U.S. slammed on indefinite detention, torture and censorship

Cartoon by Kal

The international community is continuing to express deep concern over the human rights situation in the United States, particularly in regards to its indefinite detention policies and attempts to censor the Internet through legislation such as the recently shelved Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA).

On Monday UN High Commissioner for Human Rights Navi Pillay expressed disappointment that the U.S. government has failed to close the Guantanamo Bay detention facility despite President Obama’s promises three years ago, and has instead entrenched a system of arbitrary detention. Pillay said she was troubled by the failure to ensure accountability for serious human rights violations, including torture, that have taken place at the notorious prison camp.

“It is ten years since the U.S. Government opened the prison at Guantanamo, and now three years since 22 January 2009, when the President ordered its closure within twelve months. Yet the facility continues to exist and individuals remain arbitrarily detained – indefinitely – in clear breach of international law,” said the UN human rights chief.

“To make matters worse,” she added, “the new National Defense Authorization Act, signed into law in December 2011, now effectively codifies such indefinite military detention without charge or trial. This piece of legislation contravenes some of the most fundamental tenets of justice and human rights, namely the right to a fair trial and the right not to be arbitrarily detained. Nobody should ever be held for years on end without being tried and convicted, or released.”

The High Commissioner also said that international law requires “thorough and systematic investigation of all allegations of serious human rights violations, including torture, that allegedly took place at Guantanamo Bay.”

“Every effort must be made to hold to account those responsible for the development, approval or implementation of coercive interrogation methods analogous to torture under international law,” she said. “Individuals found to have perpetrated, ordered, tolerated or condoned torture and ill-treatment should be brought to justice.”

Pillay said she was disturbed by the Government’s failure to allow independent human rights monitoring of the detention conditions at Guantanamo.

“I urge the US Congress to take steps to enable the US Administration to close the Guantanamo Bay detention centre – as it stated it wished to do – in compliance with the Government’s obligations under international human rights law, and in so doing, to fully respect the principle of non-refoulement, under which no one should be sent back to a country where they may face torture,” Pillay said.

Regarding SOPA and PIPA, the OSCE Representative on Freedom of the Media, Dunja Mijatović, today called for governments to reassess protection of intellectual property rights online, emphasizing the potential threat to individual freedoms posed by expanding legal rights and technological restrictions.

The recent debate over SOPA and PIPA shows that there is an urgent need to reassess the design and scope of international intellectual property rights in the digital age, she said.

“Under no circumstances should the interests of rights holders be placed above the fundamental right to freedom of expression and the right to privacy,” said Mijatovic. “We need a new balance between the legitimate rights of the copyright holders and the creative exercise of everyone’s right to freedom of expression in the public domain.”

Established by the Helsinki Final Act in 1975, the OSCE spans North America, Europe and Central Asia, counting the United States as one of its 56 members.

“I call on all OSCE participating States to come up with new approaches to protect both fundamental freedoms and intellectual property rights. These should reflect the spirit and pace of the digital age we are living in,” she said. “Mandatory monitoring of Internet content for copyright infringements could have a chilling effect on users engaging in political discourse.”

Mijatović urged governments to reconsider their Internet strategies, keeping in mind its borderless nature to ensure that the Internet remains an open and public forum for freedom of expression for their citizens, in line with OSCE commitments and international standards of media freedom.

“Governments must be aware that every attempt to regulate the Internet on the national level inevitably has global implications – because we still are fortunate to have only one Internet. Any online regulation should thus be considered carefully and debated openly, including with the industry, civil society, media and governments, in order to ensure that it does not lead to fragmentation or to cutting off users and interrupting the free flow of information,” she said.


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14 responses to “U.S. slammed on indefinite detention, torture and censorship”

  1. GitmoStats (@GitmoStats) says :

    All wartime detention is indefinite. We never know how long a war will take. This one can end as soon as the Islamists stop fighting. The real shame is that none of their friends cared enough to ask them to stop fighting.

