Tag Archive | indefinite detention

UN slams U.S. on torture, indefinite detention, youth imprisonment and solitary

Human rights in the US3

The United States came under sharp criticism this week from the United Nations Special Rapporteur on torture, Juan E. Mendez, who raised a number of objections regarding U.S. prison policies including solitary confinement, the treatment of juveniles in the justice system and the indefinite detention of terrorism suspects at Guantanamo.

Mendez said on Wednesday that the terms under which the United States has invited him to visit the Guantanamo Bay detention center are unacceptable, urging the U.S. to reconsider restrictions on his visit including by allowing him unmonitored conversations with detainees.

“The invitation is to get a briefing from the authorities and to visit some parts of the prison, but not all, and specifically I am not allowed to have unmonitored or even monitored conversations with any inmate in Guantanamo Bay,” said Mendez.

He also noted that he has been kept waiting for two years to visit prisons in the United States to probe the use of solitary confinement but that he has been refused access. He has requested visits to federal prisons — ADX in Florence, Colorado, and the Manhattan Correctional Center — and state facilities in California, New York, Louisiana and Pennsylvania, but so far the government has blocked his visits to the federal facilities, and he is not willing to only accept visits to state penitentiaries. More than 80,000 people languish in solitary confinement in U.S. prisons, according to the American Civil Liberties Union.

On Tuesday, Mendez also condemned the U.S. for being the “only State in the world that still sentences children to life imprisonment without the opportunity for parole,” noting that by imposing cruel, inhuman, and degrading punishment against the most vulnerable members of society, the U.S. is in serious violation of international norms. There are 2,500 American citizens serving life in prison for crimes they committed as children, according to the Sentencing Project.

“The detention of children is inextricably linked – in fact if not in law – with the ill-treatment of children, owing to the particularly vulnerable situation in which they have been placed that exposes them to numerous types of risk,” Mendez said in a report to the UN Human Rights Council in Geneva.

Mendez noted that the U.S. practice of imposing life sentences on children in cases of homicide violates international law on numerous fronts, including the Convention on the Rights of the Child.

The UN expert noted that the deprivation of liberty of children is intended to be a measure of last resort, to be used only for the shortest possible period of time, only if is in the best interests of the child, and limited to exceptional cases.

“Failure to recognize or apply these safeguards increases the risk of children being subjected to torture or other ill-treatment, and implicates State responsibility,” Mendez warned. He called for the adoption of “higher standards to classify treatment and punishment as cruel, inhuman or degrading in the case of children.”

In addition, the Special Rapporteur pointed out that inappropriate conditions of detention – including pretrial and post-trial incarceration as well as institutionalization and administrative immigration detention – exacerbate the harmful effects on children deprived of their liberty.

“Within the context of administrative immigration enforcement, it is now clear that the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child,” he added. “It exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children.”

Human rights groups including Amnesty International, the American Civil Liberties Union and Human Rights Watch, have issued harsh criticism of the U.S.’s practices of detaining immigrant children.

“The U.S. government’s policy of detaining large numbers of children harms kids and flouts international standards,” said Clara Long, U.S. researcher at Human Rights Watch last summer. “Congress should be exploring alternatives to detention that other countries facing spikes in border crossings have used successfully.”

U.S. law allows Customs and Border Protection to detain children for a maximum of 72 hours but recent reports indicate that CBP is holding children for periods closer to ten days or two weeks. The children are then transferred to the Office for Refugee Resettlement in the Department of Health and Human Services, where they may be further detained.

“States should, expeditiously and completely, cease the detention of children, with or without their parents, on the basis of their immigration status,” Mendez said this week.

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Growing concern over human rights crisis as Guantanamo hunger strike marks 100 days

The United States is coming under intense international criticism for its increasingly troubling record on torture and impunity, indefinite detention and the ongoing travesty of justice known as Guantanamo Bay.

As a hunger strike at Guantanamo involving over 100 prisoners enters its 100th day, calls are growing for the United States to end its method of force feeding that the UN has described as torture and for President Obama to finally live up to his longstanding promise to close the prison.

On Friday May 17, human rights groups and activists will mark the 100th day of the hunger strike by delivering over 300,000 petitions to the White House urging the president to take action. Hundreds of U.S. activists have already joined a hunger strike in solidarity with the Guantanamo prisoners. Actions are also being held outside the United States, including one in London on Saturday May 18 in which protesters will be creating a “murder scene” outside the U.S. Embassy to draw awareness to the potentially fatal consequences of the hunger strike and the U.S. government’s responsibility for it.

