Sami Book

Sami Al Haj And the tragedy of Guantanamo

Reports of Amnesty International Arab Commission for Human Rights Center for Constitutional Rights Committee to Protect Journalists Reprieve UN Commission on Human Rights And chosen specialists

Sami Al Haj and the tragedy of Guantanamo Chosen Reports First Edition 2007 Global Coordination for Sami al Haj Al-Ahali Publishers Eurabe ACHR

Arab Commission for Human Rights (ACHR) 5 Rue Gambetta - 92240 Malakoff - France Phone & Fax: (33-1) 4092-1588 * (33-1) 4654-1913 Email: [email protected] www.achr.nu

ISBN : 2-914595-53-0 EAN : 9782914595537

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"Not only would it, in my personal opinion, be right to close Guantanamo as a matter of principle, I believe it would also help to remove what has become a symbol to many - right or wrong -- of injustice," British Attorney-General Lord Goldsmith

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Sami Al Haj and the tragedy of Guantanamo Report of the Arab commission for Human Rights

Produced in coordination with the International Committee for the Defense of Taysir Alony, Justitia Universalis, the Alkarama Organization for Human Rights, and the Arab Committee for the Defence of Journalists.

“For over 1,200 days I have endured injustice, humiliation and persecution, only for having been in possession of an Al Jazeera camera and for trying to show the suffering of the Afghan people. Mohammed, my only son, has taken his first steps. I long to hear his first words, to hear him ask to be with me. The journey and the waiting have lasted far too long. For over 40 months I have tried in vain to convince my interrogators that the 28 days I spent in Afghanistan were solely for my work as a journalist. But no one is listening.” Sami Mohieddine Mohammed Al Haj’s letter to his lawyer ended with the following words, “. . .for that reason, and in hope that the wait will not last much longer, I have decided to ask that you defend my case in American civil court and in this I pray for your success. Some of my friends see little point to such a pursuit as liberty in this country has become little more than a façade.” Letter from prisoner number 345 (Sami Al Haj) to his lawyer, Paris, 15 October 2005.

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Sami Al Haj and the Tragedy of Guantánamo

Sudanese-born Sami Mohieddine Mohammed Al Haj, a cameraman for the Aljazeera news network, has been detained in the US prison camp in Guantánamo Bay, Cuba since 15 December 2001. His case is among the most difficult and complex that human rights Organizations have confronted in many years. During the first months of his imprisonment, and possibly as a result of their lack of experience in such matters, Aljazeera focused its efforts more on diplomacy than on the media or human rights Organizations. Aljazeera tried to speak with officials at the US Embassy. Immediately prior to the most recent war in Afghanistan, the US administration passed a number of laws and regulations that made it virtually impossible to rely on standard legal practice. In June of 2002, the US Embassy in Doha promised to provide an explanation for the detention of Sami Al Haj, but to this day, all letters addressed to the embassy have gone unanswered. Mr. Mohammed Jassem Al Ali, then director of Al Jazeera, called upon the Arab Commission for Human Rights (ACHR), among other human rights Organizations and journalists protection, to advocate for the release of Sami Al Haj. ACHR contacted the Office of the High Commissioner for Human Rights to request a meeting with Ms. Mary Robinson, the High Commissioner for Human Rights at the time. ACHR was told that a meeting would not be possible as Ms. Robinson was too busy. ACHR then turned to the United Nations Commission on Human Rights Working Group on Arbitrary Detention. This eventually led to the issuance of a significant legal opinion with respect to the violation of the right to freedom of Guantánamo detainees. It was not a false charge against the American administration as it was said. It was because the Human Rights organizations provided the working group with necessary information (see in appendix 2, one of the letters of the ACHR) On 2 January 2002, Mr. Louis Joinet, Chair of the Working Group on Arbitrary Detention, wrote a letter to the Permanent Representative of the United States to the United Nations Office in Geneva asking the American government to invite him to study the legal aspects of the problem. He promised to take into account articles 4 and 15, paragraph 2 of the International Covenant of Civil and Political Rights (ICCPR) and to make every effort to maintain objectivity in the matter. His request was denied. The Chair sent a second letter on 25 October 2003 requesting additional information on the Guantánamo detainees. He specifically wanted to know the following: (a) How many persons are currently being detained in Guantánamo? (b) When did the first detainees arrive? (c) Were the detainees informed of any charges and, if so, by what authority were they charged and under what legal proceedings? (d) Is legal counsel available to the detainees and, if so, are they freely chosen or imposed automatically? 5

(e) Are detainees allowed to meet with their legal counsel and, if so, are the interviews confidential? (f) Are detainees brought to a representative of the prosecution and, if so, within what period of time? (g) Do detainees ultimately appear before a court and, if so, within what period of time? In absence of a reply, the Working Group issued an opinion on US administration actions contrary to the third Geneva Convention and the ICCPR in which the US was accountable as a state party (See appendix 3). Following publication of the opinion, the American side responded that the Working Group’s mandate did not permit it to make reference to the Geneva Convention and humanitarian law, and called understanding of its situation as a country facing the threat of terrorism. The US presented other arguments that have since been rejected by most parties to the matter (see appendix 4). There is no reason why the case of Sami Al Haj should not have been unanimously supported by all organizations working in defence of journalists. Unfortunately, a number of independent organizations either overlooked the case or accepted the official US position. Making reference to the Working Group decision, ACHR requested that a delegation composed of its spokesperson, the Chair of the Arab Judiciary Independence Centre, and the and the UN rapporteur for Somalia be allowed to visit Guantánamo camp. No reply was received. The late Sergio Vieira de Mello, in his function as UN High Commissioner for Human Rights, expressed support on several occasions. Mr. de Mello was certain that Guantánamo could have catastrophic consequences for arbitrary detention and violations of freedoms both during war and in peacetime. Numerous European parliamentarians and organizations closely followed the situation in Guantánamo and many called for the prison’s immediate closure, if not - at the very least - an improvement in prison conditions and the handing over of some detainees to their respective countries. Several American sources reported that some Sudanese and Moroccan nationals had been released to their countries and that Sami Al Haj was being detained in Sudan. But after several months it became obvious, based on an exchange of letters between Sami and his wife, that Sami was still detained at Guantánamo and that he was being pressured, under torture, to collaborate with American intelligence agencies. It also became evident that his eventual release depended on his willingness to collaborate. Access to information on Sami’s situation increased once Barrister Clive Stafford took on his case and following some improvement at the camp – the result of US authorities’ efforts to enhance their image in the face of growing public outrage over camp conditions. What we do know is that the Aljazeera cameraman was interrogated on more than 130 separate occasions over a period of 1,370 days. Put another way, he was interrogated once every ten days. This exceeds even the worst third world dictatorships. We also know that Sami carried out a number of hunger strikes and suffered under the extremely harsh conditions of his detention. 6

The Pentagon has acknowledged that there are more than 500 detainees in Guantánamo including 20 children, 126 Saudis, 106 Yemenis, 151 nationals of various other Arab countries, and 97 non-Arab nationals. Sixteen cases of torture have been reported to have occurred in this infamous prison. Some countries, such as Morocco, have sought agreements with the Americans that would allow for local incarceration. But for others, like Syria, there is no alternative to Guantánamo – these nationals are unwanted by their own countries and mistreated by the US. We know that 12 Syrians were sent from Baghram prison in Afghanistan to Syria, where they remained in interrogation centres for months on end. A number of family members of prisoners from Gulf countries tried to take action but were unable to mount an effective lobby – either in the Gulf or in the United States. Europeans were far more successful in securing the return of prisoners of European nationalities. All European nationals were ultimately released as compared to a mere four percent of Arab nationals. We are indebted to the Centre for Constitutional Rights, an independent American association, for their sensitization of the American public to the Guantánamo tragedy and the creation of the Initiative for International Justice in Guantánamo. Their efforts resulted in improvements in the prisoners’ situation and their enjoyment of basic rights. Despite these gains, Guantánamo remains one of the worst prisons in the world. According to an article that appeared in The Guardian newspaper on September 26, 2005, Sami Al Haj was offered American citizenship in exchange for his agreement to become a spy. According to some documents verified by the newspaper, Sami had stated “They told me that if you cooperate with us, we will teach you journalism, offer you a visa to live where you want, get you the American citizenship, protect you, give you money, help you to write a book and publish it. This will make Al quad contact you and work with you.” Is the only reason that Sami remains in detention his refusal to move from journalism to the intelligence world? The ACHR, in coordination with the Arab Commission for the Defence of Journalists, Justitia Universalis, the International Committee for the Defence of Taysir Alony, and the Alkarama Organization for Human Rights, ask the American authorities to put an immediate end to the farce that is Guantánamo, to release Sami Al Haj and all the detainees who have had no real charges brought against them, to respect due process for those who face legitimate charges, and to uphold its obligations under humanitarian law and the International Bill of Human Rights. Not only will the closure of Guantánamo prison address the feelings and uphold the dignity of the detainees and their families, but it will also demonstrate a superpower’s capacity to respect the very principles upon which it was created and which constitutes one of its greatest strengths.

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Appendix 1 E UNITED NATIONS Economic and Social Council Distr. GENERAL E/CN.4/2003/8 16 December 2002 Original: ENGLISH and FRENCH COMMISSION ON HUMAN RIGHTS Fifty-ninth session Item 11 (a) of the provisional agenda CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTION OF TORTURE AND DETENTION Report of the Working Group on Arbitrary Detention Chairperson- Rapporteur: Louis JOINET III. LEGAL OPINION REGARDING THE DEPRIVATION OF LIBERTY OF PERSONS DETAINED IN GUANTANAMO BAY 61. The Working Group has received many communications alleging the arbitrary character of detention measures applied in the United States as part of its investigations into the terrorist acts of 11 September 2001. These communications from the United States may be divided into two categories, the first covering persons detained in prisons on United States territory, and the second persons detained at the Naval Base of Guantanamo Bay adapted as a detention centre. 62. The Chairman-Rapporteur of the Working Group sent a letter dated 22 January 2002 to the Permanent Representative of the United States of America to the United Nations Office at Geneva, asking his Government for an invitation to visit the country in order to examine in situ the legal aspects of the question. The Working Group would take into consideration the provisions of articles 4 and 15, paragraph 2, of the International Covenant on Civil and Political Rights in order to be as rigorous and objective as possible. 63. As this letter remained unanswered, the Chairman-Rapporteur sent a second letter on 25 October 2002, requesting the following information concerning the detainees in Guantanamo Bay: (a) How many persons are currently being detained in Guantanamo Bay? (b) When did the first detainees arrive? (c) Were the detainees informed of any charges and, if so, by what authority were they charged and under what legal proceedings? (d) Is legal counsel available to the detainees and, if so, are they freely chosen or imposed automatically? (e) Are detainees allowed to meet with their legal counsel and, if so, are the interviews confidential? (f) Are detainees brought to a representative of the prosecution and, if so, within what period of time? 8

(g) Do detainees ultimately appear before a court and, if so, within what period of time? 64. As this second letter also remained unanswered, the Working Group gave its views in the light of the following elements of appreciation: Category I (persons detained on United States territory). After considering the two cases before it, the Working Group, with regard to this category, arrived at the following position of principle in its Opinion No. 21/2002 (E/CN.4/2003/8/Add.1): “The Working Group considers that Mr. X and Mr. Y have been detained for more than 14 months, apparently in solitary confinement, without having been officially informed of any charge, without being able to E/CN.4/2003/8 page 20 communicate with their families and without a court being asked to rule on the lawfulness of their detention.” This situation is such as to confer an arbitrary character on their detention, with regard to articles 9 and 14 of the International Covenant on Civil and Political Rights, which guarantee, respectively, the right to a review of the lawfulness of detention by a competent judicial authority and the right to a fair trial. Category II (persons detained at Guantanamo Bay). Before giving an opinion as to whether the detention of persons in this category was arbitrary or not, the Working Group determined the relevant legal framework, namely, the third Geneva Convention (relative to the treatment of prisoners of war), and the International Covenant on Civil and Political Rights, to both of which the United States are a party. With respect to the third Geneva Convention. The Working Group began by noting the interpretation given by the American authorities, whereby these belligerents belonged to the sui generis category known as “enemy combatants” and that as such “they are not covered by the Geneva Convention and are not entitled to prisoner-ofwar (POW) status under treaty” (statement made by the United States Press Secretary on 2 February 2002). Besides the fact that this interpretation is open to debate, the Working Group recalls that the authority which is competent to determine prisoner-of-war status is not the executive power but the judicial power, in conformity with the provisions of article 5, paragraph 2, of the third Geneva Convention, which states that: “Should any doubt arise as to whether persons […] belong to any other categories [of prisoners of war] enumerated in article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal” of the detaining power. The United States court, however, dealing with the case (District Court for the District of Columbia) declared itself incompetent ratione loci, on the grounds that, since the territory of Guantanamo Bay was governed by an agreement concluded in 1903 between the United States and Cuba, the detention centre could not be considered as being on American soil. The Working Group believes that it is worth recalling in this respect that, by letter of 14 September 1995, the United States authorities, agreeing to a request by the Working Group, had invited the Group to visit Haitian migrants and asylum-seekers detained at the Guantanamo Naval Base. The visit had finally had to be postponed 9

indefinitely, following a decision, in 1996, by a United States court (District Court of the Eastern District of New York), which, after declaring itself competent, had ordered the release of the detainees. The Working Group suggested that this precedent should be taken into consideration in the debate taking place regarding the applicability of the above-mentioned article 5, paragraph 2, of the third Geneva Convention. The Working Group concludes from the above that, so long as a “competent tribunal” in the meaning of the above-mentioned paragraph 2 has not issued a ruling on the contested issue, detainees enjoy “the protection of the … Convention”, as provided in paragraph 2, whence it may be argued that they enjoy firstly the protection afforded by its article 13 (“Prisoners of war must at all times be humanely treated”), and secondly the right to have the lawfulness of their E/CN.4/2003/8 page 21 detention reviewed and the right to a fair trial provided under articles 105 and 106 of that Convention (notification of charges, assistance of counsel, interpretation, etc.), so that the absence of such rights may render the detention of the prisoners arbitrary. With respect to the International Covenant on Civil and Political Rights: Since the United States are party to the Covenant, in the case where the benefit of prisoner-ofwar status should not be recognized by a competent tribunal, the situation of detainees would be governed by the relevant provisions of the Covenant and in particular by articles 9 and 14 thereof, the first of which guarantees that the lawfulness of a detention shall be reviewed by a competent court, and the second of which guarantees the right to a fair trial. The need to combat terrorism undoubtedly requires imposing special restrictions on certain rights, including those concerning detention and fair trial. Such restrictions are in fact provided under article 4 of the Covenant (“In time of public emergency which threatens the life of the nation”), provided that, as the Human Rights Committee recalls in its General Comment No. 29, the notification procedure stipulated in paragraph 3 has been respected, whereby “Any State party […] availing itself of the right of derogation shall immediately inform the other States parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated.” This has not so far been the case with the United States. The Working Group therefore considers that, while it is not competent to comment on whether the status of prisoner of war applies to the persons currently detained in Guantanamo Bay, it does remain within its mandate in considering whether the absence of minimum guarantees provided under articles 9 and 14 of the Covenant may confer on the detention an arbitrary character, all the more so if the Government concerned has failed to provide the information called for in article 4, paragraph 3, of the Covenant. In other words, so long as a “competent tribunal” has not declared whether the status of prisoner of war may be considered applicable or not, the persons detained in Guantanamo Bay provisionally enjoy the guarantees stipulated in articles 105 and 106 of the third Geneva Convention. On the other hand, should such a court issue a ruling on the matter: 10

- Either it rules in favour of a prisoner-of-war status and the persons concerned are definitely entitled to the guarantees provided by the third Geneva Convention; - Or it invalidates the prisoner-of-war status, in which case the above-mentioned guarantees of the Covenant (under articles 9 and 14) take over from those of articles 105 and 106 of the third Geneva Convention, which no longer apply. In conclusion, the Working Group recalls that, in its decision of 12 March 2002, the Inter-American Court of Human Rights requested the United States to take urgent measures to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.

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Appendix 2 Arab Commission of Human Rights Paris, 18 March 2002 Mr. Chair, Working Group on Arbitrary Detention, United Nations Commission on Human Rights, Geneva Subject: Arbitrary detention of Guantánamo detainees Mr. Chair, The ACHR wishes to express its deepest concern regarding the situation of the political prisoners detained at the American Naval Base in Guantánamo Bay, Cuba on account of what the United States calls “the war on terror”. More than fifty prisoners have gone on hunger strike for nearly twenty days. Subsequently, one detainee was attacked during prayer. The entire world looks on as American servicemen and servicewomen humiliate these prisoners. It is precisely for the these reasons that, since the beginning of the year, the ACHR and the Arab Centre for an Independent Judiciary have called upon the US authorities to undertake an international fact-finding mission to investigate the situation pertaining to all Guantánamo prisoners (excepting those accused of Talibanrelated activities). The US authorities maintain their refusal to consider these detainees as prisoners of war and continue to apply to these individuals a status that that cannot be justified under international law. We still await an answer to our call. Mr. Chair, Deep concern has been expressed on the part of the ACHR and nearly a dozen NGOs as to the way in which these individuals were arrested, interrogated, and accused. We support a fundamental human rights perspective on this issue that holds their detention to be illegal and arbitrary. By addressing this letter to you, and on the basis of the request presented to the Working Group on Arbitrary Detention on behalf of numerous NGOs, the ACHR asks that you take the necessary measures toward adoption of the case. We thank you for your fullest efforts in this regard. Yours respectfully, Dr. Violette Daguerre, Chair of the ACHR

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Appendix 3 Statement March 2002 Following the Qala-i-Janghi Fort massacre in which hundreds of Arab prisoners of war were killed under suspicious conditions, (Amnesty International and the ACHR still await a full explanation), the international and Arab public are witnessing another scandal, one that threatens to seriously undermine the credibility of all parties involved in the implementation of human rights. We refer here to the situation of Arab POWs in American, Pakistani and Afghan detention camps and the particularly tragic situation faced by their families. We are not raising this issue out of any political or ideological agenda, but purely from a commitment to fundamental and incontrovertible human values. In is from this perspective that we, the undersigned: Express our profound indignation toward the cruel and humiliating treatment endured by Arab prisoners in Pakistani, Afghan and American prisons, violations of their physical integrity and dignity, and their submission to a secret detention in absence of any and all means to uphold their basic human rights. Unreservedly condemn the silence of Arab governments concerning the tragedy of thousand of families across Afghanistan and Pakistan, yet another indication of their total disregard for the well-being of their own nationals. Demand the immediate application of the third Geneva Convention on POWs to Arab prisoners in Afghanistan. This Convention does not recognise the bizarre distinction, invented by the US administration, between POWs and “illegal combatants”. Being neither spies nor mercenaries, the Arab prisoners must be considered POWs and as such, the Convention prevents them from being sentenced except in the case of war crimes. Appeal to Arab governments to uphold their obligations to defend human dignity, state sovereignty and to exercise their civic duty by defending the rights of their imprisoned nationals whatever accusations they may face in their countries. We call upon Arab governments to take all appropriate measures to save innocent women and children from a situation that is shameful and an insult to all Arabs. Call upon human rights organisations to oppose the logic of vengeance and repression predominant in Western and Arab governments’ treatment of these issues, and in so doing to maintain international law’s primacy as the fundamental standard. It is only in this way that we will succeed in minimising the tensions produced by the war and counter the costs of national and religious conflicts. First signatures: Haytham Manna (Syria), Fatiha Talhet (Algeria), Nasser Amin (Egypt), Moncef Marzouki (Tunisia), Violette Daguerre (Lebanon), Ghanem Najjar (Kuwait), Nasser Ghazali (Syria), Jacques Jarrah (Syria), Hossam Abdallah (Egypt), Saad Ennounou (Palestine), Saad Mokbal (Palestine), Mustapha Al Hassen (Egypt), Najib Hossni (Tunisia), Mohamed Abouharthia (Palestine), Likaa Abo Ajeb (Syria), Majd Acharh (Syria), Elias Almaleh (USA), Amina Al Kadi (Algeria), Ahmed Mannai (Tunisia), Saad Mohamed (Egypt), Erla Groman (Denmark), Mondher Sfar (Tunisia), Bassel 13

Chalhiub (Switzerland), Fatma Reda (Morocco), Abbas Cheblak (London), Najib Noomi (Qatar), Sihem ben Sedrine (Tunisia), Kazem Habib (Iraq), Mohamed Anouar Koutchoukali Algeria), Ahmed Fawzi Ibrahim (Egypt), Rachid Mesli (Algeria), Mahmoud Aid (Egypt), Waddhah Ben Driss (Morocco), Sabri Mohamed Hassen (Egypt), Samiha Ben Hamid (Morocco), Haytham Malleh (Syria), Salaheddine Sidhoum (Algeria), Afif Ghanemi (Tunisia), Abderrahim Saber (USA), El Mostapha Souleh (Morocco), Amin Sidhoum (Algeria), Ibrahim Taouti (Denmark)

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The Enemy ? By Joel Campagna Committee to Protect Journalists 2006

Aljazeera Sami al Haj has been jailed for five years without charge or trial. At the US base in Guantanamo, he4s called an enemy combatant. Will he get to defend himself?

December 15, 2001, dawned overcast at Pakistan’s Chaman crossing point into Afghanistan, and Aljazeera reporter Abdelhaq Sadah and cameraman Sami Muhyideen al-Haj were anxious to get moving. Just across the border, the Taliban had fled Kandahar, their rule effectively ended by a fierce U.S. air and Afghan ground assault. The pair’s assignment was to cover the aftermath. They wouldn’t get far, as Sadah recalls today. When they presented their passports, a Pakistani border guard grew angry. Sadah could go through, the officer barked, but there was a problem with al-Haj’s passport. The officer produced an English-language notice from Pakistani intelligence instructing border guards to apprehend al-Haj for suspected links to al-Qaeda, Sadah recalled. Both journalists were puzzled. Several times over two months, al-Haj had crossed Chaman with another Aljazeera crew without incident. Just a few days earlier, Sadah and al-Haj had traveled across the border to Spinboldak, where they reported on damage to the main Afghan road from Chaman to Kandahar. Al-Haj thought there was a misunderstanding. The written order that the border guard produced listed the number of his old Sudanese passport, which he had lost two years earlier. A Pakistani intelligence official identifying himself as Major Nadeem arrived at the border later that day and told the two journalists not to worry. The next morning, Sadah said, the major drove off with alHaj. “Since that time, I have not seen Sami,” Sadah told CPJ. Neither have al-Haj’s colleagues, family, and friends. Al-Haj thus began an odyssey that would take him from Pakistan to Afghanistan and then on to an 8-by-7-foot detention cell at the U.S. Naval Base in Guantanamo Bay, Cuba, where he remains today with some 450 other detainees the Bush administration has designated “enemy combatants.” Championed as a prisoner of conscience on Aljazeera though virtually unknown in U.S. media circles, al-Haj is the only confirmed journalist now imprisoned at Guantanamo. The U.S. military alleges that he worked as a financial courier for Chechen rebels, and that he assisted al-Qaeda and extremist figures. In one taped message, Osama bin Laden purportedly called for his release. Yet al-Haj has been held for nearly five years on the basis of secret evidence; he has not been convicted or even charged with a crime. Until this year—when an Associated Press lawsuit 15

prompted the Pentagon to identify the detainees—the military would not acknowledge al-Haj was in custody. Al-Haj’s lawyer, who has been barred from attending his client’s hearings, has called the allegations baseless and the justice system at Guantanamo a sham. “There is absolutely zero evidence that he has any history in terrorism at all,” said Clive Stafford Smith, legal director of Reprieve, a London-based human rights group, who took up al-Haj’s case in 2005. Stafford Smith contends that al-Haj’s continued detention is political, and the main focus of U.S. interrogators has not been al-Haj’s alleged terrorist activities but obtaining intelligence on Aljazeera and its staff. Whatever the truth, al-Haj’s detention has raised questions about the U.S. military’s treatment of journalists as it pursues a global war on terrorism. In 2005, the U.S. detention of al-Haj and at least four journalists in Iraq placed the United States sixth among countries jailing journalists, just behind Uzbekistan and tied with Burma. In Iraq, each journalist was held for months without charge. Each was eventually freed; no charges were substantiated in any of the cases. Al-Haj’s supporters ask that he be given a fair trial. In June, the U.S. Supreme Court ruled that military tribunals established for Guantanamo detainees were unlawful. The court said the Bush administration must ensure minimal due process as outlined in U.S. military and international law, or it must seek congressional approval for detainee tribunals. By September, Congress approved guidelines that allow detainees the right of counsel and the ability to see evidence against them. But the guidelines still permit indefinite detention, and they allow the use of hearsay evidence and evidence obtained through coercion. Tollowing his detention at Chaman, Sami al-Haj spent the next 23 days in the custody of Pakistani intelligence officials before being taken to the nearby city of Quetta, where he was handed over to U.S. forces, according to Aljazeera. Al-Haj was soon taken to the newly established U.S. air base at Bagram, outside the Afghan capital Kabul, for 16 days which, by his account, were the “longest days of my life.” Al-Haj told Stafford Smith that he was severely beaten by U.S. troops, who accused him of recording videos of Osama bin Laden for Aljazeera. Al-Haj denied the accusation, and Stafford Smith said he believes the military confused his client with another, similarly named cameraman. The accusation has not resurfaced publicly. On January 23, 2002, the U.S. military brought al-Haj to Kandahar where he remained until June 13, when he was transported to Guantanamo Bay, bound and gagged, along with dozens of other prisoners. Through his lawyer and in letters he has written from prison, al-Haj has described harsh conditions at Guantanamo and has accused U.S. troops of depriving him of sleep as an interrogation technique. He said he suffers from rheumatism and has been denied medication to prevent a recurrence of throat cancer. Al-Haj’s disappearance wasn’t made public until September 18, 2002, when Aljazeera announced in a press release that its cameraman was being held at Guantanamo. For months, the station said, it sought to resolve the matter through behind-the-scenes contacts with Pakistani and U.S. officials, fearing that publicity would jeopardize any release. Pakistani intelligence warned one of the station’s reporters not to inquire about al-Haj. U.S. officials were silent. “We have not really received any official detail from the Americans about what exactly the charges are,” said Waddah Khanfar, Aljazeera’s general manager.

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For viewers of the Arab world’s most watched news channel, al-Haj is a familiar face. Aljazeera regularly reports on developments in his case, has devoted a section of its popular Web site to the detained journalist, and, this year, broadcast a 53-minute documentary detailing his story. Yet for all the attention, al-Haj remains an enigma. Few Aljazeera staffers knew him well during his brief stint at the station. By all accounts, he had virtually no experience in journalism before joining one of the world’s most influential news organizations. Born in 1969 and raised in central Sudan, al-Haj showed a keen interest in media, according to his younger brother, Asim, who recalled that he “loved reading and writing, and also photography.” Asim and another family member said al-Haj studied English in India. Discouraged by the lack of journalism opportunities in Sudan, Asim said, he bypassed a career in media and got a job in the United Arab Emirates. In the late 1990s, he worked as an administrative assistant for the Sharjah-based Union Beverages, which makes soft drinks for the Middle East and Asia. His lawyer, Stafford Smith, said al-Haj also worked for an import-export company called Romat International. Public listings show Union Beverages and Romat belong to a group of companies owned by Muhammad Abdullah al-Umran, a UAE national. At around the same time, al-Haj met his wife, Asma, an Azeri national. They married in 1998, had a son, Muhammad, now 6, and later took up residence in Doha, Qatar. Asma said her husband started work at Aljazeera in April 2000 after responding to an employment ad. He had ambition, knowledge of computers, and a strong command of English, she told CPJ. Al-Haj’s lawyer and Aljazeera journalists said al-Haj started on a freelance basis as a trainee. Aljazeera reported that he was initially assigned to help cover Chechnya but never traveled there. Fawzi al-Bushra, a long-time Aljazeera reporter and fellow Sudanese national, befriended al-Haj and remembers him as quiet and inexperienced but eager to prove himself. “He was a man with no credentials,” al-Bushra remembered. Still, al-Bushra and other Aljazeera reporters said it wasn’t unusual for the station to train novice journalists. By most accounts, al-Haj’s big opportunity came after 9/11 and the subsequent U.S.-led assault to unseat the Taliban in Afghanistan. Aljazeera, which prized exclusive images from war zones, signed al-Haj to a contract at a time when it needed cameramen, said former station director Muhammad Jasem Ali. “Sami had some training in camera and we trained him in videophone,” Ali said, noting that it was difficult to find anyone willing to go to “hot areas” like Afghanistan. Al-Haj was eager to demonstrate his worth. Several Aljazeera staffers said he volunteered to go to Afghanistan when there were few takers for the assignment. Al-Bushra said he advised his inexperienced colleague against going, but al-Haj insisted. “I remember saying, ’You are going to a war, not a picnic,’” al-Bushra said. “He said, ’OK, but that will give me an opportunity to prove myself.’” Al-Haj’s family was nervous, too. “But after a long discussion Sami said ... he couldn’t say no because he was new,” said his brother, Asim.

