.
2. The Executive branch is claiming the unchecked power to prosecute
any potential terrorist according to rules that it alone sets.
It
should be noted that there are reports suggesting the Pentagon
may make some changes in the process, including drafting a new
manual for military commissions; however it is unclear at the
present time the significance of such changes.
The
future of US extraterritorialization and Guantanamo
Based
on the recent actions by the US government it appears that the
number of prisoners held at the Guantanamo Naval base will continue
to decrease. It is likely that Guantanamo's prisoners will diminish
to a given number, who will be held in a long-term, high security
permanent facility - quite possibly without ever being charged
or convicted of any crime. This will put pressure on the question
of the military commissions and how to prosecute those held
at Guantanamo. At the same time, the government will likely
hold detainees in other facilities outside of the US that will
be freer from public scrutiny.
What
are the rights of prisoners at Guantanamo and are diplomatic assurances
aiding them?
1. The US government claims the right to hold enemy combatants
until the end of the "relevant conflict," which it
defines as the global war on terrorism, a boundless period of
time.
2.
Diplomatic Assurances: The government asks for a formal promise,
either oral or written, that no prisoner being sent to a third
country will be tortured. Wendy Patten called these promises
"flimsy agreements". The US government sends prisoners
to countries that often violate torture treaties on the basis
of these unenforceable assurances, which offer no safeguard
against torture. Attorney General Gonzales states that once
people are transferred to another country the US cannot do much
to protect them.
" There are presently bills pending in the House and Senate
insisting that the administration not send prisoners to countries
where they may be subjected to torture.
" Lawyers have become involved in issues pertaining to
the relocation of Guantanamo prisoners and have persuaded courts
to grant injunctions to prevent movement to places where they
may be subjected to torture.
There
has been an international outcry as these renditions have become
public knowledge.
Trial
Processes with Guantanamo Prisoners
1.
Prisoners should be granted independent appeals to ensure due
process, courts martials, and federal criminal trials
Most prisoners at Guantanamo are being charged with conspiracy;
however there is little or no evidence against them. If each
had been given a hearing, many, probably most, would have been
released early on. Recently, for example, six cases were put
forward by the authorities at Guantanamo for review. It was
expected that in these cases thus chosen the evidence would
be strong. Rather than that, the evidence was found to be so
weak that four of the prisoners have already been released.
Press reports claim that the government is moving toward a Uniform
Code of Military Justice (UCMJ ) based system, but to ensure
fair trials any new or revised system should incorporate in
full all elements of the UCMJ system, including independent
appeal. The US government should be using the same system to
try non-citizens as it uses to try its own citizens
2. The CIA wants world-wide legal protection for its agents
in cases of torture.
3. The paradox that the US has run into is that they use the
laws of war in order to detain prisoners yet they do not allow
prisoners to use laws of war to protect themselves.
The
Ramifications of the Abu Ghraib Case
1.
The government asked the courts to "Just Trust Us",
but this leap of faith proved too much for the supreme court
after the photos of torture were released
2. As a result of the photos from Abu Ghraib many have raised
their voices to congress which has helped to push the issue.
3. The photos provided unquestionable evidence of abuse and
that senior level officials had condoned it.
4. Since then it has showed that the orders for prisoner torture
has come from high military officials rather than from the bottom.
5. Rumsfeld now faces lawsuits on behalf of the Tipton People
and Human Rights First/ACLU
What,
if any, was the reaction of the Inter-American Commission on Human
Rights (IACHR) to the detentions at Guantanamo?
Michael
Ratner explained that after his client, David Hicks, was taken
to
Guantanamo, the Inter-American Commission on Human Rights (IACHR)
of the
Organization of American States (OAS) ruled that "every
human was entitled
to some status under international law." The 2002 ruling
called for immediate
hearings to determine the status of each detainee at Guantanamo.
Of course,
the Bush Administration has ignored the ruling.
Closing
Remarks
If
the US is promoting Democracy in the Middle East it needs to
uphold such principles in its own conduct. One leads best by
example. The example we are setting by allowing the abuse of
prisoners is, obviously, exactly the wrong one. The treatment
of the prisoners at Guantanamo, and elsewhere, affects us all
and the honor of our country. We have been accused of serious
violations of human rights by the Foreign Affairs Committee
of the British Parliament and various other international bodies.
The European Parliament has called for an investigation into
the situation at Guantanamo. And for the first time, the US
has been excluded from the Inter-American Commission for Human
Rights. This is not a situation in which our nation should have
been placed. Wayne Smith concluded by noting that a full investigation
by the Senate Intelligence Committee would be in order. Its
chairman, Senator Pat Roberts of Kansas, has resisted such an
investigation, saying that he is tired of people questioning
the conduct of American soldiers. Smith said he would see it
in exactly the opposite way. Until now, the senior levels of
government have simply passed the buck, saying the abuses were
simply the acts of a few rogue soldiers. Only the common soldier
is blamed. But it is clear that the memos we have seen, the
interrogation instructions cleared by Secretary of Defense Rumsfeld,
and statements made by senior generals set the stage for these
abuses. It is time to hold the senior levels of government accountable,
to, in effect, put the blame where it belongs.
In
the coming month, the Center for International Policy will publish
an International Policy Report based on this conference. Check
back to order a copy or to view it online.