UN officials have also become increasingly vocal in their denunciations of the Obama administration’s policies, with El Hadji Malick Sow, head of the UN Working Group on Arbitrary Detention, calling the U.S. policy of indefinite detention “a flagrant violation of international law.” Earlier this month, Sow explained that dozens of detainees are already cleared for release but continue to languish in the prison alongside those designated for indefinite detention without trial.

“Of those,” Sow said, “56 are Yemeni nationals who have been denied release based solely on their nationality and on the political situation in Yemen, which constitutes a clear violation of the principle of non-discrimination and renders their detention arbitrary.”

The UN Special Rapporteur on torture, Juan E. Méndez, added, “At Guantánamo, the indefinite detention of individuals, most of whom have not been charged, goes far beyond a minimally reasonable period of time and causes a state of suffering, stress, fear and anxiety, which in itself constitutes a form of cruel, inhuman, and degrading treatment.”

Drawing depicting the agony of force-feeding by Matt Rota

Drawing depicting the agony of force-feeding by Matt Rota

Many of the striking detainees are being force-fed a nutritional supplement through tubes inserted in their noses, a practice considered torture by many experts. As Kent Sepkowitz, an infectious-disease specialist in New York City, describes the process,

The hardware used in force feeding is very cheap and basic, though as with all medical equipment, there are ever more fancy versions. The procedure is this: after squirting a lubricant into one nostril, a two-foot long clear plastic tube of varying caliber, usually about as thick around as fat pencil, is snaked through the nose, down the back of the throat, and into the stomach. An X-ray is then performed to make certain the tube is placed correctly into the stomach or small intestine and not into the lung. Once confirmed, a liquid diet can be delivered and up to 2,000 calories a day provided—more than enough to keep a person alive.

During my training, I placed countless feeding tubes (and larger hoses to pump stomachs). Without question, it is the most painful procedure doctors routinely inflict on conscious patients. The nose—as anyone knows who ever has received a stinger from an errant baseball—has countless pain fibers. Some patients may scream and gasp as the tube is introduced; the tear ducts well up and overflow; the urge to sneeze or cough or vomit is often uncontrollable. A paper cup of water with a bent straw is placed before the frantic and miserable patient and all present implore him to Sip! Sip! in hopes of facilitating tube passage past the glottis and into the esophagus and stomach.

The procedure is, in a word, barbaric.

One detainee, Samir Naji al Hasan Moqbel, in an op-ed published by the New York Times last month, offered an account of what it feels like to be on the receiving end of this barbaric procedure:

I will never forget the first time they passed the feeding tube up my nose. I can’t describe how painful it is to be force-fed this way. As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn’t. There was agony in my chest, throat and stomach. I had never experienced such pain before. I would not wish this cruel punishment upon anyone.

I am still being force-fed. Two times a day they tie me to a chair in my cell. My arms, legs and head are strapped down. I never know when they will come. Sometimes they come during the night, as late as 11 p.m., when I’m sleeping.

UN Special Rapporteur on health Anand Grover has stressed that “health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike.”

She added that it is also not acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike. The American Medical Association has also condemned such force-feedings as a violation of “core ethical values of the medical profession.”

On May 13, a coalition of 20 human rights organizations sent Secretary of Defense Chuck Hagel a letter stating unqualified opposition to the ongoing force-feeding. As the letter makes clear, the Guantanamo force-feeding procedures constitute cruel, inhuman, and degrading treatment in violation of international norms:

Because of force-feeding’s invasive nature, the World Medical Association (WMA), the preeminent international organization in the field of medical ethics and practice, has repeatedly condemned force-feeding of competent prisoners. The WMA’s Tokyo Declaration, adopted in 1975, states that doctors shall respect a competent prisoner’s right to refuse artificial feeding. And, in its Declaration of Malta on Hunger Strikers, adopted in 1991 and revised in 2006 in large part due to developments in Guantánamo, the WMA states that “[f]orcible feeding is never ethically acceptable. Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment.”

Force-feeding as used in Guantánamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment, the coalition also points out.

Nevertheless, 40 additional military medical personnel have been sent to Guantanamo to assist with the controversial procedure.

But the torturous force-feedings are not the only way that the American prison guards are routinely tormenting their detainees.