    This war is legal. Detention at Guantanamo is legal. Indefinite detention is legal under the Geneva Conventions. It was taken to the Supreme Court. It would be legal even if the full Geneva Conventions had been ruled to be applicable.

    People who claim to want the detainees tried or released should have been asking the Islamists to stop fighting. They’ve had over ten years to do so.

    • The Compliance Campaign says :

      As the article you are responding to makes clear, indefinite, arbitrary detention is most certainly not legal under the International Covenant on Civil and Political Rights. Go back and read the referenced treaty if you have any confusion over the matter.

      You say that “all wartime detention is indefinite,” but when you are talking about a war such as the “war on terror”, which by definition will never end until the last terrorist or potential terrorist is eliminated, what you are talking about is not just indefinite detention, but endless detention. This is clearly prohibited by the ICCPR, which requires all detainees to be brought to trial, or released.

      Your faith in the Supreme Court is touching, but as this blog has documented, the U.S. judicial system has systematically ignored U.S. international obligations and has instead deferred to the 2001 Authorization of Military Force as justifying any and all Executive Branch decisions pertaining to the lawless war on terror.

      In short, you are wrong on every count.

  2. GitmoStats (@GitmoStats) says :

    The ICCPR is clearly not about wartime detainees. The text specifies it’s talking about a “criminal charge.” They put that word in there for a reason. Wartime detainees aren’t necessarily criminals.

    What countries do you think would have ratified that treaty if it didn’t allow holding people in time of war? Not the U.S., and obviously not the U.K. which is currently reworking its sercurity certificates. And not Canada, which had also been detaining people without charge a few years ago.

    The rest of your message even suggests you understand that wartime detainees would be legal if you thought we were in a more conventional war. Reading the AUMF, the war can indeed end long before “the last terrorist or potential terrorist is eliminated.” Get the Taliban to respect Afghan elections; have them stop supporting Al Qaeda; have Iran and some elements in Pakistan in Saudi Arabia stop supporting Al Qaeda; get functioning governments in Yemen and Somalia; and the war can end. A few lone wolves in various basements can be dealt with by local authorities, and the U.S. can send its troops home.

    If you don’t like that the terrorists covered by the AUMF will be fighting for a long, long time then you should ask that those who sympathize with them (e.g. Amnesty’s friends at Cageprisoners) tell the Taliban to stop fighting. Afghanistan had their U.N. supervised elections as early as 6 or 7 years ago. Most of its citizens would prefer the new government to those that Cageprisoners sympathizes with. People should be speaking out about that — if they cared about peace.

    You’re also wrong about the Supreme Court not caring about international law. It is they who overruled the Bush administration’s interpretation of the Geneva Conventions based on Common Article 3. They even used Protocol I’s interpretation of a regularly constituted court to reject the original military commissions. They did that even while agreeing that Protocol I itself wasn’t ratified by us.

    • The Compliance Campaign says :

      You really should read the ICCPR again. Here is the full context of Article 9:

      1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

      2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

      3. Anyone arrested or 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. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

      4. Anyone 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.

      Only in paragraph 3 does it mention “criminal charge”, but even in that context, the intent and the spirit of the provision is clear: that no one should be subjected to arbitrary, indefinite detention for years on end with not even so much as a day in court.

      Of course, your argument is the same one that the U.S. government makes, and one that no independent practitioner of international law takes seriously. The last report that the U.S. submitted (seven years overdue) to the UN Human Rights Committee, which is responsible for monitoring states parties’ adherence to the ICCPR, tried to argue this very narrow legal view that the Covenant doesn’t apply to the so-called “war on terror”, and particularly does not apply to prisons that are outside of the legal jurisdiction of U.S. courts (i.e., the legal blackholes of Guantanamo, Bagram and unknown numbers of secret CIA prisons).

