Crimes -- Committed In All Our Names

UNITED STATES OF AMERICA
Head of state and government: George W. Bush
Death penalty: retentionist
International Criminal Court: signed
UN Women’s Convention: signed
Optional Protocol to UN Women’s Convention: not signed

International Criminal Court

The US government intensified its efforts to curtail the power of the International Criminal Court (ICC). In December, Congress approved a provision in a government spending bill mandating the withholding of certain economic assistance to governments that refuse to grant immunity for US nationals before the ICC.

Guantánamo Bay

By the end of the year, more than 500 detainees of around 35 nationalities continued to be held without charge or trial at the US naval base in Guantánamo Bay on grounds of possible links to al-Qa’ida or the former Taleban government of Afghanistan. While at least 10 more detainees were transferred to the base from Afghanistan during the year, more than 100 others were transferred to their home countries for continued detention or release. At least three child detainees were among those released, but at least two other people who were under 18 at the time of their detention were believed to remain in Guantánamo by the end of the year. Neither the identities nor the precise numbers of detainees held in Guantánamo were provided by the Department of Defense, fuelling concern that individual detainees could be transferred to and from the base without appearing in official statistics.

In a landmark decision, the US Supreme Court ruled in June that the US federal courts had jurisdiction over the Guantánamo detainees. However, the administration tried to keep any review of the detainees’ cases as far from a judicial process as possible. The Combatant Status Review Tribunal (CSRT), an administrative review body consisting of panels of three military officers, was established to determine whether the detainees were “enemy combatants”. The detainees were not provided with lawyers to assist them in this process and secret evidence could be used against them. Many detainees boycotted the process, which by the end of the year had determined that more than 200 detainees were “enemy combatants” and two were not and could be released. The authorities also announced that all detainees confirmed as “enemy combatants” would have a yearly review of their cases before an Administrative Review Board (ARB) to determine if they should still be held. Again, detainees would not have access to legal counsel or to secret evidence. Both the CSRT and the ARB could draw on evidence extracted under torture or other coercion. In December, the Pentagon announced that it had conducted its first ARB.

The government informed the detainees that they could file habeas corpus petitions in federal court, giving them the address of the District Court in Washington DC. However, it also argued in the same court that the detainees had no basis under constitutional or international law to challenge the lawfulness of their detention. By the end of the year, six months after the Supreme Court ruling, no detainee had had the lawfulness of his detention judicially reviewed.

Detentions in Afghanistan and Iraq

In August, the Independent Panel to Review Department of Defense Detention Operations, appointed by Secretary of Defense Donald Rumsfeld following the publication of photographs of torture and ill-treatment committed by US personnel in Abu Ghraib prison in Iraq (see below), reported that since the invasions of Afghanistan and Iraq, about 50,000 people had been detained during US military and security operations.

US forces operated some 25 detention facilities in Afghanistan and 17 in Iraq (see below). Detainees were routinely denied access to lawyers and families. In Afghanistan, the International Committee of the Red Cross (ICRC) had access only to some detainees in Bagram and Kandahar air bases.

Detentions in undisclosed locations

A number of detainees, reported to be those considered by the US authorities to have high intelligence value, were alleged to remain in secret detention in undisclosed locations. In some cases, their situation amounted to “disappearance”. Some individuals were believed to have been held in secret locations for as long as three years. The refusal or failure of the US authorities to clarify the whereabouts or status of the detainees, leaving them outside the protection of the law for a prolonged period, clearly violated the standards of the UN Declaration on the Protection of All Persons from Enforced Disappearance.

Allegations that the US authorities were involved in the secret transfer of detainees between countries, exposing detainees to the risk of torture and ill-treatment, continued.

Military commissions

By the end of the year, 15 detainees were subject to the 2001 Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. Detainees named under the Military Order can be detained without charge or trial or tried before a military commission. Military commissions are executive bodies, not independent or impartial courts, with the power to hand down death sentences; there is no right of appeal against their decisions to any court.

Four of the 15 – Yemeni nationals Ali Hamza Ahmed Sulayman al Bahlul and Salim Ahmed Hamdan; Australian national David Hicks; and Ibrahim Ahmed Mahmoud al Qosi of Sudan – were charged with conspiracy to commit war crimes and other offences. The first pre-trial hearings were held for these four detainees in August.

On 8 November, US District Court Judge James Robertson presiding over Salim Hamdan’s habeas corpus appeal issued an order stating that Salim Hamdan could not be tried by military commission as charged. Judge Robertson ordered that unless and until a “competent tribunal”, as required under Article 5 of the Third Geneva Convention, determined that Salim Hamdan was not entitled to prisoner of war status, he could only be tried by court-martial under the USA’s Uniform Code of Military Justice.

