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Arbitrary JusticeEndnotes
[1] Secretary of Defense Robert Gates told a House of
Representatives committee that he wanted the Guantánamo
prison to be closed and the trials moved to the
United States "because I felt that no matter how
transparent, no matter how open the trials, if they
took place in Guantánamo, in the international
community they would lack credibility." BBC,
"Gates Urges Closure of Guantánamo," BBC News,
March 29, 2007, http://news.bbc.co.uk/2/hi/
americas/6508779.stm. In March 2008, five former
Secretaries of State, Collin Powell, Henry Kissinger,
James Baker III, Warren Christopher and Madeleine
Albright, all called for Guantánamo to be closed. Greg
Bluestein, "5 Ex-Chief Diplomats: Close Guantanamo,"
Associated Press, March 28, 2008.
[2] Ambassador Thomas Schweich,
Coordinator on Counternarcotics and
Justice Reform in Afghanistan, at panel
discussion on "Afghanistan: Bringing the
Rule of Law to a War-Torn Country," New
York, March 20, 2008.
[3] This number was calculated based on
Department of Defense news releasees
announcing detainee transfers to
Afghanistan on March 1, 2007,
April 26, 2007, August 9, 2007,
September 29, 2007, November 4, 2007,
and December 12, 2007.
[4] Out of the 15 detainees charged,
David Hicks, pled guilty in a pre-trial
agreement and was returned to
Australia in April 2007 to serve his
9-month sentence. The other 14
detainees facing charges are currently
still held at Guantánamo.
[5] Military Commissions Act of 2006,
10 U.S.C. §948(a)(1) (2006).
[6] U.S. Department of State, Second
Periodic Report of the United States of
America to the Committee Against
Torture, U.N. Doc. CAT/C/48/Add.4,
Annex, Part One, §II(A), June 2005.
[7] See Human Rights First, "Human
Rights First Analyzes DoD's
Combatant Status Review Tribunals,"
August 2004, http://www.humanrightsfirst.org/
us_law/detainees/status_review_080204.htm;
Human Rights First, "Six Years without
Judicial Review: CSRTs Not an Adequate
Substitute for Habeas Review," December 2007, http://www.humanrightsfirst.org/us_law/
detainees/miltcom_jud_review.htm
[8] The ARB was instituted "as a
matter of discretion" by the Secretary
of Defense who "may suspend or
amend" its procedures, at anytime,
thereby indicating that they are not
independent. The ARB scheme is not
subject to judicial review, does not
have the authority to change the
"enemy combatant" classification,
and cannot require the release of a
detainee. U.S. Department of Defense,
Order establishing Administrative Review
Procedures for Enemy Combatants in
the Control of the Department of
Defense at Guantanamo Bay Naval
Base, Cuba, May 11, 2004, section 6,
p.9, http://www.defenselink.mil/news/
May2004/d20040518gtmoreview.pdf
[9] Ruzatlullah v. Donald Rumsfeld,
Declaration of Colonel Rose Miller,
Commander, Task Force Guardian,
Combined Joint Task Force 76, No.
06-CV-01707, (D. D.C. November 19,
2006), para. 11.
[12] Human Rights First telephone
interview with Tina Foster, International
Justice Network, New York, March 25, 2008.
International Justice Network has filed
habeas corpus petitions on behalf of Bagram
detainees in U.S. courts.
[13] U.S. President George W. Bush and
Afghan President Hamid Karzai, "Joint
Declaration of the United States-Afghanistan
Strategic Partnership," White House news
release, May 23, 2005,
http://www.whitehouse.gov/news/
releases/2005/05/20050523-2.html.
[15] Ibid.; see also, Kenneth Katzman,
Afghanistan: Post-War Governance,
Security, and U.S. Policy, Congressional
Research Service Report for Congress,
RL30588, January 28, 2008.
[16] U.S. Embassy, Kabul, Afghanistan,
"Detainee Transfers to Afghanistan,"
press release, August 4, 2005,
http://kabul.usembassy.gov/pr080405.html
(accessed February 15, 2008).
[17] Tim Golden, "Foiling US Plans,
Prison Expands in Afghanistan,
New York Times, January 18, 2008;
NBC News, U.S. eyes Afghan jail for
some Gitmo detainees, June 22, 2007,
http://www.msnbc.msn.com/id/19358932/
(accessed March 12, 2008).
