1. Ending Torture, Cruel and Inhuman Treatment, and Impunity
2. Stopping Extraordinary Rendition
3. Closing Guantánamo Bay Detention Center
4. Restoring Habeas Corpus and Judicial Review
5. Fixing Military Commissions

Ending Torture, Cruel and Inhuman Treatment, and Impunity

On July 20, President Bush issued an executive order governing CIA interrogation techniques that keeps the door open to torture and other cruel and inhuman treatment of detainees in American custody. The order does not clearly and specifically end illegal practices: so-called “enhanced interrogation techniques,” which have included water boarding, stress positions, hypothermia, sensory deprivation, sleep deprivation and isolation, and holding prisoners in secret CIA “black sites” in order to keep them outside the reach of the law. The U.S. military is now following a transparent Army Field Manual that prohibits many of the abusive interrogation techniques previously authorized by the administration but, to put an end to abuse, a single standard of conduct for all U.S. interrogations – including interrogations by the CIA and private contractors – regardless of location or who is being interrogated is necessary.

Interrogation Practices and Policies
Relying on information provided by current and former CIA officials and supervisors, in November 2005 ABC News reporters Brian Ross and Richard Esposito provided descriptions of several techniques used in CIA interrogations:

• Water Boarding: The prisoner is bound to an inclined board, cellophane is wrapped over his face and water is poured over him. causing the prisoner to experience a terrifying fear of drowning.
• The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees and is repeatedly doused with cold water.
• Long Time Standing: The prisoner is forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours, causing both extreme pain and sleep deprivation.
• Attention Slap: An open-handed strike aimed at causing pain and triggering fear.
• The Belly Slap: A hard open-handed strike to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

Secret Detentions: Over the last several years, the United States has operated a program in which it has held detainees in secret CIA facilities around the world, without acknowledging, even to the detainees’ families, that it has these individuals in custody. The United States has also held prisoners “off the books” in known detention facilities. These practices violate U.S. and international law.

The U.S. Secret Detention Program in Brief:

• According to a number of reports, including an in-depth report by Human Rights First, the CIA has operated secret detention facilities in a number of places including Afghanistan, Pakistan, Jordan, Morocco, Diego Garcia, Poland, Romania, Bulgaria, Ukraine, Kosovo, and Macedonia.
• On September 6, 2006, the President publicly acknowledged the existence of the CIA secret detention program, although he has not released the locations of particular facilities to the public or to the International Committee of the Red Cross (ICRC). It appears the program is currently operational, with at least one detainee having been held in the program before being transported to Guantánamo in April 2007.
• There are dozens of individuals who are believed to have been detained in CIA secret facilities whose current whereabouts are unknown.
• The United States has also held detainees in known detention facilities (such as Abu Ghraib) while keeping their names off the official prison rolls and failing to report their presence in those facilities to the ICRC. These prisoners have been called “ghost detainees.”
• At least one “ghost detainee,” Manadel al Jamadi, was killed in November 2003 while in U.S. custody in Iraq.

Private Contractors

It is now widely recognized that an accountability crisis has arisen with respect to private military contractors in Iraq and Afghanistan. While contractors are supposedly working under the laws of armed conflict, there are no consistent training requirements for contractors on the laws of war, there is no oversight checking their conduct against these standards, and essentially no realistic criminal justice accountability when criminal violations occur. A number of bills have been introduced in Congress aimed at addressing these problems. Some initial hearings have been held; more are anticipated. Here are some of the facts on private military contractors:

• DOD currently acknowledges roughly 30,000 U.S. security contractors operating in Iraq, including substantial numbers of ex-patriots from the U.K., South Africa, the Philippines, Uganda, Zimbabwe, Fiji, Chile, and Honduras.
• In concept, these forces are deployed solely for personnel and facility protection, but in one of his final acts as Secretary of Defense, Donald Rumsfeld issued a determination including U.S. security contractors as an integral part of the “total combat force” deployed in Iraq.

Private contractors were involved in some of the most serious abuses at Abu Ghraib, as reported in the Fay-Jones Report. Similarly, they have been tied to a large number of cases involving assaults on detainees, and homicides and assaults on the ground in Iraq. Only one single case has been prosecuted – involving a CIA contractor in Afghanistan. Over a dozen cases coming out of Abu Ghraib were investigated by the US Army Crime Records Center (CID) and referred to the Department of Justice with a recommendation for prosecution. No action has been taken on these cases even though investigations were completed roughly two years ago.

Stopping Extraordinary Rendition

Over the past five years the U.S. has transferred detainees to other countries that are known to torture and otherwise abuse prisoners. This process, where transfers are carried out without any judicial or administrative process, has been referred to as “extraordinary rendition.”

The U.S. Rendition Program in Brief

• A number of reports, including an in-depth report by the Association of the Bar of the City of New York, have concluded that the U.S. rendition program has sent individuals to countries — such as Egypt, Morocco, Jordan, Pakistan, and Russia — which United States acknowledges engage in torture. There are well documented reports that some individuals rendered to these countries by the United States have been tortured.
• Some of these renditions appear to be for the express purpose of subjecting the detainee to interrogation by officials from the destination country.
• Renditions have also been used to transfer people into U.S. custody, sometimes in secret detention facilities run by the Central Intelligence Agency (CIA).
• U.S. renditions have often been based on questionable “diplomatic assurances” from the destination country that the individual being rendered will not be tortured. Such assurances have proven to be unreliable, and rendered detainees have been tortured even after such assurances were given.
• One well-publicized case involved a Canadian citizen named Maher Arar. U.S. officials apprehended Arar at J.F.K. airport in New York. He was sent to Syria, after Syria reportedly assured the United States that Arar would not be tortured. In Syrian custody, Arar was tortured for ten months, including being beaten and subjected to electric shocks. He was subsequently released and is now living in Canada.