      The Human Rights Committee objected to this “restrictive interpretation made by the State party of its obligations under the Covenant,” and urged the U.S. to “review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose.”

      The HRC had particularly harsh words for the U.S.’s indefinite detention policies: “The State party [the U.S.] should ensure that its counter-terrorism measures are in full conformity with the Covenant and in particular that the legislation adopted in this context is limited to crimes that would justify being assimilated to terrorism, and the grave consequences associated with it.”

      Read the full document if you’re interested: http://www.state.gov/documents/organization/133837.pdf

  3. GitmoStats (@GitmoStats) says :

    There’s nothing “arbitrary” about it. They’ve all had initial processing before going to Guantanamo. A few years later, the Supreme Court asked that they get tribunals, which they then had. They also get annual reviews. I know that’s not good enough for you and the members of the ICCPR, but you can’t say it’s arbitrary.

    The U.S. can say, under both Presidents Bush and Obama, that the ICCPR doesn’t apply to the War on Terror because it doesn’t.

    You’ve missed Article 4, which discusses which articles can be set aside in wartime. Article 9 is one of them. Like I said, there’s no way any responsible nation would have agreed to your interpretation of this treaty. Not the U.S., not the U.K., and not Canada. That is to say nothing of other members of the U.N. and its “human rights” bodies. The ICCPR doesn’t get to say when we’re at war and when we’re not. No one has ever given them that authority.

    One funny thing is, I doubt that any nation with any members on the Human Rights Committee would give up its responsiblity to detain people in a time of war. You can put “War on Terror” in quotes all you like but it is legal under the law.

    Funnier still, as I’m sure you know, we’ve got a couple dozen Uighur detainees in Guananamo that we’d like to send home. Unfortunately, they’re from China, which means they could be subject to torture if we sent them back. They’re “innocent” only in the sense that they’re enemies of China, not the U.S. The funny part? China is a member of the Human Rights Council.

    • The Compliance Campaign says :

      “Initial processing,” that’s lovely. You mean, finger printing and such? Do you have any idea how many Guantanamo detainees have been released after being held for years on end and the US government finally determined that they had committed no crime? BTW, what crime, precisely, do you allege that they have committed? Most of them were picked on the “battlefield” of Afghanistan, i.e., the country that the United States invaded a decade ago and continues to occupy.

      Perhaps the reason that the US refuses to charge them with a crime is that there is no such crime to charge them with.

      BTW, you are mixing up the Human Rights Council and the Human Rights Committee, two different bodies.

  4. GitmoStats (@GitmoStats) says :

    The U.S. didn’t release those detainees because they were all innocent. For the most part, they were either done with them, or they decided that those ex-detainees couldn’t do as much harm where they are now. For example, the Saudis run a program to house, wed, and control ex-detainees sent home there. They’re responsible for keeping them out of trouble. We’ve got a lot of Yemenis we’d send back there if they were capable of handling them.

    Keep in mind that the standard of proof for keeping wartime detainees is only a preponderance of evidence rather than beyond a reasonable doubt that would be required to convict. That means it’s only natural that we would hold people we wouldn’t convict, particularly when a real trial can mean disclosing secrets.

    I know you’re probably leaping at that preponderance of evidence standard. Before you do, you should understand this was not invented by the Bush administration. The manual that says we should use a preponderance of evidence was last updated in 1992. It was designed to comply with the Geneva Conventions.

    There may also be a colder rationale for releasing them. Of the detainees who returned to terror, it’s not very convenient for them to attack the U.S. I’m sure they’d love to kill Americans, but most of the people killed by ex-detainees are other local Muslims. Although I think there’s more now (I’d have to look around), off hand, I can only think of one American citizen killed by an ex-Guantanamo detainee, and she was a Muslim living in Yemen at the time. As bad as it sounds, it may just be that keeping those detainees wasn’t worth the hassle to the U.S. government. It should be, of course. Eventually, there were British soldiers killed by ex-detainees as well.