[18] Golden, "Foiling US Plans, Prison
Expands in Afghanistan."
[19] U.N. Special Representative
of the Secretary-General for
Afghanistan, Agreement on
Provisional Arrangements in
Afghanistan Pending the
Re-establishment of Permanent
Government Institutions, U.N.
Doc. S/2001/1154, II.2
(Bonn, Germany: December 5, 2001)
(hereafter Bonn Agreement). The
Bonn Agreement mandated the
establishment of an Afghan Judicial
Commission to review the functions
of the justice system, facilitate law
reform, strengthen technical, logistical,
and human resources, expand legal aid,
and promote access to justice.
[20] Bonn Agreement, II.2.
[21] United Nations Development
Programme, Afghanistan Human
Development Report 2007,
Bridging Modernity and Tradition:
Rule of Law (Pakistan: Center for
Policy and Human Development, 2007).
[22] Combined Security Transition
Command-Afghanistan, CSTC-A
Fact Sheet, December 1, 2007,
http://www.cstc-a.com/mission/
CSTC-AFactSheet.html
(accessed February 25, 2008).
The CSTC-A's mission statement
states that it "in partnership with
the Government of the Islamic
Republic of Afghanistan and the
international community, is to plan,
program and implement . . .
reforms of the Afghan National
Security Forces in order to develop a
stable Afghanistan, strengthen the
rule of law, and deter and defeat
terrorism within its borders."
[23] U.S. Department of State,
Bureau for International Narcotics and
Law Enforcement Affairs, Civilian and
Rule of Law Programs, Fact Sheet,
January 2, 2008,
http://www.america.gov/st/texttrans-english/
2008/January/
20080102125641eaifas0.5786402.html
(accessed February 27, 2008).
[24] Ibid.; see also Testimony of
Anne W. Patterson, Assistant
Secretary for International
Narcotics and Law Enforcement
Affairs before the House Committee on
Appropriations Subcommittee on Foreign
Operations, Export Financing and Related
Programs, September 12, 2006,
http://www.state.gov/p/inl/rls/rm/72241.htm
(accessed February 28, 2008) (U.S. criminal
justice experts train and mentor judges,
prosecutors, and defense counsel in criminal
procedures, cases, and trials).
[25] Human Rights First interview
with U.S. Embassy official (name withheld),
Kabul, February 6, 2008.
[27] Human Rights First interview with
national security prosecutor
(name withheld) Kabul, February 4, 2008.
[29] Ibid. According to the Afghan
government, the National Commission for
Peace and Reconciliation has disarmed
more than 6,000 Taliban members. See
Embassy of Afghanistan, News and Views:
Prof. Sibghatullah Al-Mojadeddi Travels to
U.S. for National Prayer Breakfast,
http://www.embassyofafghanistan.org/
02.12.2008usip.html (accessed March 3, 2008).
[30] Golden, "Foiling U.S. Plans, Prison Expands in Afghanistan."
[31] The National Security Council (NSC)
established by presidential decree advises
the president on security-related issues and
develops and coordinates Afghan security policy.
[32] Decree of President Hamid Karzai, March 2, 2008.
[33] Human Rights First telephone
interview with committee member
(name withheld), April 7, 2008.
[35] Human Rights First interview with ANA official
(name withheld), Pul-i-Charkhi, February 4, 2008.
[36] See, e.g., United Nations,
"The Situation in Afghanistan
and its implications for international
peace and security," Report
of the U.N. Secretary-General,
March 6, 2008, U.N. Doc. A/62/722-S/2008/159;
United Nations, Report of the U.N.
Secretary-General, "The Situation in
Afghanistan and its implications for
international peace and security,"
U.N. Doc. A/62/345-S/2007/555,
September 21, 2007; see also,
Amnesty International, Afghanistan:
Detainees Transferred to Torture:
ISAF Complicity? November 13, 2007.
[37] Human Rights First interview
with ANA official (name withheld),
Pul-i-Charkhi, February 4, 2008.
[41] Human Rights First interviews
with family members of
Guantanamo detainees
(names withheld), Kabul, February 1, 2008.
[42] ICRC News Release, Afghanistan: Video links
between Bagram detainees and families,
http://www.icrc.org/Web/Eng/siteeng0.nsf/html/
afghanistan-news-140108!OpenDocument.