One of the hunger strikers, British citizen Shaker Aamer, recently described in an open letter the abuse he is suffering at the hands of the Guantanamo prison authorities since the hunger strike began:

My treatment was bad before, but since the beginning of April I have been treated with particular venom. They started by taking my medical things. I had an extra blanket to lessen my rheumatism, but that was soon gone. My backbrace went at the same time. The pressure socks I had to keep the build-up of water down did not last long. Then they came for my toothbrush. Next, my sheet was taken, along with my shoes. My legal documents vanished soon after, leaving me only my kids’ drawings on the wall. They were the last to go.

And now I am left alone. Since 8am Monday, April 15, I have had nothing, not even my flip-flops. I am meant to sleep on concrete, and when I say alone, I mean alone in a very lonely world. The bean hole is what they call the small hatch on the door through which they normally pass my food. Recently they have started using a padlock to close it all day long. The OIC [Officer In Charge] keeps the key so no one else can open it.

The fact that the U.S. prison guards continue to torture these helpless detainees is particularly troubling considering the fact that the remaining men Guantanamo are not considered a threat to the United States. As Ben Emmerson, the Special Rapporteur on countering terrorism, recently explained: “All relevant security-related Government agencies or authorities have expressly certified that those detainees do not represent a threat to US security.”

Yet, in a nightmarish Kafkaesque and Orwellian situation, they remain locked up in a state of legal limbo, with little hope of ever seeing their loved ones again. As Samir Naji al Hasan Moqbel, a prisoner at Guantanamo Bay since 2002, explained in the New York Times,

I do not want to die here, but until President Obama and Yemen’s president do something, that is what I risk every day.

Where is my government? I will submit to any “security measures” they want in order to go home, even though they are totally unnecessary.

I will agree to whatever it takes in order to be free. I am now 35. All I want is to see my family again and to start a family of my own.

In the midst of this hunger strike, a high-level U.S. task force last month issued a bombshell report on detainee treatment which concluded, without reservation, that the United States has engaged in a systematic policy of torture in the years since 9/11.

“The Report of the Constitution Project’s Task Force on Detainee Treatment” is the product of more than two years of research, analysis and deliberation by the Task Force members and staff. It is considered the most comprehensive, bipartisan investigation into the detention and treatment of suspected terrorists yet published, providing painstaking details about the past and current treatment of suspected terrorists detained by the U.S. government during the Clinton, Bush and Obama administrations, in Iraq, Afghanistan, Guantánamo and the CIA’s secret “black site” prisons.

“Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture,” the report reads. “This finding, offered without reservation, is not based on any impressionistic approach to the issue. … Instead, this conclusion is grounded in a thorough and detailed examination of what constitutes torture in many contexts, notably historical and legal.”

The United States may not declare a nation guilty of engaging in torture and then exempt itself from being so labeled for similar if not identical conduct, the task force pointed out, noting that in some cases the torture has been approved at the highest levels of the U.S. government.

In a section on Guantanamo, the report described the prison camp as “a major testing ground for the government’s policy of engaging in highly coercive interrogation techniques, practices designed to visit torment on detainees in the expectation or hope they would give up important and usable intelligence to help fight the new style of war in which the United States found itself.”

In other words, Guantanamo is a torture camp. “It was the principal place where the government’s mostly unannounced shift in policy from detention for prosecution to detention for interrogation occurred.”

Rather than being brought quickly before some tribunal, detainees would be held at length for another purpose — interrogation. The view of the detainees as an intelligence resource to be mined contributed to the rapid deterioration of the human rights situation in the torture camp and to the extreme techniques deemed acceptable by authorities.

Now, 11 years on, the detainees have had enough and in an act of desperation have engaged in the only recourse they have left, to refuse food. But rather than address their legitimate grievances or work for a political solution to the crisis, the Pentagon and the Obama administration have opted instead to increase the level of torture used against the detainees.

It is a national disgrace and a human rights catastrophe of the highest order.

To demand justice for the Guantanamo prisoners, visit Close Guantanamo, the Center for Constitutional Rights, Code PinkAmnesty International and Cage Prisoners.

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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.

In Padilla ruling, Fourth Circuit Court ignores U.S. international obligations

Padilla being subjected to sensory deprivation while being taken to the dentist in 2006 (New York Times)

In a decision with international implications, a U.S. court has demonstrated a decided indifference to the United States’ international obligations on matters of human rights. On Monday the Fourth Circuit Court in Richmond, Va., ruled that the military policies of detention without charge and the harsh interrogation methods established by the Bush administration and continued in part by the Obama administration cannot be challenged in damage lawsuits in federal courts.