    If there are so many people in so many countries that think they’re innocent, they should be willing to take more of them in. But behind closed doors, those governments know better.

    No, I didn’t mix up the HRCs. That’s why I spelled out “Human Rights Council” rather than using the initials. If you want to say that the Committee is somehow nobler, and disavow what the Council says then go right ahead.

    • The Compliance Campaign says :

      So, you were just injecting the Human Rights Council into the conversation for no reason? Simply trying to discredit any international body, in order to maintain the illusion that no one who criticizes the US government’s indefinite detention policies has the credentials to do so? I clearly identified which “HRC” I was referring to in my reply above, and you throw in the old canard about how the Human Rights Council has no legitimacy because it includes human rights abusers (including the US BTW, I address some of these issues here: https://compliancecampaign.wordpress.com/2011/04/03/brookings-institution-downplays-u-s-accountability-on-human-rights/ ).

      Anyway, the list of Guantanamo critics is as long as my arm. There are UN special rapporteurs, UN human rights chiefs (past and present), the International Committee of the Red Cross, as well as countless human rights organizations and legal groups who have all articulated the flaws in the US legal reasoning and the damage to the rule of law that this prison has had and continues to have.

      The idea that all these detainees have been guilty of some crime is preposterous BTW. It is well-known that many of them were simply swept up and turned in to the US military for the bounty that the US was offering for “al-Qaeda or Taliban” sympathizers back in 2001. Many of them were guilty of absolutely nothing. Others were guilty of nothing more than engaging in firefights with the US forces, who after all, were the ones invading Afghanistan. Let’s see how many enemies the US has there now, especially with the recent Koran-burning brouhaha. Looks the entire is against us — by your logic, maybe every last Afghan should spend the rest of his life in Guantanamo. (Or at least until they learn to like America and accept our occupation of their country.)

  5. GitmoStats (@GitmoStats) says :

    The Human Rights Council is part of the U.N.’s human rights bureaucracy. It’s no different than if the U.S. State Department complains about human rights issues of other nations, the critics might want to bring up CIA waterboarding. And besides, I had just said it could be disavowed. It would only need to be done explicitly.

    Yes, the list of Guantanamo critics is pretty long. They issue endless, detailed reports about Guantanamo, etc. The web is full of it, and much of it is archived permanently by archive sites. It is measurable to some degree. That’s the fun part of it. We can see when people care about human rights, and when they don’t.

    If any detainees were “simply swept up and turned in to the US military for the bounty” then those were released years ago. Maybe you don’t realize that the U.S. captured tens of thousands during the war. Only a small percentage went to Guantanamo, and about half that did were sent to their home countries during the first number of years. Even if that “swept up” meme was ever valid, it’s way out of date.

    For those you say are “guilty of absolutely nothing,” that’s usually their lawyers talking. There are many reasons to hold somebody. For example, if a British citizen is captured in Afghanistan, having consorted with terrorists and attending a training camp, he may not be guilty of shooting anybody, but he is surely worth questioning to find the network that sent him there. And he could be dangerous if sent home. Considering the events of July 2005, it would be irresponsible to ignore it.

    As for the recent Koran-burning brouhaha, that’s the kind of people that the Human Rights Commission is listening to. But, no, we don’t need to capture them all. They could simply stop fighting, support local elections, and end their support for Al Qaeda. The elected Afghan government can then ask us to leave. They can do so at any time.

  6. The Compliance Campaign says :

    You do realize that even elected members of the Afghan parliament are calling for jihad against the American occupiers, right? But I suppose the Afghan people shouldn’t listen to them, just the elected representatives that we like, right? Your position is just so indefensible on so many levels, I’ll just chalk them up to blind patriotism, which is the last refuge of fools.

    • GitmoStats (@GitmoStats) says :

      Some, yes, but that’s to be expected when you have politicians elected from different regions. Almost all Taliban-supporters do hate us, and they should.