In October 2001, new contract with Aljazeera in hand, al-Haj joined a crew headed by reporter 17

Youssef al-Shouly in Taliban-controlled southeastern Afghanistan. The men worked together for nearly two months, often putting in 15-hour days, al-Shouly recalled. Using a handheld camera and videophone, al-Haj documented the civilian fallout from U.S. bombs, a common feature of Aljazeera’s war reporting, and his shots were some of the only images coming from southeastern Afghanistan at the time. Al-Haj could be moved to tears by the bombing, al-Shouly said. Al-Shouly and al-Haj were briefly detained by Taliban forces for reporting without authorization, according to Aljazeera. It was at Chaman, though, that al-Haj’s career was put on indefinite hold.

For much of the last five years, the reasons surrounding al-Haj’s detention have been secret. In September 2002, CPJ wrote to Secretary of Defense Donald Rumsfeld, calling on the Pentagon to detail the basis for al-Haj’s detention. CPJ received no response. Pentagon spokesman Bryan Whitman did not respond to requests for comment for this story. At CPJ’s request, the Pentagon did provide declassified transcripts of hearings involving al-Haj. Those documents, along with information provided by al-Haj’s attorney, shed some light on the case. Military officials have made what appear to be several troubling allegations against al-Haj, according to a summary of his 2004 Combatant Status Review Tribunal, a hearing to determine whether detainees were “enemy combatants,” and a transcript of his 2005 Administrative Review Board, a parole-type proceeding. The military labels the allegations as “evidence.” But a review of the public documents shows that they are assertions of wrongdoing without the documentation or testimony normally considered by a court to be evidence. Supporting evidence, if any, is part of the U.S. military’s classified file—off-limits to the public, al-Haj, and his lawyer. One prime allegation is that al-Haj served as a financial courier for Chechen rebels and other armed groups in the Caucuses, delivering large sums of cash from the United Arab Emirates to Azerbaijan on several occasions between 1996 and 2000. Azerbaijan was a known transfer point for arms and materiel in support of Chechen armed groups. U.S. officials allege that al-Haj made cash deliveries on behalf of his boss at Union Beverages, Abdel Latif al-Umran, to the Baku branch of the Islamic charity Al-Haramain. Al-Umran, son of the company’s listed owner, did not respond to several requests for comment. The elder alUmran also did not respond to messages from CPJ. Al-Haramain was not on a U.S. terrorist watch list at the time, although it was placed there after the September 11 attacks. Al-Haj is also accused of meeting with and helping secure a visa for reputed al-Qaeda founder Mamdouh Mahmoud Salim, who was extradited to the United States on conspiracy charges stemming from the 1998 bombings of two U.S. embassies in Africa. Salim was convicted in 2004 of maiming a Manhattan corrections officer. Military officials also say al-Haj falsified Romat International documents as a way to establish a corporation in Azerbaijan. Investigators allege Salim was affiliated with Romat, but provide no details about Salim’s role or the intent of the alleged scheme. On their face, other accusations appear to be an indictment of al-Haj’s journalistic work. At his 18

2005 Administrative Review Board hearing, military officials said al-Haj had “interviewed several Taliban officials” and top al-Qaeda figure Abu Hafs al-Mauritani while in Afghanistan. The U.S. government’s classified file could include other allegations, but such accusations, if any, have not been disclosed to the public, al-Haj, or Stafford Smith. On a January 2005 report in The Wall Street Journal, U.S. commanders acknowledged that many Guantanamo detainees are not a threat and likely have no valuable intelligence about al-Qaeda or the Taliban. Stafford Smith said his client did nothing wrong and has no involvement with terror groups. He said al-Haj traveled to Azerbaijan for family and business reasons, delivering money for his boss to Islamic charities on one, or possibly two occasions. “At the time Sami didn’t know what it was for,” said Stafford Smith, who said his client acted solely on his boss’ instructions. “He thought it was going to charity.” On one occasion, when he was carrying US$220,000 to Azerbaijan, al-Haj declared the cash to customs officials, the lawyer said. The defense lawyer said his client picked up Salim at an airport on one occasion, and drove his family around Dubai another time, both at his boss’ direction. Stafford Smith said that al-Haj helped secure a visa to the United Arab Emirates, not for Salim, but for Salim’s relatives, again at the behest of his employer. He said that the military has disclosed so little about the corporate document allegation that he can’t respond substantively. “I really don’t know what they are saying and neither does Sami,” Stafford Smith said. “We haven’t seen anything on this. Sami has no idea and can’t respond.” In all, he said, the accusations are pernicious because—without evidence, witnesses, or even a statement of what crime was committed—they cannot be rebutted. “It is impossible to defend against ’charges’ that are not real,” he said. “I could charge you with being unpleasant to your mother, and you would have a hard time disproving it.” Most of Stafford Smith’s information has come from his eight interviews with al-Haj at Guantanamo, information and documentation al-Haj has provided, and from recently declassified documents. Stafford Smith cites shifting allegations against his client as evidence of the flawed justice system at Guantanamo. U.S. authorities have dropped at least three original accusations against al-Haj—that he had disseminated terrorist propaganda on the Internet; that he traveled extensively throughout the Middle East and Eastern Europe; and that he had arranged to transport shoulder-fired Stinger missiles from Afghanistan to Chechnya. The missile charge, the lawyer said, appeared to be based on a badly garbled conversation in which another detainee talked about an attempt to sell the weapons. But for Stafford Smith, the most persuasive evidence that the case is a sham is that al-Haj’s interrogators hardly seem interested in the allegations themselves. Virtually all of the roughly 130 interrogations al-Haj has been subjected to have focused on Aljazeera, Stafford Smith said. He said military officials have appeared intent on establishing a relationship between Aljazeera and al-Qaeda, questioning al-Haj about prominent network journalists, the station’s finances, and how it pays for airline tickets. 19

At one point, U.S. military interrogators allegedly told al-Haj that he would be released if he agreed to inform U.S. intelligence authorities about the satellite news network’s activities. AlHaj refused. Bush administration officials have made no secret of their distaste for Aljazeera, repeatedly labeling its programming inflammatory and accusing the station of working with terrorists. Al-Haj professed his innocence during a 40-minute hearing before the Administrative Review Board on August 12, 2005. Although he refused to answer questions about the accusations on the advice of his lawyer, a transcript of the hearing includes an impassioned plea to the review board. The transcript quotes al-Haj as saying that he misses his family deeply and that he does not understand how he could be considered an enemy combatant. “With all due respect, a mistake has been made because I have never been a member of any terrorist group and I never took part in any terrorist or violent act,” he told the board. “I can say without hesitation that I am not a threat to the United States or to anyone else. I strongly condemn any act that is taken against innocent people, and I strongly condemn the tragic attack on the World Trade Center in New York. Islam properly understood would never allow the killing of innocent people in this way.” .US. officials have described the detainees at Guantanamo Bay as “the worst of worst,” but coll have eagues and relatives find it difficult to reconcile that description with the shy, unassuming man they knew. Stafford Smith calls him “one of the most cheerful and upbeat people—always smiling—that I “He loved his wife and son—he always spoke about them,” said Aljazeera’s ever met.” Youssef al-Shouly, who remembers al-Haj as a practicing Muslim not given to extremist statements. “He is a gentle person,” said al-Haj’s wife, Asma. “He never did anything and the Americans realize that, but the Americans put themselves in a bind and they cannot get out of it.” The review board has singled out al-Haj for very good behavior, and, according to hearing transcripts, he frequently leads prayers in cellblocks and teaches inmates English and the Quran. Al-Haj’s supporters maintain that his case has been hampered by bad publicity—or no publicity at all. Falling squarely in the first category is a purported audiotape from Osama bin Laden in which he called for the release of al-Haj and others by name. Although the authenticity of the May 23, 2006, message has been questioned by some experts, it said Guantanamo detainees “have no connection whatsoever to the events of September 11 and even stranger is that many of them have no connection with al-Qaeda in the first place.” Aljazeera staffers also criticize the station’s initially meek show of public support for al-Haj, which contrasted with the outpouring for its star reporter, Taysir Allouni, who was jailed in Spain in 2003 on terrorism charges. “The fact it took them so long to intervene harmed him immensely,” said Stafford Smith, who added that he didn’t want to be “too critical of Aljazeera because it is in a difficult position.” Was al-Haj a knowing or unwitting conspirator with terrorist groups? Or is he entirely innocent—a journalist plucked from the field while covering the world’s biggest story? What crime has he committed? What is the evidence against him? Only a fair and transparent legal process can provide those answers. “The rule of law should prevail,” said colleague al-Bushra. “He’s spent five years now without a trial.” Since December 14, 2001, 20

Joel Campagna is senior program coordinator responsible for the Middle East and North Africa at the Committee to Protect Journalists. CPJ Research Associate Ivan Karakashian contributed to this report.

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Who are the Guantánamo detainees? Amnesty International CASE SHEET 16 Sudanese national: Sami al Haj 11 January 2006 AI Index: AMR 51/207/2005 Full name: Sami al Haj Nationality: Sudanese Occupation: Cameraman/journalist Age: 35 Family status: Married with one child Background Sami al Haj was a journalist working for the television station al-Jazeera. He was visiting his brother and sister in Damascus when the station called him to ask him to go on his second ever assignment. It was around 22 September 2001, less than two weeks after the attacks on the US mainland on 11 September, and he was being asked to cover the international conflict in Afghanistan. His brother told Amnesty International that Sami al Haj was reluctant and nervous about going to the conflict zone, but decided that it would not be his best career interests to turn down such a prestigious assignment. Sami al Haj travelled with a film crew to Afghanistan, via Pakistan. After 18 days covering the conflict he returned to Pakistan, thinking his assignment over. In December 2001 he was asked by the television station to return to Afghanistan to cover the inauguration of the new government there. Before he and his crew managed to reach the border, they were stopped by Pakistani police. Sami al-Haj was the only one of his crew taken into custody. Arrest in Pakistan and transfer to US authorities/Treatment in Afghanistan Sami al Haj was held in Pakistani custody from 15 December 2001 to 7 January 2002. He had his passport taken off him, his visa to travel to Afghanistan and his press card. On 7 January he was transferred to US custody and taken to Bagram air base in Afghanistan. Sami al Haj has described the 16 days he spent in detention in Bagram air base as "the worst in my life". He states that he was severely physically tortured and had dogs set upon him, that he was held in a cage a freezing aircraft hangar and was given insufficient, often frozen food. He was then transferred to Kandahar, where his abuse continued. Sami al Haj alleges that: - He was subjected to sexual abuse by US soldiers, including being threatened with rape - He was forced into stress positions, being forced to kneel for long periods on concrete floors 22

- He was beaten regularly by guards - He had all the hairs on his beard plucked out one by one - He was not allowed to wash for over 100 days, and he was covered with lice Guantánamo Sami al Haj was transferred to Guantánamo Bay on 13 June 2002. Hooded and shackled and gagged for the duration of the flight, if he fell asleep the US soldiers would strike him on the head to wake him up. After his transfer to Guantánamo, Sami al Haj says that he was constantly interrogated about any possible links between his employers and Islamist extremists. He also alleges that the first time he was interrogated in Guantánamo he had been deprived of sleep for over two days. He says that "for more than three years, most of my interrogation has been focussed on getting me to say that there is a relationship between al-Jazeera and al Qa’ida". He alleges that he has been subjected to a range of ill-treatment and has been denied access to adequate health care: - Guards at the camp shattered his knee cap by stamping on his leg - He has been beaten on the soles of his feet - Military dogs were used to intimidate him on his arrival in Guantánamo - He has been subjected to racist abuse and has been given less time for recreation because he is black - Prior to being allowed to see Sudanese intelligence agents who had come to Guantánamo to interview him, he alleges that he was shackled and pepper sprayed After witnessing the desecration of the Qu’ran in 2003 – US soldiers had reportedly written obscenities and had stamped on a copy of the Qu’ran - Sami al Haj and a number of other prisoners went on hunger strike. The retaliation of the camp authorities was swift and brutal. Sami al Haj has said he was beaten severely, and thrown down a set of stairs. His face was reportedly badly was gashed in this incident– a cut which a doctor said needed stitches, but would only be administered without pain medication. He was then placed in isolation before being taken to Camp V, the harshest of the camps in the detention facility, where he was held for eight months. During his time in Camp V, he was classified at security level 4, which ensures the harshest treatment and the fewest privileges. Sami al Haj also alleges that he was "ERF’d" – subject to brutal cell extractions by guards in riot gear called the Emergency or Extreme Response Force – six times in ten days. Medical Care Sami al Haj has a number of pressing medical needs, and he alleges that the authorities in Guantánamo have consistently and systematically denied him access to the medical care he 23

requires. - He had throat cancer in 1998, and was on a course of drugs that he was prescribed for the rest of his life. He has not been provided with these drugs since being taken into US custody - He has repeated the allegations made by other detainees that "the inoculations that have been forced on the prisoners during the past three years are shots that contain diseases" - Sami al Haj also has rheumatism, problems with his teeth and bad eyesight. He has not received glasses or dental treatment. Though it was reportedly a US soldier who broke his knee cap, the authorities are reported to have refused to provide him with a support for his knee as this contains metal and is classified as a security threat. Hunger Strike In July 2005 Sami al Haj embarked on a hunger strike along with up to 200 other detainees. In his own words, he states that "the demands [of the strike] include stopping the heavy handed approach to the prisoners, particularly those in Camp V, and to give us the health care we need so much. Also to stop the widespread practice of drugging the prisoners and manipulating their state of mind." The demands also included that Camp V be shut down, because "conditions are so bad" in that modern, ‘supermaximum’ security style block. The detainees called a halt to their hunger strike after the authorities reportedly made a number of promises to the detainees to improve their conditions of detention. It quickly transpired, however, that the harsh treatment of the detainees, and their legal limbo, would not cease. The hunger strike restarted in response to the beating of several detainees and the failure of theauthorities to implement the promised reforms. Sami al Haj expressed the desperation of the detainees restarting their hunger strike when he said that "it is not something that I look forward to, but I must". "I wish to return to Sudan to resume my normal life with my precious family" – Sami al Haj Sami al Haj’s family were not informed of his arrest in Pakistan. They believe that the Sudanese government knew about his arrest but did not intervene and refused to inform the family. It was over one month after Sami al Hajj had been handed over to the US authorities that his family were informed of his detention. They did not know he had been transferred to Guantánamo until six months after his arrest, when his wife received a letter via the ICRC. Contact with the family since then has been intermittent, and letters that the family receive are heavily censored. The letters generally take around four months to arrive. Sami al Haj’s brother told Amnesty International that they received only two letters last year. The same seems to be true in reverse. His brother sent a letter in 2003, but Sami al-Haj was only allowed to read it in August 2005. 24

Sami al-Hajj has a five year old son, who he has not seen since he was one year old. As his brother said, "you can imagine how emotionally difficult it can be for a child for being so harshly deprived of the compassion and love of his dad". The family have suffered financially as well as emotionally as a result of Sami al Haj’s detention by the USA. Since his father became ill, Sami al-Haj had been the major breadwinner for the family, his finding work with al-Jazeera a major boost for all the family. The family have also found it very difficult to cope with the continued reports of torture and ill-treatment at Guantánamo. TAKE ACTION FOR Sami al-Haj Write to the US authorities: · Stating that Sami al Hajj and all the other detainees at Guantánamo Bay must be given fair trials or released · Calling on the US authorities to keep Sami al Haj’s family fully informed of his legal status, health and well-being · Calling for an impartial investigation into the allegations that Sami al Hajj was tortured in US custody in Afghanistan and Guantánamo Bay, and seeking assurances that he is being given appropriate medical care · Calling for the US government to set up an independent commission of inquiry into all aspects of the USA’s "war on terror" detention policies and practices · Calling for the detention facility at Guantánamo Bay to be closed and for all other "war on terror" detention facilities to be opened up to external scrutiny

WRITE TO: Alberto Gonzales Attorney General US Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001, USA Fax: + 1 202 307 6777 Email: [email protected] If you want to take further action on this case, please contact your national AI office Amnesty International, International Secretariat, Peter Benenson House, 1 Easton Street, London WC1X 0DW, UK. www.amnesty.org

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Situation of detainees at Guantánamo Bay

UN Economic and Social Council Distr. GENERAL Future E/CN.4/2006/120 15 February 2006 Original: ENGLISH COMMISSION ON HUMAN RIGHTS Sixty-second session Items 10 and 11 of the provisional agenda ECONOMIC, SOCIAL AND CULTURAL RIGHTS CIVIL AND POLITICAL RIGHTS

Report of the Chairperson of the Working Group on Arbitrary Detention, Ms. Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Mr. Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr. Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Ms. Asma Jahangir and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr. Paul Hunt. Summary The present joint report is submitted by five holders of mandates of special procedures of the Commission on Human Rights who have been jointly following the situation of detainees held at the United States Naval Base at Guantánamo Bay since June 2004. Section I provides a legal analysis common to all five mandates. Sections II toV outline the legal framework specific to each mandate, as well as the particular allegations of human rights violations which concern them. The final section contains conclusions and recommendations. Contents Introduction I. THE LEGAL FRAMEWORK A. Human Rights and Counter-Terrorism Measures B. The United States obligations under international law C. Scope of the United States obligations under international human rights law D. Limitations and Derogations E. The complementarity of international humanitarian law and human rights law II. ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES AND LAWYERS A. Deprivation of liberty at Guantánamo Bay B. Detainees captured in the course of an armed conflict C. Detainees captured in the absence of an armed conflict D. The right to challenge the legality of detention before a judicial body E. The right to be tried by a competent and independent tribunal F. The right to a fair trial III. TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT A. Lack of clarity/confusing rules B. Interrogation techniques C. Conditions of detention D. Use of excessive violence 28

E. Transfer, extraordinary rendition, non-refoulement F. Lack of impartial investigation/impunity IV. RELIGIOUS INTOLERANCE A. Applicable international standards B. Reported human rights allegations V. THE RIGHT OF EVERYONE TO THE ENJOYMENT OF THE HIGHEST ATTAINABLE STANDARD OF PHYSICAL AND MENTAL HEALTH A. Mental health B. Ethical obligations of health professionals, including in relation to forcefeeding VI. CONCLUSIONS AND RECOMMENDATIONS Annex I: Endnotes Annex II. Letter dated 31 January 2006, addressed to the Office of the High Commissioner for Human Rights, by the Permanent Representative of the United States of America to the United Nations and Other International Organizations in Geneva Introduction 1. The present report is the result of a joint study conducted by the Chairperson of the Working Group on Arbitrary Detention, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on freedom of religion or belief and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (the right to the highest attainable standard of health or the right to health). 2. Since January 2002, the five mandate holders have been following the situation of detainees held at the United States Naval Base at Guantánamo Bay. In June 2004, they decided to continue this task as a group because the situation falls under the scope of each of the mandates. The focus of each mandate holder is on the law, allegations and recommendations relevant to his or her mandate as defined by the relevant resolutions of the Commission on Human Rights establishing the respective mechanism. However, the mandate holders consider that they can better discharge their reporting obligations to the Commission by submitting one joint report on this subject rather than five individual reports. 3. In studying the situation, they have continuously sought the cooperation of the United States authorities and on 25 June 2004, they sent a letter, followed by several reminders, requesting the United States Government to allow them to visit Guantánamo Bay in order to gather first hand information from the prisoners themselves. By letter dated 28 October 2005, the Government of the United States of America extended an invitation for a one-day visit to three of the five mandate holders, inviting them “to visit the Department of Defense’s detention facilities [of Guantánamo Bay]”. The invitation stipulated that “the visit will not include private interviews or visits with detainees”. In their response to the Government dated 31 October 2005, the mandate holders accepted the invitation, including the short duration of the visit and the fact that only three of them were permitted access, and informed the United States Government that the visit was to be carried out on 6 December 2005. However, they did not accept the exclusion of private interviews with detainees, as that would contravene the terms of reference for fact-findings missions by special procedures and undermine the purpose of an objective and fair assessment of the situation of detainees held in Guantánamo Bay. In the absence of assurances from the Government that it would comply with the terms of reference, the mandate holders decided on 18 November 2005 to cancel the visit. 4. The present report is therefore based on the replies of the Government to a questionnaire concerning detention at Guantánamo Bay submitted by the mandate holders, interviews conducted by the mandate holders with former detainees currently residing or detained in France, Spain and the United Kingdom1 and responses from lawyers acting on behalf of some Guantánamo Bay detainees to questionnaires submitted by the mandate holders. It is also based on information available in the public domain, including reports prepared by non-governmental 29

organizations (NGOs), information contained in declassified official United States documents and media reports. The report raises a number of important and complex international human rights issues. In view of the fact that an on-site visit was not conducted and owing to page limitations, the report should be seen as a preliminary survey of international human rights law relating to the detainees in Guantánamo Bay. In accordance with usual practice, the United States Government was provided with a draft of this report on 16 January 2006. In its reply of 31 January 2006, the Government requested that its response be attached to the finalized report (see Annex). A number of revisions were made to the draft report in the light of the Government’s reply of 31 January 2006. 5. According to the information provided by the United States Government as of 21 October 2005, approximately 520 detainees were held in Guantánamo Bay. From the establishment of the detention centre in January 2002 until 26 September 2005, 264 persons were transferred from Guantánamo, of whom 68 were transferred to the custody of other Governments, including those of Pakistan, the Russian Federation, Morocco, the United Kingdom, France and Saudi Arabia. As of 21 October 2005, President Bush had designated 17 detainees eligible for trial by a military commission. Of those, the United States has since transferred three to their country of origin, where they have been released. As of the end of December 2005, a total of nine detainees had been referred to a military commission. 2 I. THE LEGAL FRAMEWORK A. Human rights and counter-terrorism measures 6. Following the 11September 2001 attacks on the United States, the Security Council adopted resolution 1373 (2001) requiring all States to take a wide range of legislative, procedural, economic, and other measures to prevent, prohibit, and criminalize terrorist acts. The preamble of the resolution reaffirms “the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts.” 7. In subsequent resolutions, the Security Council, as well as the General Assembly, while recognizing the importance of the fight against terrorism, called for all “States [to] ensure that any measure[s] taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law”3 . This fundamental principle has been reaffirmed by the Secretary-General,4 the High Commissioner for Human Rights5 and the Commission on Human Rights, which has called on all relevant special procedures and mechanisms of the Commission, as well as the United Nations human rights treaty bodies, to consider, within their mandates, the protection of human rights and fundamental freedoms in the context of measures to combat terrorism.6 B. The obligations of the United States under international law 8. The United States is party to several human rights treaties relevant to the situation of persons held at Guantánamo Bay, most importantly the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)7. On 5 October 1977, the United States signed the International Covenant on Economic, Social and Cultural Rights (ICESCR), which it has not yet ratified. Some of the provisions of these treaties reflect norms of customary international law. The prohibition of torture moreover enjoys jus cogens status. 9. The United States is also party to several international humanitarian law treaties pertinent to the situation in Guantánamo Bay, primarily the Geneva Convention relative to the Treatment of Prisoners of War (Third Convention) and the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Convention), of 12 August 1949, many provisions of which are considered to reflect customary international law. Although the United States is not a party to the Additional Protocols I and II to the Geneva Conventions, some of their provisions – in particular article 75 of Additional Protocol I – are 30

regarded as applicable as they have been recognized as declaratory of customary international law.8 C. Scope of the obligations of the United States under international human rights law 10. In accordance with article 2 of ICCPR, “each State Party …undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the [ICCPR] without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 11. While article 2 refers to persons “within [a State Party’s] territory and subject to its jurisdiction”, the Human Rights Committee, which monitors implementation of the Covenant, has clarified that “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if not situated within the territory of the State party” .9 Similarly, the International Court of Justice (ICJ) in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories10 recognized that the jurisdiction of States is primarily territorial, but concluded that the ICCPR extends to “acts done by a State in the exercise of its jurisdiction outside of its own territory”.11 Accordingly, the particular status of Guantánamo Bay under the international lease agreement between the United States and Cuba and under United States domestic law does not limit the obligations of the United States under international human rights law towards those detained there. Therefore, the obligations of the United States under international human rights law extend to the persons detained at Guantánamo Bay. D. Limitations and derogations 12. ICCPR and other international human rights instruments include specific provisions allowing States to limit, restrict or, in highly exceptional circumstances, derogate from certain rights contained therein. Derogations are provided for under specific circumstances that threaten the life of the nation. Article 4 (1) of ICCPR sets out a number of procedural and substantive safeguards regarding derogation measures: the State must have officially proclaimed a state of emergency; the derogation measures must be limited to those strictly required by the exigencies of the situation; they must not be inconsistent with other international obligations of the State; and they must not be discriminatory. 13. Derogations are exceptional and temporary measures: “The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the Nation” .12 Derogation measures must be lifted as soon as the public emergency or armed conflict ceases to exist. Most importantly, derogation measures must be “strictly required” by the emergency situation. This requirement of proportionality implies that derogations cannot be justified when the same aim could be achieved through less intrusive means.13 Following the events of 11 September 2001, the United States has not notified any official derogation from ICCPR, as requested under article 4 (3) of the Covenant, or from any other international human rights treaty. 14. Not all rights can be derogated from, even during a public emergency or armed conflict threatening the life of a nation. Article 4 (2) of ICCPR stipulates which rights cannot be subject to derogation. These include the right to life (art. 6), the prohibition of torture or cruel, inhuman or degrading treatment or punishment (art. 7), the recognition of everyone as a person before the law (art. 16), and freedom of thought, conscience and religion (art. 18). Although article 9 of the Covenant, enshrining the right to liberty and its corresponding procedural safeguards, and article 14, providing for the right to a fair trial, are not among the non-derogable rights enumerated in article 4, the Human Rights Committee has indicated in its general comment No. 29 (2001) that “procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights.” Thus, the main elements of articles 9 and 14, such as habeas corpus, the presumption of innocence and minimum fair trial rights, must be fully respected even during states of emergency.14 31