Issues raised by the case regarding the detention of terrorist suspects – in particular the treatment of Jose Padilla, a U.S. citizen held for nearly four years without charge as an “enemy combatant” – have been addressed specifically by international bodies to which the U.S. belongs, but these concerns did not factor in to the judges’ deliberations.

In dismissing the Padilla case, the court declared that under the Constitution, the making of counter-terrorism policy is entrusted solely to Congress and the President, and the courts may not “trespass” on this authority. The court therefore threw out the lawsuit brought by Padilla, who was seeking damages of one dollar from each of the defendants: Donald H. Rumsfeld, Former Secretary of Defense; Catherine T. Hanft, Former Commander Consolidated Brig; Melanie A. Marr, Former Commander Consolidated Brig; Lowell E. Jacoby, Vice Admiral, Former Director Defense Intelligence Agency; Paul Wolfowitz, Former Deputy Secretary Of Defense; William Haynes, Former General Counsel Department of Defense; Leon E. Panetta, Secretary of Defense.

Padilla had contended that he was entitled to sue the defendants because the government deprived him of other ways to seek remedies for his treatment, even under military code.

In its ruling, however, the court recognized the President’s purported absolute authority to hold terrorist suspects – even U.S. citizens – indefinitely and incommunicado as enemy combatants:

On June 9, 2002, acting pursuant to his authority under the AUMF [2001 Authorization of Military Force], President George W. Bush issued an order to defendant Donald Rumsfeld, then Secretary of Defense, to detain Padilla as an enemy combatant, the President having determined that Padilla possessed vital intelligence and posed an ongoing threat to the national security of the United States.

That day, Padilla was removed from civilian custody and transferred to the Naval Consolidated Brig at Charleston, South Carolina. While in military custody, Padilla claims that he was repeatedly abused, threatened with torture, deprived of basic necessities, and unjustifiably cut off from access to the outside world. Over time, these conditions were relaxed, and he was allowed monitored meetings with his attorneys.

The ruling seemed to downplay Padilla’s actual allegations though, which are not simply that he was “threatened with torture,” but in fact that he was tortured. According to his attorneys, Padilla was routinely mistreated and abused in ways designed to cause pain, anguish, depression and ultimately the loss of will to live.

“The extended torture visited upon Mr. Padilla has left him damaged, both mentally and physically,” said a court filing by Orlando do Campo, one of Padilla’s lawyers. The filing says that Padilla was subjected to sleep deprivation and extremes of heat and cold, and forced to stand for extended periods in painful “stress positions.”

His lawyers have also claimed that Padilla was forced to take LSD and PCP to act as truth serums during his interrogations.

As forensic psychiatrist Dr. Angela Hegarty, who interviewed Jose Padilla for 22 hours to determine the state of his mental health, told Democracy Now in 2007:

What happened at the brig was essentially the destruction of a human being’s mind. That’s what happened at the brig. His personality was deconstructed and reformed.

And essentially, like many abuse victims, whether it’s torture survivors or battered women or even children who are abused by parents, as long as the parents or the abuser is in control in their minds, essentially they identify with the primary aims of the abuser. And all abusers, whoever they are, have one absolute requirement, and that is that you keep their secret. I mean, it’s common knowledge that people who abuse children or women will say, “Look at what you made me do,” putting the blame on the victim, trying to instill guilt. “People will judge you. People will think you’re crazy if you tell them about this. You will be an enemy. You will be seen as an enemy. You will be seen as a bad person if this comes out. There will be dire and terrible consequences, not only for you.” Jose was very, very concerned that if torture allegations were made on his behalf, that somehow it would it interfere with the government’s ability to detain people at Guantanamo, and this was something he couldn’t sign onto. He was very identified with the goals of the government.

Dr. Hegarty commented specifically on the psychological effect of the prolonged isolation and sensory deprivation that Padilla was subjected to:

This was the first time I ever met anybody who had been isolated for such an extraordinarily long period of time. I mean, the sensory deprivation studies, for example, tell us that without sleep, especially, people will develop psychotic symptoms, hallucinations, panic attacks, depression, suicidality within days. And here we had a man who had been in this situation, utterly dependent on his interrogators, who didn’t treat him all that nicely, for years. And apart from –- the only people I ever met who had such a protracted experience were people who were in detention camps overseas, that would come close, but even then they weren’t subjected to the sensory deprivation. So, yes, he was somewhat of a unique case in that regard.