Judge Robertson held that even if Salim Hamdan was found not to have prisoner of war status by a “competent tribunal” which satisfied the requirements of the Third Geneva Convention (which the judge said neither presidential nor CSRT determinations would satisfy), his trial before the military commission would be unlawful because of military commission rules permitting the exclusion of the defendant from certain sessions and the withholding of certain classified or “protected” evidence from him. Military commission proceedings were still suspended at the end of the year, with the government having appealed against Judge Robertson’s ruling.

Torture and ill-treatment of detainees outside the USA

Photographic evidence of the torture and ill-treatment of detainees in Abu Ghraib prison in Iraq by US soldiers became public in late April, causing widespread national and international concern. President Bush and other officials immediately asserted that the problem was restricted to Abu Ghraib and a few wayward soldiers.

On 22 June, after the leaking of earlier government documents relating to the “war on terror” suggesting that torture and ill-treatment had been envisaged, the administration took the step of declassifying selected documents to “set the record straight”. However, the released documents showed that the administration had sanctioned interrogation techniques that violated the UN Convention against Torture and that the President had stated in a central policy memorandum dated 7 February 2002 that, although the USA’s values “call for us to treat detainees humanely”, there are some “who are not legally entitled to such treatment”. The documents discussed, among other things, ways in which US agents could avoid the international prohibition on torture and other cruel, inhuman or degrading treatment, including by arguing that the President could override international and national laws prohibiting such treatment. These and other documents also indicated that President Bush’s decision not to apply the Geneva Conventions to detainees captured in Afghanistan followed advice from his legal counsel, Alberto Gonzales, that this would free up US interrogators in the “war on terror” and make future prosecutions of US agents for war crimes less likely. Following the presidential elections in November, President Bush nominated Alberto Gonzales to the post of Attorney General in his new administration.

On 30 December, shortly before Alberto Gonzales’ nomination hearings in the Senate, the Justice Department replaced one of its most controversial memorandums on torture, dated August 2002. Although the new memorandum was an improvement on its predecessor, much of the original version lived on in a Pentagon Working Group Report on Detainee Interrogations in the Global War on Terrorism, dated 4 April 2003, which remained operational at the end of the year.

A February report by the ICRC on abuses by Coalition forces in Iraq, which in some cases were judged to be “tantamount to torture”, was also leaked as was the report of an investigation by US Army Major General Antonio Taguba. The Taguba report had found “numerous incidents of sadistic, blatant, and wanton criminal abuses” against detainees in Abu Ghraib prison between October and December 2003. It had also found that US agents in Abu Ghraib had hidden a number of detainees from the ICRC, referred to as “ghost detainees”. It was later revealed that one of these detainees had died in custody, one of several such deaths that were revealed during the year where torture or ill-treatment was thought to be a contributory factor.

During the year, the authorities initiated various criminal investigations and prosecutions against individual soldiers as well as investigations and reviews into interrogation and detention policies and practices. The investigations found that there had been “approximately 300 recorded cases of alleged abuse in Afghanistan, Guantánamo and Iraq.” On 9 September, Major Paul Kern, who oversaw one of the military investigations, told the Senate Armed Services Committee that there may have been as many as 100 cases of “ghost detainees” in US custody in Iraq. Secretary of Defense Rumsfeld admitted to having authorized the Central Intelligence Agency (CIA) to keep at least one detainee off any prison register.

However, there was concern that most of the investigations consisted of the military investigating itself, and did not have the power to carry the investigation into the highest levels of government. The activities of the CIA in Iraq and elsewhere, for example, remained largely shrouded in secrecy. No investigation dealt with the USA’s alleged involvement in secret transfers between countries and any torture or ill-treatment that may have ensued. Many documents remained classified. AI called for a full commission of inquiry into all aspects of the USA’s “war on terror” and interrogation and detention policies and practices.

During the year, released detainees alleged that they had been tortured or ill-treated while in US custody in Afghanistan and Guantánamo. Evidence also emerged that others, including Federal Bureau of Investigation (FBI) agents and the ICRC, had found that such abuses had been committed against detainees.