[43] Human Rights First interviews
with family members of Guantanamo
detainees (names withheld), Kabul,
January 29, 2008, January 31, 2008,
and February 1, 2008.
[44] Human Rights First interview
with brother of Guantanamo detainee
(name withheld), Kabul, January 29, 2008.
[45] Human Rights First interviews
with family members of Guantanamo
detainees (names withheld), Kabul,
January 29, 2008, January 31, 2008,
and February 1, 2008.
[46] Human Rights First interviews
with family members of Guantanamo
detainees (names withheld), Kabul,
January 29, 2008, January 31, 2008,
and February 1, 2008.
[47] Human Rights First interview
with brother of Guantanamo detainee
(name withheld), Kabul, January 29, 2008.
[48] Mark Sedra, Geneva Center
for the Democratic Control of
Armed Forces, Security Sector
Transformation in Afghanistan,
Working Paper No. 143, August 2004,
http://www.dcaf.ch/_docs/
WP143.pdf (accessed February 22, 2008).
[49] United Nations Office at Geneva,
"High Commissioner for
Human Rights Concludes Visit to Afghanistan,"
press release, November 20, 2007,
http://www.unog.ch/80256EDD006B9C2E/
(httpNewsByYear_en)/
05C1CDC5973400F6C1257399005AC271?
OpenDocument
(accessed March 12, 2008).
[50] Human Rights First interviews with defense lawyers
(names withheld), Kabul, February 3, 3008, and Human
Rights First interview national security prosecutor
(name withheld), Kabul, February 4, 2008.
[51] Interim Criminal Procedure Code for Courts,
Official Gazette No. 820, February 25, 2004, art. 22-23, 37.
[54] Human Rights First interview with defense lawyer
(name withheld), Kabul, January 30, 2008.
[55] Human Rights First interview with defense lawyer
(name withheld), Kabul, February 2, 2008.
[56] Human Rights First interview with defense lawyer
(name withheld), Kabul, February 2, 2008.
[57] Human Rights First interview with national security
prosecutor (name withheld), Kabul, February 4, 2008.
[59] Human Rights First interview with former
Block D defendant (name withheld), Kabul,
January 30, 2008. Article 38(1) of the ICPC
provides defense counsel the right to be
present at all times during the interrogation of the suspect.
[60] Human Rights First interview with defense lawyer
(name withheld), Kabul, January 30, 2008.
[61] Human Rights First interview with judge
(name withheld), Kabul, February 5, 2008.
[62] Human Rights First interview with
U.S. embassy official (name withheld), Kabul, February 6, 2008.
[63] Human Rights First interview with defense lawyer
(name withheld), Kabul, February 2, 2008.
[64] Human Rights First interview with judge
(name withheld), Kabul, February 4, 2008.
[65] Human Rights First interview with official from
National Peace and Reconciliation Commission (name withheld),
Kabul, January 28, 2008.
[66] Human Rights First interview with brother of Guantanamo detainee
(name withheld), Kabul, January 29, 2008.
[67] Human Rights First interview with brother of Guantanamo detainee
(name withheld), Kabul, January 29, 2008.
[68] International Covenant of Civil and Political Rights,
December 16, 1966, 999 U.N.T.S. 171, art. 14(1).
[69] Ibid., art. 14(3)(a-g).
[70] European Court of Human Rights,
Kostovski v. The Netherlands (App. 11454/85),
Judgment of 20 November 1989; (1990) 12 EHRR 434;
D.J. Harris, M. O'Boyle and C. Warbrick, Law of the
European Convention on Human Rights
(London: Butterworths) (1995), p. 212.
[71] ICPC, art. 38(2-3). Article 37 of the Afghan
Interim Criminal Procedure Code allows the primary
saranwal to "collect all relevant evidence," including
witnesses, confrontations, line up procedures,
inspections, searches, seizures, expert evaluations,
and interrogations. Defense counsel and the
defendant have the right to examine the
documents in the dossier and any objects
captured during seizure. ICPC, art. 43.
[73] Human Rights First interview with defense lawyer
(name withheld), Kabul, February 2, 2008.
[74] Human Rights First interview with national
security prosecutor (name withheld), Kabul, February 4, 2008.