Glossing over the specifics of Padilla’s four years of mistreatment, the Fourth Circuit’s decision instead treated these issues as mere policy decisions that were made expeditiously by the Executive and Legislative Branches – decisions that the Judiciary constitutionally has no say in.

The ruling makes clear the court’s opinion that the Judicial Branch has no competence to inject itself into matters that pertain to Congress’s war-making authority or the President’s powers as Commander-in-Chief, even when constitutional rights of U.S. citizens are involved:

Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence.

The court noted that:

Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the thought that those involved would face prolonged civil litigation and potential personal liability.

Further,

This is a case in which the political branches, exercising powers explicitly assigned them by our Constitution, formulated policies with profound implications for national security. One may agree or not agree with those policies. One may debate whether they were or were not the most effective counterterrorism strategy. But the forum for such debates is not the civil cause of action pressed in the case at bar.

So, essentially, the Fourth Circuit Court in Richmond, Va., has washed the Judiciary’s hands of any responsibility in determining the constitutionality of any treatment of U.S. citizens who are designated by the Executive Branch as “enemy combatants.” Anything goes if the government calls you a terrorist, according to the court.

As Padilla’s attorney, Ben Wizner, said in a statement Monday:

Today is a sad day for the rule of law and for those who believe that the courts should protect American citizens from torture by their own government. By dismissing this lawsuit, the appeals court handed the government a blank check to commit any abuse in the name of national security, even the brutal torture of a U.S. citizen on U.S. soil. This impunity is not only anathema to a democracy governed by laws, but contrary to history’s lesson that in times of fear our values are a strength, not a hindrance.

It could also be pointed out that since the Constitution provides that treaties entered into by the United States are “the supreme law of the land,” the court has issued the U.S. government a blank check to disregard this clause and violate international treaties at will, in particular the  International Covenant on Civil and Political Rights, ratified by the United States in 1992.

As Padilla was held in military custody for nearly four years without charge or trial, it appears the U.S. has violated of Article 9 of the ICCPR, which states:

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.

By denying Padilla a right to compensation in civil courts, the Fourth Circuit appears to have also overlooked this provision of the ICCPR: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

As a party to the Covenant, the U.S. is required to submit a report to the UN Human Rights Committee every five years on its compliance with the Covenant’s provisions.

The last report submitted by the United States – in 2005 – was seven years overdue. Regarding the matter of indefinite detention, the 2005 report pointed out that the U.S. Supreme Court has stated “that the United States is entitled to detain enemy combatants, even American citizens, until the end of hostilities, in order to prevent the enemy combatants from returning to the field of battle and again taking up arms.”

The U.S. asserted that “the detention of such individuals is such a fundamental and accepted incident of war that it is part of the ‘necessary and appropriate’ force that Congress authorized the President to use against nations, organizations, or persons associated with the September 11 terrorist attacks.”

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.”

The Committee reminded the United States of its obligations under the Covenant to both prosecute those responsible for using torture or cruel, inhuman or degrading treatment, and to provide compensation to the victims of such policies:

The State party should conduct prompt and independent investigations into all allegations concerning suspicious deaths,  torture or cruel, inhuman or degrading treatment or punishment inflicted by its personnel (including commanders) as well as contract employees, in detention facilities in Guantanamo Bay, Afghanistan, Iraq and other overseas locations.  The State party should ensure that those responsible are prosecuted and punished in accordance with the gravity of the crime.  The State party should adopt all necessary measures to prevent the recurrence of such behaviors, in particular by providing adequate training and clear guidance to its personnel (including commanders) and contract employees, about their respective obligations and responsibilities, in line with articles 7 and 10 of the Covenant.  During the course of any legal proceedings, the State party should also refrain from relying on evidence obtained by treatment incompatible with article 7.  The Committee wishes to be informed about the measures taken by the State party to ensure the respect of the right to reparation for the victims.

By dismissing Padilla’s lawsuit, the Fourth Circuit Court has essentially done the opposite of what the UN Human Rights Committee has recommended to bring the U.S. in compliance with the ICCPR regarding its detention policies. The court has ensured, at least for now, that the right of reparations for the victims of U.S. detention and torture policies will remain unrecognized by the United States. It has ensured that the U.S. will remain in violation of its obligations under international law.