Detentions of ‘enemy combatants’ in the USA

In June the US Supreme Court ruled that Yaser Esam Hamdi, a US citizen held for more than two years in military custody without charge or trial as an “enemy combatant”, was entitled to due process and habeas corpus review of his detention by the US courts. His case was remanded for further proceedings before the lower courts. While the latter were pending, he was released from US custody in October and transferred to Saudi Arabia, under conditions agreed between his lawyers and the US government. These included renouncing his US citizenship and undertaking not to leave Saudi Arabia for five years and never to travel to Afghanistan, Iraq, Israel, Pakistan or Syria.

José Padilla, a US national, and Ali-Saleh Kahlah Al-Marri, a Qatari national, remained detained without charge or trial as “enemy combatants”. José Padilla had filed a similar petition to Yaser Hamdi before the US Supreme Court but the Court rejected his petition on the grounds that his appeal had been filed in the wrong jurisdiction. The case was pending a rehearing in South Carolina, where he was detained in a military prison at the end of 2004.

Prisoners of conscience

Conscientious objectors Staff Sergeant Camilo Mejía Castillo and Sergeant Abdullah William Webster were imprisoned; they were prisoners of conscience. Both men remained in prison at the end of the year.

Staff Sergeant Camilo Mejía Castillo was sentenced to one year’s imprisonment for desertion after he refused to return to his unit in Iraq on moral grounds relating to his misgivings about the legality of the war and the conduct of US troops towards Iraqi civilians and prisoners. His trial in May went ahead despite a pending decision by the army on his application for conscientious objector status.

In June, Sergeant Abdullah William Webster, who had served in the US army since 1985, was sentenced to 14 months’ imprisonment and loss of salary and benefits for refusing to participate in the war in Iraq on the basis of his religious beliefs. He had been ordered to deploy to Iraq despite submitting an application to be reassigned to non-combatant services. His application for conscientious objector status was refused on the ground that his objection was not to war in general but to a particular war.

Refugees, migrants and asylum-seekers

In November, National Public Radio (NPR) reported allegations of abuse of immigration detainees held at three New Jersey jails, including Passaic Jail and Hudson County Correctional Center. They included claims that two prisoners were beaten while handcuffed and that others were bitten by guard dogs. AI had reported on similar abuses in 2003. Most of the alleged victims in the NPR report were deported before investigations could be completed. The Department of Homeland Security said it was reviewing various contract detention facilities but did not confirm which jails were covered in the review.

Ill-treatment and excessive use of force by law enforcement officials

There were reports of ill-treatment and deaths in custody involving “new generation” tasers: powerful dart-firing electroshock weapons deployed or trialled by more than 5,000 US police and correctional agencies. More than 40 people died after being struck by US police tasers, bringing to more than 70 the total number of such deaths reported since 2001. While coroners generally attributed cause of death to factors such as drug intoxication, in at least five cases they found the taser played a role.

Most of the people who died were unarmed men who did not appear to pose a serious threat when they were electroshocked. Many were subjected to multiple shocks and some to additional force such as pepper spray or dangerous restraint holds, including hogtying (placing someone face-down with their hands and feet bound together from behind).

There were reports that tasers were used by officers routinely to shock people who were mentally disturbed or simply refused to obey commands. Children and the elderly were among those shocked. In most such cases, the officers involved were cleared of wrongdoing. In some departments tasers had become the most common force tool used by officers against a wide range of suspects.

AI reiterated its call on the US authorities to suspend use and transfers of tasers and other stun weapons pending a rigorous, independent inquiry into their use and effects.

Death penalty

In 2004, 59 people were executed, bringing to 944 the total number of prisoners put to death since the US Supreme Court lifted a moratorium on executions in 1976. Texas accounted for 23 of the year’s executions, and 336 of all the executions in the USA since 1976. Five people were released from death row in 2004 on grounds of innocence, bringing to 117 the total number of such cases since 1973.

Eight people prosecuted in the Texas jurisdiction of Harris County were executed during the year, despite concern around the reliability of forensic evidence processed through the Houston Police Department (HPD) crime laboratory where serious problems had been uncovered in 2003. In October, a judge on the Texas Court of Criminal Appeals said that there should be “a moratorium on all executions in cases where convictions were based on evidence from the HPD crime lab until the reliability of the evidence has been verified”. His was the only dissenting voice when the Court denied death row inmate Dominique Green’s request for a stay of execution on the basis of concern around the accuracy of the HPD’s ballistics work in his case, and the discovery of 280 boxes of mislabelled evidence that could affect thousands of criminal cases. Dominique Green was executed on 26 October.

The USA continued to contravene international law by using the death penalty against child offenders – people who were under 18 at the time of the crime. Around 70 child offenders remained on death row during the year, more than a third of them in Texas.