      Until five years ago, the U.S. had a congresswoman who clearly sympathized with our enemies. That didn’t mean anything about U.S. policy overall.

      Back in 2009, most Afghans polled were very glad we came. (Have you forgotten the stadium executions?) But even then 1/4 of them wanted us to leave.

      Some of that 1/4 probably liked the stadium executions. Why should the opinions of people who like women being brutally killed affect our decisions? Frankly, I’d be ashamed if they liked us.

      • The Compliance Campaign says :

        Not sure which 2009 survey you’re referring to, but sounds like might be this one – http://www.gallup.com/poll/124445/afghans-assess-roles-nato-regional-actors.aspx

        Don’t know where you found that 25% figure, but it sounds awfully low to me especially since large majorities in countries all over the world want to see NATO out of Afghanistan. A 2007 survey of 47 countries found that in only 2 countries were there majorities favoring keeping troops in Afghanistan – Israel (59%) and Kenya (60%). – http://pewglobal.org/files/pdf/256.pdf

        The poll I find most interesting though is the one that was done last year which found that 92% of young Afghan men had never even heard of 9/11, the initial reason for our invasion and occupation in the first place (if you take the US government’s word for it). See here: http://www.huffingtonpost.com/2011/09/08/afghanistan-september-11-survey_n_953910.html

        In other words, all that these young men know is that foreigners have been occupying their country for some unknown reason for the better part of their lives. They see these foreigners as unwelcome guests in their country, which is certainly not helped by scandals such as the “kill team” photos or the koran-burning incident which emerge from time to time. Since the Taliban is the only group fighting in Afghanistan to expel the American invaders, some youth naturally decide to join the fight. Once they do, they are designated as “al-Qaeda fighters” and either killed or captured by US forces, and sent to Bagram or Guantanamo.

        Then, people like you somehow justify this whole bloody mess of a situation with circular reasoning, justifying the US occupation and placing the blame not where it belongs — on the architects of this failed policy — but on the occupied people of Afghanistan.

  7. GitmoStats (@GitmoStats) says :

    It shouldn’t be up to the rest of the world. Some of them like the Taliban; the rest don’t live there, and, one way or another, probably don’t care how many Afghan women get their heads chopped off. This is up to the Afghans and us.

    Those numbers I gave were rough combinations. I found a more recent poll with explicit numbers:

    Question 17 says, “Do you strongly support, somewhat support, somewhat oppose or strongly oppose the presence of the following groups in Afghanistan today?”

    For U.S. military forces: 21% Strongly support, and another 47% somewhat support. That’s a combined total of 68% who wanted us there.

    Only 10% support the Taliban (3% strongly; 7% somewhat). But that’s not the entire enemy because 17% support jihadi fighters from other countries (3% strongly; 14% somewhat).

    Q20 is about a prospective U.S. withdrawal:
    21% said we should begin to leave Afghanistan 18 months from now.
    22% said we should leave sooner than 18 months from now.
    21% said we should stay longer, and 29% said it depends on the security situation.

    You can see from the weak support of the Taliban, most of those who want us to leave are saying this because they’re confident that the Afghan army will continue the fight.

    More interesting (Q26) is that when it came to President Obama’s surge to send more troops, 18% opposed it somewhat, and another 18% opposed it strongly. 61% supported adding more U.S. troops.

    In other words, when the rest of the world apparently wanted us to leave the Afghans to the mercies of the Taliban, most of the Afghans themselves had unsurprisingly wanted us to stay and fight.

    Plus, remember that 10% support the Taliban, and 17% support the jihadi fighters (probably includes most of the same people who support the Taliban). When deciding the morally right thing to do, the opinions of terrorists don’t really matter.

    I do agree that the number of young Afghan men having heard of 9/11 is interesting. But many aren’t well uneducated, and they’ve got their hands full with their own problems. They’ve been fighting the Taliban since long before 9/11.

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