In this video, Padilla’s mother, Estela Lebron, discusses the treatment of her son by the U.S. government:

Demonstrators in DC demand accountability, compliance and an end to corruption

January 11, 2012, the ten-year anniversary of the first detainees arriving at Guatanamo Bay, saw Washington, DC’s largest ever demonstration against the U.S. military’s prison camp.

Amnesty activists march from the White House to the Capitol on 10 year anniversary of Gitmo. (Photo by Scott Langley)

The LA Times reported that “Chants of ‘Guantanamo has got to go’ echoed down Pennsylvania Avenue on Wednesday as a crowd of rain-dampened protesters marked the 10th anniversary of the arrival of the first 20 detainees at the U.S. military prison at Guantanamo Bay, Cuba.”

Demonstrators march through DC on Jan. 11, 2012 (Photo by Witness Against Torture)

More than 800 people demonstrated in solidarity with the 171 inmates who remain in the prison, according to the Times, although other estimates put the number in the thousands:

“The protest was so large,” reported Indymedia, “that it had to divide into multiple elements going to multiple targets, as not everyone could fit at the Supreme Court.” Nearly 200 marchers in orange jump suits and black hoods marchers went to the Supreme Court.

In front of Supreme Court, activists call for prosecution of U.S. torturers (Photo by Scott Langley)

Other marches went to Congress, the Department of Justice, and one returned to the White House.

Amnesty activists in front of White House on 10 year anniversary of Gitmo. (Photo by Scott Langley)

According to the LA Times report,

Protesters voiced anger with President Obama‘s failure to close the prison — which he promised to do during his 2008 presidential campaign — and with his approval last month of the National Defense Authorization Act, which codified the U.S. government’s authority to detain prisoners, including U.S. citizens, indefinitely without trial.

“President Obama is largely responsible for the failure to close Guantanamo, and his administration should not take its progressive base for granted,” said Vincent Warren, the executive director of the Center for Constitutional Rights, a legal advocacy group that represents some Guantanamo detainees.

“Guantanamo is one part of an illegal, inhumane and unjust global detention policy,” Warren said. “Our message: ‘No excuses. Shut it down.'”

Among the groups involved with organizing the demonstrations were Amnesty International, Witness Against Torture, World Can’t Wait, and the Center for Constitutional Rights.

A report at DC Indymedia noted that “Occupy DC added their numbers to the existing ranks of antiwar protesters who have marched against Guantanamo Bay every year on the 11th of January.”

A number of protesters drew connections between the ongoing detentions at Guantanamo and the new indefinite detention provisions that President Obama recently signed into law with the 2012 National Defense Authorization Act (NDAA).

Protesters draw the connection between indefinite detention at Guantanamo and the potential for such abuses in the USA with the adoption of the NDAA (Photo by Witness Against Torture)

An open letter to Obama by Human Rights Watch on Jan. 10 urged him to reaffirm his stated commitment to close the notorious prison camp in Cuba and noted:

We are deeply disappointed that you chose to sign into law the National Defense Authorization Act (NDAA) despite your administration’s repeated threats to veto the bill if it contained detention provisions detrimental to the rule of law and US national security. The new law represents a complete rejection of the vision you outlined for counterterrorism policy when you took office. The final version of the bill, while amended slightly, seeks to upend the effective use of law enforcement for countering terrorism and replace it with a military detention system.

Your signing statement appended to the bill noted a number of deeply problematic areas which you have committed to interpreting in a manner that avoids constitutional conflicts and complies with the laws of war. Yet those problematic areas are the very reason you should have vetoed the bill, and why you must make repeal of those provisions a top priority for your administration this year. As long as the NDAA remains a part of US law, it can be used by future administrations to detain people indefinitely even in circumstances your administration has disavowed.

As this blog noted in December, the indefinite detention provisions of the NDAA are not only a violation of the U.S. Constitution, but also international law. Article 9 of the International Covenant on Civil and Political Rights states,

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.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Ratified by the U.S. Senate in 1992, the ICCPR is legally binding on the United States.

The issue of the NDAA indefinite detention provisions is likely to remain at the forefront of protests moving forward. A call to “Occupy Congress” starting Jan. 17 notes as a prominent grievance the fact that the supposedly “do-nothing” 112th Congress “voted to allow the President to use the military to indefinitely detain, without charge or trial, any person, including U.S. citizens on U.S. soil, that he deems an enemy. While ostensibly about terrorism suspects, the language is so vague and broad that interpretation is guaranteed to expand to cover almost anyone.”

