Senate Committee on the Judiciary - Hearing on Detainees
Statement by Amnesty International USA - June 15, 2005

Amnesty International commends the Senate Committee on the Judiciary for examining the treatment of detainees, and seeking to determine how to treat individuals in accordance with U.S. and international law while maintaining the highest standards for national security. Amnesty International believes that the best and most effective way to promote security is to preserve human rights and the rule of law. Departure from long established, fundamental legal protections only promotes lawlessness and ultimately makes everyone less safe.

Amnesty International's 1.8 million members worldwide are dedicated to working against human rights abuses committed by governments and armed groups around the world. For more than four decades, our work has been guided by the Universal Declaration of Human Rights and other international standards, including the Geneva Conventions, which the United States championed and helped create over many decades. Our recently released annual report summarizes human rights concerns in 149 countries and territories. We strive to be objective and impartial.

Amnesty International joined the world in condemning the brutal attacks on September 11, 2001, denouncing them as crimes against humanity and demanding justice in accordance with the law. Amnesty International recognizes that governments not only have the right, but the obligation to ensure the security of their people.

The world looks to the United States as a leader to set the standards for protecting and promoting human rights, human dignity, and the rule of law. That is why it is especially devastating that policies and practices of the U.S. government today are inconsistent with U.S. law and international human rights standards. Evidence continues to mount of torture and other cruel, inhuman, or degrading treatment perpetrated by U.S. military and other personnel against detainees in Iraq, Afghanistan, Guantánamo, and in secret locations elsewhere. The extensive and compelling body of evidence comes from many sources, including the outcome of official U.S. investigations, statements by U.S. military personnel, agents of the Federal Bureau of Investigation and the International Committee of the Red Cross (ICRC), as well as testimony by detainees.

According to the preamble of the Universal Declaration of Human Rights, human rights are the "equal and inalienable rights of all members of the human family". All detainees, regardless of their status, must be treated in accordance with international law and standards. Rather than pursuing the masterminds of the September 11 attacks within the bounds of the law, apprehending and bringing them to justice before an established court of law, the administration instead chose to misconstrue and circumvent the rule of law, asserting that it was using new thinking to fight a new war. As a result, brutal tactics long justified by human rights abusing regimes-- torture, arbitrary, incommunicado and indefinite detention, and disappearances -- are now on the U.S. government's agenda.

Interrogations and Investigations

Since September 11, the United States has used interrogation tactics, some with the direct approval of Secretary of Defense Rumsfeld, that have long been recognized as torture by the United States and the international community. On April 7, 2005, the Wall Street Journal, published a two-part article by Jess Bravin detailing interrogation techniques used by the Japanese against U.S. soldiers in World War II, which were later prosecuted as war crimes. "Along with routine beatings, Japanese interrogators had used solitary confinement, sleep deprivation, blindfolding, head shaving, restricting meals, uncomfortable positions and other techniques to make prisoners talk. Japan failed to register some prisoners or facilities with the Red Cross." Following World War II, the United States prosecuted Japanese soldiers involved in such behavior for war crimes. The Bravin article stated that "Officers were held liable for their subordinates' mistreatment of prisoners -- even if they tried to stop the abuse." All of these interrogations tactics have been used in the "war on terror," some with the direct approval of Secretary of Defense Rumsfeld. To date, not a single high level military or civilian official has been held to account for torture and ill-treatment of detainees in U.S. custody. To the contrary, internal government investigations have claimed to absolve high level administration officials, though they did not interview them or have the mandate to investigate them.

The investigations conducted by the government have not been complete, transparent or independent. Most have been internal, many run by military officials who could only investigate people of their rank and below, with no ability to look up the chain of command or at the civilian leadership. The only investigation purported to be "independent" was comprised of a panel personally selected by Donald Rumsfeld. The investigation by Vice Admiral Church, intended to be a comprehensive report on all U.S. detention and interrogation operations, turned into a 378 page report that was classified with a brief 21 page summary made available to the public. By his own admission, Vice Admiral Church did not interview any top level civilian or military officials, and he did not have the mandate to assign responsibility or draw conclusions.

The biggest gap in accountability is with the Central Intelligence Agency. An internal investigation by the Inspector General of the CIA has not been shared with other investigators, been made public, or turned over to Congress. The CIA has been implicated in the most serious abuses of human rights, including the operation of secret detention facilities in places like Jordan, Thailand and Diego Garcia where known and unidentified detainees are being held arbitrarily, incommunicado, and indefinitely without visits by the Red Cross. The CIA has also been in charge of the "torture express," a collection of private jets used to shuttle detainees into the custody of countries with a documented history of torturing suspects in custody. This practice of "extraordinary rendition" is being justified by flimsy verbal assurances from countries such as Syria and Egypt that they won't torture the suspect in question. The U.S. government has failed to pass any regulation to reign in CIA operations and prevent torture and other cruel, inhuman, or degrading treatment. The latitude given to the agency, coupled with the secrecy surrounding its actions, only serves to exacerbate existing concerns about the human rights abuses that have come to light.

"Enemy Combatant" Status

The U.S. government has applied the ambiguous status of "enemy combatant" to people picked up in various situations around the world -- citizens and non-citizens alike-- asserting it has the right to hold "enemy combatants" indefinitely, without charge or trial, until the end of the self-declared "war on terror," which by the administration's own admission may have no end. The notion that any government can detain a person for the rest of his or her natural life without charge or trial violates a most basic right. This ambiguous status underlies policies and practices that run counter to U.S. obligations under federal and international law.