The U.S. has publicly acknowledged its use of rendition, but it has refused to release the exact number of renditions it has conducted. That number has been estimated by reporters to be in the hundreds. Of those, some experts believe 100 to 150 were extraordinary renditions, in which the subject was transferred for the purpose of interrogation by a foreign government.

Closing Guantánamo Bay Detention Center

The policy of detention at Guantánamo has been a failure. Guantánamo has fueled terrorist recruitment, damaged the honor and reputation of the United States, and undermined its historic position as a leader in the development of human rights and the laws of war. Military commissions at Guantánamo do not meet U.S. and international fair trial standards and have failed to hold suspected terrorists accountable for what the government has described as the most serious crimes. Furthermore, the policy of treating terrorism suspects as “combatants” in a “war” against the United States, and at the same time rejecting the application of the laws of war, has had the effect of degrading the international framework of the laws of war and sets a dangerous worldwide precedent. The United States’ definition of “unlawful enemy combatants” blurs the vital distinction between combatants (who can be attacked and killed) and civilians (who are generally protected, though may be criminally prosecuted if they take part in hostilities) that the laws of war draw. Under this definition, people who are civilians, including U.S. permanent residents, captured far from any battlefield, can be picked up and held in military custody and subjected to military trial.

The United States should close Guantánamo and either bring the detainees to the United States for prosecution or release them to their home or a third country in accordance with the United States’ obligations under international human rights law and the laws of war. This is a necessary first step in repairing the United States’ image and credibility around the world and within the United States.

The United States should close Guantánamo and either bring the detainees to the United States for prosecution or release them to their home or a third country in accordance with the United States’ obligations under international human rights law and the laws of war. This is a necessary first step in repairing the United States’ image and credibility around the world and within the United States.

Restoring Habeas Corpus and Judicial Review

IIn June 2006 the U.S. Supreme Court struck down the administration’s military commissions in Hamdan v. Rumsfeld. The Court ruled that these commissions, which were created in 2001, violated the Geneva Conventions and the Uniform Code of Military Justice. After the court’s ruling, the Bush Administration proposed and Congress passed the Military Commissions Act of 2006 (MCA), which President Bush signed into law last October. But the law fails to satisfy the minimal requirements of Common Article 3 of the Geneva Conventions, which require that during an armed conflict not of an international character, a person must be tried before “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The MCA also deprives detainees deemed to be “unlawful enemy combatants” of the most common means for an individual to challenge the legality of detention – the right to seek a writ of habeas corpus.

Habeas Corpus

• The MCA strips non-citizens – including longtime permanent residents of the U.S. – of the right to challenge in court their detention as “unlawful enemy combatants.”
• This undermines the 2004 decision of the Supreme Court, Rasul v. Bush, holding that all detainees at Guantánamo Bay were entitled to challenge their detention in federal court.
• The denial of the right to habeas would amount to a suspension of the writ, something Congress has done only four times in the history of the United States.
• The Constitution prohibits suspension or the writ of habeas corpus “unless when in cases of rebellion or invasion the public safety may require it.”

Combatant Status Review Tribunals

The Bush Administration argues that detainees at Guantánamo may challenge their detention in hearings called Combatant Status Review Tribunals (CSRTs). These tribunals lack many crucial safeguards that exist in court hearings. Under the CSRTs the government may deny a detainee access to any of the evidence against him; deny him any witnesses he requests; and use evidence obtained by torture or other cruel, inhuman or degrading treatment.

Fixing Military Commissions

The MCA authorizes military commissions to try detainees held at Guantánamo Bay who are suspected of war crimes. It strips U.S. federal courts of habeas corpus jurisdiction over claims brought by detainees challenging the legality of their detention. It also narrows the scope of abusive conduct for which U.S. personnel may be prosecuted. The rules set by the MCA for these new military commissions fall far short of those for courts-martial.

Here are some of the ways these military commissions fail to meet the minimal standards of U.S. military justice and the laws of war.

• Although the MCA prohibits evidence obtained through torture, the combined effect of three other rules – each of which violates fair trial standards – increases the likelihood that convictions may rest on tainted evidence: (i) evidence obtained through “coercion” short of torture is permitted so long as a military judge finds it to be “reliable”; (ii) second- or third- hand testimony (hearsay) can be used without the defense being able to confront the source or challenge accuracy; and, (iii) the prosecution can withhold classified evidence and also keep from the defendant and his counsel the sources and methods used to obtain that evidence.
• The administration has claimed that the so-called “enhanced interrogation techniques” used on 14 former CIA detainees now held at Guantánamo are classified. These techniques reportedly included water boarding, extreme sleep deprivation and induced hypothermia.
• Evidence obtained through coercion, including cruel, inhuman and degrading treatment, is permitted so long as it was obtained prior to the enactment of the McCain Amendment (December 2005).
• The classified evidence rules are so broad that they would prevent the defense from seeing evidence that tends to show innocence or a lack of responsibility; the rules limit the defense’s ability to question the basis for classification.
• The MCA and the Manual for Military Commissions define “unlawful enemy combatants” (those who can be subjected to trial by military commissions) so broadly that it would include unarmed civilians with no real connection to any armed conflict, picked up anywhere around the world.

A number of other provisions also tilt the trial system unfairly in favor of the prosecution. These provisions include: (i) the defendant may be excluded from portions of the proceedings; (ii) an alleged oral confession by the defendant can be introduced into evidence without corroboration; and (iii) the judge and jury may see testifying witnesses that the defendant and his counsel may not

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