In a Facebook post on Jan. 12, the Center for Constitutional Rights called on the American people to intensify the fight against the NDAA’s unconstitutional and illegal indefinite detention policies:

On January 17, let’s take this movement to the next level: Occupy Congress and demand a government for the people by We the people. We have to push back against the NDAA of 2012, this law not only threatens to undermine or effectively nullify laws which restrict the involvement of U.S. military forces in domestic law enforcement operations, but it’s also the first time since the McCarthy Era that Congress has passed a statute authorizing the indefinite detention of citizens and non-citizens without charge or trial.

Other grievances cited by Occupy Congress include:

Largely because of all this questionable legislation, the U.S. Congress currently has a 5% public approval rating.

An overarching concern of the Occupy movement as well as the public as a whole is the institutionalized corruption that produces many of the bad laws adopted by Congress. Even the recent adoption of the NDAA appears to be at least partially the result of the legalized bribery on Capitol Hill known as the “campaign finance system.”

As the Constitution Campaign blog reported last month,

The internet hacktivist group Anonymous revealed a possible explanation to the rushed passage of the National Defense Authorization Act (NDAA) by Congress this month, after they hacked the accounts of the 83 senators who voted for the bill and found that many proponents had received large amounts of lobbying money.

The NDAA began as simply a funding bill, but now contains worrisome provisions that could allow the indefinite military detention of American citizens without constitutionally guaranteed rights to trial in an impartial court. Anonymous uncovered a money trail connecting senators’ votes for the NDAA detention provisions to defense contractors passing large sums of money under the proverbial table. Most notable was Senator Robert Portman (R-OH), an outspoken supporter of the bill, who received a whopping $272,853–more than any other member of Congress, according to Anonymous.

“We are truly disturbed by the ludicrous $272,853 he received from special interest groups supporting the NDAA bill that authorizes the indefinite detention of U.S. citizens on U.S. soil,” said Anonymous in their information dump. One defense firm in particular, SunFire LLC, has been linked to lobbying congress and Portman for the detention provisions. SunFire has since rebuked the accusations.

The idea that military contractors have long shaped our nation’s foreign policy is by now well established, having been presaged by President EIsenhower (himself a former general) 40 years ago.  For those same corporate interests to now shape our military’s domestic policy is disturbing, to say the least.

It should be no surprise, however, as the NDAA’s indefinite detention provisions could create vast new markets for defense contractors, especially those involved in building private prisons or detention camps.  With each detainee at Guantanamo Bay costing the U.S. government $800,000 a year, there could be enormous corporate profits available through detaining Americans without trial.

So, here we see a clear nexus between the corrupting influence of money in politics and the adoption of dreadful laws that abrogate vital constitutional rights and important principles of international law. This is one reason that the United Nations Convention against Corruption – of which the U.S. is a state party – calls for measures to be taken to prevent corruption and conflicts of interest among public officials:

Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.

Each State Party shall endeavour to establish and promote effective practices aimed at the prevention of corruption.

These principles are at the heart of Occupy movement’s demands, and on Tuesday they will be brought directly to the Capitol steps:

The NDAA and the ICCPR: Indefinite detention a violation of international law

As The Hill is reporting, President Obama is getting personally involved pushing for changes to the controversial 2012 National Defense Authorization Act (NDAA), which contains provisions authorizing the U.S. military to pick up and imprison people, including U.S. citizens, without charging them or putting them on trial.

Specifically, the legislation “affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.”

The bill applies to anyone “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” or anyone “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

It specifically authorizes “Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force,” referring to the bill passed by Congress more than ten years ago that authorized an endless “war on terror.”

Although the NDAA may appear on its face that it is inapplicable to U.S. citizens, with confusing language which states that “the requirement to detain a person in military custody under this section does not extend to citizens of the United States,” some observers have pointed out that this simply means that while military is not required to hold U.S. citizens, it is still authorized to do so.

As Sen. Lindsey Graham (R-SC) said when arguing for the legislation on the Senate floor, the purpose of the bill is to make it clear to terrorist suspects – including U.S. citizens – that they should “shut up” if they dare to ask for legal representation:

“To those American citizens,” he said, “thinking about helping al Qaeda please know what will come your way: death, detention and prosecution.”