Military Commissions

Military commissions, established under the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism signed by President Bush on November 13, 2001, provide for the prosecution of "enemy combatants who violate the laws of war." The proposed military commission trials are executive bodies set up to obtain the conviction of foreign nationals on lower standards of evidence than would hold in the U.S. courts. They are an example of the U.S. government's assertion that the execution of the "war on terror" need not be restrained by the rule of law. It is particularly shocking that people could face execution after trials that so flagrantly violate fair trial standards. Some of the problematic aspects of the commissions are:

· The commissions entirely lack independence from the executive.
· The right to counsel of choice and to an effective defense is severely restricted.
· The government can use secret evidence which the defendant will be unable to rebut.
· The defendant can be excluded from certain parts of the proceedings and is not allowed to know what evidence was presented against him in the closed session.
· Information extracted under torture or other coercion can be admitted into evidence, in violation of Article 15 of the Convention Against Torture, which states "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."
· There will be no right of appeal to an independent and impartial court.
· Only foreign nationals are eligible for such trials, violating the prohibition on the discriminatory application of fair trial rights. A U.S. citizen, whether soldier or civilian, charged with a similar crime would not face trial by military commission, and would have the right to appeal to higher courts of law.

These are just of few of the problems with the military commissions. The commissions, created at the whim of the executive, can change the rules at any time. This, coupled with the fact that there is no case law or precedent on which to rely makes the preparation of a proper defense almost impossible. The inherent injustices created by the military commissions were so severe that Judge Robertson felt compelled to halt the proceedings. The decision in the case of Hamdan v. Rumsfeld has been appealed to the DC Circuit court and a decision is pending.

Combatant Status Review Tribunals

Unlike the small number charged before the military commissions (four detainees), hundreds of detainees were subjected to the Combatant Status Review Tribunals (CSRTs). The U.S. government instituted the CSRTs in order to make the claim that detainees have been given an opportunity to challenge their detention before a neutral tribunal satisfying the Supreme Court's decision confirming that U.S. courts have jurisdiction to hear legal challenges to the ongoing indefinite detention at Guantánamo Bay. To date, the U.S. government has put 558 detainees through CSRTs to determine whether or not they are "enemy combatants," finding that 520 were. The CSRTs have as many fatal flaws as the military commissions, yet an "enemy combatant" designation can lead to an effective life sentence, allowing the U.S. government to continue to detain the person without charge or trial for the rest of his or her natural life.

Among the myriad problems with the CSRTs is that they do not allow detainees to be represented by an attorney, including those facing charges before the military commissions. The CSRTs provide detainees with a "personal representative" who does not advocate for the detainee and is not bound by confidentiality with the assertion that they would help the detainees contact witnesses or gather evidence the detainees wish to use in their defense. Government attorneys admitted in court that evidence obtained by torture was admissible in the CSRTs, and the CSRTs themselves were riddled with translation problems. In addition, detainees faced vague allegations presented in unclassified summaries, while other evidence was presented in a closed session which the detainee was not allowed to attend. In February, Judge Green ruled that the CSRTs do not meet the minimum requirements of due process.

Independent Commission

The administration has repeatedly stated that allegations of abuses by U.S. personnel are fully investigated in a transparent way. While there have been reviews by some U.S. government agencies of detention and interrogation policies and practices since the Abu Ghraib torture scandal came to light, none of the investigations to date has been fully independent or of sufficient scope, and the findings have largely been kept classified. Certain practices remain shrouded in secrecy, including the alleged involvement of the Central Intelligence Agency in secret detentions and secret transfers of detainees to countries with records of torture.

Despite growing evidence that U.S. policies and practices have violated the absolute prohibition of torture and ill-treatment and other rights -- in some cases leading to the death of detainees -- no senior officials have been held to account, and not a single U.S. agent has been charged under the Anti Torture Act or War Crimes Act. Only a few, mainly low-ranking soldiers, have been brought before courts-martial or given non-judicial or administrative sanctions.
A comprehensive, truly independent commission, and the appointment of Special Counsel to initiate prosecutions where warranted are important measures of redress that will not only ensure justice in the United States, but also ensure that the United States remains a powerful force for ensuring respect for human rights worldwide. For this to happen, the U.S. government cannot speak the language of human rights while at the same time violating human rights and disregarding international law. In these circumstances any criticism of the human rights records of others is drained of moral power.

Conclusion

Military commissions fall far short of the most basic due process standards, the CSRTs are an aberration, and neither of these processes legitimizes the existence of the broad and ambiguous category of "enemy combatant." It is time for the U.S. government to apply the human rights standards it is bound by and either charge any detainees accused of crimes and try them in a court that meets fair trials standards, or release detainees unconditionally and send them to a place where they will not face torture or other serious abuse. Contrary to the administration's assertion, there is no tension between human rights and security, but instead a direct relationship between the two. Actions that jettison the rule of law and human rights signal that the rules no longer apply. It is difficult to ignore basic protections afforded detainees by domestic and international law and simultaneously invoke those protections for one's soldiers and citizens.

Human rights are an integral part of true security. They are the product of historic wisdom regarding how to order safe, prosperous, and peaceful societies. They help determine the truth, instead of relying on methods like censorship, stereotyping, rumor, innuendo, or torture as deeply flawed means of finding truth and making correct social decisions.

If the United States has nothing to hide, it should welcome an investigation by an independent commission. It is essential that Congress not try to create a third way somewhere between the rule of law and the administration's insistence on the absence of law. Congress should instead act to reverse this message, ensure an independent investigation into allegations of torture and ill-treatment, and help restore the rule of law. Policies that facilitate torture, in Guantánamo Bay, Abu Ghraib, Bagram, and beyond make everyone less secure.

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