E. The complementarity of international humanitarian law and human rights law 15. The application of international humanitarian law and of international human rights law are not mutually exclusive, but are complementary. As stated by the Human Rights Committee in general comment No. 31 (2004): “the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While in respect of certain Covenant rights, more specific rules of international humanitarian law may be especially relevant for the purpose of the interpretation of the Covenant rights, both spheres of law are complementary, not mutually exclusive.” 16. In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ clearly affirmed the applicability of ICCPR during armed conflicts. The Court stated that “the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what constitutes an arbitrary deprivation of life, however, then must be determined by the applicable lex specialis, namely, the law applicable in armed conflict”.15 The Court confirmed its view in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories: “the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the [ICCPR]”16. II. ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES AND LAWYERS 17. The Chairperson of the Working Group on Arbitrary Detention17 and the Special Rapporteur on the independence of judges and lawyers are deeply concerned about the legal regime applied by the United States to the detainees in the Guantánamo Bay detention centre. In their view, the legal regime applied to these detainees seriously undermines the rule of law and a number of fundamental universally recognized human rights, which are the essence of democratic societies. These include the right to challenge the lawfulness of the detention before a court (ICCPR, art. 9 (4)) and the right to a fair trial by a competent, independent and impartial court of law (ICCPR, art. 14); they protect every person from arbitrary detention and unjust punishment and safeguard the presumption of innocence. 18. The legal regime imposed on detainees at Guantánamo is regulated by the Military Order on the Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism of 13 November 200118 (hereafter referred to as the “Military Order”). It allows suspects to be detained indefinitely without charge or trial, or to be tried before a military commission. This section assesses the legal basis for detention and the remedies available to challenge detention from the perspective of the two abovementioned mandates. It then assesses whether these military commissions satisfy the minimum international law requirements of a fair trial and an independent tribunal, in particular as set out in article 14 of ICCPR and in the Basic Principles on the Independence of the Judiciary and the United Nations Basic Principles on the Role of Lawyers. A. Deprivation of liberty at Guantánamo Bay 19. The fundamental proposition of the United States Government with regard to the deprivation of liberty of persons held at Guantánamo Bay is that “[t]he law of war allows the United States – and any other country engaged in combat – to hold enemy combatants without charges or access to counsel for the duration of hostilities. Detention is not an act of punishment but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States”.19 While the Chairperson of the Working Group and the Special Rapporteur would not use the term “enemy combatant”, they share the understanding that any person having committed a belligerent act in the context of an international armed conflict and having fallen into the hands of one of the parties to the conflict (in this case, the United States) can be held for the duration of hostilities, as long as the detention serves the purpose of preventing combatants from continuing to take up arms against the United States. Indeed, this 32

principle encapsulates a fundamental difference between the laws of war and human rights law with regard to deprivation of liberty. In the context of armed conflicts covered by international humanitarian law, this rule constitutes the lex specialis justifying deprivation of liberty which would otherwise, under human rights law as enshrined by article 9 of ICCPR, constitute a violation of the right to personal liberty. 20. The United States justifies the indeterminate detention of the men held at Guantánamo Bay and the denial of their right to challenge the legality of the deprivation of liberty by classifying them as “enemy combatants”. For the reasons the Chairperson of the Working Group and the Special Rapporteur will elaborate, to the extent permitted by the constraints of this report, the ongoing detention of the Guantánamo Bay detainees as “enemy combatants” does in fact constitute arbitrary deprivation of the right to personal liberty. 21. Because detention “without charges or access to counsel for the duration of hostilities” amounts to a radical departure from established principles of human rights law, it is particularly important to distinguish between the detainees captured by the United States in the course of an armed conflict and those captured under circumstances that did not involve an armed conflict. In this context, it is to be noted that the global struggle against international terrorism does not, as such, constitute an armed conflict for the purposes of the applicability of international humanitarian law.20 B. Detainees captured in the course of an armed conflict 22. The Third Geneva Convention provides that where, in the context of “cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties” (art. 2(1)), a person “having committed a belligerent act and having fallen into the hands of the enemy” may be detained as prisoner of war until the end of the hostilities. The Fourth Geneva Convention allows a party to the conflict to detain (“intern”) civilians because they constitute a threat to the security of the Party or intend to harm it (arts. 68, 78 and 79), or for the purposes of prosecution on war crimes charges (art. 70). Once the international armed conflict has come to an end, prisoners of war and internees must be released,21 although prisoners of war and civilian internees against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings.22 As the rationale for the detention of combatants not enjoying prisoner of war status is to prevent them from taking up arms against the detaining power again, the same rule should be applied to them. In other words, non privileged belligerents must be released or charged once the international armed conflict is over. 23. The indefinite detention of prisoners of war and civilian internees for purposes of continued interrogation is inconsistent with the provisions of the Geneva Conventions 23. Information obtained from reliable sources and the interviews conducted by the special procedures mandate holders with former Guantánamo Bay detainees confirm, however, that the objective of the ongoing detention is not primarily to prevent combatants from taking up arms against the United States again, but to obtain information and gather intelligence on the AlQaeda network. 24. The Chairperson of the Working Group and the Special Rapporteur note that, while United States Armed Forces continue to be engaged in combat operations in Afghanistan as well as in other countries, they are not currently engaged in an international armed conflict between two Parties to the Third and Fourth Geneva Conventions. In the ongoing non-international armed conflicts involving United States forces, the lex specialis authorizing detention without respect for the guarantees set forth in article 9 of ICCPR therefore can no longer serve as basis for that detention. C. Detainees captured in the absence of an armed conflict 25. Many of the detainees held at Guantánamo Bay were captured in places where there was – at the time of their arrest – no armed conflict involving the United States. The case of the six men of Algerian origin detained in Bosnia and Herzegovina in October 2001 is a well-known and well-documented example,24 but also numerous other detainees have been arrested under similar 33

circumstances where international humanitarian law did not apply. The legal provision allowing the United States to hold belligerents without charges or access to counsel for the duration of hostilities can therefore not be invoked to justify their detention. 26. This does not of course mean that none of the persons held at Guantánamo Bay should have been deprived of their liberty. Indeed, international obligations regarding the struggle against terrorism might make the apprehension and detention of some of these persons a duty for all States. Such deprivation of liberty is, however, governed by human rights law, and specifically articles 9 and 14 of ICCPR. This includes the right to challenge the legality of detention before a court in proceedings affording fundamental due process rights, such as guarantees of independence and impartiality, the right to be informed of the reasons for arrest, the right to be informed about the evidence underlying these reasons, the right to assistance by counsel and the right to a trial within a reasonable time or to release. Any person deprived of his or her liberty must enjoy continued and effective access to habeas corpus proceedings, and any limitations to this right should be viewed with utmost concern. D. The right to challenge legality of detention before a judicial body 27. The Chairperson of the Working Group and the Special Rapporteur recall that detainees at Guantánamo Bay were deprived of their right to challenge the lawfulness of their detention and of their right to legal counsel for several years, until a United States Supreme Court decision granted detainees access to federal courts. In June 2004, the Supreme Court, in Rasul v. Bush,25 held that United States courts have the jurisdiction to consider challenges to the legality of the detention of foreign nationals detained at the Guantánamo Bay Naval Base. However, at the time of writing (i.e. more than four years after detention at Guantánamo Bay started), not a single habeas corpus petition has been decided on the merits by a United States Federal Court. 28. In light of the Rasul judgement, the Government, on 7 July 2004, created the Combatant Status Review Tribunal (CSRT), a body composed of three noncommissioned officers, to examine the legality of detentions. Thereafter, the United States District Court dealing with the habeas corpus petitions of the Guantánamo detainees ruled that the CSRT proceedings “deny [the detainees] a fair opportunity to challenge their incarceration” and thus fail to comply with the terms of the Supreme Court’s ruling26. According to information received from the Government, all persons currently held at Guantánamo Bay had their status reviewed by the CSRT.27 The United States further established, on 11 May 2004, Administrative Review Boards (ARBs) to provide an annual review of the detention of each detainee. These institutions do not satisfy the requirement in article 9 (3) of ICCPR that “[a]nyone … 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”: the requirement in article 9 (4) of ICCPR that “[a]nyone 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”, or the requirements of article 14 of ICCPR, as: (a) The CSRTs and ARBs do not comprise the guarantees of independence essential to the notions of a “court” (art. 9 (4)) or “exercise of judicial power” (art. 9(3)); (b) Detainees’ defence counsel whom the mandate holders met raised serious concerns regarding CSRT and ARB procedural rules, which do not provide the detainees with a defence counsel.28 Moreover, the restrictions on detainees’ right to be present at hearings in their case and on their access to the information and evidence on which the allegation that they are unlawful belligerents is based undermine the legality and legitimacy of the process; (c) The interviews conducted by the mandate holders with detainees corroborated allegations that the purpose of the detention of most of the detainees is not to bring criminal charges against them but to extract information from them on other terrorism suspects. Indeed, four years after the establishment of the detention facility, none of the inmates has been tried and the proceedings of only nine persons detained at Guantánamo Bay are close to the trial stage; 29 34

(d) It would appear that in determining the status of detainees the CSRT has recourse to the concepts recently and unilaterally developed by the United States Government, and not to the existing international humanitarian law regarding belligerency and combatant status; and (e) Even where the CSRT determines that the detainee is not an “enemy combatant” and should no longer be held, as in the case of the Uighurs held at Guantánamo Bay nine months after the CSRT determined that they should be freed, release might not ensue.30 29. The concerns raised by the shortcomings of the CSRT and ARB procedures are aggravated by the Detainee Treatment Act of 2005, which provides that “no court, or judge shall have jurisdiction to hear or consider (1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba”.31 The exception hereto is that the United States Court of Appeals for the District of Columbia retains jurisdiction to determine the validity of any final decision of a CSRT. However, the jurisdiction of the Court of Appeals only extends to examining whether the procedures were properly followed, and not to the merits of the CSRT decision.32 E. Right to be tried by a competent and independent tribunal 30. Article 14 (1) of ICCPR states that in criminal proceedings “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.33 The Basic Principles on the Independence of the Judiciary also recognize that “everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals”34. The Military Order provides that detainees must be tried by the Military Commission created ad hoc for Guantánamo detainees and denies them the well-established procedures of ordinary civilian courts or military tribunals. 31. The Human Rights Committee in general comment No. 13 (1984) interpreted article 14 of ICCPR to mean that the basic requirements for a fair trial within article 14 apply both to ordinary and specialized tribunals.35 In noting the existence in certain countries of military tribunals which try civilians, the Committee considered that “this could present serious problems as far as the equitable, impartial and independent administration of justice is concerned” and that “quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice”. The Committee concludes that “the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14”36. Military commissions should therefore also fully comply with the provisions set out in article 14 and respect the guarantees for a fair trial. 32. The proceedings before military commissions at Guantánamo Bay are hard to reconcile with article 14 of ICCPR. According to the military order, the judges of the commissions are appointed by the “Appointing Authority”, which is under the authority and the responsibility of the Department of Defense and ultimately of the President. Judges should be commissioned officers of the armed forces and may be removed by the Appointing Authority. Such provisions suggest not only interference by but full control over the commissions’ judges by the executive: the requirement of an independent judiciary is clearly violated. In addition, there appears to be no impartial judicial mechanism for resolving conflict of jurisdiction: decisions on issues of jurisdiction and competence are made by the Appointing Authority, leaving the military commissions outside the control of judicial authorities. 33. Finally, the Military Order requires only a minimum level of legal knowledge for appointment to the commissions. The inadequate qualifications of the members impede the regular and fair conduct of the hearings, violating the essential requirement that “persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law”. 37 The detainees’ right to be tried by judges sufficiently competent in law is violated although Revised Military Commission Order No.1 mitigates this by allocating 35

responsibility for ruling on most questions of law to the presiding officer, who must be a judge advocate of any of the United States Armed Forces. F. The right to a fair trial 34. The right to a fair trial is recognized in article 14 of ICCPR, as well as articles 105 and 106 of the Third Geneva Convention and article 75 of the Additional Protocol I (this last article is considered to be declaratory of customary law)38. The fundamental principles of the right to a fair trial cannot be derogated from by any State, under any circumstances, as affirmed by the Human Rights Committee in its general comment No. 29.39 The Military Order recognizes the duty to “provide a full and fair trial”, but its provisions do not guarantee that right. 35. The Military Order limits the right to be tried in one’s presence. Also, the right of the accused to defend himself/herself in person or through legal assistance of his/her own choosing is violated since, as noted above, the Military Commissions provide for a defence counsel to be appointed directly by the Appointing Authority, and for the possibility of his/her removal by the same authority “for good reason”. Under the Military Order the accused may retain the services of a civilian attorney of his own choosing, but that attorney has to satisfy a number of requirements, including being determined eligible for access to classified information, signing confidentiality agreements regarding the procedures and the cases he or she is involved with, traveling to Guantánamo at his own expenses, and agreeing not to leave the base without authorization. In addition, certain information and evidence may be kept from the civilian lawyer and he or she may be excluded from the hearing for reasons of national security. All of these requirements imperil the right to a fair trial under article 14(1) of ICCPR and specific “minimum guarantees” set forth in article 14(3)(b) and (d): to be allowed to adequately prepare one’s defense, with the assistance of counsel of one’s own choosing, and to test evidence adduced against one. They further clearly violate the Basic Principles on the Role of Lawyers40. 36. The right adequately to prepare one’s defence (ICCPR, art. 14(3) (b) and the Basic Principles on the Role of Lawyers)41, which includes access to documents and other evidence and to examine witnesses against oneself and have witnesses examined on one’s behalf is not guaranteed, since the Military Order provides that “[t]he Accused may obtain witnesses and documents for the Accused's defense, to the extent necessary and reasonably available as determined by the Presiding Officer”.42 The grounds for denying the accused and the defence counsel of his choice access to “protected information” remain excessively broad also under Revised Military Commission Order No. 1 of August 2005, which brought some improvement to the Military Order of March 2002 in this respect. However, by virtue of the Detainee Treatment Act of December 2005 a United States Court of Appeals now has jurisdiction to assess whether the commission provided the defendant a “full and fair trial”, and whether the admission of evidence the accused has not seen was compatible with his right to a fair trial. Nonetheless, the Chairperson of the Working Group and the Special Rapporteur remain highly concerned that the right adequately to prepare one’s defence is insufficiently protected in proceedings before military commissions. 37. The Chairperson of the Working Group and the Special Rapporteur are also concerned about the conditions under which information is obtained from detainees at Guantánamo Bay. They have been informed by former detainees that the power to mitigate the harsh conditions of detention is in the hands of interrogators and depends on the degree of “cooperation” with them. Detainees are subjected to regular interrogations and put under strong pressure to confess that they are members of Al-Qaeda and/or to incriminate other persons. The gathering of evidence in such conditions affects the credibility of any charges brought against them or against other persons. 38. The right to be tried without undue delay (ICCPR, art.14 (3) (c)) relates both to the time by which the trial should commence and the time by which it should end43. Out of a total of more than 500 detainees presently held at Guantánamo Bay, fewer than 10 have so far been referred to a military commission. The vast majority of the Guantánamo detainees have not been charged 36

with an offence after several years of detention.44 As they continue to be detained, the detainees’ right to be tried without undue delay is being violated. 39. Concerning the right to a public hearing, the Military Order authorizes the court, for unspecified “national security” reasons, to conduct trials in secret. 40. Finally, the decisions of the military commissions were previously only reviewable by a panel appointed by the Secretary of Defense, with a final review being available to the President of the United States. The Detainee Treatment Act of December 2005 has given the United States Court of Appeals for the District of Columbia jurisdiction to determine the validity of any final decision rendered by a military commission. However, the scope of such review is very limited. The right to an appeal before an independent tribunal, enshrined in article 14 (5) of ICCPR, is consequently also severely restricted. III. Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 41. The right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment is explicitly affirmed in article 7 of ICCPR. The Convention against Torture defines torture, and details measures to be taken by States parties to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment. 42. Article 2 (2) of the Convention states that: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The right to be free from torture and cruel, inhuman or degrading treatment or punishment is a non-derogable right, and therefore no exceptional circumstances may be invoked to justify derogation. The Human Rights Committee and the Committee against Torture have consistently emphasized the absolute character of the prohibition of torture and underlined that this prohibition cannot be derogated from in any circumstances, even in war or while fighting terrorism.45 43. The prohibition of torture and “outrages upon personal dignity, in particular humiliating and degrading treatment” is also contained in common article 3 of theGeneva Conventions of 1949, to which the United States is a party. Moreover, the prohibition of torture is part of jus cogens. Torture and other inhumane acts causing severe pain or suffering, or serious injury to the body or to mental or physical health are also prohibited under international criminal law and in certain instances can amount to crimes against humanity and war crimes.46 44. The prohibition of torture provided by the relevant international standards, in particular the Convention against Torture, also encompasses the principle of nonrefoulement (art. 3 ), the obligation to investigate alleged violations promptly and bring perpetrators to justice, the prohibition of incommunicado detention, and the prohibition of the use of evidence obtained under torture in legal proceedings. 45. In view of the foregoing, the United States has the obligation to fully respect the prohibition of torture and ill-treatment. The Special Rapporteur on torture notes the reservations to the Convention and ICCPR made by the United States, indicating that it considers itself bound by the prohibition of cruel, inhuman and degrading treatment only to the extent that it means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.47 In this regard, he would like to recall the concerns of the relevant treaty bodies, which deplored the failure of the United States to include a crime of torture consistent with the Convention definition in its domestic legislation and the broadness of the reservations made by the United States.48 A. Lack of clarity/confusing rules 46. Beginning in 2001, the Administration of the United States, while officially reiterating its adherence to the absolute prohibition of torture,49 has put in place a number of policies that effectively weaken the prohibition. A concrete example is the memorandum of 1 August 2002 from Jay S. Bybee, then Assistant Attorney General for the Office of Legal Council at the Department of Justice and now federal judge, to Alberto Gonzales, then Counsel to the President of the United States and now Attorney General, which attempts to significantly narrow the 37

definition of torture and claims that the necessity of self-defence can justify violations of the law prohibiting the use of torture.50 The Special Rapporteur notes that, as indicated in the response by the United States Government to the questionnaire of 21 October 2005, this memorandum was superseded by a Department of Justice memorandum dated 30 December 2004. 47. However, several subsequent internal Department of Defense memoranda have sought to widen the boundaries of what is permissible in terms of “counter- resistance techniques” (see also section B below). On 16 April 2003, a memorandum which is currently in force was issued, authorizing 24 specific techniques. Its introduction states that “US Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions.”51 This formulation is ambiguous in that it implies that military necessity may override the principles of the Geneva Conventions. In this context, the Special Rapporteur also notes that in its reply to the questionnaire the United States exclusively uses the term “torture” and makes no reference to “cruel, inhuman and degrading treatment and punishment”. 48. The debate in the Senate on 5 October 2005 is telling.52 Senator McCain, describing the confusion that exists regarding authorized and unauthorized interrogation techniques, said: “What this also means is that confusion about the rules becomes rampant again. We have so many differing legal standards and loopholes that our lawyers and generals are confused. Just imagine our troops serving in prison in the field.”53 The Special Rapporteur welcomes that the acceptance made on 15 December 2005 by President Bush of the McCain amendment to the Department of Defense Appropriations Bill prohibiting cruel, inhuman and degrading treatment or punishment (CIDT) with regard to persons kept in detention by the Department of Defense and in the custody or control of the United States Government worldwide, thereby clarifying the confusing rules and codifying the prohibition of CIDT.54 He also considers a significant progress the failure of the attempts of Vice-President Cheney and CIA Director Goss to explicitly exempt the CIA from the legal prohibition of CIDT. B. Interrogation techniques 49. Following the ambiguous interpretations of what constitutes torture and illtreatment detailed in Section A, the following interrogation techniques, which clearly went beyond earlier practice (as contained in Army Field Manual FM 34-52), were approved by the Secretary of Defense on 2 December 2002. • “The use of stress positions (like standing) for a maximum of four hours; • Detention in isolation up to 30 days; • The detainee may have a hood placed over his head during transportation and questioning; • Deprivation of light and auditory stimuli; • Removal of all comfort items; • Forced grooming (shaving of facial hair, etc); • Removal of clothing; • Interrogation for up to 20 hours and • Using detainees’ individual phobias (such as fear of dogs) to induce stress.”55 50. After having rescinded the above memorandum on 15 January 200556, the Secretary of Defense on 16 April 2003 authorised the following techniques which remain in force57: • “B. Incentive/Removal of Incentive i.e. comfort items; • S. Change of Scenery Down might include exposure to extreme temperatures and deprivation of light and auditory stimuli; • U. Environmental Manipulation: Altering the environment to create moderate discomfort (e.g. adjusting temperature or introducing an unpleasant smell). • V. Sleep Adjustment; Adjusting the sleeping times of the detainee (e.g. reversing sleep cycles from night to day) This technique is not sleep deprivation. • X. Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment.” 38

51. These techniques meet four of the five elements in the Convention definition of torture (the acts in question were perpetrated by government officials; they had a clear purpose, i.e. gathering intelligence, extracting information; the acts were committed intentionally; and the victims were in a position of powerlessness). However, to meet the Convention definition of torture, severe pain or suffering, physical or mental, must be inflicted. Treatment aimed at humiliating victims may amount to degrading treatment or punishment, even without intensive pain or suffering. It is difficult to assess in abstracto whether this is the case with regard to acts such as the removal of clothes. However, stripping detainees naked, particularly in the presence of women and taking into account cultural sensitivities, can in individual cases cause extreme psychological pressure and can amount to degrading treatment, or even torture. The same holds true for the use of dogs, especially if it is clear that an individual phobia exists.58 Exposure to extreme temperatures, if prolonged, can conceivably cause severe suffering. 52. On the interviews conducted with former detainees, the Special Rapporteur concludes that some of the techniques, in particular the use of dogs, exposure to extreme temperatures, sleep deprivation for several consecutive days59 and prolonged isolation were perceived as causing severe suffering.60 He also stresses that the simultaneous use of these techniques is even more likely to amount to torture. The Parliamentary Assembly of the Council of Europe also concluded that many detainees had been subjected to illtreatment amounting to torture, which occurred systematically and with the knowledge and complicity of the United States Government.61 The same has been found by Lord Hope of Craighead, member of the United Kingdom’s House of Lords, who stated that “some of [the practices authorized for use in Guantánamo Bay by the United States authorities] would shock the conscience if they were ever to be authorized for use in ourown country”.62 C. Conditions of detention 53. Whereas it is conceivable that in the beginning the conditions of detention put in place were determined for reasons of order and security, they then seem to have been used to “counter resistance” and to cause stress. 63 Moreover, they were closely linked with investigation techniques.64 There is plentiful evidence indicating that policies aimed at forcing detainees to cooperate such as withholding of clothes or of hygienic products, permanent light in the cells,65 no talking,66 cultural and religious harassment,67 sensory deprivation, intimidation, and the deliberate uncertainty generated by the indeterminate nature of confinement and the denial of access to independent tribunals, were used and led to serious mental health problems68. Moreover, prolonged detention in Maximum Security Units clearly had the effect of putting pressure on detainees.69 Reports indicate that although 30 days of isolation was the maximum period permissible, detainees were put back in isolation after very short breaks, so that they were in quasi-isolation for up to 18 months.70 According to the jurisprudence of the Human Rights Committee, prolonged solitary confinement and similar measures aimed at causing stress violate the right of detainees under article 10 (1) ICCPR to be treated with humanity and with respect for the inherent dignity of the human person, and might also amount to inhuman treatment in violation of article 7 ICCPR.71 D. Use of excessive violence 54. There are recurrent reports of three contexts in which excessive force was routinely used: during transportation,72 with regard to operations by the “Initial Reaction Forces” (IRF), and by force-feeding during hunger strikes. The last is briefly dealt with in section V on the right to health. According to reports by the defence counsels, some of the methods used to force-feed definitely amounted to torture. 73 In the absence of any possibility of assessing these allegations in situ by means of private interviews with detainees subjected to forced feeding, as well as with doctors, nurses and prison guards, the allegations, which are well substantiated, must be held to be accurate. Treatment during transport and IRF operations is documented by photo74 and video material.75 39

These pictures indicate that during transport and IRF operations, detainees shackled, chained, hooded, forced to wear earphones and goggles. They also show beating, kicking, punching, but also stripping and force shaving by IRF where detainees resisted, which have been corroborated by testimonies of former detainees.76 The Special Rapporteur considers that such treatment amounts to torture, as it inflicts severe pain or suffering on the victims for the purpose of intimidation and/or punishment. E. Transfer, extraordinary rendition, non-refoulement 55. There have been consistent reports about the practice of rendition and forcible return of Guantánamo detainees to countries where they are at serious risk of torture. An example is the transfer of Mr. Al Qadasi to Yemen in April 2004. He has since been visited by his lawyer and international NGOs. According to his lawyer, he was not warned about his imminent return to Yemen and therefore had no possibility to appeal. In early April he received an injection against his will, which led to loss of consciousness and hallucinations. When he woke up several days later, he found himself in prison in Sana’a , where he alleges he was been beaten and deprived of food.77 On the basis of the information available to him, the Special Rapporteur takes the view that the United States practice of “extraordinary rendition” constitutes a violation of article 3 of the Convention against Torture and article 7 of ICCPR. 78 F. Lack of impartial investigation/impunity 56. As noted elsewhere in this report, detainees did not have access to judicial procedures for prolonged periods. Investigations into allegations of torture or CIDT were conducted by different parts of the executive branch,79 and lacked impartiality. No independent judicial investigation seems to have taken place into any allegations of torture or ill-treatment, a clear violation of international minimum standards. Consequently, no one was brought to justice for having committed acts of torture.80 It is of concern that there appear to have been attempts to ensure impunity for perpetrators of torture or ill-treatment.81 The Special Rapporteur takes the view that the lack of any independent investigation into the various allegations of torture and ill-treatement at Guantánamo Bay amount to a violation of the obligations of the United States under articles 12 and 13 of the Convention against Torture. He therefore agrees with the European Parliament’s call on the United States administration to “allow an impartial and independent investigation into allegations of torture and mistreatment for all persons deprived of their liberty in US custody”.82 IV. FREEDOM OF RELIGION OR BELIEF AND RELIGIOUS INTOLERANCE A. Applicable international standards 57. The right to freedom of religion or belief is protected by article 18 of ICCPR and the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In its general comment No. 22, the Human Rights Committee interprets article 18 to the effect that “persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint.”83 A person deprived of his or her liberty cannot be deprived of his or her right to freedom or religion or belief. These standards must be applied to every person, regardless of their religion or belief, and in all detention facilities.84 58. Article 18 (3) ICCPR provides that “[f]reedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”85 On these limitations, the Committee “observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security.”86 Moreover, under article 4 of ICCPR, the right to freedom of religion or belief may in no circumstances be subject to derogation. 40