He added: “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined al Qaeda.’”

President Obama has threatened to veto the defense bill, which is now being negotiated in conference committee, over provisions mandating military custody of al Qaeda terror suspects. The White House complains mandatory military custody would tie the hands of law enforcement’s counterterrorism efforts.

Its Nov. 17 “Statement of Adminstration Policy” states:

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects.  This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals.  Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

So, what the White House appears to be objecting to is not necessarily that Congress is authorizing indefinite military detention, but that the legislation would require such detention. “Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto,” said the White House.

Nevertheless, the human rights community is welcoming the threat of a presidential veto, with Andrea Prasow, senior counterterrorism counsel at Human Rights Watch, saying that “The bill tosses out the most effective tool for countering terrorism — civilian law enforcement — and makes the U.S. military the world’s jailor.”

But as blogger, constitutional lawyer and author Glenn Greenwald points out,

Indefinite, charge-free military detention of people accused — accused – of Terrorism has been fully embraced by both the Bush and Obama administrations (it’s one of the reasons some of us have been so vocally critical). The Obama administration has gone even further and argued that it has the power not merely to detain accused Terrorists (including U.S. citizens) without due process, but to kill them. It is true that the Obama DOJ has chosen to try some accused Terrorists in civilian courts — and this bill may make that more difficult — but the power of military detention already rests with the Executive Branch. And while it would be worse for Congress to formally codify these powers and thus arguably overturn long-standing prohibitions on using the U.S. military on U.S. soil, the real legal objections to such detention are grounded in Constitutional guarantees, and no act of Congress can affect those. In sum, this bill would codify indefinite military detention, but the actual changes when compared to what the Executive Branch is doing now would be modest. That’s not a mitigation of this bill’s radicalism; it’s proof of how radical the Executive Branch under these two Presidents has already become.

Greenwald notes that the NDAA would violate the Constitutional requirement in Art. III, Sec. 3 that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

“To deny a citizen the right to a lawyer and go to court on the ground that they’ve ‘betrayed their country’ and thus deserve to be imprisoned without a trial (or, worse, to be assassinated without one) is as violent a betrayal of the U.S. Constitution as one can imagine, literally,” Greenwald writes.

It is also worth pointing out that giving the military the authority to hold anyone – U.S. citizen or not – indefinitely without a trial is a violation of the International Covenant on Civil and Political Rights, which states in Art. 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.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Ratified by the U.S. Senate in 1992, the ICCPR is legally binding on the United States. As a party to the Covenant, the U.S. is required to submit a report to the UN Human Rights Committee every five years on its compliance with the Covenant’s provisions.

The last report submitted by the United States – in 2005 – was seven years overdue. Regarding the matter of indefinite detention, the 2005 report pointed out that the U.S. Supreme Court has stated “that the United States is entitled to detain enemy combatants, even American citizens, until the end of hostilities, in order to prevent the enemy combatants from returning to the field of battle and again taking up arms.”

The U.S. asserted that “the detention of such individuals is such a fundamental and accepted incident of war that it is part of the ‘necessary and appropriate’ force that Congress authorized the President to use against nations, organizations, or persons associated with the September 11 terrorist attacks.”

The U.S. further articulated “its firmly held legal view on the territorial scope of application of the Covenant,” namely that the ICCPR does not apply to U.S. actions with respect to individuals under its jurisdiction but outside its territory, nor in time of war. 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.”

Specifically, in its response to the U.S. report, the HRC urged the United States to:

(a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war;

(b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and

(c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.

The Committee also had particularly harsh words for the U.S. regarding its prosecution of the war on terror, including its 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,” said the Committee.

Further,

The State party should immediately cease its practice of secret detention and close all secret detention facilities.  It should also grant the International Committee of the Red Cross prompt access to any person detained in connection with an armed conflict.  The State party should also ensure that detainees, regardless of their place of detention, always benefit from the full protection of the law.

The State party should ensure, in accordance with article 9 (4) of the Covenant, that persons detained in Guantanamo Bay are entitled to proceedings before a court to decide, without delay, on the lawfulness of their detention or order their release.  Due process, independence of the reviewing courts from the executive branch and the army, access of detainees to counsel of their choice and to all proceedings and evidence, should be guaranteed in this regard.

As the U.S. now moves to not only legitimize indefinite detention, but mandate it under law, consideration should be given to international obligations under the ICCPR, and the previous recommendations from the UN Human Rights Committee.

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