Friday, February 17, 2006

"We Don't Torture"

From the UN Report on the detention facility at Guantanamo Bay Naval Base:

According to the information provided by the United States Government as of 21 October 2005, approximately 520 detainees were held in Guantánamo Bay. From the establishment of the detention centre in January 2002 until 26 September 2005, 264 persons were transferred from Guantánamo, of whom 68 were transferred to the custody of other Governments, including those of Pakistan, the Russian Federation, Morocco, the United Kingdom, France and Saudi Arabia. As of 21 October 2005, President Bush had designated 17 detainees eligible for trial by a military commission. Of those, the United States has since transferred three to their country of origin, where they have been released. As of the end of December 2005, a total of nine detainees had been referred to a military commission.
Let's review: 520 detainees in October, down from 766. 17 of those 520 were "designated...eligible for trial by a military commission." 3 of those 17 were transferred to their country of origin, and released. Apparently they were not dangerous at all.

9 have been referred to a military commission. So 508 remain as "detainees." Scott McClellan assures us they are "dangerous." Alberto Gonzalez says: "We can't release them and have them go back to fight against America." So we keep them. The Supreme Court did say we should try them. But the simple fact is, the entire system is broken:

27. The Chairperson of the Working Group and the Special Rapporteur recall that detainees at Guantánamo Bay were deprived of their right to challenge the lawfulness of their detention and of their right to legal counsel for several years, until a United States Supreme Court decision granted detainees access to federal courts. In June 2004, the Supreme Court, in Rasul v. Bush, held that United States courts have the jurisdiction to consider challenges to the legality of the detention of foreign nationals detained at the Guantánamo Bay Naval Base. However, at the time of writing (i.e. more than four years after detention at Guantánamo Bay started), not a single habeas corpus petition has been decided on the merits by a United States Federal Court.
And the Administration wants it that way:

28. In light of the Rasul judgement, the Government, on 7 July 2004, created the Combatant Status Review Tribunal (CSRT), a body composed of three noncommissioned officers, to examine the legality of detentions. Thereafter, the United States District Court dealing with the habeas corpus petitions of the Guantánamo detainees ruled that the CSRT proceedings “deny [the detainees] a fair opportunity to challenge their incarceration” and thus fail to comply with the terms of the Supreme Court’s ruling26. According to information received from the Government, all persons currently held at Guantánamo Bay had their status reviewed by the CSRT. The United States further established, on 11 May 2004, Administrative Review Boards (ARBs) to provide an annual review of the detention of each detainee. These institutions do not satisfy the requirement in article 9 (3) of ICCPR that “[a]nyone … detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”: the requirement in article 9 (4) of ICCPR that “[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”, or the requirements of article 14 of ICCPR, as:
(a) The CSRTs and ARBs do not comprise the guarantees of independenceessential to the notions of a “court” (art. 9 (4)) or “exercise of judicial power” (art. 9(3));
(b) Detainees’ defence counsel whom the mandate holders met raised serious concerns regarding CSRT and ARB procedural rules, which do not provide the detainees with a defence counsel. Moreover, the restrictions on detainees’ right to be present at hearings in their case and on their access to the information and evidence on which the allegation that they are unlawful belligerents is based undermine the legality and legitimacy of the process;
(c) The interviews conducted by the mandate holders with detainees corroborated allegations that the purpose of the detention of most of the detainees is not to bring criminal charges against them but to extract information from them on other terrorism suspects. Indeed, four years after the establishment of the detention facility, none of the inmates has been tried and the proceedings of only nine persons detained at Guantánamo Bay are close to the trial stage;
(d) It would appear that in determining the status of detainees the CSRT has recourse to the concepts recently and unilaterally developed by the United States Government, and not to the existing international humanitarian law regarding belligerency and combatant status; and
(e) Even where the CSRT determines that the detainee is not an “enemy combatant” and should no longer be held, as in the case of the Uighurs held at Guantánamo Bay nine months after the CSRT determined that they should be freed, release might not ensue. (emphasis added)
But remember: "We do not torture."

49. Following the ambiguous interpretations of what constitutes torture and illtreatment detailed in Section A, the following interrogation techniques, which clearly went beyond earlier practice (as contained in Army Field Manual FM 34-52), were approved by the Secretary of Defense on 2 December 2002.
• “The use of stress positions (like standing) for a maximum of four hours;
• Detention in isolation up to 30 days;
• The detainee may have a hood placed over his head during transportation and questioning;
• Deprivation of light and auditory stimuli;
• Removal of all comfort items;
• Forced grooming (shaving of facial hair, etc);
• Removal of clothing;
• Interrogation for up to 20 hours and
• Using detainees’ individual phobias (such as fear of dogs) to induce stress.”