[76] See Major W. James Annexstad, "The
Detention and Prosecution of Insurgents and
Other Non-Traditional Combatants – A Look at the
Task Force 134 Process and Future of Detainee
Prosecutions," Army Lawyer, July 2007.
[77] See, e.g., Human Rights First, Tortured Justice:
Using Coerced Evidence to Prosecute Terrorist Suspects,
March 2008, at
http://www.humanrightsfirst.info/pdf/
08307-etn-tortured-justice-web.pdf; Human Rights
First and Physicians for Human Rights, Leave No Marks:
Enhanced Interrogation Techniques and the Risk of
Criminality, August 2007, at
http://www.humanrightsfirst.info/pdf/
07801-etn-leave-no-marks.pdf; Human Rights First,
Command's Responsibility: Detainee Deaths in
U.S. Custody in Iraq and Afghanistan, February 2006, at
http://www.humanrightsfirst.info/pdf/06221-etn-hrf-dic-rep-web.pdf;
U.N. Commission on Human Rights, Sixty-First session,
Report of the independent expert on the situation of
human rights in Afghanistan, M. Cherif Bassiouni,"
U.N. Doc. E/CN.4/2005/122, March 11, 2005.
[78] See, e.g., Dan Eggen and R. Jeffery Smith,
"FBI Agents Allege Abuse of Detainees at Guantanamo Bay,"
Washington Post, December 21, 2004 (citing FBI
documents obtained by the American Civil Liberties
Union through Freedom of Information Act litigation);
Dana Priest and Barton Gellman, "U.S. Decries Abuse
But Defends Interrogations," Washington Post,
December 26, 2002; Associated Press, "U.S. General:
Details in probe of Afghan jails to stay secret," June 1, 2004.
[79] James R. Schlesigner, et al., Final Report of the
Independent Panel to Review DoD Detention Operations
(August 2004), http://www.defenselink.mil/news/Aug2004/
d20040824finalreport.pdf; Department of Defense,
Review of DoD Detention Operations and Detainee
Interrogation Techniques, Executive Summary (March 2005), http://www.defenselink.mil/news/Mar2005/d20050310exe.pdf.
[80] Human Rights First interview with former Block D
defendant (name withheld), Kabul, January 30, 2008.
[81] Verbatim Transcript of Combatant Status Review
Tribunal Hearing for ISN 874 [Abdul Nasir], CSRT Set 47,
Enclosure (3), March 3, 2006, p. 3134-3139; Verbatim
Transcript of Administrative Review Board for ISN 874
[Abdul Nasir], ARB Set 9, Enclosure (6), p. 21084-21093.
[82] Golden, "Foiling US Plans, Prison Expands in Afghanistan."
[83] See generally, Human Rights First, Tortured Justice, February 2008.
[84] Human Rights First interview with defense lawyer (name withheld), Kabul, February 2, 2008.
[85] Human Rights First interview with defense lawyer (name withheld), Kabul, February 2, 2008.
[86] Constitution of Afghanistan, January 3, 2004, art. 30.
[88] The Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment, for example, ratified by
Afghanistan in 1987 and the U.S. in 1994, states that
"[e]ach state party shall ensure that any statement
which is established to have been made as a result of
torture shall not be invoked as evidence in any proceedings."
Convention against Torture, June 26, 1984, 1465 U.N.T.S. 85, art. 15.
[89] Human Rights First interview with Block D defendant (name withheld), Kabul, January 30, 2008.
[90] Human Rights First interview with U.S. Embassy official (name withheld), Kabul, February 6, 2008.
[91] Human Rights First interview with defense lawyer (name withheld), Kabul, February 2, 2008.
[92] Human Rights First interview with defense lawyer (name withheld), Kabul, February 2, 2008.
[93] Human Rights First interview with defense lawyer (name withheld), Kabul, February 2, 2008.
[96] Human Rights First interview with official from Supreme Court (name withheld), Kabul, February 2, 2008.
[97] Human Rights First interview with Block D defendant (name withheld), Kabul, January 30, 2008.
[98] The Guantánamo Release Agreement does not state
whether a detainee is innocent or guilty but sets forth
conditions for release – namely that the detainee will
not engage in hostilities against the U.S. or its allies,
will not be affiliated with al Qaeda or the Taliban, and
will not engage in terrorist attacks. The Release
Agreement states that the U.S. will no longer detain that
person but can do so at a later date if the conditions are violated.
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