59. Finally, the Third and Fourth Geneva Conventions oblige parties to respect the religion and religious practices of persons deprived of their liberty in the context of an armed conflict, including prisoners of war, interned persons and other types of detainees. This includes the freedom to practise one’s religion, the access to clergy, and the prohibition of discrimination on the basis of religion.87 B. Reported allegations 60. The review of a number of official documents and reports as well as information obtained on the basis of interviews reveal that certain interrogation techniques that were especially degrading for members of certain religions were authorized by the United States authorities.88 Other treatments which may have been specifically designed to offend the religious sensitivities of the detainees, were repeatedly used by those involved in the custody, interrogation and treatment of detainees (e.g. use of female interrogators, who performed, inter alia, “lap dances during interrogations”89). It was also reported that these techniques were used before prayer times and that in some cases, detainees were not allowed to wash themselves before and therefore were not able to pray. 61. The list of officially approved interrogation techniques in force today90 allows for the removal of religious items (e.g. the Holy Koran). This constitutes an impermissible limitation on the right to freedom of religion or belief of detainees. 62. There was particular concern at reports of possible mishandling of religious objects, such as the Holy Koran. The Special Rapporteur on freedom of religion or belief sent a communication on this matter to the Government of the United States on 23 May 2005. The Government reply of 18 August 2005 provided detailed information on the investigations that were conducted following these allegations, as well as on the existing measures and guidelines for the personnel of the detention facilities. As a result of their investigations, the Government indicated that it had identified five confirmed cases of mishandling of the Holy Koran by guards and interrogators, either intentionally or unintentionally, including kicking and stepping on the Holy Koran.91 63. A number of detainees have alleged that they were subjected to forced grooming, including shaving of beards, heads and eyebrows. 64. Further concerns were raised by the removal of a military Muslim cleric from his position at Guantánamo Bay. He later was arrested on suspicion of espionage and held in solitary confinement for 76 days. It has been alleged that he has not been replaced, leaving the Muslim detainees unattended, in violation of the Standard Minimum Rules for the Treatment of Prisoners.92 65. Finally, there are also concerns about reports that the United States Government has, either implicitly or explicitly, encouraged or tolerated the association of between Islam and terrorism, for example, by interrogating detainees on the extent of their faith in Islamic teachings. V. THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH 66. The right to health derives from the dignity of the human person and is reflected in the following international instruments relevant in the current situation: article 25(1) of the Universal Declaration of Human Rights, article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), article 5(e)(iv) of the International Convention on the Elimination of All Forms of Racial Discrimination and article 24 of the Convention on the Rights of the Child.93 Although the United States has ratified neither ICESCR nor the Convention on the Rights of the Child, it is a signatory of both and therefore “is obliged to refrain from acts which would defeat the object and purpose” of either treaty.94 The United States is also a Contracting Party to the World Health Organization, and thus has accepted the principle that the “enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being.”95 67. The mandate of the Special Rapporteur covers reporting on the status of the realization of the right to health “throughout the world”,96 and States are called upon to cooperate fully with the Special Rapporteur in the implementation of this mandate,97 paying particular attention to the 41

health of vulnerable groups.98 The mandate of the Special Rapporteur, therefore, extends to alleged violations of the right to health in Guantánamo Bay. 68. In addition to States having duties arising from the right to health, health professionals also have some right-to-health responsibilities deriving from international human rights law.99 69. The right to health includes the right to timely and appropriate health care, as well as to the underlying determinants of health, such as safe drinking water and adequate food and sanitation.100 International human rights instruments also impose specific obligations on States to provide prisoners with healthy living conditions and quality health care, including mental health care.101 70. The Special Rapporteur on the right to health has received serious and credible reports of violations of the right to health – both health care and the underlying determinants of health – at Guantánamo Bay.102 The reports allege, inter alia, that (i) the conditions of confinement have had devastating effects on the mental health of the detainees; (ii) provision of health care has been conditioned on cooperation with interrogators; (iii) health care has been denied, unreasonably delayed and inadequate; (iv) detainees have been subjected to non-consensual treatment, including drugging and forcefeeding; and (v) health professionals systematically violate professional ethical standards, precluding the provision of quality health care for detainees. Although all these allegations are serious, given the limited length of this report, the Special Rapporteur will consider two issues: mental health, and the ethical responsibilities of health professionals, including those arising from force-feeding. A. Mental health 71. Reports indicate that the treatment of detainees since their arrests, and the conditions of their confinement, have had profound effects on the mental health of many of them.103 The treatment and conditions include the capture and transfer of detainees to an undisclosed overseas location, sensory deprivation and other abusive treatment during transfer; detention in cages without proper sanitation and exposure to extreme temperatures; minimal exercise and hygiene; systematic use of coercive interrogation techniques; long periods of solitary confinement; cultural and religious harassment; denial of or severely delayed communication with family; and the uncertainty generated by the indeterminate nature of confinement and denial of access to independent tribunals.104 These conditions have led in some instances to serious mental illness, over 350 acts of self-harm in 2003 alone, individual and mass suicide attempts and widespread, prolonged hunger strikes.105 The severe mental health consequences are likely to be long term in many cases, creating health burdens on detainees and their families for years to come.106 B. Ethical obligations of health professionals, including in relation to forcefeeding 72. In his reports, the Special Rapporteur has emphasized that health professionals play an indispensable role in promoting, protecting and fulfilling the right to health.107 Nonetheless, in the past, some health professionals participated, often under duress, in violations of the right to health and other human rights.108 In response to these abuses, international human rights instruments have addressed the conduct of health professionals. ICCPR, for example, states that “no one shall be subjected without his free consent to medical or scientific experimentation”.109 Further, the Human Rights Committee has invited States parties to report on the extent to which they apply the United Nations Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by General Assembly resolution 37/194 of 18 December 1982.110 73. The United Nations Principles of Medical Ethics apply to all health professionals. They state that it is a contravention of medical ethics for health personnel (a) to be in any relationship with detainees “the purpose of which is not solely to evaluate, protect or improve their physical and mental health”, (b) to use their knowledge and skills to assist in the interrogation of detainees “in any manner that may adversely affect physical or mental health”, or (c) to certify the fitness of detainees for any “treatment or punishment that may adversely affect their physical or mental 42

health”. The United Nations Principles also state that there may be no derogation from these principles on any ground, including public emergency. 74. The World Medical Association adopted similar ethical standards in the Declaration of Tokyo (1975), which was subsequently adopted by the American Medical Association.111 The Declaration prohibits doctors from participating in, or being present during, any form of torture or other form of cruel, inhuman or degrading treatment and from providing any knowledge to facilitate such acts. The doctor’s fundamental role is to alleviate distress and no other motive shall prevail against this purpose.112 The International Council of Nurses also condemns interrogation procedures harmful to mental and physical health, as well as inhumane treatment of detainees:113 “Nurses have a fundamental responsibility to promote health, to prevent illness, to restore health and to alleviate suffering.”114 These internationally agreed ethical norms are implied in, and form an essential part of, the right to health. Compliance by health professionals with such ethical standards is essential to realizing the right to health. 75. The Special Rapporteur has received reports, many confirmed by investigations of the United States military,115 that health professionals in Guantánamo Bay have systematically violated widely accepted ethical standards set out in the United Nations Principles of Medical Ethics and the Declaration of Tokyo, in addition to well-established rules on medical confidentiality. Alleged violations include: (a) breaching confidentiality by sharing medical records or otherwise disclosing health information for purposes of interrogation;116 (b) participating in, providing advice for or being present during interrogations;117 and (c) being present during or engaging in non-consensual treatment, including drugging and force-feeding.118 In sum, reports indicate that some health professionals have been complicit in abusive treatment of detainees detrimental to their health. Such unethical conduct violates the detainees’ right to health, as well as the duties of health professionals arising from the right to health. 76. A report of the International Committee of the Red Cross indicates that the “apparent integration of access to medical care within the system of coercion meant that inmates were not cooperating with the doctors. Inmates learn from their interrogators that they have knowledge of their medical histories and the result is that prisoners no longer trust the doctors”.119 The Special Rapporteur is concerned that the information detainees disclose to health professionals has been used to punish and coerce, and therefore detainees have learned that they cannot trust health professionals. As a result, detainees may not seek health care or, if they do, may not disclose to health professionals all information necessary to receive adequate and appropriate health care. In the context of the hunger strikes, a trusting relationship between the detainee and the health professional is essential for the health professional to provide health information and advice to the hunger striker consistent with ethical principles. 77. The United States Department of Defense has promulgated Medical Program Principles that parallel the United Nations Principles of Medical Ethics, yet differ significantly in several respects. Most importantly, the United States Principles apply only to health professionals in a “professional provider-patient treatment relationship”.120 Consistent with this role distinction, the United States acknowledges that psychiatrists and psychologists have participated in Behavioural Science Consultation Teams, which provide expertise for interrogations, but justifies their participation on the grounds that these health professionals are not in provider-patient relationships with detainees. It contends, moreover, that the purpose of such Teams is to assist “in conducting safe, legal, ethical and effective interrogations”.121 78. Interrogation techniques that have been approved and used at Guantánamo Bay, however, are not consistent with the objective of safe, legal, ethical and effective interrogations,122 and they have adversely affected the mental health of detainees. Further, the United Nations Principles and other codes of ethics for health professionals make no distinctions based on the role of the health professional. Their premise is that the knowledge and skills of health professionals should not be used to the detriment of humans; the particular position the professional holds therefore is not relevant.123 To the extent that health professionals 43

“apply their knowledge and skills” to assist in any manner with interrogations that “may adversely affect” (emphasis added) the physical or mental health of the detainee, they violate professional ethics and the right to health of detainees.124 79. Reports from Guantanamo Bay confirm that doctors and other health professionals are participating in force-feeding detainees.125 The force-feeding of hunger strikers raises several distinct human rights issues. One issue concerns the manner in which detainees are force-fed, which is addressed in this report in the section on torture.126 Another issue concerns the ethics and legality of force-feeding, regardless of how it is undertaken, which the following remarks address only briefly given the severe space constraints. 80. The Declarations of Tokyo and Malta prohibit doctors from participating in forcefeeding a detainee, provided the detainee is capable of understanding the consequences of refusing food.127 This position is informed by the fundamental principle, which recurs throughout human rights law, of individual autonomy. As well as the World Medical Association, the American Medical Association and many others have endorsed the Declaration of Tokyo.128 Additionally, during 2004, in the context of a hunger strike by Palestinian security detainees, the ICRC reported that its doctors will “urge the authorities not to subject detainees to force-feeding”.129 Further, some domestic courts have decided, based on an individual’s right to refuse medical treatment, that a state may not force feed a prisoner.130 While some other domestic courts have taken a different position, it is not clear that they have all given due consideration to the relevant international standards.131 81. According to the United States Government, Department of Defence policy allows health professionals to force feed a detainee in Guantanamo Bay when the hunger strike threatens his life or health.132 However, the United States policy is inconsistent with the principle of individual autonomy, the policy of the World Medical Association and the American Medical Association, as well as the position of ICRC doctors (as signaled in the previous paragraph), some domestic courts, and many others. 82. From the perspective of the right to health, informed consent to medical treatment is essential,133 as is its “logical corollary” the right to refuse treatment.134 A competent detainee, no less than any other individual, has the right to refuse treatment.135 In summary, treating a competent detainee without his or her consent – including forceE/ feeding – is a violation of the right to health, as well as international ethics for health professionals.

44

VII. CONCLUSIONS AND RECOMMENDATIONS A. Conclusions 83. International human rights law is applicable to the analysis of the situation of detainees in Guantánamo Bay. Indeed, human rights law applies at all times, even during situations of emergency and armed conflicts. The war on terror, as such, does not constitute an armed conflict for the purposes of the applicability of international humanitarian law. The United States of America has not notified to the Secretary-General of the United Nations or other States parties to the treaties any official derogation from the International Covenant on Civil and Political Rights or any other international human rights treaty to which it is a party. 84. The persons held at Guantánamo Bay are entitled to challenge the legality of their detention before a judicial body in accordance with article 9 of ICCPR, and to obtain release if detention is found to lack a proper legal basis. This right is currently being violated, and the continuing detention of all persons held at Guantánamo Bay amounts to arbitrary detention in violation of article 9 of ICCPR. 85. The executive branch of the United States Government operates as judge, prosecutor and defence counsel of the Guantánamo Bay detainees: this constitutes serious violations of various guarantees of the right to a fair trial before an independent tribunal as provided for by article 14 of the ICCPR. 86. Attempts by the United States Administration to redefine “torture” in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture are of utmost concern. The confusion with regard to authorized and unauthorized interrogation techniques over the last years is particularly alarming. 87. The interrogation techniques authorized by the Department of Defense, particularly if used simultaneously, amount to degrading treatment in violation of article 7 of ICCPR and article 16 of the Convention against Torture. If in individual cases, which were described in interviews, the victim experienced severe pain or suffering, these acts amounted to torture as defined in article 1 of the Convention. Furthermore, the general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement, amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under article 10 (1) of ICCPR to be treated with humanity and with respect for the inherent dignity of the human person. 88. The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces and force-feeding of detainees on hunger strike must be assessed as amounting to torture as defined in article 1 of the Convention against Torture. 89. The practice of rendition of persons to countries where there is a substantial risk of torture, such as in the case of Mr. Al Qadasi, amounts to a violation of the principle of nonrefoulement and is contrary to article 3 of the Convention against Torture and Article 7 of ICCPR. 90. The lack of any impartial investigation into allegations of torture and illtreatment and the resulting impunity of the perpetrators amount to a violation of articles 12 and 13 of the Convention against Torture. 91. There are reliable indications that, in different circumstances, persons detained in the Guantánamo Bay detention facilities have been victims of violations of the right to freedom of religion or belief, contrary to article 18 of ICCPR and the 1981 Declaration. It is of particular concern that some of these violations have even been authorized by the authorities. In addition, some interrogation techniques are based on religious discrimination and are aimed at offending the religious feelings of detainees. 45

92. The totality of the conditions of their confinement at Guantánamo Bay constitute a right-to-health violation because they derive from a breach of duty and have resulted in profound deterioration of the mental health of many detainees. 93. There are also serious concerns about the alleged violations of ethical standards by health professionals at Guantánamo Bay and the effect that such violations have on the quality of health care, including mental health care, the detainees are receiving. 94. The treatment of the detainees and the conditions of their confinement has led to prolonged hunger strikes. The force-feeding of competent detainees violates the right to health as well as the ethical duties of any health professionals who may be involved. B. Recommendations 95. Terrorism suspects should be detained in accordance with criminal procedure that respects the safeguards enshrined in relevant international law. Accordingly, the United States Government should either expeditiously bring all Guantánamo Bay detainees to trial, in compliance with articles 9(3) and 14 of ICCPR, or release them without further delay. Consideration should also be given to trying suspected terrorists before a competent international tribunal. 96. The United States Government should close the Guantánamo Bay detention facilities without further delay. Until the closure, and possible transfer of detainees to pre-trial detention facilities on United States territory, the Government should refrain from any practice amounting to torture or cruel, inhuman or degrading treatment or punishment, discrimination on the basis of religion, and violations of the rights to health and freedom of religion. In particular, all special interrogation techniques authorized by the Department of Defense should immediately be revoked. 97. The United States Government should refrain from expelling, returning, extraditing or rendering Guantánamo Bay detainees to States where there are substantial grounds for believing they would be in danger of being tortured. 98. The United States Government should ensure that every detainee has the right to make a complaint regarding his treatment and to have it dealt with promptly and, if requested, confidentially. If necessary, complaints may be lodged on behalf of the detainee or by his legal representative or family. 99. The United States Government should ensure that all allegations of torture or cruel, inhuman or degrading treatment or punishment are thoroughly investigated by an independent authority, and that all persons found to have perpetrated, ordered, tolerated or condoned such practices, up to the highest level of military and political command, are brought to justice. 100. The United States Government should ensure that all victims of torture or cruel, inhuman or degrading treatment or punishment are provided with fair and adequate compensation, in accordance with article 14 of the Convention against Torture, including the means for as full a rehabilitation as possible. 101. The United States Government should provide the personnel of detention facilities with adequate training, in order to ensure that they know that it is their duty to respect international human rights standards for the treatment of persons in detention, including the right to freedom of religion, and to enhance their sensitivity of cultural issues. 102. The United States Government should revise the United States Department of Defense Medical Program Principles to be consistent with the United Nations Principles of Medical Ethics. 103. The United States Government should ensure that the authorities in Guantánamo Bay do not force-feed any detainee who is capable of forming a rational judgement and is aware of the consequences of refusing food. The United States Government should invite independent health professionals to monitor hunger strikers, in a manner consistent with international ethical standards, throughout the hunger strike. 46

104. All five mandate holders should be granted full and unrestricted access to the Guantánamo Bay facilities, including private interviews with detainees.

47

Annex 1 Notes 1 These

interviews were carried out with the consent of the Governments concerned (France, Spain and the UK). Similar request have been addressed by the five mandate holders to Afghanistan, Morocco and Pakistan in order to meet with former detainees currently residing in the three respective countries. No response has been received so far. 2 Response of the United States of America, dated October 21, 2005 to the inquiry of the Special Rapporteurs dated 8 August 2005 pertaining to detainees at Guantánamo Bay, p. 52. For more updated information, see the fact sheets of the US Department of Defense (available at http://www.defenselink.mil/news/Aug2005/d20050831sheet.pdf>), according to which, as of 31 August 2005, there were four “cases where detainees are charged and the case is underway”, with another eight subject to the president’s jurisdiction under his November 2001 military order. According to further fact sheets posted by the Department of Defense on its web site, in December 2005 five further detainees had “charges … referred to a military commission”, bringing the total of detainees referred to a military commission to nine as of the end of December 2005. 3 Declaration annexed to Security Council resolution 1456 (2003). Relevant General Assembly resolutions on this issue are 57/219, 58/187 and 59/191.The most recent resolution adopted by the Security Council is 1624 (2005), in which the Security Council reiterated the importance of upholding the rule of law and international human rights law while countering terrorism. 4 Statement delivered by the Secretary-General at the Special Meeting of the Counter-Terrorism Committee with Regional Organizations, New York, 6 March 2003, http://www.un.org/apps/sg/sgstats.asp?nid=275. 5 Speech delivered by the United Nations High Commissioner for Human Rights at the Biennial Conference of the International Commission of Jurists (Berlin, 27 August 2004), http://www.unhchr.ch/huricane/huricane.nsf/NewsRoom?OpenFrameSet. 6 See Commission on Human Rights resolutions 2003/68, 2004/87 and 2005/80. 7 The United States has entered reservations, declarations and understandings with regard to a number of provisions of these treaties. Most relevant are the reservations to article 7 of ICCPR and article 16 of the Convention against Torture, as noted in paragraph 45. 8 "The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions", Remarks of Michael J. Matheson, Deputy Legal Adviser, United States Department of State, in The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: "A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions", The American University Journal of International Law and Policy, Vol. 2, No. 2 (Fall 1987), pp. 419-431. 9 Human Rights Committee, General Comment No. 31 (2004), CCPR/C/21/Rev.1/Add.13, para. 10. 10 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, I.C.J. Reports 2004 (9 July 2004). 11 Ibid, para. 111. The ICJ reached the same conclusion with regard to the applicability of the Convention on the Rights of the Child (para. 113). As far as the Convention against Torture is concerned, articles 2(1) and 16(1) refer to each State party’s obligation to prevent acts of torture “in any territory under its jurisdiction”. Accordingly, the territorial applicability of the Convention to United States activities at Guantánamo Bay is even less disputable than the territorial applicability of ICCPR, which refers (article 2(1)) to “all individuals within its territory and subject to its jurisdiction”. 12 Human Rights Committee, General Comment No. 29 (2001), CCPR/C/21/Rev.1/Add.11, para. 3. 13 Ibid. 14 Ibid, para. 15-16. 15 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 240 (8 July 1996), para. 25. 16 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, I.C.J. Reports 2004 (9 July 2004), para 106. 17 The Commission on Human Rights resolutions governing the Working Group mandate it “to investigate cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards” (1991/42, 1997/50 and 2003/31). In its report to the Commission on Human Rights at its fifty-ninth session, the Working Group gave a Legal Opinion regarding deprivation of liberty of persons detained at Guantánamo Bay (E/CN.4/2003/8, paras. 61 to 64). On 8 May 2003, the Working Group issued its Opinion No. 5/2003 concerning the situation of four men held at Guantánamo Bay, finding that it constituted arbitrary detention. The Working Group also reflected developments in United States litigation relating to Guantánamo Bay in its report to the Commission in 2005 (E/CN.4/2005/6, para. 64). 18 This Military Order has been complemented by several subsequent Military Commissions Orders, i. a. Military Commission Order No. 1 of 21 March 2002, which was superseded on 31 August 2005 by the Revised Military Commission Order No. 1, Military Commission Order No. 2 of 21 June 2003

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(subsequently revoked), Military Commission Order No. 3 of 5 February 2004 (superseded by Military Commission Order No. 3 of 21 September 2005), Military Commission Order No. 4 of 30 January 2004 (subsequently revoked), Military Commission Order No. 5 of 15 March 2004, and Military Commission Order No. 6 of 26 March 2004: reference to the “Military Order” in the text should be read as referring to the series of Military Commissions Orders. 19 Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR Special Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, page 3. 20 See Official Statement of the International Committee of the Red Cross (ICRC) dated 21 July 2005 regarding “The relevance of IHL in the context of terrorism” (available at ): “International humanitarian law (the law of armed conflict) recognizes two categories of armed conflict: international and non-international. International armed conflict involves the use of armed force by one State against another. Non-international armed conflict involves hostilities between government armed forces and organized armed groups or between such groups within a state. When and where the "global war on terror" manifests itself in either of these forms of armed conflict, international humanitarian law applies, as do aspects of international human rights and domestic law. For example, the armed hostilities that started in Afghanistan in October 2001 or in Iraq in March 2003 are armed conflicts. When armed violence is used outside the context of an armed conflict in the legal sense or when a person suspected of terrorist activities is not detained in connection with any armed conflict, humanitarian law does not apply. Instead, domestic laws, as well as international criminal law and human rights govern. […] The designation "global war on terror" does not extend the applicability of humanitarian law to all events included in this notion, but only to those which involve armed conflict.” 21 Third Geneva Convention relative to the Treatment of Prisoners of War, art. 118, and Fourth Geneva Convention relative to the Treatment of Civilian Persons, art. 133(1). 22 Third Geneva Convention, art. 119 (5), and Fourth Geneva Convention, art. 133. 23 Third Geneva Convention, art. 17(3), and Fourth Geneva Convention, art. 31. 24 For the circumstances of the arrest and transfer to Guantánamo Bay of the six men see the decision of the Human Rights Chamber for Bosnia and Herzegovina of 11 October 2002 in case no. CH/02/8679 et al., Boudellaa & Others v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina, available at www.hrc.ba See also the report of Mr. Amir Pilov of 10 August 2004 on his visit to Guantanamo Bay from 26 to 29 July 2004 as official representative of Bosnia and Herzegovina in accordance with the respective order of the Human Rights Chamber. 25See, Rasul v. Bush, 542 U.S. 446, 124 S.Ct. 2686 (2004). 26 See US District Court for the district of Columbia, decision of 31 January 2005 In re Guantanamo Detainees Cases, 355 F. Supp. 2d 443, at 468-478. 27 Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR Special Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, page 47. 28 The CSRT and ARB rules do not provide detainees with the right to receive legal assistance, but provide instead for a “personal representative” with no legal training required and no duty of confidentiality whatsoever. See also US District Court for the district of Columbia, decision of 31 January 2005 In re Guantanamo Detainees Cases, 355 F. Supp. 2d 443, at 468-478, where the District Court says (at 472) that “there is no confidential relationship between the detainee and the Personal Representative, and the Personal Representative is obligated to disclose to the tribunal any relevant inculpatory information he obtains from the detainee. Id. Consequently, there is inherent risk and little corresponding benefit should the detainee decide to use the services of the Personal Representative.” 29 See supra note 2. 30 According to the information available, it appears that already in 2003 the United States Department of Defense determined that the 15 Uighurs did not present a threat to the security of the United States. In 2004, the Department of Defense determined that the 15 Uighurs do not have any intelligence value for the United States and should be released. According to the information provided by US lawyers acting on behalf of the Uighur detainees, in March 2005 the CSRT decided that six of the Uighurs were not “enemy combatants”. The Response of the United States to the Special Rapporteurs states that “arrangements are underway” for the release of fifteen detainees determined not to be “enemy combatants” by the CSRT by March 2005 (Response of the United States of America Dated October 21, 2005, to Inquiry of the UNCHR Special Rapporteurs Dated August 8, 2005, Pertaining to Detainees at Guantanamo Bay, p. 47), which could be an indication that in fact all fifteen Uighurs have been found by the CSRT not to be “enemy combatants”. However, the United States neither intend to return the fifteen prisoners to the People’s Republic of China, where it is feared that they would be at risk of being killed, tortured or ill-treated, nor allow them to settle in the US. The existence of prisoners whose release poses problems because they reasonably fear repatriation is acknowledged in the Response of the United States (p. 50). In the habeas corpus case brought by two of the Uighurs before the United States District Court for the District of

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Columbia (Qassim v. Bush), the US Government first failed to inform the court and the detainees’ attorneys that the habeas corpus petitioners had been found not to be “enemy combatants”. It then argued that it is continuing their detention on the basis of “the Executive’s necessary power to wind up war time detentions in an orderly fashion” (Qassim v. Bush, Opinion Memorandum of 22 December 2005, 2005 U.S. Dist. LEXIS 34618, para. 4). The District Court concluded that “[t]he detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.” (Ibid., para. 8) Despite this finding, the District Court concluded that it had no relief to offer, i.e. it could not order their release (Ibid., para. 16). 31 Detainee Treatment Act of 2005, included in the Department of Defense Appropriations Act 2006, Section 1005. 32 Ibid., Section 1005 (2) (A), (B), and (C). 33 See also article 9 (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.” 34 Principle No.5 of the Basic Principles on the independence of the Judiciary, endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. 35 Human Rights Committee, General Comment No. 13 (1984), para. 4, and Kurbanov v. Tajikistan, Communication no. 1096/2002, Views of the Human Rights Committee of 6 November 2003, para. 7.6. 36 General Comment No. 13, supra note 35, para. 4. 37 Principle 10, Basic Principles on the Independence of the Judiciary (see supra note 34). 38 See supra note 8. 39 General Comment No. 29, supra note 12, paras 10-11: “States parties may in no circumstance invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence”. 40 United Nations Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. 41 Principle 1 and 5 as well as 16 and 21 of the Basic Principles on the Role of Lawyers (see note supra 40). 42 See Rule 100 of the List of Customary Rules of International Humanitarian Law, published as an annex to the ICRC Study on customary international law: “No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees.” (http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-857-p175/$File/irrc_857_Henckaerts.pdf) 43 General Comment No. 13, supra note 13, para. 10. 44 See supra note 2. 45 See, e.g., CCPR/CO/77/EST (Estonia), para. 8; CCPR/CO/76/EGY (Egypt), para. 16; CCPR/CO/75/YEM (Yemen), para. 18; CCPR/CO/75/NZL (New Zealand), para. 11; CCPR/75/MDA (Moldova), para. 8; CCPR/CO/74/SWE (Sweden), para. 12; CCPR/CO/73/UK (United Kingdom), para. 6; CAT/C/XXIX/Misc.4 (Egypt), para. 4; CAT/C/CR/28/6 (Sweden), para. 6 (b). 46 Articles 6 (b) and (c) of the 1945 Charter of the Nuremberg International Military Tribunal; Principle IV (b) and (c) of the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and the Judgment of the Tribunal; Articles 2 (b) and 5 (f) of the 1993 Statute of the International Criminal Tribunal for the Former Yugoslavia; Articles 7 (1) (f) and 8 (2) (a) (ii) of the 1998 Rome Statute for the International Criminal Court. 47 See Multilateral Treaties deposited with the Secretary General, Status as at 31 Dec. 2004. Vol. 1, 183 and Vol.1, 286. Reservations to ICCPR at http://www.ohchr.org/english/countries/ratification/4_1.htm "(3) That the United States considers itself bound by article 7 to the extent that `cruel, inhuman or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” Reservations to ICCPR at http://www.ohchr.org/english/countries/ratification/9.htm#reservations (1) That the United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. See Multilateral Treaties deposited with the Secretary General, Status as at 31 Dec. 2004. Vol. 1, 183 and Vol.1, 286. 48 Conclusions and Recommendations of the Committee against Torture : United States of America. 15/05/2000. A/55/44,paras.175-180. "179. The Committee expresses its concern about: (a) The failure of the State party to enact a federal crime of torture in terms consistent with article 1 of the Convention; (b) The reservation lodged to article 16, in violation of the Convention, the effect of which is to limit the application of the Convention;[...] 180. The Committee recommends that the State party: (a) Although it