50. After having rescinded the above memorandum on 15 January 2005, the Secretary of Defense on 16 April 2003 authorised the following techniques which remain in force:
• “B. Incentive/Removal of Incentive i.e. comfort items;
• S. Change of Scenery Down might include exposure to extreme temperatures and
deprivation of light and auditory stimuli;
• U. Environmental Manipulation: Altering the environment to create moderate discomfort (e.g. adjusting temperature or introducing an unpleasant smell).
• V. Sleep Adjustment; Adjusting the sleeping times of the detainee (e.g. reversing sleep cycles from night to day) This technique is not sleep deprivation.
• X. Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment.”
Does any of this sound familiar?

51. These techniques meet four of the five elements in the Convention definition of torture (the acts in question were perpetrated by government officials; they had a clear purpose, i.e. gathering intelligence, extracting information; the acts were committed intentionally; and the victims were in a position of powerlessness). However, to meet the Convention definition of torture, severe pain or suffering, physical or mental, must be inflicted. Treatment aimed at humiliating victims may amount to degrading treatment or punishment, even without intensive pain or suffering. It is difficult to assess in abstracto whether this is the case with regard to acts such as the removal of clothes. However, stripping detainees naked, particularly in the presence of women and taking into account cultural sensitivities, can in individual cases cause extreme psychological pressure and can amount to degrading treatment, or even torture. The same holds true for the use of dogs, especially if it is clear that an individual phobia exists. Exposure to extreme temperatures, if prolonged, can conceivably cause severe suffering.
In the place of this clinical language, feel free to substitute any pictures from Abu Ghraib you have seen, or the comments of former military Chaplain James Yee.

This is the recommendation from the report that has garnered all the attention in the U.S.:

96. The United States Government should close the Guantánamo Bay detention facilities without further delay. Until the closure, and possible transfer of detainees to pre-trial detention facilities on United States territory, the Government should refrain from any practice amounting to torture or cruel, inhuman or degrading treatment or punishment, discrimination on the basis of religion, and violations of the rights to health and freedom of religion. In particular, all special interrogation techniques authorized by the Department of Defense should immediately be revoked.
Even that recommendation calls for more than simply closing the facility. There are several others, just as pertinent:

95. Terrorism suspects should be detained in accordance with criminal procedure that respects the safeguards enshrined in relevant international law. Accordingly, the United States Government should either expeditiously bring all Guantánamo Bay detainees to trial, in compliance with articles 9(3) and 14 of ICCPR, or release them without further delay. Consideration should also be given to trying suspected terrorists before a competent international tribunal.

97. The United States Government should refrain from expelling, returning, extraditing or rendering Guantánamo Bay detainees to States where there are substantial grounds for believing they would be in danger of being tortured.

98. The United States Government should ensure that every detainee has the right to make a complaint regarding his treatment and to have it dealt with promptly and, if requested, confidentially. If necessary, complaints may be lodged on behalf of the detainee or by his legal representative or family.

99. The United States Government should ensure that all allegations of torture or cruel, inhuman or degrading treatment or punishment are thoroughly investigated by an independent authority, and that all persons found to have perpetrated, ordered, tolerated or condoned such practices, up to the highest level of military and political command, are brought to justice.

100. The United States Government should ensure that all victims of torture or cruel, inhuman or degrading treatment or punishment are provided with fair and adequate compensation, in accordance with article 14 of the Convention against Torture, including the means for as full a rehabilitation as possible.

101. The United States Government should provide the personnel of detention facilities with adequate training, in order to ensure that they know that it is their duty to respect international human rights standards for the treatment of persons in detention, including the right to freedom of religion, and to enhance their sensitivity of cultural issues.

102. The United States Government should revise the United States Department of Defense Medical Program Principles to be consistent with the United Nations Principles of Medical Ethics.

103. The United States Government should ensure that the authorities in Guantánamo Bay do not force-feed any detainee who is capable of forming a rational judgement and is aware of the consequences of refusing food. The United States Government should invite independent health professionals to monitor hunger strikers, in a manner consistent with international ethical standards, throughout the hunger strike.

104. All five mandate holders should be granted full and unrestricted access to the Guantánamo Bay facilities, including private interviews with detainees.
We are, quite simply, a rogue state. This is, as Professor Alfred McCoy says, how the world sees us now. And we are all, quite simply, responsible.

Despair? No. jane reminds me where hope lies: in the living word of God. And she gives me the words of Ecclesiasticus (4:20-28), from the daily lectionary:

Watch for the opportune time, and beware of evil, and do not be ashamed to be yourself.

For there is a shame that leads to sin, and there is a shame that leads to glory and favor.

Do not show partiality, to your own harm, or deference to your downfall.

Do not refrain from speaking at the proper moment, and do not hide your wisdom.

For wisdom becomes known through speech, and education through the words of the tongue.

Never speak against the truth, but be ashamed of your ignorance.

Do not be ashamed to confess your sins, and do not try to stop the current of a river.

Do not subject yourself to a fool, or show partiality to a ruler.

Fight to the death for truth, and the Lord God will fight for you.

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