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has taken many measures to ensure compliance with the provisions of the Convention, also enact a federal crime of torture in terms consistent with article 1 of the Convention and withdraw its reservations, interpretations and understandings relating to the Convention;" and Concluding Observations of the Human Rights Committee: United States of America. 03/10/95. CCPR/C/79/Add.50; A/50/40,paras.266-304. "279. The Committee regrets the extent of the State party's reservations, declarations and understandings to the Covenant. It believes that, taken together, they intended to ensure that the United States has accepted only what is already the law of the United States. The Committee is also particularly concerned at reservations to article 6, paragraph 5, and article 7 of the Covenant, which it believes to be incompatible with the object and purpose of the Covenant. […] 292. The Committee recommends that the State party review its reservations, declarations and understandings with a view to withdrawing them, in particular reservations to article 6, paragraph 5, and article 7 of the Covenant." 49 E.g. US President in a February 2002 memorandum reiterated the standard of “humane treatment” (see Church report p. 3); also: During a visit to Panama on 7 November 2005 President Bush said: “Our country is at war, and our government has the obligation to protect the American people.[…] And we are aggressively doing that. […] Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.” See at: http://www.whitehouse.gov/news/releases/2005/11/20051107.html (accessed on 8 December 2005), but for more ambiguous statements see also Amnesty International, “United States of America. Guantánamo and beyond: The continuing pursuit of unchecked executive power,” AI Index: AMR 51/063/2005 (May 13, 2005) and Human Rights Watch, Getting Away with torture? Command Responsibility for the U.S. Abuse of Detainees, Vol. 17, No. 1(G) (April 2005). 50 “For the foregoing reasons, we conclude that torture as defined in and proscribed by Sections 23402340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress disorder. Additionally, such severe mental pain can arise only from the predicate acts listed on Section 2340. Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture. […] Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.” 51 Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on “Counter Resistance Techniques in the War on Terror”. 52 http://thomas.loc.gov/cgi-bin/query/D?r109:1:./temp/~r1099i99u4:b0 53 “Several weeks ago, I received a letter from CPT Ian Fishback, a member of the 82nd Airborne Division at Fort Bragg, and a veteran of combat in Afghanistan and Iraq, and a West Point graduate. Over 17 months, he struggled to get answers from his chain of command to a basic question: What standards apply to the treatment of enemy detainees? But he found no answers. In his remarkable letter, he pleads with Congress, asking us to take action to establish standards to clear up the confusion, not for the good of the terrorists but for the good of our soldiers and our country. […] The advantage of setting a standard for interrogation based on the field manual is to cut down on the significant level of confusion that still exists with respect to which interrogation techniques are allowed. The Armed Services Committee has held hearings with a slew of high-level Defense Department officials, from regional commanders to judge advocate generals to the Department's deputy general counsel. A chief topic of discussion in these hearings was what specific interrogation techniques are permitted, in what environments, with which DOD detainees, by whom and when. The answers have included a whole lot of confusion. If the Pentagon's top minds can't sort these matters out, after exhaustive debate and preparation, how in the world do we expect our enlisted men and women to do so? Confusion about the rules results in abuses in the field. We need a clear, simple, and consistent standard, and we have it in the Army Field Manual on interrogation. That is not just my opinion but that of many more distinguished military minds than mine.” To be found at: http://thomas.loc.gov/cgi-bin/query/D?r109:1:./temp/~r1099i99u4:b0. 54 See also Press Briefing with National Security Advisor Stephen Hadley on the McCain Amendment of 15 December 2005 at: http://www.whitehouse.gov/news/releases/2005/12/20051215-5.html (last accessed on 21 December 2005): “As you know, our policy has been not to use cruel, inhuman or degrading treatment at home or abroad. That has been our policy. The legislative agreement that we've worked out with Senator McCain now makes that a matter of law, not just policy. And it makes it a matter of law that applies worldwide, at home and abroad.” 55 Jerald Phifer to Commander of Joint Task Force 170, memorandum of 11 October 2002,, “Request for Approval of Counter-resistance Techniques,” which was attached to William J. Haynes II to Secretary of Defense, memorandum of 27 November 2002, “Counter-resistance Techniques,” and approved by Secretary Rumsfeld on 2 December 2002 (http://www.washingtonpost.com/wpsrv/

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nation/documents/dodmemos.pdf). 56 Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on “Counter Resistance Techniques in the War on Terror”. 57 Ibid., p. 1. See also overview given by the Executive Summary of the Church report (“Executive Summary,” U.S. Department of Defense, available to the public since March 2005, http://www.defenselink.mil/news/Mar2005/d20050310exe.pdf) 58 The technique of using dogs, as confirmed in various interviews with ex-Guantanamo Bay detainees, was explicitly authorised as part of the “First Special Interrogation Plan” (p. 13 and 14) - see in Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report). See also point 12” “Using detainees individual phobias (such as fear of dogs) to induce stress” of the Jerald Phifer to Commander of Joint Task Force 170, memorandum, “Request for Approval of Counter-resistance Techniques,” October 11, 2002, which was attached to William J. Haynes II to Secretary of Defense, memorandum, “Counter-resistance Techniques,” November 27, 2002, and approved by Secretary Rumsfeld on December 2, 2002 available at http://www.washingtonpost.com/wpsrv/ nation/documents/dodmemos.pdf . 59 Dept. of Defense, Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility, Army Regulation 15-6: Final Report (Apr. 1, 2005; amended Jun. 9, 2005; published Jul. 14, 2005); also: “What were the measures most difficult to cope with in your view? - Sleep deprivation. They were forcing us to change the cells, the boxes we were held in, for every 15 minutes. And that was going on for three to four months. Every 15 minutes we were supposed to change. No sleep, nothing. So sleep deprivation.” Interview with Airat Vakhitov on 18 November 2005 in London. 60 Cases of Moazzam Begg, Rustam Akhmiarov, Airat Vakhitov – interviews of 18 November 2005. 61 Resolution 1433 of 26 April 2005, para. 7 ii. 62 Opinions of the Lords of Appeal for Judgment in the case A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) of 8 December 2005. Session 2005-06- UKHL 71para. 126. 63 “The ICRC feels that interrogators have too much control over the basic needs of detainees. That the interrogators attempt to control the detainees through use of isolation. Mr. Cassard stated that the interrogators have total control of the level of isolation in which the detainees were kept; the level of comfort items detainees can receive; and also the access of basic needs to the detainees.” DoD, ICRC Meeting with MG Miller on 09 OCT 03, memo from JTG GTMO-SJA to Record (Oct. 9, 2003). 64 Ibid. 65 “Check into lowering the lights at night to help with sleeping.” DoD, General observations and meeting notes in memo from Staff Judge Advocate to Commander Joint Task Force 160, Initial observations from ICRC concerning treatment of detainees (Jan. 21, 2002). 66 Detainees feel some rules, i.e. no talking, cause higher stress, and feel talking would help to release stress.” DoD, General observations and meeting notes in memo from Staff Judge Advocate to Commander Joint Task Force 160, Initial observations from ICRC concerning treatment of detainees (Jan. 21, 2002). See also: “The detainees request that the “no talking rule” be lifted. 22 Jan 02: Approved in part as of that date. Detainees may carry on normal conversations.” DoD, memo from Staff Judge Advocate to file, Concerns voiced by the International Committee of the Red Cross (ICRC) on behalf of the detainees (Jan. 24, 2002). 67 See also Chapter IV of this report. 68 See also Chapter V(1) of this report. 69 “The ICRC concern is that the caged cells plus the maximum-security regime exerts too much pressure on detainees.” DoD, ICRC Meeting with MG Miller on 09 OCT 03, memo from JTG GTMO-SJA to Record (Oct. 9, 2003); see also: “Mr. Cassard continued with his report by stating that the Maximum Security Unit (MSU) has not changed since their last visit. According to Mr. Cassard, detainees are in MSU for 30 days, released for a short period of time, and then put back into MSU for another 30 days. Mr. Cassard stated that this type of punishment is harsh and that some detainees are put in MSU at the request of interrogators.” DoD, ICRC Meeting with MG Miller on 09 OCT 03, memo from JTG GTMO-SJA to Record (Oct. 9, 2003) 70 See e.g. interview with Moazzam Begg of 18 November 2005. 71 Human Rights Committee, General Comment No. 20 (1992), para 6; and Polay Campos v. Peru, Communication no. 577/1994, Views of the Human Rights Committee of 6 November 1997, para 8.4. On the extensive case law of the Human Rights Committee on conditions of detention see also Manfred Nowak, U.N. Covenant on Civil and Political Rights - CCPR Commentary, 2nd revised edition, N.P.Engel Publisher, Kehl/Strasbourg/Arlington 2005, at pages 172 et seq. and 244 et seq. 72 See section 2 about authorized interrogation techniques; see also picture on cover of Michael Ratner and Ellen Ray: “Guantanamo. What the World Should Know.” June 2004.

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73 “They

are being force-fed through the nose. The force-feeding happens in an abusive fashion as the tubes are rammed up their noses, then taken out again and rammed in again until they bleed. For a while tubes were used that were thicker than a finger because the smaller tubes did not provide the detainees with enough food. The tubes caused the detainees to gag and often they would vomit blood. The force-feeding happens twice daily with the tubes inserted and removed every time. Not all of the detainees on hunger strike are in hospital but a number of them are in their cells, where a nurse comes and inserts the tubes there.” Accounts given by Attorney Julia Tarver (28 October 2005). On the qualification of certain methods of force-feeding as amounting to torture see, e.g., the judgment of the European Court of Human Rights in Nevmerzhitsky v. Ukraine (Appl. No. 54825/00), para. 98. 74 See also: http://www.thememoryhole.org/mil/gitmo-pows.htm. 75 See Human Rights Watch, Getting Away with Torture? Report, available at www.hrw.org/reports/2005/us0405/) page. 75 and footnote 306 citing Paisley Dodds, “Guantánamo Tapes Show Teams Punching, Stripping Prisoners,” Associated Press, February 1,2005. 76 “Recently-revealed videotapes of so-called “Immediate Reaction Forces” (or “Extreme Reaction Force” (ERF)) reportedly show guards punching some detainees, a guard kneeing a detainee in the head, tying one to a gurney for questioning and forcing a dozen to strip from the waist down.” Human Rights Watch, Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees, vol. 17, No. 1(G) (April 2005), pag. 75 citing Paisley Dodds, “Guantánamo Tapes Show Teams Punching, Stripping Prisoners,” Associated Press, February 1, 2005. or: “[I]f you said you didn’t want to go to interrogation you would be forcibly taken out of the cell by the [Initial Reaction Force] team. You would be pepper-sprayed in the face which would knock you to the floor as you couldn’t breathe or see and your eyes would be subject to burning pain. Five of them would come in with a shield and smack you and knock you down and jump on you, hold you down and put the chains on you. And then you would be taken outside where there would already be a person with clippers who would forcibly shave your hair and beard. Interrogators gave the order for that to be done; the only way in which this would be triggered would be if you were in some way resisting interrogation, in some way showing that you didn’t want to be interrogated. Or if during interrogation you were non-cooperative then it could happen as well.” Center for Constitutional Rights, Statement of Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed, “Detention in Afghanistan and Guantanamo Bay” (Aug. 4, 2004), para290, available at http://www.ccrny.org/v2/reports/docs/GitmocompositestatementFINAL23july04. pdf ; See also the Al Dossari incident reported by several NGOs and in the book “Inside the Wire” by Erik Saar, a former Guantanamo Bay military intelligence interpreter. 77 “He stayed there for 13 months in solitary confinement in an underground cell. He was routinely beaten and received only rotten food and was prevented from using the toilet. He was then temporarily transferred to Ta’iz prison, where he was also not provided food and had to rely on his family to feed him. In June 2005 he was transferred back to Sana’a prison, where he is still held without being aware of any charges.” Allegation based on Declaration of Attorney Tina M. Foster of 17 November 2005. 78 The same assessment was made by the Council of Europe’s Parliamentary Assembly, which found that “the United States has, by practicing “rendition” (removal of persons to other countries, without judicial supervision, for purposes such as interrogation or detention), allowed detainees to be subjected to torture and to cruel, inhuman or degrading treatment, in violation of the prohibition on non-refoulement” Resolution 1433 of 26 April 2005, para. 7 vii. 79 See also the response of the US Government to the questionnaire of 21 October 2005, which indicated that allegations were investigated by officials of the Department of Defense. 80 See also: Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report). As can be seen from it, practically no action was taken in response to acts of inhuman or degrading treatment even if the practice was unauthorized. 81 E.g. a leaked FBI e-mail stated “If this detainee is ever released or his story made public in any way, DOD interrogators will not be held accountable because these torture techniques were done by the “FBI” interrogators. Email from Unknown to G. Bald, et.al, Re.: Impersonating FBI at GTMO (Dec. 5, 2003), available at http://www.aclu.org/torturefoia/released/FBI_3977.pdf. 82 European Parliament resolution on Guantanam. P 6_TA(2004)0050. At: http://www.europarl.eu.int/omk/sipade3?PUBREF=-//EP//NONSGML+TA+P6-TA-20040050+0+DOC+WORD+V0//EN&L=EN&LEVEL=0&NAV=S&LSTDOC=Y&LSTDOC=N. 83 Human Rights Committee, General Comment 22 (1993), CCPR/C/21/Rev.1/Add.4, para 8. 84 In her previous report to the General Assembly (A/60/399), the Special Rapporteur analyzed, in the context of her mandate, the international standards applicable to persons deprived of their liberty. 85 ICCPR, Art. 18(3). See similarly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Art. 1(3) (Nov. 25, 1981). 86 General Comment 22, supra note 83, para. 8.

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87 See, inter alia, article 3 common to the four Geneva Conventions: articles 34 and 35 of the Third Geneva Convention; articles 76, 86 and 93 of the Fourth Geneva Convention; article 75, paragraph 1, of Additional Protocol I and articles 4 and 5 of Additional Protocol II. 88 Techniques such as the use dogs were explicitly authorized as part of the “First Special Interrogation Plan” (p. 13 and 14) - see in Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report). 89 A technique that the Schmidt Report, supra note 88, found to be authorized (FM 34-52) and approved by SECDEF as mild, non-injurious physical touching. The same report found the rubbing of perfume to have been authorized, as well as leaning over detainees and whispering in their ears that the situation was futile. In addition, the wiping of menstrual blood on a detainee in March 2003 was considered authorized to show the futility of the situation. 90 Secretary of Defense memorandum for the commander, US Southern command of 16 April 2005 on “Counter Resistance Techniques in the War on Terror”. See supra, para. 50. 91 Response of the United States of America, dated October 21, 2005 to the inquiry of the Special Rapporteurs dated 8 August 2005 pertaining to detainees at Guantánamo Bay, p. 21 et seq.. 92 Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. 93 The Convention of the Rights of the Child defines a child as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. CRC, article 1. Three juveniles, under the age of 16 years, were transferred from Guantanamo Bay to their home country in early 2004 after over one year in detention. US Department of Defense, News Release, ‘Transfer of Juvenile Detainees Completed’ accessed at http://www.defenselink.mil/releases/2004/nr200401290934.html (20 December 2005); CNN World, “U.S. Frees Teens at Guantanamo Bay” (29 January 2004). It is unknown how many juveniles remain in Guantanamo Bay. Omar Ahmed Khadr, a Canadian, who was fifteen years old at the time of his arrest and his transfer to Guantanamo Bay in 2002, remains in Guantanamo Bay today. Defence Counsel Questionnaires. 94 Vienna Convention on the Law of Treaties, article 18. Although the United States has not ratified the Vienna Convention, it is generally recognized as a restatement of previous law. 95 Constitution of the World Health Organization, preamble setting forth principles accepted by Contracting Parties. 96 Commission on Human Rights res. 2005/24, para 20(c). 97 Ibid, para 7. 98 Ibid, para 5. 99 Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000), E/C.12/2000/4, para. 42. 100 Ibid, para. 5. 101 See United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted 30 August 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, A/CONF/611, annex I, E.S.C. res. 663C, 24 UN ESCOR Supp. (No.1) at 11, E/3048 (1957), amended E.S.C. res. 2067, 62 UN ESCOR Supp. (No.1) at 35, E/5988 (1977) paras 9-22. 102 The Special Rapporteur received information from, among other sources, interviews with former detainees, family members of current detainees and lawyers representing former and current detainees. 103 US Department of Defense, Joint Task Force 170, Guantanamo Bay, Memorandum for the Record: ICRC Meeting with MG Miller on 09 Oct 03 (indicating ICRC was concerned about mental health of detainees due to pressures imposed by, among other conditions, interrogator control over detainees’ basic needs, duration of interrogations, cage type cells, isolation, restrictions on books and shaving as punishment); Neil A. Lewis, ‘Red Cross Finds Detainee Abuse in Guantanamo’ The New York Times (30 November 2004) (reporting ICRC stated that keeping detainees indefinitely without knowing their fate would lead to mental health problems); Physicians for Human Rights, Break Them Down: Systematic Use of Psychological Torture (2005) pp 52-54. 104 Neil A. Lewis, supra note 103; Physicians for Human Rights, supra note 103; Tipton Report accessed at http://www.ccr-ny.org/v2/reports/report.asp?ObjID=UNuPgz9pc0&Content=577 (2 December 2005); Presentations of Former Detainees, Conference: The Global Struggle Against Torture: Guantanamo Bay, Bagram and Beyond, hosted by Reprieve and Amnesty International on London, UK (19-21 November 2005). 105 Physicians for Human Rights, supra note 103, pp 52-53. 106 Ibid at 50. 107 E/CN.4/2003/58, para 95.

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108 A/60/348,

para. 9. 7(2). A commentator has described the detention facilities at Guantánamo Bay as an experiment. Jane Meyer, “The Experiment”, The New Yorker (11 and 18 July, 2005). 110 Human Rights Committee, General Comment No. 21 (1992, replaces General Comment No. 9 concerning humane treatment of persons deprived of liberty). State parties report to both the Human Rights Committee and the Committee against Torture on the implementation of international standards for medical ethics. See, e.g., the fourth periodic report of Uruguay to the Human Rights Committee (CCPR/C/95/Add.9, paras 65-69) and the second periodic report of Algeria (CAT/C/25/ADD.8, para 6). 111 The World Medical Association is an independent confederation of professional associations, representing approximately 80 national medical associations. 112 These principles are consistent with medical ethics applicable under international humanitarian law. See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, article 16; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, article 10. 113 International Council of Nurses, “Nurses Role in the Care of Prisoners and Detainees” adopted 1998. 114 Ibid. 115 Office of the Surgeon General Army, “Final Report: Assessment of the Detainee Medical Operations for OEF, GTMO, and OIF (13 April 2005) (The Kiley Report); Army Regulation 15-6, Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility (1 April 2005, amended 9 June 2005) (The Schmidt Report). 116 See Neil A. Lewis, supra note 103 (ICRC report stated “medical files of detainees were ‘literally open’ to interrogators); G Bloche and J Marks, “Doctors and Interrogators at Guantanamo Bay” 353;1 New England Journal of Medicine 6, 6 (7 July 2005); Interview with former detainee Rustam Akhmiarov, London (18 November 1005). 117 The Kiley Report, supra note 115, at 1-8 (Behavioral Science Consultation Teams (BSCT) “consisted of physicians/psychiatrists and psychologists who directly support detainee interrogation activities”); Neil A. Lewis, supra note 103 (ICRC workers “asserted that some doctors and other medical workers at Guantanamo were participating in planning for interrogations, in what the report called “a flagrant violation of medical ethics”); The Schmidt Report, supra 115, at 17 (medical records indicated monitoring of body temperature of detainee being exposed to extreme cold); G Bloche and J Marks, supra note 116. 118 M Sullivan and J Colangelo-Bryan, “Guantanamo Bay Detainee Statements: Jum’ah Mohammed AbdulLatif Al Dossari, Isa Ali Abdulla Al Murbati, Abdullah Al Noaimi and Adel Kamel Abdulla Haji” (May 2005) at 16 (statement of Mr. Al Noaimi); ); Interviews with former detainees Rustam Akhmiarov and Airat Vakhitov, London (18 November 2005); Defence Counsel Questionnaires (reporting nonconsensual drugging, including injections, and force-feeding through nasal tubes, as well as participation of health professionals in monitoring health for interrogations). 119 See Neil A. Lewis, supra note 103 (quoting ICRC report). 120 US Department of Defence, Medical Program Principles and Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of the United States (3 June 2005). 121 The Kiley Report, supra note 115, 1-8. 122 They have included, among others, subjecting detainees to sleep deprivation, twenty-hour interrogations day after day, months of isolation, loud music and strobe lights, extremes of heat and cold, short shackling to an eye-bolt on the floor, and exploiting phobias, such as instilling fear with military dogs. Interrogators also sexually and culturally humiliate detainees, subjecting them to forced nudity in front of females, forcing them to wear a woman’s bra on the head and calling female relatives whores. The Schmidt Report, supra note 115. See also Chapter III (2) supra. 123 L. Rubenstein, C. Pross, F Davidoff and V. Iacopino, “Coercive US Interrogation Policies: A Challenge to Medical Ethics”, 294:12 Journal of the American Medical Association 1544, 1545 (28 Sept. 2005). 124 UN Principles, Principle 5 (emphasis added). 125 See e.g., Majid Abdulla Al-Joudi v. George W. Bush, Civil action no. 05-301, US District Court for the District of Columbia (26 October 2005); Charlie Savage, ‘Guantanamo medics accused of abusive forcefeeding: Detainees’ Lawyers go before Judge’ The Boston Globe (15 October 2005); Tim Golden “Tough U.S. Steps in Hunger Strike at Camp in Cuba” The New York Times (9 February 2006). 126 See supra para 54. 127 Declaration of Tokyo, supra para. 74 and note 111; World Medical Association, Declaration of Malta (1992); see generally, Reyes Hernan, “Medical and Ethical Aspects of Hunger Strikes in Custody and the Issue of Torture” extract from “Maltreatment and Torture” (1998) (providing the history and rationale for the prohibition against doctors participating in force feeding of prisoners) accessed at ICRC, http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList302/92B35A6B95E0A5A3C1256B66005953D5 (8 February 2006). 109 Article

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128 American

Medical Association, Policy H-65.997 Human Rights (AMA endorses World Medical Association’s Declaration of Tokyo) accessed at American Medical Association, http://www.amaassn. org/apps/pf_new/pf_online?f_n=browse&doc=policyfiles/HnE/H-65.997.HTM (10 February 2006). 129 “Israel: Visits to detainees on hunger strike” accessed at ICRC http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/75579B6BB769D3B5C1256EFD0047576F (9 February 2006) 130 See, e.g., Secretary of State for the Home Department v. Robb [1995] Fam 127 (United Kingdom); Thor v. Superior Court, 21 California Reporter 2d 357, Supreme Court of California (1993); Singletary v. Costello, 665 So.2d 1099, District Court of Appeal of Florida (1996). 131 See, generally, Mara Silver, “Testing Cruzan: Prisoners and the Constitutional Question of SelfStarvation,” 58 Stanford Law Review 631 (2005) (collecting US jurisprudence on force-feeding of detainees). 132 Response of the United States of America Dated October 21, 2005 to Inquiry of the UNCHR Special Rapporteurs Dated August 8 2005 Pertaining to Detainees at Guantanamo Bay, at 19. 133 CESCR, General Comment No. 14, supra note 99, paras. 8, 34. 134 See Cruzan v. Director Missouri Department of Health, 497 U.S. 261, 269-70 (1990) (recognizing the right to refuse treatment as the logical corollary to the doctrine of informed consent). 135 See Secretary of State for the Home Department v. Robb, supra note 130; see also Chair of the Board of Trustees of the American Medical Association, Duane M. Cady, M.D., AMA to the Nation, AMA unconditionally condemns physician participation in torture, (20 December 2005) accessed at http://www.ama-assn.org/ama/pub/category/15937.html (10 February 2006) (clarifying that “every patient deserves to be treated according to the same standard of care whether the patient is a civilian, a US soldier, or a detainee” and acknowledging that the AMA position on forced feeding of detainees is set forth in the Declaration of Tokyo.

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Annex II. Letter dated 31 January 2006, addressed to the Office of the High Commissioner for Human Rights, by the Permanent Representative of the United States of America to the United Nations and Other International Organizations in Geneva. “We have received your letter dated January 16, 2006, enclosing an advance unedited copy of the report of four Special Rapporteurs and the Working Group on Arbitrary Detention on the situation of detainees in Guantanamo Bay (“Unedited Report”). Your letter asked for any factual clarifications regarding the Unedited Report by January 31 and noted that “changes made will not be of a substantive nature.” The United States Government regrets that it has not received sufficient opportunity to provide a fuller response to the factual and legal assertions and conclusions in the Unedited Report. Despite the substantial informational material presented by the United States to the Special Rapporteurs in 2005 regarding Guantanamo and the offer to three of the Special Rapporteurs to visit the facility to observe first hand the conditions of detention, there is little evidence in the Unedited Report that the Special Rapporteurs have considered the information provided by the United States. We offered the Special Rapporteurs unprecedented access to Guantanamo, similar to that which we provide to U.S. congressional delegations. It is particularly unfortunate that the Special Rapporteurs rejected the invitation and that their Unedited Report does not reflect the direct, personal knowledge that this visit would have provided. Rather, the Unedited Report is presented as a set of conclusions -- it selectively includes only those factual assertions needed to support those conclusions and ignores other facts that would undermine those conclusions. As a result, we categorically object to most of the Unedited Report’s content and conclusions as largely without merit and not based clearly in the facts. An example of this problematic approach is how the Unedited Report deals with the forcefeeding of detainees. The U.S. Government has provided information that in the case of detainees who have gone on hunger strikes, Guantanamo authorities have authorized involuntary feeding arrangements, monitored by health care professionals, to preserve the life and health of the detainees. Rather than reporting the factual information provided by the United States on when and how involuntary feeding is authorized and how it is carried out, the Unedited Report simply states categorically that “excessive force was used routinely” for this purpose and that “some of the methods used for force feeding definitely amount to torture.” This is untrue, and no such methods are described in the Unedited Report. Moreover, it is bewildering to the United States Government that its practice of preserving the life and health of detainees is roundly condemned by the Special Rapporteurs and is presented as a violation of their human rights and of medical ethics. We are equally troubled by the Unedited Report’s analysis of the legal regime governing Guantanamo detention. Nowhere does the report set out clearly the legal regime that applies according to U.S. law. The United States has made clear its position that it is engaged in a continuing armed conflict against Al Qaida, that the law of war applies to the conduct of that war and related detention operations, and that the International Covenant on Civil and Political Rights, by its express terms, applies only to “individuals within its territory and subject to its jurisdiction.” (ICCPR Article 2(1)). The Report’s legal analysis rests on the flawed position that the ICCPR applies to Guantanamo detainees because the United States “is not currently engaged in an international armed conflict between two Parties to the Third and Fourth Geneva Conventions.” This, of course, leads to a manifestly absurd result; that is, during an ongoing armed conflict, unlawful combatants receive more procedural rights than would lawful combatants under the Geneva Conventions. Numerous other discussions in the Unedited Report are similarly flawed. The United States is a country of laws with an open system of constitutional government by checks and balances, and an independent judiciary and press. These issues are fully and publicly debated and litigated in the United States. To preserve the objectivity and authority of their own 57

Report, the Special Rapporteurs should review and present objective and comprehensive material on all sides of an issue before stating their own conclusions. Instead, the Special Rapporteurs appear to have reached their own conclusions and then presented an advocate’s brief in support of them. In the process they have relied on international human rights instruments, declarations, standards, or general comments of treaty bodies without serious analysis of whether the instruments by their terms apply extraterritorially; whether the United States is a State Party -- or has filed reservations or understandings -- to the instrument; whether the instrument, declaration, standard or general comment is legally binding or not; or whether the provisions cited have the meaning ascribed to them in the Unedited Report. This is not the basis on which international human rights mechanisms should act. The Special Rapporteurs have not provided a meaningful opportunity to the United States to consult on the draft report or to rebut factual and legal assertions and conclusions with which we fundamentally disagree. The United States reserves the opportunity to reply in full to the final Report, but in the meantime requests that this letter be attached to the Report as an interim reply. Regards,” Signed: Kevin Edward Moley Ambassador Permanent Representative of the United States of America

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REPORT ON TORTUROUS METHODS USED TO FORCE FEED GUANTANAMO BAY PRISONERS AGAINST THEIR WILL

15th MARCH 2007 REPRIEVE CENTER FOR CONSTITUTIONAL RIGHTS

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March 15, 2007

REPRIEVE & CCR REPORT ON THE GUANTÁNAMO HUNGER STRIKE AND ABUSIVE TREATMENT OF HUNGER STRIKING PRISONERS

The following is a report by Reprieve and the Center for Constitutional Rights (CCR) on the Guantánamo Bay hunger strike. All information contained in this report, which comes from multiple sources, is “unclassified;” however, this should not be read as an assertion that all the available information concerning the hunger strike has been unclassified. In compliance with the Department of Defense regulations, information that has not been deemed “unclassified” may not be disseminated publicly. More than five years into the detentions at Guantánamo Bay, Cuba, two things have become clear. First, the vast majority of the prisoners are innocent of any wrongdoing, and lack only the opportunity to prove it in a court of law. Second, the pattern of systematic prisoner abuse, first documented by released British prisoners in 2004, continues in new and more sophisticated ways. The combination of abuse and wrongful detention without any fair chance for relief has driven many of the prisoners to desperation. Their response has been to assert the one power prisoners have in these circumstances: to refuse to eat. Today, as many as 42 prisoners are on hunger strike. At least 12 are being force-fed. The hunger strike seeks to end continuing abuse (including the use of prolonged solitary confinement for even low security prisoners) and to challenge the fact that the vast majority of prisoners held at the base will never face charges or be given a fair legal process to defend themselves. To date, only one prisoner among the 380 who remain in Guantánamo Bay – Australian David Hicks – has been formally charged with any offence. Two others have had draft charges lodged against them. None of the remaining 377 prisoners face charges of any kind. There is almost unanimous international agreement that the prisoners’ complaints – number one, that they should be charged in a fair trial or released – are justified. On November 21, 2005, giving evidence to senior British parliamentarians, Prime Minister Tony Blair said that detention at the camp “has got to be brought to an end.” On January 13, 2006, Germany’s Chancellor Angela Merkel asked President Bush to close the base. On February 16, 2006, United Nations Secretary General Kofi Annan joined the call. The Guantánamo hunger strike has entered a new and more dangerous phase. The military is punishing prisoners who assert their right to take part in a non-violent protest, using a force feeding method that is intentionally brutal. Every prisoner on hunger strike can expect to be forced into the “chair” by the time their protest reaches its 21st day. The military’s response to hunger strikes has shifted from a brief sensible effort to negotiate with the prisoners (between July 26 and August 11, 2005) to an intransigent refusal to compromise ever since.

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“The military is totally ill-suited to run this prison,” said Reprieve Legal Director Clive Stafford Smith. “Because they refuse to compromise, and expect everyone to obey ‘orders,’ the prisoners feel they have no option but to continue with their hunger strike. This is desperately dangerous for the prisoners. Unless something changes immediately, my worst fear is that men will die, victims of the intransigence of the Bush Administration.” “The grosser forms of Abu Ghraib-style abuse at Guantánamo are giving way to more subtle forms of torment—isolation from all human contact, the uncertainly of never being given a day in court or a chance to argue for release,” said Shayana Kadidal, Managing Attorney of the Center for Constitutional Rights’ Guantánamo Global Justice Initiative. “Five years of abusive imprisonment without charges would lead any man to desperation.” 1.

The hypocritical attitude of the Bush Administration

On November 1, 2005, then-Secretary of Defense Donald Rumsfeld said Guantánamo prisoners who go on hunger strike were going “on a diet” to get press attention, and argued that such actions prove the men are members of al Qaida. Such comments demean the sanctity of the rule of law and the United States itself. Reprieve and CCR call upon the Administration to desist from such statements, and deal with the prisoners humanely. Reprieve and CCR remind the Bush Administration that on July 12, 2005, the Administration applauded the “valiant efforts” of Akbar Ganji, an imprisoned Iranian journalist who refused sustenance in order to draw attention to human rights abuses in his country. White House press secretary Scott McClellan called on Iran to release the hunger striking Ganji “immediately and unconditionally”: “Mr. Ganji is sadly only one victim of a wave of repression and human rights violations engaged in by the Iranian regime. His calls for freedom deserve to be heard. His valiant efforts should not go in vain. The president calls on all supporters of human rights and freedom, and the United Nations, to take up Ganji’s case and the overall human rights situation in Iran.” “Mr. Ganji, please know that as you stand for your own liberty, America stands with you . . . Through his now monthlong hunger strike, Mr. Ganji is demonstrating that he is willing to die for his right to express his opinion. President Bush is saddened by recent reports that Mr. Ganji’s health has been failing and deeply concerned that the Iranian government has denied him access to his family, medical treatment and legal representation.” The Bush administration likewise recognized the validity of the hunger strike initiated by imprisoned Burmese dissident Aung San Suu Kyi in 2003, expressing “deep concern[]” over Suu Kyi’s well-being and urging the Burmese government to release her. A hunger strike is a respected, non-violent method of challenging unfair treatment, used by many from the Suffragettes (challenging the denial of the vote to women) to 61

Mahatma Gandhi (challenging the denial of freedom to India). The striking prisoners in Guantánamo have valid complaints – that they be provided due process and be held without abuse. The U.S. government is obligated to treat them humanely, which includes respecting their decision to refuse sustenance in order for them to advance their demands. International guidelines demand that prisoners who refuse nourishment be treated humanely, and that their decision to engage in political protest be respected. The World Medical Association Declaration of Tokyo requires that a prisoner who competently and rationally refuses nourishment not be subjected to force-feeding: Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. 1 In a 2006 letter published in the renowned British medical journal, The Lancet, doctors from around the world reaffirmed this rule and called on the U.S. military to cease force-feeding detainees at Guantánamo. Physicians are not obligated to agree with the choice of the prisoner, but they are required to respect their informed decision to cease eating. Anything less “is not defensible in law.” (Nicholl, David J., et al., “Forcefeeding and restraint of Guantánamo Bay hunger strikers,” Lancet (Mar. 11, 2006).) The forced feeding of prisoners who are competent to make their own decisions is unethical and must stop. That is not to say that prisoners should die. Naturally, we are strongly opposed to the senseless sacrifice of human life. But, the prisoners’ complaints are real, the protests entirely valid. The sad reality of Guantánamo must end. 2.

The use of the ‘Torture Chair’ to force feed the prisoners

In an attempt to break the hunger strike, the U.S. military has begun to use the ‘chair’ (dubbed by the prisoners the ‘Torture Chair’) with the acknowledged purpose of making the process of force feeding prisoners particularly painful. The prisoner is strapped into the ‘chair’ for hours, using the manufacturers’ built-in 12-point restraints and additional straps immobilizing the prisoner’s head. The prisoner is then forcibly intubated so that the military can make him take liquid nutrients.

1

Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, adopted by the 29th World Medical Assembly, Tokyo, Japan, October 1975 and editorially revised at the 170th Council Session, Divonne-les-Bains, France, May 2005, para. 5.

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2

General Bantz J. Craddock is in charge of the U.S. Southern Command, the force with authority over Guantánamo. He has admitted that the method of force feeding has been altered with the specific goal of making it so painful that the prisoners will give up their non-violent protest. General Craddock said he had reviewed the use of the restraint chairs, and had decided to break the strikes by force. (New York Times, Feb. 22, 2006). The military forces each hunger striker into the ‘chair’ and shoves a 43 inch tube up his nostril, down his throat and into his stomach. The prisoner is kept in the chair for hours at a time, despite a statement by the chair’s manufacturer that “Detainees should not be left in the Emergency Restraint Chair for more than two hours.” 3 When the feeding is completed, rather than leave the tube in as was previously the practice, the military now pulls it out, repeating the process twice each day. As Reprieve Legal Director Clive Stafford Smith has said: “The genuine complaints of the Guantánamo prisoners do not dissolve in the liquid nutrients that are forced into their noses. This will simply exacerbate their sense of injustice, and increase the danger that one or more of them will die through starvation. The only way to resolve this issue is for the U.S. military to respond humanely and realistically, changing the intolerable conditions of the prisoners being held beyond the rule of law.” When the ‘chair’ was first introduced a little more than a year ago, the number of prisoners on hunger strike dropped to just three. However, now that the men have endured another 15 months of imprisonment without hope of justice, the number willing to undergo this brutality twice a day has risen to at least twelve, including British resident Shaker Aamer and Al Jazeera journalist Sami al Haj. 3.

2 3

Shaker Aamer, a British resident who is starving to death with no support from the Blair government

Photos of “Chair” from website of manufacturer E.R.C., Inc., http://www.restraintchair.com/ http://www.restraintchair.com/diagram.htm.

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Shaker Aamer is a long term British resident. His British wife Zennira and their four British children, who live in South London, have been hoping for his release for more than five years. The British government has not raised a finger either to secure his release or even to prevent the inhumanity of his treatment. Shaker is a highly educated, very eloquent man, who has incurred the wrath of the military by standing up for the rights of the other prisoners. He was selected for the short-lived Prisoners’ Council in July 2005, which sought to enforce the Geneva Conventions in Guantanamo. When the military disbanded the Council (after just one week), Shaker was taken to isolation in Camp Echo. He was moved once or twice in the following month, but on September 24th, 2005, he was taken back to Camp Echo for the indefinite future. He has been held there in solitary, punitive isolation for the last 537 days. For 100 days he has now been on hunger strike, force fed with the ‘Chair.’ Shaker secured details about the liquid food that they were giving him. This information has been unclassified. It is Dextrose 5% in 0.45% Sodium 1,000 ml, with Potassium Chloride 20 MEQ, Magnesium Sulfate 500 MG, Folic Acid 1MG. Shaker provided his counsel with the written “Camp Echo Detainee Rules”. They include various overt punishments for hunger striking prisoners, such as (para. 6): While on hunger strike, you are not allowed to go to recreation with other prisoners. If you come off of [sic] the hunger strike, you may conduct recreation with one other prisoner. However, that prisoner must also be off the hunger strike. While the military had insisted publicly that the prisoners are not “force fed”, the rules prove this assertion to be false: “You will receive re-feeding in accordance with your feeding schedule. You MUST take your re-feeding when instructed to do so.” (para. 10) (emphasis in original)

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The rules also admit that the Department of Defense continues to use consistent artificial lighting to deprive prisoners of sleep: “At no time will all the lights in your cell be completely off. While you are sleeping, you may have your lights dimmed to a comfortable level in accordance with your current Detainee level.” (para. 12) (emphasis supplied). The reality of the force feeding is far worse than even these rules suggest. In the hospital, Shaker reports: “[I was] strapped to the bed for 24 hours except to use the toilet. The tube was in 24 hours a day. We would be fed for 30-40 minutes each time, with Ensure cans, two cans, three times a day. Some of the prisoners became zombies, as if they were already dead. I dropped weight to 130 pounds. I told the doctors, ‘I want to die peacefully. I want no intervention.’ But they refused this.” Shaker describes the full range of harassment and punishment that he has been subjected to as a result of his non-violent protest: “They put a loud fan on 24 hours a day making so much noise that it is hard to pray, and you cannot sleep. They add to the noise in many ways. They have been playing The Eagles at loud volume, shouting during prayer times, and so on. They have continued to desecrate the Qur’an when they come in for their searches. We must wash before we pray. They don’t give us cups or water, so we have to do our ablutions in the toilet, which is disgusting. They have the cameras on us 24 hours a day, so I have to cover myself with the sleeping mat when I use the toilet.” In a declassified statement, Shaker Aamer states: “The British government refuses to help me. I thought Britain stood for justice, but they helped British citizens, and then abandoned us – people who have lived in Britain for years, and who have British wives and children. I hold the British government responsible for my death as I do the Americans.” “If the Blair government believes that Guantánamo is immoral, then why in the name of all that is decent will they not intervene on behalf of Shaker Aamer, long a British resident, who is peacefully demanding the very rights that the government says he should enjoy?” says Reprieve Legal Director Clive Stafford Smith, Mr. Aamer’s lawyer. “The Blair government is utterly hypocritical, unwilling to stand up for justice when it matters. If Shaker does die, the Blair government will indeed be responsible.” 4.

4.

Sami al Haj, al Jazeera Journalist on hunger strike

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Sami al Haj is an al Jazeera journalist, a cameraman who was on assignment to Afghanistan on December 15th, 2001, when he was stopped by the Pakistani border authorities. On January 7th, 2002, he was turned over to the United States, apparently for a ‘bounty’ of $5,000. The U.S. was distributing pamphlets in Pakistan and Afghanistan at the time that promised “wealth and power beyond your dreams” for those who turned over alleged terrorism suspects. Sami has not been charged with any crime. He has been interrogated roughly 130 times by the United States military. In many of these sessions, his interrogators were interested only in convincing Sami to become an informant against his employer, Al Jazeera. Indeed, Sami was forced to demand that his interrogator ask questions about any offence he might have committed, rather than information about Al Jazeera. On the fifth anniversary of his detention without trial, Sami began a hunger strike. He has maintained a diary about what happened. Sami began by writing to the Admiral in charge of the base and to his interrogator to explain the reasons for his strike. He insists that his peaceful protest will continue until various demands are met: 1. The U.S. military respects the religious rights of the prisoners. There continue to be routine violations of the prisoners’ right to practice their religion freely and without denigration. 2. The Geneva Conventions are properly applied to the prisoners. 3. Those held in total isolation are allowed to rejoin humanity. Sami particularly mentioned Shaker Aamer, the prisoner whose wife and four children live in Britain, who has been held in Camp Echo without access to other human beings since September 2005. 4. There is a full and fair investigation into the fate of the three prisoners who died in custody on June 10, 2006. Seven months had gone by without so much as a report by the military into the prisoners’ deaths, and Sami is unwilling to allow this to continue.

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5. He is either set free or allowed a fair trial in a civilian court in the United States. This is a demand that has been echoed by virtually every foreign leader worldwide. Sami asked for a response to these reasonable requests. He received none. The following is a description of Sami’s hunger strike in his own words: “I began my strike on January 7th, the fifth anniversary of my imprisonment without trial. “If the prisoner misses three meals, he is immediately punished without any recourse. This begins with the removal of his mattress and its replacement with a thin isomat, as well as the confiscation of his letters and his pen. “When the prisoner has missed five meals, he loses the bottles of water he is normally allowed between meals, and he must drink the foul-smelling, yellow tap water – despite the fact that in July 2005 the military recognized how unhealthy the tap water is and agreed to provide everyone with bottled water. He also loses his soap and toothpaste. “When the prisoner has missed six meals, he loses his prayer beads, his prayer rug, his sheet and blanket (except for the hours of 10pm to 5am), his library books and his cup. In my case I also lost my glasses and the knee brace that had been prescribed by the doctors [because of the knee injury he sustained when he was beaten by US forces in Afghanistan]. I was suffering with my knee a lot when I had to bend to use the toilet, but thanks to the strike I now use the toilet much less, to the pain is reduced. “They have taken my pen. I have been allowed a pen only for 30 minutes each time, on January 11th and January 18th to write to my lawyer. I received a letter from Amnesty in Belgium – a place called Louvain-la-Neuve. It had been sent on November 21st, 2006, but I cannot reply. I am sorry. “At this point, the prisoner is left with just his Qur’an, the isomat, and the clothes he is wearing. He is allowed only five minutes when he takes a shower, and he is denied all recreation. “As for me, I am still drinking water, just a little. They took away my bottled water, but I said I could not drink the foul, yellow tap water. Eventually, after two days, they gave me bottled water. “They are force feeding me now. “I was 204 pounds when I began on January 7th, the fifth anniversary of my imprisonment without trial by the Americans. “After 18 days, they took me to the hospital. They asked me if I wanted to eat, and I told them no. They said I needed an IV. I said I did not want it. They made me drink two bottles of water in front of them and then took me back to my cell.

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“On the Saturday [January 27th], which was the 21st day of my strike, they took me back to the hospital. I was 168 lbs. They told me there was no sugar in my blood, and that I would die. “‘I know I will die,’ I replied. “They said I needed an IV. I said I would not have one. They said that water was not enough, and they would force me, so I complied. They said they would put an IV in and give me one bag [of nutrients]. The IV was put in near my elbow. They put one bag in. When it was done, they brought another bag. I said they had promised only one. But they gave me a second. Then they brought a third, which they said was vitamins. I said they had lied to me, and I would rip the IV out with my teeth. “‘We will put you in The Chair,’ the officer said. [This is a reference to the chair used to strap the prisoners down for forced feeding.] “It was the time for prayer, so I asked the officer for five minutes. I asked them to remove the IV while I prayed. They refused. I missed two prayer times there. They cared more about their IV than for my prayer. “When I had missed 70 meals, the doctor said that my condition was very bad. It was more than 500 hours since I had last eaten food. He said they would force feed me, or I could die within hours. I said I did not wish to eat. I told him that I knew my rights under the Tokyo Declaration – they could not force feed me consistent with their ethics, because they knew I was competent, and they knew I made the decision voluntarily. “‘I wish to go back to my cell please,’ I told them. There was a nurse, who let me pray. “On Monday [January 29th] they told me that they would not let me die. They brought in a 12mm-wide tube. It was yellow. They pushed it into my left nostril, all the way down until it reached my stomach. They force fed me by machine, 250 ml of Ensure. I was there for 14 hours with the tube in my nose. It was 1.30am. I wanted to sleep very badly, and asked them to take it out, but they refused. I said I would begin to scream unless they took it out. They finally did. “On Tuesday [January 30th] at 8am, they forced the tube in again. This time it was 900 ml of Ensure. The whole time they had an IV in me. The first day they had forced the Ensure in at 20 ml per hour, but the second day it was 100 ml an hour. It took almost ten hours in total. It did not finish until about 6pm. “I slept. “On Wednesday [January 30th] a doctor came in and asked how I was. “‘Please take me out of here,’ I said. ‘I want to go back to my cell.’ “He ordered them to give me 600 ml of Ensure and a bottle of water through the tube, along with something else. “I was very tired. Nothing comes out any more when I go to the toilet.

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“At 2.30pm, they took me out of the hospital to the isolation block which is being used for the hunger strikers. “Each day when the force feeding is over we are placed in a waiting cell to see whether we vomit. It is very loud in the cell, and there is no water to wash for prayer. “By the time anyone is allowed to read my words, I will have had my birthday on February 15th. I will celebrate it in the Torture Chair this year, I think. “It is sad to be on this strike. I have no desire to die. I am suffering, hungry. The nights are very long and I cannot sleep. But I will continue the struggle until we get our rights. The strike is the only way that I can protest. The military administration treats us all so very badly. “Many dreams here become reality. One day I dream of playing with my son Mohammed. To my wife and son I say, ‘Don’t worry, what will happen will happen.’ One day the sun will shine again, and we will be free. Facts are facts and at last we will prevail.” The medical status of these prisoners is a matter of the utmost urgency.

REPRIEVE P.O. Box 52742 London EC4P 4WS Tel: 020 7353 4640 Fax: 020 7353 4641 www.reprieve.org.uk

CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012, USA Tel: 212 614 6449 Fax: 212 614 6499 www.ccr-ny.org

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The silent world of Sami Clive Stafford Smith Published 12 June 2006 Newstatesman

He is no terrorist. They did not ask him about the charges. They wanted only to turn him into an informer I write this from Guantanamo Bay. Today, I saw my client Sami al-Hajj, a cameraman for al-Jazeera who has been locked up here for more than four years. Under the rules, which I have no choice but to obey, I cannot tell you a word of what he said. Everything is censored. My notes are sent by snail mail to Washington. A month later, I get back those parts that the government allows. If, hypothetically, my client tells me about an abuse committed by a member of the US forces - some kind of torture - there is little chance that the perpetrator will face charges, but I face 40 years in prison if I reveal the crime. The military may dissemble for weeks, and I am forbidden to tell the truth. Last week, the military reported that the prisoners went on a rampage in a premeditated attack against the soldiers. They say that various scheming terrorists attempted suicide by swallowing their hoarded medicines, to lure the guards into the cells. The disturbance had to be quelled with tear gas and rubber bullets. You are the judge. You hear one side of the story, carefully tooled by military public relations. Do you buy it? War on free speech Naturally, Sami was an eyewitness to the truth. Under the normal course of events, as a journalist, he could describe his version. But because the military makes up the rules, he is gagged. Sami and I talked for several hours today, and in a free society I could tell you what he said. But I don't have the right to free speech either. In 1789, the US cobbled together a document that has defined and preserved rights more effectively than anything Europe achieved in the two centuries that followed. The First Amendment, enshrining freedom of speech and religion, was perhaps the most significant jewel in the Bill of Rights. It is particularly tragic that the Bush administration has declared a war on free speech when it comes to Sami al-Hajj and al-Jazeera. Many of the station's journalists previously worked for the BBC, but were made redundant in 1996 when Saudi Arabia ended the BBC's Arabic-language TV service. Prior to 11 September 2001, the US lauded al-Jazeera as the only beacon of free speech in the Middle East. It has been attacked from all sides, from Kuwait complaining about pro-Iraq bias, to Saddam Hussein condemning a report on his lavish birthday celebrations. Six years on, Bahrain has banned al-Jazeera for "suspicious" links with Israel, and the station's offices have been shut in Algeria, Jordan, Iran, Kuwait, Iraq, Palestine and Sudan. President Bush has allied himself with these voices. His most celebrated excess came in his chat with Tony Blair where he mooted the idea of bombing the station's headquarters. Bush's spin-doctors said he was only joking. Four times the US authorities have had the al-Jazeera offices searched, or the website hacked, because of its criticism of the Iraq war. Three al-Jazeera journalists have been arrested by US

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forces. Worst of all, al-Jazeera's offices in Afghanistan and Iraq have both been bombed. CIA target Meanwhile, Sami al-Hajj sits in Guantanamo. He is no terrorist, as illustrated by his first interrogation (first of many): not one question was asked about the allegations. His interrogators wanted only to turn him into an informant against al-Jazeera. He learned that his calls to his wife while he was posted in Afghanistan had been monitored by the CIA. It was strange to think, when I went to Qatar to give a talk to his colleagues, that there were US informants in the audience. Bizarrely, it was Osama Bin Laden who came to Sami's defence. In a recent tape, he seemed put out that some Guantanamo inmates "oppose al-Qaeda's methodology of calling for war with America". He singled out "those . . . in the media, like Sami alHajj". Bush's vitriol has frightened many journalists. Perhaps this explains why none has gone out to bat for Sami. It would be a fine moment if someone in the western press plucked up the courage to defend him now. Clive Stafford Smith is the legal director of Reprieve, a UK charity fighting for the lives of people facing the death penalty and other human-rights abuses. He represents 36 of the prisoners in Guantanamo. He will be writing this column monthly. www.reprieve.org.uk or contact Reprieve at PO Box 52742, London EC4P 4WS. Tel: 020 7353 4640

By Clive Stafford Smith also: Bad Men: Guantanamo Bay And The Secret Prisons

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From Sami al Haj to Clive Stafford-Smith August 9, 2005 Dear Clive: These are some of my notes on the hunger strike: The strike began on July 12 in block 4, that is, the Whisky Barracks, where all the prisoners have joined up and the number is now up to 190 strikers. We were asking for two things: That the prison officials stop treating all prisoners so harshly, especially the prisoners of block 5. A vast improvement in the quality of medical attention and the cessation of all forced practices against the prisoners, like forced sedation and “inoculations,” as well as the end of any practices that make fun of the prisoner’s mental condition. A very large group of visitors came to Delta Barracks on July 15. I believe that they were Congressmen of the United States. For some reasons only known to the people in charge, the delegates were not allowed to visit block 4. Perhaps it was because of the tension that had been created there. Anyway they visited the hospital that is next to Whisky Barracks. Frustrated and desperate, the prisoners started shouting and screaming so that the visitors could hear, trying to make them aware of their plight. Some were shouting: “Freedom!” Others were shouting, “Bush is just like Hitler!” Others complained by shouting: “This is a gulag,” that is to say, a place of forced work and slavery. At this point some visitors tried to come closer to Whisky Barracks trying to hear better what the prisoners were shouting, without paying attention to the warnings of the guards. At the same time others were looking at us contemptuously, and the rest seemed indignant at what was happening. On July 17 at five o’clock in the afternoon the soldiers started moving by force all the prisoners in Whiskey Barracks (we think that they did this as a punishment for what happened during the visit of the Congress people, two days earlier). They moved 18 prisoners to blocks 2 and 3, where conditions are more punitive; one of them is your client, Jamil al-Banna. As the commanding officer seemed to detect a slight sign of resistance, he sent for the brutal anti-riot unit. At the end of the operation the authorities had moved 18 prisoners from two cage blocks, while the rest of the prisoners in Whisky Barracks were demanding to be transferred with their friends to blocks 2 and 3. Meanwhile in block 4 the conditions deteriorated. Those who were still there also asked to be transferred to blocks 2 and 3. In the end approximately 40 prisoners asked for the transfer, and decided to leave all their possessions behind and congregate at the entrance of the block to show show their captors that they were determined to be taken seriously. At three o’clock in the afternoon of July 18 the transfer of prisoners to blocks 2 and 3 began. Meanwhile, as the strike continued, the prisoners started shouting together: “Why are we the enemy?” The camp Commandant said that he had no authority to change our juridical status. They said to us that Donald Rumsfeld, the Secretary of Defense, had written from Washington to him asking to apply the Geneva Convention in

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Guantánamo. For us the most important aim to achieve was the closure of block 5, because the conditions were the most terrible of all there. Some officials came and promised that they would open a shop in which we could buy supplies. They said that our families could send us money, and that they would give 3 dollars a week to the prisoners who had no money. Prisoners would be allowed to meet in assembly to debate our problems, to define our positions and to negotiate with the authorities. But there would be no confidential or private communication among the prisoners. We managed, however, to pass written messages, which we swallowed as soon as they were read, among ourselves, When the authorities found out, they were enraged. On August 5 the case of Hisham al-Sulayti provoked serious problems. This prisoner had resisted in an interrogation session, so the soldiers desecrated the Koran yet again. There were many times when the sacred Book was desecrated. For example, a military policeman had ordered the Yemeni al-Shamrani to do something while he was praying. He answered that he would do it as soon as he finished praying. Immediately all the military policemen rushed forward and hit him in the face until it was covered with blood and then they started stamping and kicking the Koran. That was not the first time it happened. Another Yemeni, Hakim, was told that he represented a serious danger to his prison guards because he had learned the Koran by heart. That was a real insult to the Moslem faith. There was also the case of Saad from Kuwait, dragged to an interrogation session where he was forced to spend five hours with a woman who was sexually explicit in front of him. And the case of the young Canadian Omar Jadr, also forced into isolation to be questioned. They sent prisoners to block 3, also known as Romeo, where they were humiliated; they were forced to wear short trousers and they were left without food or drink for 24 hours. On August 8 the Camp Commandant stopped the prisoners’ assemblies because the day before blocks 2 and 3 went on hunger strike; block 1 joined the strike two days later. As soon as the second strike began the colonel came with a megaphone. He asked the heads of the different blocks to go out to speak with them, but we did not pay any attention to his request. We thought we had to go on hunger strike again; I am not convinced that it was the right thing to do; however, we had to show solidarity with our fellow prisoners in block 5. I hope to come out of this one alive and ask you to tell my wife and my son that I love them very much indeed. Your friend and client Sami Muhyi al-Din al-haj

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Guantánamo, camp of shame Haytham Manna

Since December 14, 2001, when humanitarian members of the NGO (Ground Relieve) were tortured by KFOR soldiers in Kosovo, there has been near-daily evidence of an increase in crime on a global scale. Even countries such as Italy and Spain have been affected. At Guantánamo, the United States, in the name of the war on terror, has legalized post-modern forms of torture: − Solitary confinement with near-permanent binding of hands and feet, − Withholding of medical treatment as a means of pressure, − Torture by exposure to extremely high or low temperatures, − Torture by subjection to high-frequency or otherwise intolerable sounds, − Torture by exposure to powerful light, − Force feeding of prisoners on hunger strike, − In a confidential report presented to the US government in July 2004, and following an inspection mission to Guantánamo prison the previous month, the International Committee of the Red Cross (ICRC) stated that doctors and medical personnel had provided interrogators with information about prisoners' psychological vulnerabilities, − An article published in the New York Times on November 30, 2004 cited the involvement of the Consultation Behavioral Science Team in interrogations, − David Hicks, the Australian lawyer representing Nizar Sassi and Mourad Benchellali, two French detainees freed in July 2004, divulged in Paris that his clients were thought to have been victims of “experimentation” carried out in the interrogation centres at Guantánamo (Nouvel Observateur, December 2004). For three years the ICRC has stated that the system created by the Pentagon and the CIA at Guantánamo “can be considered nothing other than an intentional system of cruel, unusual and degrading torture.” It is necessary to point out that since 2002, there has been a push among certain extremist elements in the psycho-medical profession for the use of strong-armed 74

Israeli methods involving the psycho-medical corps in interrogations. In 1987, the Landau Commission recommended the use of physical or psychological pressure as a means to extort vital information from suspected terrorists. A topic which we had thought confined to the Hebrew State following the Tokyo declaration (1975) and the UN Principles of Medical Ethics (1982) has now returned to the discussion in the US. Nevertheless, European and American psychologists and psychotherapists have protested energetically against the American Psychological Association (APA) for its assertion that it was acceptable for psychologists to assist in military interrogations. A petition against the APA posted on the Internet obtained 1300 signatures from its own members and those of related organizations. Is it necessary to recall that of the 800 prisoners who have passed through Guantánamo only ten have been accused; to this day, none has been judged. Until the death of three detainees as a result of suicide (according to the records), official statistics showed a total of 41 suicide attempts carried out by 25 detainees. Is there a doctor capable of describing the current condition of Sami al-Haj, the Al Jazeera cameraman, following 50 days of hunger strike and in near total isolation? What can be the thoughts of his fellow Sudanese Adel Hamad, detained at Guantánamo for five years for having preferred an Islamic NGO to MSF? It is true, as has been said by Bill Goodman of the Center for Constitutional Rights, “a system without justice is a system without hope”. With the alarming increase in torture at Guantánamo, as well as in other secret detention centres, what has been an attack on man’s physical and moral integrity risks becoming a threat to his very right to exist. * “Les suicidés de Guantánamo Bay: Victimes d’une exécution extrajudiciaire ou auteurs d’un acte de guerre contre les Etats-Unis?” (The suicides of Guantánamo Bay: Victims of extrajudicial execution or authors of an act of war against the United States?) Swiss Press Club, Geneva, March 2, 2007.

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THE GUANTANAMO DETAINEES: THE GOVERNMENT’S STORY Professor Mark Denbeaux* and Joshua Denbeaux* An interim report EXECUTIVE SUMMARY The media and public fascination with who is detained at Guantanamo and why has been fueled in large measure by the refusal of the Government, on the grounds of national security, to provide much information about the individuals and the charges against them. The information available to date has been anecdotal and erratic, drawn largely from interviews with the few detainees who have been released or from statements or court filings by their attorneys in the pending habeas corpus proceedings that the Government has not declared “classified.” This Report is the first effort to provide a more detailed picture of who the Guantanamo detainees are, how they ended up there, and the purported bases for their enemy combatant designation. The data in this Report is based entirely upon the United States Government’s own documents.1 This Report provides a window into the Government’s success detaining only those that the President has called “the worst of the worst.” Among the data revealed by this Report: 1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies. 2. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban. 3. The Government has detained numerous persons based on mere affiliations with a large number of groups that in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably. Eight percent are detained because they are deemed “fighters for;” 30% considered “members of;” a large majority – 60% -- are detained merely because they are “associated with” a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners their nexus to any terrorist group is unidentified. 4. Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies. 5. Finally, the population of persons deemed not to be enemy combatants – mostly Uighers – are in fact accused of more serious allegations than a great many persons still deemed to be enemy combatants. INTRODUCTION The United States Government detains over 500 individuals at Guantanamo Bay as so-called “enemy combatants.” In attempting to defend the necessity of the Guantanamo detention camp, the Government has routinely referred this group as “the worst of the worst” of the Government’s enemies.2 The Government has detained most these individuals for more than four years; only approximately 10 have been

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charged with any crime related to violations of the laws of war. The rest remain detained based on the Government’s own conclusions, without prospect of a trial or judicial hearing. During these lengthy detentions, the Government has had sufficient time for the Government to conclude whether, in fact, these men were enemy combatants and to document its rationale. On March 28, 2002, in a Department of Defense briefing, Secretary of Defense Donald Rumsfeld said: As has been the case in previous wars, the country that takes prisoners generally decides that they would prefer them not to go back to the battlefield. They detain those enemy combatants for the duration of the conflict. They do so for the very simple reason, which I would have thought is obvious, namely to keep them from going right back and, in this case, killing more Americans and conducting more terrorist acts.3 The Report concludes, however, that the large majority of detainees never participated in any combat against the United States on a battlefield. Therefore, while setting aside the significant legal and constitutional issues at stake in the Guantanamo litigation presently being considered in the federal courts, this Report merely addresses the factual basis underlying the public representations regarding the status of the Guantanamo detainees. Part I of this Report describes the sources and limitations of the data analyzed here. Part II describes the “findings” the Government has made. The “findings” in this sense, constitutes the Government’s determination that the individual in question is an enemy combatant, which is in turn based on the Government’s classifications of terrorist groups, the asserted connection of the individual with the purported terrorist groups, as well as the commission of “hostile acts,” if any, that the Government has determined an individual has committed. Part III then examines the evidence, including sources for such evidence, upon which the Government has relied in making these findings. Part IV addresses the continued detention of individuals deemed not to be enemy combatants, comparing the Government’s allegations against such persons to similar or more serious allegations against persons still deemed to be “enemy combatants.” I. THE DATA The data in this Report are based on written determinations the Government has produced for detainees it has designated as enemy combatants.4 These written determinations were prepared following military hearings commenced in 2004, called Combatant Status Review Tribunals, designed to ascertain whether a detainee should continue to be classified as an “enemy combatant.” The data are obviously limited.5 The data are framed in the Government’s terms and therefore are no more precise than the Government’s categories permit. Finally, the charges are anonymous in the sense that the summaries upon which this interim report relies are not identified by name or ISN for any of the prisoners. It is therefore not possible at this time to determine which summary applies to which prisoner. Within these limitations, however, the data are very powerful because they set forth the best case for the status of the individuals the Government has processed. The data reviewed are the documents prepared by the Government containing the evidence upon which the Government relied in making its decision that these detainees were enemy combatants. The Report assumes that the information contained in the CSRT Summaries of Evidence is an accurate description of the evidence relied upon by the Government to conclude that each prisoner is an enemy combatant. Such summaries were filed by the Government against each individual detainee’s in advance of the Combatant Status Review Tribunal (CRST) hearing. 78

II. THE GOVERNMENT’S FINDINGS OF ENEMY COMBATANT STATUS A. Structure of the Government’s Findings As to each detainee, the Government provides what it denominates as a A summary of evidence. Each summary contains the following sentence: The United States Government has previously determined that the detainee is an enemy combatant. This determination is based on information possessed by the United States that indicates that the detainee is.... [Emphasis supplied] Since the Government had “previously determined” that each detainee at Guantanamo Bay was an enemy combatant before the CSRT hearing, the A summary of evidence released by the Government is not the Government=s allegations against each detainee but a summary of the Government=s proofs upon which the Government found that each detainee, is in fact, an enemy combatant. Each summary of evidence has four numbered paragraphs. The first6 and fourth7 are jurisdictional. The second8 paragraph states the Government’s definition of “enemy combatant” for the purpose of the CSRT proceedings. The third paragraph summarizes the evidence that satisfied the Government that each detainee is an enemy combatant. Paragraph 3(a) is the Government=s determination of the detainee relationship with a “defined terrorist organization.”9 Paragraph 3(b) is the place in which Government’s finds that a detainee has or has not committed “hostile acts” against U.S. or coalition forces. Forty five percent of the time the Government concluded that the detainee committed 3(b) hostile acts against United States or coalition forces. In those cases, there is a paragraph 3(b) (“3(b)”) in the CSRT summary so stating. Fifty five percent of the time, the Government concluded that the detainee did not commit such an act and omitted the entire 3(b) section from the CSRT summary. For these detainees whose CSRT summaries include a finding under 3(b), the Government listed its specific findings ‘proving’ hostile acts in a brief series of sub-paragraphs. Of those CSRT summaries that contain a3(b) “hostile acts” determination, the mean number of subparagraphs is two; that is, for the 55% of detainees the Government has found committed3(b) “hostile acts” the Government lists, on average two pieces of evidence. Fewer than 2% of all 517 CSRT summaries contained more than five3(b) sub-paragraphs; while the vast majority contained 1, 2 or 3 such ‘proofs’ of hostile acts. B. The Definition of an ‘Enemy Combatant’ For the purposes of the Combatant Status Review Tribunal, an “enemy combatant” has been defined as: [A]n individual who was part of or supporting the Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy forces.10 This could be interpreted alternatively as requiring either a combatant be both a member of prohibited group and engaged in hostilities against the U.S. or coalition forces or only that a combatant be anyone either a member of prohibited group or engaged in hostilities to U.S. or coalition forces. Indeed, under this definition, one could be detained for an undefined level of “support of” groups considered hostile to the United States or its coalition partners. C. Categories of Evidence Supporting Enemy Combatant Designation The Government divides the evidence against detainees into two sections: a3(a) nexus with prohibited organizations and a3(b) participation in military operations or 79

commission of hostile acts. Paragraph 3 always begins with the allegations that each detainee met all the requirements contained in the definition of paragraph two. More often than not the Government finds that the detainees did not commit the hostile or belligerent acts. 1.3(a): Enemy Combatant because of Nexus with Prohibited Organization a. Definition of Prohibited Organizations The data reveals that the Government divides a detainee's enemy combatant status into six distinct categories that describe the terrorist organization with whom the detainee is affiliated. Figure 1 illustrates the breakdown of each group’s representation by the data: 1. al Qaeda (32%) 2. al Qaeda & Taliban (28%) 3. Taliban (22%) 4. al Qaeda OR Taliban (7%) 5. Unidentified Affiliation (10%) 6. Other (1%) The CSRT Summary of Evidence provides no way to determine the difference between “unidentified/none alleged” and “other” and no explanation for why there are separate categories for both “al Qaeda and Taliban” and “al Qaeda or Taliban.” If, after four years of detention, the Government is unable to determine if a detainee is either al Qaeda or Taliban, then it is reasonable to conclude that the detainee is neither. Under this assumption, the data reveals that 40% of the detainees are not affiliated with al Qaeda and 18% percent of the detainees are not affiliated with either al Qaeda or the Taliban. 3a Group Affiliations Taliban 22% Other 1% Al Qaeda 32% Unidentified/ None alleged 10% Al Qaeda OR Taliban 7% Al Qaeda & Taliban 28%

Fig. 1

b. Nexus with the Identified Organization The Government also describes each prisoner’s nexus to the respective organization: “fighter for;” “member of;” and “associated with.” The data explain that there are three main degrees of connection between the detainee and the organization with which he is connected.11 Detainees are either: 1. “Fighters for” 2. “Members of” 3. “Associated with” Figure 2 illustrates that of the nexus type for all the prisoners, regardless of the group to which they are “connected,” by far the greatest number of prisoners are identified only as being “associated with” one group or another. A much smaller percentage – 30% – is identified as “members of.” Only 8% are classified as “fighters for.” The definition of “fighters for” would seem to be obvious, while definitions of “members of” and “associated with” are less clear and could justify a very broad level of attenuation. According to the Government’s expert on al Qaeda membership, Evan Kohlman, simply being told that one had been selected as a member would qualify one as a member: Al-Qaeda leaders could dispatch one of their own — someone who is not top tier…to recruit someone and to tell them, I have been given a mandate to do this on behalf of senior al-Qaeda leaders… even though perhaps this individual has never sworn an official oath and this person has never been to an al-Quaeda training camp, nor have they actually met, say, Osama bin Ladin.12 80

This expansive definition of membership in al Qaeda could thus be applied to anyone who the Government believed ever spoke to an al Qaeda member. Even under this broad framework, the Government concluded that a full 60% of the detainees do not have even that minimum level of contact with an al Qaeda member. Nexus Type for All Fighter for 8% Member 30% Associated with 60% Non Alleged 2%

Fig. 2

Membership in the Taliban is different and also not clearly defined. According to the Government, one can be a conscripted (and therefore presumably unwilling) member of the Taliban and still be an enemy combatant. Figures 3 and 4 compare the nexus between enemy combatants with Al Qaeda and the Taliban. In contrast to the “al Qaeda only” category, the “Taliban only” category shows that a significantly higher percentage of the prisoners are designated “members of” and “fighters for” with a reduced number being “associated with.” Seventy eight percent of those prisoners who are identified as being both “al Qaeda and Taliban” are merely "associated with;" 19% are "members of;" and 3% are "fighters for." (Fig. 5) When the Government cannot specifically identify a detainee as a member of one or the other, al Qaeda or the Taliban, the degree of connection attributed to such detainees appears tenuous. (Fig. 6) The Government’s summary of evidence "Al Qaeda OR Taliban" Nexus Type Associated with 74% fighter for 5% Member 21%

Fig. 6 "Al Qaeda & Taliban" Nexus Type fighter for 3% Member 19% Associated with 78%

Fig. 5 Al Qaeda Nexus Type Associated with 57% Member 34% fighter for 9%

Fig. 3 Taliban Nexus Type Associated with 36% Member 48% fighter for 16%

Fig. 4

11 3b: Hostile Acts Generally No 3b:hostile Act 55% 3b:Hostile Act 45%

Fig. 7 recognizes that more often than not members of the Taliban are not members of al Qaeda. The Government categorizes as stand alone al Qaeda or stand alone Taliban more than 54% of the detainees, and only 28% of the detainees as members of both. The data provides no explanation for the explicit distinction between those persons identified as being connected to “al Qaeda and the Taliban” as opposed to “al Qaeda or the Taliban”. [Emphasis supplied] 2. 3(b): The Government’s Findings on Detainees’ 3(b) Hostile Acts against the United States or Coalition Forces

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Although the Government’s public position is that these detainees are “the worst of the worst,” see supra note 2, the data demonstrates that the Government has already concluded that a majority of those who continue to be detained at Guantanamo have no history of any 3(b) hostile act against the United States or its allies. According to the Government, fewer than half of the detainees engaged in 3(b) hostile acts against the United States or any members of its coalition. As figure 7 depicts, the Government has concluded that no more than 45% of the detainees have committed some 3(b) hostile act. "Al Qaeda OR Taliban" 3b: Hostile Acts 3b: Hostile Act 29% No 3b: Hostile Act 71%

Fig. 8

This is true even though the Government’s definition of a 3(b) hostile act is not demanding. As an example, the following was the evidence that the Government determined was sufficient to constitute a 3(b) hostile act: The detainee participated in military operations against the United States and its coalition partners. 1. The detainee fled, along with others, when the United States forces bombed their camp. 2. The detainee was captured in Pakistan, along with other Uigher fighters.13 Cross-analyzing the3(a) and3(b) data, individuals in some groups are less likely to have committed hostile acts than those in others. In the group “al Qaeda or Taliban,” for example, 71% of the detainees have not been found to have committed any hostile act. (See Fig. 8) Of the “other” detainees in Figure 9, that is, the 18% whose 3(a) is either “Unidentified”, “None alleged”, “al Qaeda OR Taliban” or “other,” only 24% have been determined to have committed a 3(b) hostile act. (See Fig 10) 3a Group Affiliations Taliban 22% Others 18% Al Qaeda & Taliban 28% Al Qaeda 32%

Fig. 9

Others ("Al Qaeda OR Taliban", Unidentified, None Alleged and other): 3b presence 3b:No Hostile Act 76% 3b: Hostile Act 24% Fig. 10

13 Al Qaeda "Associated with" 3b:Hostile Acts No 3b:Hostile Act 72% 3b:Hostile Act 28% Fig. 11

Thus, the less clear the Government’s characterization of a detainee’s affiliation with a prohibited group is, the less likely the detainee is to have committed a hostile act. This is notable because the percentage of detainees with whom the Government cannot clearly connect with a prohibited group is so large.14 The same pattern holds true when the degree of connection between the detainee and the affiliated group lessens. Thirty-two percent of the detainees are stand alone al Qaeda. Fifty seven percent of those detainees have a nexus to al Qaeda described as “associated with.” Of those 57% whom are merely associated with al Qaeda, 72% of them have not 82

committed 3(b) hostile acts. (See Fig. 3 and 11) Thus, the data illustrates that not only are the majority of the al Qaeda detainees merely “associated with” al Qaeda, but the Government concludes that a substantial percentage of those detainees did not commit 3(b) hostile acts. III. THE GOVERNMENT’S EVIDENCE THAT THE DETAINEES ARE ENEMY COMBATANTS The data permit at least some answers to two questions: How was the evidence of their enemy combatant status obtained? What evidence does the Government have as to the detainees commission of 3(b) violations? A. Sources of Detainees and Reliability of the Information about Them Figure 12 explains who captured the detainees. Pakistan was the source of at least 36% of all detainees, and the Afghanistan Northern Alliance was the source of at least 11% more. The pervasiveness of Pakistani involvement is made clear in Figure 13 which shows that of the 56% whose captor is identified, 66% of those detainees were captured by Pakistani Authorities or in Pakistan. Thus, if 66% of the unknown 44% were derived from Pakistan, the total captured in Pakistan or by Pakistani Authorities is fully 66%. Since the Government presumably knows which detainees were captured by United States forces, it is safe to assume that those whose providence is not known were captured by some third party. The conclusion to be drawn from the Government’s evidence is that 93% of the detainees were not apprehended by the United States.15 (See Fig. 12) Hopefully, in assessing the enemy combatant status of such detainees, the Government appropriately addressed the reliability of information provided by those turning over detainees although the data provides no assurances that any proper safeguards against mistaken identification existed or were followed. Fig. 12 Captors % of Total Pakistani Authorities or in Pakistan 36% Not stated 44% Other 2% USA 5% Coalition forces 2% Northern Alliance/ Afghan Authorities 11% Fig. 13 Captors known or capture location known Pakistani Authorities or in Pakistan 66% Northern Alliance/ Afghan Authorities 20% Coalition forces 3% USA 8% Other 3%

The United States promised (and apparently paid) large sums of money for the capture of persons identified as enemy combatants in Afghanistan and Pakistan. One representative flyer, distributed in Afghanistan, states: Get wealth and power beyond your dreams....You can receive millions of dollars helping the anti-Taliban forces catch al-Qaida and Taliban murders. This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people.16 Bounty hunters or reward-seekers handed people over to American or Northern Alliance soldiers in the field, often soon after disappearing;17 as a result, there was little opportunity on the field to verify the story of an individual who presented the detainee in response to the bounty award. Where that story constitutes the sole basis for an individual’s detention in Guantanamo, there would be little ability either for the Government to corroborate or a detainee to refute such an allegation. 83

As shall be seen in consideration of the Uighers, the Government has found detainees to be enemy combatants based upon the information provided by the bounty hunters. As to the Uighers, at least, there is no doubt that bounties were paid for the capture and detainment of individuals who were not enemy combatants.18 The Uigher have yet to be released. The evidence satisfactory to the Government for some of the detainees is formidable. For this group, the Government’s evidence portrays a detainee as a powerful, dangerous and knowledgeable man who enjoyed positions of considerable power within the prohibited organizations. The evidence against them is concrete and plausible. The evidence provided for most of the detainees, however, is far less impressive. The summaries of evidence against a small number of detainees indicate that some of the prisoners played important roles in al Qaeda. This evidence, on its face, seems reliable. For instance, the Government found that 11% of the detainees met with Bin Laden. Other examples include: A detainee who is alleged to have driven a rocket launcher to combat against the Northern Alliance. A detainee who held a high ranking position in the Taliban and who tortured, maimed, and murdered Afghani nationals who were being held in Taliban jails A detainee who was present and participated in al Qaeda meetings discussing the September 11th attacks before they occurred. A detainee who produced al Qaeda propaganda, including the video commemorating the USS Cole attack. A detainee who was a senior al Qaeda lieutenant. 11 detainees who swore an oath to Osama Bin Laden. The previous examples are atypical of the CSRT summaries. There are only a very few individuals who are actively engaged in any activities for al Qaeda and for the Taliban. The 11 detainees who swore an oath to Osama Bin Laden are only a tiny fraction of the total number of the detainees at Guantanamo. The Taliban is a different story. The Taliban was a religious state which demanded the most extreme compliance of all of its citizens and as such controlled all aspects of their lives through pervasive Governmental and religious operation.19 Under Mullah Omar, there were 11 governors and various ministers who dealt with such various issues as permission for journalists to travel, over-seeing the dealings between the Taliban and NGOs for UN aid projects and the like.20 By 1997, all international “aid projects had to receive clearance not just from the relevant ministry, but also from the ministries of Interior, Public Health, Police, and the Department of the Promotion of Virtue and Prevention of Vice.”21 There was a Health Minister, Governor of the State Bank, an Attorney General, an Education Minister, and an Anti-Drug Control Force.22 Each city had a mayor, chief of police, and senior administrators.23 None of these individuals are at Guantanamo Bay. The Taliban detainees seem to be people not responsible for actually running the country. Many of the detainees held at Guantanamo were involved with the Taliban unwillingly as conscripts or otherwise. General conscription was the rule, not the exception, in Taliban controlled Afghanistan.24 “All the warlords had used boy soldiers, some as young as 12 years old, and many were orphans with no hope of having a family, or education, or a job, except soldiering.”25 Just as strong evidence proves much, weak evidence suggests more. Examples of evidence that the Government cited as proof that the detainees were enemy combatants includes the following: Associations with unnamed and unidentified individuals and/or organizations; Associations with organizations, the members of which would be allowed into the United States by the Department of Homeland Security; 84

Possession of rifles; Use of a guest house; Possession of Casio watches; and Wearing of olive drab clothing. The following is an example of the entire record for a detainee who was conscripted into the Taliban: a. Detainee is associated with the Taliban i. The detainee indicates that he was conscripted into the Taliban. b. Detainee engaged in hostilities against the US or its coalition partners. i. The detainee admits he was a cook’s assistant for Taliban forces in Narim, Afghanistan under the command of Haji Mullah Baki. ii. Detainee fled from Narim to Kabul during the Northern Alliance attack and surrendered to the Northern Alliance.26 All declassified information supports the conclusion that this detainee remains at Guantanamo Bay to this date. Other detainees have been classified as enemy combatants because of their association with unnamed individuals. A typical example of such evidence is the following: The detainee is associated with forces that are engaged in hostilities against the United States and its coalition partners: 1) The detainee voluntarily traveled from Saudi Arabia to Afghanistan in November 2001. 2) The detainee traveled and shared hotel rooms with an Afghani. 3) The Afghani the detainee traveled with is a member of the Taliban Government. 4) The detainee was captured on 10 December 2001 on the border of Pakistan and Afghanistan.27 Some of these detainees were found to be enemy combatants based on their association with identified organizations which themselves are not proscribed by the Department of Homeland Security from entering the United States. In analyzing the charges against the detainees, the Combatant Status Review Board identified 72 organizations that are used to evidence links between the detainees and al Qaeda or the Taliban. These 72 organizations were compared to the list of Foreign Terrorist Organizations in the Terrorist Organization Reference Guide of the U.S. Department of Homeland Security, U.S. Customs and Border Protection and the Office of Border Patrol. This Reference Guide was published in January of 2004 which was the same year in which the charges were filed against the detainees.28 According to the Reference Guide, the purpose of the list is Ato provide the Field with a ‘Who=s Who’ in terrorism.”29 Those 74 foreign terrorist organizations are classified in two groups: 36 A designated foreign terrorist organizations, as designated by the Secretary of State, and 38 A other terrorist groups, compiled from other sources. Comparing the Combatant Status Review Board=s list of 72 organizations that evidence the detainee’s link to al Qaeda and/or the Taliban, only 22% of those organizations are included in the Terrorist Organization Reference Guide. Further, the Reference Guide describes each organization, quantifies its strength, locations or areas of operation, and sources of external aid. Based on these descriptions of the organizations, only 11% of all organizations listed by the Combatant Status Review Board as proof of links to al Qaeda or the Taliban are identified as having any links to Qaeda or the Taliban in the Terrorist Organization Reference Guide. Only 8% of the organizations identified by the Combatant Status Review Board even target U.S. interests abroad. Overall - references to rifle, AK-47 or Kalashnikov

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No reference 61%

Contains reference

39%

Fig. 14

The evidence against 39% of the detainees rests in part upon the possession of a Kalashnikov rifle. Possession of a rifle in Afghanistan does not distinguish a peaceful civilian from any terrorist. The Kalashnikov culture permeates both Afghanistan and Pakistan.30 Our economy has been suffering and continues to suffer because of the situation in Afghanistan. Rampant terrorism as well as the culture of drugs and guns – that we call the "Kalashnikov Culture" – tearing apart our social and political fabric – was also a direct legacy of the protracted conflict in Afghanistan.31 This is recognized not merely by the Pakistani Foreign minister but by American college students touring Afghanistan. “There is a big Kalashnikov-rifle culture in Afghanistan: …I was somewhat bemused when I walked into a restaurant this afternoon to find Kalashnikovs hanging in the place of coats on the rack near the entrance, ….”32 Guest & Safe House Neither guest nor safe house 73% Only guest house 16% only safe house 10% guest house and safe house 1%

Fig. 15

The Government treats the presence at a “guest house” as e evidence of being an enemy combatant. The evidence against 27% of the detainees included their residences while traveling through Afghanistan and Pakistan. Stopping at such facilities is common for all people traveling in the area. In the region, the term guest house refers simply to a form of travel accommodation.33 Numerous travel and tourism agencies, such as Worldview Tours, South Travels, and Adventure Travel include overnight stays at local guest houses and rest houses on their tour package itineraries and lists of accommodations, which are marketed to western tourists.34 Guesthouses and rest houses typically offer budget rates and breakfast American travel agents advise American tourists to expect to stay in guest houses in either country. In a handful of cases the detainee’s possession of a Casio watch or the wearing olive drab clothing is cited as evidence that the detainee is an enemy combatant. No basis is given to explain why such evidence makes the detainee an enemy combatant. IV. CONTINUED DETENTION OF NON-COMBATANTS The most well recognized group of individuals who were held to be enemy combatants and for whom summaries of evidence are available are the Uighers35 These individuals are now recognized to be Chinese Muslims who fled persecution in China to neighboring countries. The detainees then fled to Pakistan when Afghanistan came under attack by the United States after September 11, 2001. The Uighers were arrested in Pakistan and turned over to the United States. At least two dozen Uighurs found in Afghanistan and Pakistan has been detained in Guantanamo Bay, Cuba. The Government originally determined that these men were enemy combatants, just as the Government so determined for all of the other detainees. The Government has now decided that many of the Uighur detainees in Guantanamo Bay are not enemy combatants and should no longer be detained. They have not yet been released. The Government has publicly conceded that many of the Uighers were wrongly found to be enemy combatants. The question is how many more of the detainees were wrongly found to be enemy combatants. The evidence that satisfied the Government that the Uighers were enemy combatants parallel’s the evidence against the other detainees --but the evidence against the Uighers is actually sometimes stronger. 86

The Uigher evidence parallels the evidence against the other detainees in that they were: 1. Muslims, 2. in Afghanistan, 3. associated with unidentified individuals and/or groups 4. possessed Kalishnikov rifles 5. stayed in guest houses 6. captured in Pakistan 7. by bounty hunters. If such evidence is deemed insufficient to detain these persons as enemy combatants, the data analyzed by this Report would suggest that many other detainees should likewise not be classified as enemy combatants. CONCLUSION The detainees have been afforded no meaningful opportunity to test the Government’s evidence against them. They remain incarcerated.

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APPENDIX A Image from http://www.psywar.org/apddetailsdb.php?detail=2002NC02

"Dear countrymen: The al Qaeda terrorists are our enemy. They are the enemy of your independence and freedom. Come on. Let us find their most secret hiding places. Search them out and inform the intelligence service of the province and get the big prize." (taken from AP article, http://afgha.com/?af=article&sid=12975

“The reward, about $4,285, would be paid to any citizen who aided in the capture of Taliban or al-Qaida fighters.” Text on the back of the imitation banknote is "Dear countrymen: The al-Qaida terrorists are our enemy. They are the enemy of your independence and freedom. Come on. Let us find their most secret hiding places. Search them out and inform the intelligence service of the province and get the big prize." http://www.psywarrior.com/Herbafghan02.html Image from http://www.psywar.org/apddetailsdb.php?detail=2002AFD029P AFD29p—leaflet code. This leaflet shows an unnamed Taliban leader (http://www.psywarrior.com/Herbafghan02.html) REWARD FOR INFORMATION LEADING TO THE WHEREABOUTS OR CAPTURE OF TALIBAN AND AL QAEDA LEADERSHIP. Translation: http://www.psywarrior.com/afghanleaf15.html

Afghanistan Leaflets TF11-RP09-1 FRONT "Get wealth and power beyond your dreams. Help the Anti-Taliban Forces rid Afghanistan of murderers and terrorists" BACK TEXT ONLY "You can receive millions of dollars for helping the Anti-Taliban Force catch Al-Qaida and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people."

From http://www.psywarrior.com/afghanleaf40.html

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APPENDIX B Afghanistan Support Committee al Birr Foundation* Al Haramain* Al Ighatha* Al Irata* Al Nashiri* Al Wa'ad* Al Wafa* AlGama'a al-islamiyya* Algerian Armed Islamic Group* Algerian resistance group* alHaramayn* Al-Igatha Al-Islamiya, Int'ntl Islamic Relief Org* Al-Islah* Reform Party in Yemen* Al-Itiihad al Islami (AIAI)* Ariana Airlines* Armed Islamic Group of Algeria* Bahrain Defense Organization* Chechen rebels* Dawa wa Irshad* East Turkish* Islamic Movement* Egyptian Islamic Jihad (EIJ) Extremist organization linked to Al Qaeda Fiyadan Islam* Hamas (Islamic Resistance Front)* Harakat-e-Mulavi* HIG* Hizballah International Islamic Relief Organization (IIRO)* Iraqi National Congress (INC)* Islamic Group* Nahzat-Islami* Islamic Movement of Tajikistan* Islamic Movement of Uzbekistan* Islamic Salvation Front* Itihad Islami* JABRI* Wai Al Jaish-e-mohammad8 Jama'at al Tablighi Jamaat ud Dawa il al Quran al Sunnat (JDQ)* Jamat al Taligh* Jamiat Al lslamiya* Jemaah Ilamiah Mquatilah* Jihadist* Karim Explosive Cell* Kuwaiti Joint Relief Committee* Lajanat Dawa Islamiya (LDI)* Lash ar-e-tayyiba* Lashkar-e-Tayyiba(LT)* LIFG* Maktab al Khidman* Mujahadin* Mujahedin Brigade in Bosnia* Mulahadin* Muslims in Sink'Iang Province of China Nahzat-Islami* Pacha Khan* Revival of Islamic Heritage Society* Salafist group for call and* combat* Sami Essid Network* Samoud* Sanabal Charitable Committee* Sharqawi Abdu Ali al-Hajj* small mudafah in Kandahar* Takfir Seven* Takvir Ve Hijra (TVH)* Talibari* Tarik Nafaz Shariati Muhammedi Molakan* Danija* Tunisian Combat Group* Tunisian terrorists* Turkish radical religious groups* Uighers* World Assembly of Muslim Youth* yemeni mujahid

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APPENDIX C "Captured by Whom" Notes “other” includes “Bosnian Authorities”, “Foreign Government”, “Gambia”, “Iranian Authorities”, “Local Pashtun tribe”, “natural elders of Andokhoy City” and “United Islamic Front for the Salvation of Afghanis” “Pakistani Authorities” includes “Pakistani Greentown” "Where Captured" Notes “Afghanistan” includes “Mazar-e Sharif” and “Tora Bora” “other” includes “Bosnia”, “fleeing from Shkin firebase”, “Gambia”, “home of al Qaeda financier”, “home of suspected HIG commander”, “Iran”, “Kashmir”, “Libyan guesthouse”, “Samoud's compound”, “UK, Gambia” and “while being treated for leg wound” "Affiliation" Notes al Qaeda includes “al Qaeda or its network” al Qaeda & Taliban includes “al Qaeda member taliban associate”, “al Qaeda/Taliban”, “member of al Qaeda & associated with Taliban”, “member of Taliban and/or associated w/ al Qaeda”, “Taliban and/or al Qaeda”, “Taliban Fighter and al Qaeda Member” and “taliban member al Qaeda associate” “other” includes “HIG” and “Uigher” Unidentified includes “al Qaeda affiliated group”, “enemy combatant”, “forces allied with al Qaeda and Taliban”, “forces engaged in hostilities against US”, “organization associated w/ and supported al Qaeda”, “terrorist”, “terrorist organization”, “terrorist organization tied to al Qaeda”, “terrorist organization supported by al Qaeda” and “various NGOs with al Qaeda & Taliban connections” "Nexus" Notes “associated with” includes “affiliated”, “material support”, “supported” and “supporter” “fighter” for includes “supported and fought for” “member” includes “member and participated in hostile acts”, “member of or associated with”, “member or ally”, “operative”, “part of or supported” and “worked for”

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NOTES * The authors are counsel for two detainees in Guantanamo. 1 See, Combatant Status Review Board Letters, Release date January 2005, February 2005, March 2005, April 2005 and the Final Release available at the Seton Hall Law School library, Newark, NJ. 2 The Washington Post, in an article dated October 23, 2002 quoted Secretary Rumsfeld as terming the detainees Athe worst of the worst. In an article dated December 22, 2002, the Post quoted Rear Adm. John D. Stufflebeem, Deputy Director of Operations for the Joint Chiefs of Staff, AThey are bad guys. They are the worst of the worst, and if let out on the street, they will go back to the proclivity of trying to kill Americans and others. Donald Rumsfeld Holds Defense Department Briefing. (2002, March 28). FDCH Political Transcripts. Retrieved January 10, 2006 from Lexis-Nexis database. 3 Threats and Responses: The Detainees; Some Guantanamo Prisoners Will Be Freed, Rumsfeld Says, (2002, October 23). The New York Times, p 14. Retrieved February 7, 2006 from Lexis-Nexis database. 4 The files reviewed are available at the Seton Hall Law School library, Newark, NJ. 5 There is other data currently being compiled based on different information. Each prisoner at Guantanamo who has had summaries of evidence filed against them has had an internal administrative evaluation of the charges. The process is that a Combatant Status Review Tribunal, or CSRT, has received the charges and considered them. Some of those enemy detainees who are represented by counsel in pending habeas corpus Federal District Courts have received (when so ordered by the Federal District Court Judge) the classified and declassified portion of the CSRT proceedings. The CSRT proceedings are described as CSRT returns. The declassified portion of those CSRT returns are being reviewed and placed into a companion data base. 6 Paragraph 1: “Under the provisions of the Department of the Navy Memorandum, dated 29 July 2004, Implementation of Combatant Status Review Tribunal Procedures for enemy Combatants Detained at Guantanamo Bay Naval Base Cuba, a Tribunal has been appointed to review the detainee’s designation as an enemy combatant.” 7 Paragraph 4: “The detainee has the opportunity to contest his determination as an enemy combatant. The Tribunal will endeavor to arrange for the presence of any reasonably available witnesses or evidence that the detainee desires to call or introduce to prove that he is not an enemy combatant. The Tribunal President will determine the reasonable availability of evidence or witnesses.” 8 Paragraph 2: A(A)n Enemy Combatant has been defined as: [A]n individual who was part of or supporting the Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy forces. [Emphasis supplied] 9 Many of the “defined terrorist organizations” referenced in the CSRT summaries of evidence are not considered terrorist organizations by the Department of Homeland Security. See Infra. 10 The definition of Aenemy combatants for the purpose of the Guantanamo detainment has evolved over time. In January 2002, when the first detainees were sent from Pakistan and Afghanistan to Cuba they were termed, as were the detainees in Ex Parte Quirin, (47 F.Supp. 431) A unlawful belligerents. In Hamdi v. Rumsfeld, (542 U.S. 507) the Government defined “enemy combatant” far more narrowly as someone who was “’part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there.” Later, in response to Rasul v. Bush (542 U.S. 466), the detainees were called A enemy combatants. (Emphasis supplied) In February 2004, Secretary Rumsfeld, said, A The circumstances in which individuals are apprehended on the battlefield can be ambiguous, as I'm sure people here can understand. This ambiguity is not only the result of the inevitable disorder of the battlefield; it is an ambiguity created by enemies who violate the laws of war by fighting in civilian clothes, by carrying multiple identification documentations, by having three, six, eight, in one case 13 different …aliases…. Because of this ambiguity, even after enemy combatants are detained, it takes time to check stories, to resolve inconsistencies or, in some cases, even to get the detainee to provide any useful information to help resolve the circumstance. In an August 13, 2004 News Briefing, Gordon England, Secretary of the Navy and Secretary Rumsfeld=s designee for the tribunal process at Guantanamo stated that, A The definition of an enemy combatant is in the implementing orders, which have been passed out to everyone. But, in short, it means anyone who is part of supporting the Taliban or al Qaeda forces or associated forces engaging in hostilities against the United States or our coalition partners. 11 While more than 95% of the summaries of the evidence used one of these three categories, approximately 4% used other nexus descriptions. Most notably, 2% used a "supported" descriptor which was re-categorized as “associated with.” See Appendix C for a full account of re-categorizations of data. 12 US vs. Pachir, Dkt. No., T113.

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13 See

CSRT Summary of Evidence available at the Seton Hall Law School library, Newark, NJ [Emphasis supplied]. 14 See Fig 1: “3(a) Group Affiliations” supra, p. 7: the sum of “al Qaeda OR Taliban” (7%); Unidentified/“None alleged” (10%); and “Other” (1%) equals 18%. This is the 18% that is represented as “Others” in Fig. 9. 15 Presuming a fixed 7% of detainees were captured by US or coalition forces, the remaining detainees whose captor is unknown can be extrapolated to 68% “Pakistani Authorities or in Pakistan”, 21% “Northern Alliance/Afghan Authorities”, and 4% “other.” 16 See Infra., Appendix A. 17 See, e.g. Mahler, Jonathan, The Bush Administration versus Salim Hamdan (2006, Jan. 8), New York Times, p. 44. 18 White, Josh and Robin Wright. Detainee Cleared for Release Is in Limbo at Guantanamo. (2005, December 15),Washington Post, p. A09. 19 See generally Rashid, A. (2001). Taliban. Yale University Press. 20 See Id., p. 99. 21 See Id., p. 114. 22 See generally Rashid, A. (2001). Taliban. Yale University Press. 23 Id. 24 See Id., p100. 25 See Id., p109. 26 See CSRT Summary of Evidence available at the Seton Hall Law School library, Newark, NJ. 27 See CSRT Summary of Evidence available at the Seton Hall Law School library, Newark, NJ. 28 Terrorist Organization Reference Guide. Retrieved February 6, 2006 from http://www.mipt.org/pdf/TerroristOrganizationReferenceGuide.pdf 29 It continues: “The main players and organizations are identified so the CBP [Customs and Border Protection] Officer and BP [Border Protection] Agent can associate what terror groups are from what countries, in order to better screen and identify potential terrorists. Unlike the many other compilations of terrorist organizations published by the Government since 9/11, including the list of the Office of Foreign Asset Control (OFAC) used to monitor or block international funds transfers to suspected and known terrorist organizations and their supporters, the Terrorist Organization Reference Guide identifies the 74 Amain players and organizations in terrorism. 30 Afghanistan is also the world's center for unaccounted weapons; thus, there is no exact count on the number of weapons in circulation. Arms experts have estimated that here are at least 10 million small arms in the country. The arms flow has included Soviet weapons funneled into the country during the 1979 invasion, arms from Pakistan supplied to the Taliban, and arms from Tajikistan that equipped the Northern Alliance. NEA's Statements on Afghanistan and the Taliban. Retrieved February 6, 2006 from http://neahin.org/programs/schoolsafety/september11/materials/nmneapos.htm. 31 Pakistan Mission to the United Nations, New York. Retrieved February 6, 2006 from http://www.un.int/pakistan/12011220.html. 32 Hall, B. (2002 Nov.-Dec.) Letters from Afghanistan. Duke Magazine. Retrieved February 6, 2006, from www.dukemagazine.duke.edu/dukemag/issues/111202/afghan1.html. 33 A June 7, 2005 article in Business Week referenced an Afghani woman named Mahboba who hopes to open a chain of women=s guest houses, gaining assistance from participation in a program sponsored by the Business Council for Peace. In an article published September 25, 2005, New York Times travel reporter, Paul Tough, described the guest houses that he and his girlfriend stayed in while he explored the budding tourism industry in Afghanistan. Perman, Staci. Aiding Afghanistan with Style. (2005, June 7). Business Week Online. Retrieved January 11, 2006 from http://www.businessweek.com/smallbiz/content/jun2005/sb2005067_5111_sb013.htm. Tough, Paul. The Reawakening. (2005, September 25). New York Times. 34 See, Services Along the Silk Road: Accommodations. Retrieved January 10, 2006, from http://worldviewtours.com/service/accomodation.htm; Adventure Travel Trek and Tour Operators. Retrieved January 10, 2006 from http://www.adventure-touroperator.com/main.html; Adventure Holiday in Pakistan: Budget Hotels and Guesthouses. Retrieved January 10, 2006, from http://www.southtravels.com/asia/pakistan/index.html 35 Uighurs, a Turkic ethnic minority of 8 to 12 million people primarily located in the northwestern region of China and in some parts of Kyrgyzstan and Kazakhstan, face political and religious oppression at the hands of the Chinese Government. The Congressional Human Rights Caucus of the United States House of Representatives has received several briefings on these issues, including the information that the People=s Republic of China A continues to brutally suppress any peaceful political, religious, and cultural activities of Uighurs, and enforce a birth control policy that compels

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minority Uighur women to undergo forced abortions and sterilizations.(United States Commission on International Religious Freedom, World Uighur Network) In response to oppression by the Chinese Government, many Uighurs flee to surrounding countries such as Afghanistan and Pakistan. Wright, Robin. Chinese Detainees are Men Without a Country. (2005, August 24) Washington Post, p. A01.

REPORT ON GUANTANAMO DETAINEES A Profile of 517 Detainees through Analysis of Department of Defense Data By Mark Denbeaux Professor, Seton Hall University School of Law and Counsel to two Guantanamo detainees Joshua Denbeaux, Esq. Denbeaux & Denbeaux David Gratz, John Gregorek, Matthew Darby, Shana Edwards, Shane Hartman, Daniel Mann and Helen Skinner Students, Seton Hall University School of Law

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WHY GUANTÁNAMO PRISON MUST CLOSE Leading human rights organizations have denounced the US prison camp at Guantánamo. The International Committee of the Red Cross and the UN High Commissioner for Human Rights have spoken out against it. The British Attorney General has said it is unacceptable. The European Parliament called on the United States to shut it down. Even within the US military and the upper ranks of the Bush administration there are those who favor its closure. Yet 800 people remain locked up there, with practically no rights, exposed to abuse – the overwhelming majority without any charge against them. Many have been imprisoned there for four or five years, with almost no contact to the outside world, suffering from the torments of isolation, offered no reason for their detention. Sami Al Haj, Adel Hamad and Abdullah al Matrafi are three innocent people, like so many others held in this terrible place. Sami was a television cameraman, Adel and Abdullah were humanitarian NGO staff. They were suddenly swept into a hellish, endless imprisonment. Guantánamo symbolizes the most despotic trends of our time. Its existence flouts the rule of law and the protection of human beings from arbitrary authority. Its prisoners’ suffering shocks us all. If this frightful prison continues to exist, who knows what might come next? For these reasons, we call for the immediate closure of Guantánamo and the release of all prisoners except those against whom formal charges have been brought, who deserve a proper civil trial. Guantánamo will continue to haunt us in the future, but let us end its terrible example in the present! Global Coordination for Sami Al Haj www.samisolidarity.net [email protected] The Nation 30/07/2007

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Top 10 Myths about Guantánamo Bay Guantanamo Global Justice Initiative

1. MYTH: Detainees are the “worst of the worst” terrorist members of al Qaeda FACT: A February 2006 report by Seton Hall professor Mark Denbeaux and attorney Joshua Denbeaux found that 55 percent of the detainees were determined by the government to have committed no hostile acts against the United States or its coalition allies. The report also stated that only 8 percent of the detainees were classified by the government as al Qaeda fighters. 2.MYTH: They have given the government valuable intelligence. FACT: Guantánamo officials have admitted that less than one in four detainees has any intelligence value. 3. MYTH: Their detainment contributes to national security. FACT: Anger abroad over treatment of detainees is high and has led to heightened anti-American sentiment and fewer intelligence contacts. 4. MYTH: They’re not tortured or abused and are treated humanely. FACT: Numerous reports have found that U.S. government officials at Guantánamo use interrogation tactics that are tantamount to torture. These include methods such as physical beatings; extreme temperature changes; prolonged stress positions; sleep deprivation; withholding medical care; sexual abuse; and religious and cultural abuse. 5. MYTH: The rule of law exists at Guantánamo. Combatant Status Review Tribunals and Annual Review Boards ensure that detainees are imprisoned only if they are security threats. FACT: CSRT’s in essence are a sham—detainees cannot have lawyers present and do not have access to the evidence being used against them, evidence which may have been obtained by torture. 6. MYTH: The military commissions at Guantánamo would provide more fairness than is required under the Geneva Conventions. FACT: Common Article 3 of the Geneva Conventions prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 7. MYTH: Living conditions at Guantánamo are humane. FACT: This is true for only a handful of men, while the vast majority of detainees live in stark, mind-numbing conditions. 8. Myth: Detainees receive good medical care at Guantánamo. FACT: Serious medical conditions often go untreated, and detainees who have been physically abused sometimes go days without treatment. In addition, the mental health of many detainees is precarious. 9. MYTH: The U.S. honors the detainees’ rights to practice their religion. FACT: There has been no imam at prayer since the removal of Chaplin James Yee. The detainees are also frequently provoked during prayer times. In addition, religious abuse is an express interrogation tactic approved by the Defense Secretary. 10. MYTH: The U.S. wants to transfer detainees to the custody of other countries, but no country will take them. FACT: Countries are willing to accept detainees but many are not willing to unlawfully detain them, as the U.S. is requesting they do

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ACHR Publications - Violette Daguerre and James Paul, “For the End blockade against Iraqi People”: two texts about sanctions, 1998. (English and Arabic) - Arab Commission for Human Rights, “ For the Protection of Human Rights Defenders in Tunisia”, 1998. (French) - Arab Commission for Human Rights, “Algeria, the Serkadji Case from the Massacre to the Farce”, 1998.(French) - Violette Daguerre, “Civil Marriage in Lebanon is a Right and a Necessity”, 1998. (French and Arabic) - Jamal Al-haytham Al-Na’al, “Democratic Freedoms, Human Rights and the Crises of the Judicial System in the Syrian Constitution”, 1998. (Arabic) - Omar Mestiri, “A Reading of the Arab Agreement Against Terrorism”, 1998. (French and Arabic) - Mohamed Hafez Yakoub, “International Criminal Court”, 1998. (French and Arabic) - Arab Commission for Human Rights and the Bahrain Organization for Human Rights, “The Confiscation of Lawyers’ Association in Bahrain”. 1998 (English and Arabic) - Moncef Marzouki, Violette Daguerre, Issam Younes and Haytham Manna, Physical and Mental Integrity, Torture in the Arab World”, 1998. (French and Arabic) - Violette Daguerre, “Economical Sanctions on Iraq” (After an investigating mission to Iraq by Issam Eddin Hassan and Violette Daguerre), 1999. (French, English and Arabic) - Arab Commission for Human Rights, “For the Sake of Democracy and Human Rights in Tunisia”, 1999. (Arabic) - Haytham Manna, “A Judicial observation during the trial of Radia Nasraoui and other convicted activists, who were charged for belonging to the Workers Communist Party of Tunisia”, 1999. (Arabic) - Haytham Manna, “A Judicial observation (watch) for the trial of Jalal Ben Brik Al Zuglami”, 1999. (Arabic) - Nathalie Budjerada, “A Judicial observation for the trial of Moncef Marzouki and Najeeb Hosni”, 2000. (French) - Haytham Manna, “A judicial observation for the trial of the activists of the Moroccan Association for Human Rights”, 2000. (Arabic) - Mahmoud Khelili and Amina Kadi, “ Forced Disappearance and Torture in Algeria”, 2000. (French) -Haytham Manna, with 28 searchers, Short Universal Encyclopedia of Human Rights, 235 articles, Fundamental texts and English-French-Arabic dictionary, al-Ahali –2000. - Violette Daguerre, “A Preliminary Report about Health Conditions in the Intifada”, 2000. (Arabic) - Taoufik Ben Brik, “Now, Listen to Me”, Dar Al Sabar with the Arab Commission for Human Rights and the Arab Program for Human Rights Activists, 2000. (Arabic and French) - Violette Daguerre, Mohammed Hafiz Yakoub, Mohammed Abu Harthieh, “Palestinian Refugee Rights and a durable solution based on International Law”, Arabic 2000 ( English edition 2001). -Haytham Manna : Freedom in Exile Literature, Buds : ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2001. - Moncef Marzouki, “Are We Qualified for Democracy?”, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2001.

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- Haytham Manna, “What about the Future?” ( Notes on the report of the Syrian government presented for the Committee on Human Rights in New York), 2001. (French English and Arabic) - “Tunisia of Tomorrow”, a collective work by Ahmed Manai, Taoufik Ben Brik, Rashed Al Gannouchi, Moustafa Ben Jaafar, Moncef Marzouki, Nourddin Khatrouchi, the series of political reform and human rights, 2001. (Arabic) -Violette Daguerre : First Report about health Right under ql-Intifada, (Arabic), 2001. -Al Haq Organization, “The Use of Power by the Israeli Security Forces”, translated into French language by Nazha Rakim Satoor, 2001 -Violette Daguerre and 17 searchers, Democracy and Human Rights in Syria, ACHR and Eurabe, Paris, 2001. (French, English and Arabic) -Habib Issa, Last appeal for liberty, Paris (2002), Beyrouth (2003) (Arabic) - Haytham Manna (With 38 searchers), Short Universal Encyclopedia of Human Rights, (Al-Ahali Publishers, Eurabe, Bisan, Damas -Beyrouth- Paris), 2 Volumes, 2000-2002. -Ahmad Fawzi : A Judicial observation during the trial of Ma’moun Homsi and Riad Seif, (ACHR et Aphra), 2001 -L’usage de la force par l’armée israélienne : Association Al-Haq, (rapport traduit de l’arabe et publié en français par ACHR), 2001. -Violette Daguerre and &_ Syrians searchers : Democracy and Human Rights in Syria, (Book in English, French and Arabic), 2001 - Jean-Claude Ponsin et Nathalie Boudjerada : Human Rights Violations in Palestinians Occupied Territories, (French), 2002. -Richard Morran, Roger Normand, James Paul, John Rampel, and Christophe Wilcke : Iraq sanctions, Humanitarian Implications and Options for the Future, ACHR & 10 ONG, (English and Arabic), 2002 -Anwar Al Bonni, A Judicial observation during the trial of Habib Younes, Lebanon, (Arabic), 2002. -Maha Youssef, Imad Moubarak, Mostafa al-Hassan : Exceptional Laws and Freedom of Organization in Egypt, (Arabic), 2002. - «Tribunal of people »and Status of Political Organizations in Libya, (English and Arabic), 2002. -Nathalie Boudjerada et Daniel Voguet : 2 Judicial observations during the trial of Marwan Barghouti, (French and Arabic), 2002 et 2003 -Angela Gaff : One Of Our greatest Success, (English, French and Arabic), ACHR & Al-Mezan, 2002. - Elections of Mauritanian Bar Association, (National Counsel of Mauritanian Lawyers), 2002. -Haytham Manna : United States and Human Rights, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic) (2end edition Djedda), 2003 -Arbitrary Detention in the First week of Iraq Occupation, (Arabic), 2003 -Haytham Manna : Palestinians Situation In Iraq, (English, French Arabic, Allemande), 2003 -Khalil Ma’touq and Anwar Al-Bonni : Situation of Palestinians in the camp of Rwayched, Jordan, (Arabic), 2003 -Violette Daguerre : Aggression Crime, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2003 -Mohamed Ben Tareiya, Abbas Orwa, Youssef Bejjawi: History of Torture and the origin of it’s

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prohibition in Islam, , (ACHR and Arraya Centre), Beyrouth and Djedda, 2003 -Donia-l-Amal Ismail : Child Palestinian Prisoners in the Israeli Jails, (ACHR and Ad-Damir Center), 2003 -Helping Vulnerable, Works of Paris Conference for Humanitarian NGOs, (Arabic, French and English), Eurabe and Al-Ahali, 2003 -Our Common Responsibility, ONGs about the consequences of a New War in Iraq, 2003 -Freedom of Expression and Terorrism,Case of Taysir Alony, (Arabic), 2003 -Internatioal Day of solidarity with Political Prisoners in Tunisia, (Report of 25 ONG, French and Arabic), 2004 -Haytham Al-Maleh, Rights of Vulnerable Groups, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2004 - Arbitrary Detention in the Arab World, Qatar, Saudi Arabia, Tunisia and Syria. (Report of ACHR and Al-Karama), 2004 -Abdelmajid Manjounah, Haytham Al-Maleh, Haytham Manna : State of Emergency and State of Law in Syria, (Arabic), 2004 -Hossein Al-Audat (sous la direction) : Freedom of Media, Arab World and western Countries, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2004 -For a Civil Society In Syria, debates of Montada Al-Hiwar Al-Watani, (Arabic), 2004 -Haytham Manna, A Scream Before the Kill, (English, French and Arabic), ACHR with the International Bureau for Humanitarian ONGs, 2004 -Violette Daguerre :Health Right, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2004 -Rachid Mesli : Forces disappearance in Algeria, (French), 2004 -Haytham Manna : Intervention on Human Rights Culture, Arraya Center and ACHR, 2004 (Arabic) -Violette Daguerre, Majd Shara et Sabika Annajar, Women and Family in the Arab Societies, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2004 -Ali Damini, Prison cell symphony, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2004, -Matrouk Al-Faleh, Constitutional Reform in Saudi Arabia, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2004 -Haytham Manna and 17 searchers, Future of Human Rights, Impunity and Human Rights, ACHR, Eurabe et Al-Ahali, 2005, (Arabic) -Mostafa Soulaih, Critic of Reconciliation experience in Morocco, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2005, -Haytham Manna et Kais Azzawi, Protection of journalists, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2005 -Abdallah Al-Hamed, Independence of Justice in Saudi Arabia, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2005 -Moncef Marzouki, Which democracy you are speaking about ? Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2005 -Haytham Manna, Critical Studies on Human Rights, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2005 -Moncef Marzouki, Holy Man, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2006 -Haytham Manna, Child Rights, Regional and International Conventions, Arraya Center and

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ACHR, Beyrouth, Djedda & Damas, 2006, (Arabic Book) -Ibrahim Taouti, Tribunal against Terror or Tribunal against Justice, ACHR and Al-Ahali, 2006, (French, Spanish and Arabic) -Mohamed Kreshen, Al jazeera and neighbors, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2006 - Physician face to Victim of Torture, AVRE, Buds, ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2006 -Violette Daguerre & Haytham Manna, Medico –psycho -legal Report in Rahova Prison in Romania, ACHR, 2006 - Haytham Manna, Justice or barbarism - ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2006 -Moncef Marzouki : How our nation can play its role in this century - ACHR, Eurabe & Al-Ahali, (Book in Arabic), 2007 -Violette Daguerre with Laure Forest , Julian Villard, Jean-Claude Ponsin, Associations of Charity : survey of the IBH - in Arabic and French 2007

The Palestinian

-Nasser Al Ghazali- The Situation of Syrians Refugees in - coedited with Damascus Center for Theoritical Studies and Civil Rights – in Arabic 2007 -Hugo Ruiz, Diaz Balbuena , Marie Mendes France, Report on international law violations during the war on Lebanon- ACHR , Association Americanas des Juristes - Alkarama Association-in French 2007 - Haytham Manna: CD presenting 100 official documents, lectures, reports, 20 books on Human Rights – ACHR and IBH, 2007. -Abdelwahb Matar – Moncef marzouki : Report on Mauritanian elections – ACHR – in Arabic-2007 - Mustapha Hassan Taha : Political imprisonment in Egypt – in Arabic -2007 -ACHR , International Justice , Documents on Human Rights violations in Egypt, London conference – 26.5.2007 -James Paul & Celine Nahory, War and Occupation in Iraq, GPF, ACHR and 30 ONG, New York, Beyrouth, English and Arabic, 2007

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Contents ACHR, Sami Al Haj and the tragedy of Guantanamo CPJ, The Enemy? AI, Who are the Guantánamo detainees? UN-CHR, Situation of detainees at Guantánamo Bay Reprieve & CCR, Report on Torturous Methods Used To Force Feed Clive Stafford Smith, The silent world of Sami From Sami al Haj to Clive Stafford-Smith Haytham Manna, Guantánamo, camp of shame Professor Mark Denbeaux & Joshua Denbeaux, The Guantanamo detainees: The Government' Story Guantanamo Global Justice Initiative Top 10 Myths about Guantánamo Bay WHY GUANTÁNAMO PRISON MUST CLOSE ACHR Publications

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