Military Commissions Act of 2006 – Turning bad policy into bad law
from Amnesty International
In recent days, human rights violations perpetrated by the USA throughout the "war on terror" have in effect been given the congressional stamp of approval. With the passing of the Military Commissions Act of 2006 by the US House of Representatives on 27 September and the Senate on 28 September, Congress has turned bad executive policy into bad law. This document looks back on the evolution of the executive’s "war on terror" detention policies, in order to illustrate the sort of violations in which Congress, through inaction and now legislation, has become complicit. Amnesty International will continue to campaign for the USA’s "war on terror" detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.
On 21 September 2001, Amnesty International faxed a letter to President George W. Bush. The organization urged the President to put respect for human rights and the rule of law at the heart of his country’s response to the crime against humanity that was perpetrated on 11 September 2001. "In the wake of a crime of such magnitude", the letter said, "principled leadership becomes crucial… We urge you to lead your government to take every necessary human rights precaution in the pursuit of justice."
Amnesty International deeply regrets that its appeal fell on deaf ears. The past five years have seen the USA engage in systematic violations of international law, with a distressing impact on thousands of detainees and their families. Human rights violations have included:
o Secret detention
o Enforced disappearance
o Torture and other cruel, inhuman or degrading treatment
o Outrages upon personal dignity, including humiliating treatment
o Denial and restriction of habeas corpus
o Indefinite detention without charge or trial
o Prolonged incommunicado detention
o Arbitrary detention
o Unfair trial procedures
Yet at the same time, US officials have continued to characterize the USA as a "nation of laws" and one that in the "war on terror" is committed to what it calls the "non-negotiable demands of human dignity", including the "rule of law".
....
Now Congress has passed the Military Commissions Act. Amnesty International will work for the repeal of this legislation which violates human rights principles. Among other things, the Military Commissions Act will:
o Strip the US courts of jurisdiction to hear or consider habeas corpus appeals challenging the lawfulness or conditions of detention of anyone held in US custody as an "enemy combatant". Judicial review of cases would be severely limited. The law would apply retroactively, and thus could result in more than 200 pending appeals filed on behalf of Guantánamo detainees being thrown out of court.
o Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.
o Permit the executive to convene military commissions to try "alien unlawful enemy combatants", as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes. This would violate the prohibition on the discriminatory application of fair trial rights.
o Permit civilians captured far from any battlefield to be tried by military commission rather than civilian courts, contradicting international standards and case law.
o Establish military commissions whose impartiality, independence and competence would be in doubt, due to the overarching role that the executive, primarily the Secretary of Defense, would play in their procedures and in the appointments of military judges and military officers to sit on the commissions.
o Permit, in violation of international law, the use of evidence extracted under cruel, inhuman or degrading treatment or punishment, or as a result of "outrages upon personal dignity, particularly humiliating or degrading treatment", as defined under international law.
o Permit the use of classified evidence against a defendant, without the defendant necessarily being able effectively to challenge the "sources, methods or activities" by which the government acquired the evidence. This is of particular concern in light of the high level of secrecy and resort to national security arguments employed by the administration in the "war on terror", which have been widely criticized, including by the UN Committee against Torture and the Human Rights Committee. Amnesty International is concerned that the administration appears on occasion to have resorted to classification to prevent independent scrutiny of human rights violations.
o Give the military commissions the power to hand down death sentences, in contravention of international standards which only permit capital punishment after trials affording "all possible safeguards to ensure a fair trial". The clemency authority would be the President. President Bush has led a pattern of official public commentary on the presumed guilt of the detainees, and has overseen a system that has systematically denied the rights of detainees.
o Limit the right of charged detainees to be represented by counsel of their choosing.
o Fail to provide any guarantee that trials will be conducted within a reasonable time.
o Permit the executive to determine who is an "enemy combatant" under any "competent tribunal" established by the executive, and endorse the Combatant Status Review Tribunal (CSRT), the wholly inadequate administrative procedure that has been employed in Guantánamo to review individual detentions.
o Narrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute "outrages upon personal dignity, particularly humiliating and degrading treatment" banned under Article 3 common to the four Geneva Conventions. Amnesty International believes that the USA has routinely failed to respect the human dignity of detainees in the "war on terror".
o Prohibit the US courts from using "foreign or international law" to inform their decisions in relation to the War Crimes Act. The President has the authority to "interpret the meaning and application of the Geneva Conventions". Under President Bush, the USA has shown a selective disregard for the Geneva Conventions and the absolute prohibition of torture or other ill-treatment.
o Endorse the administration’s "war paradigm" – under which the USA has selectively applied the laws of war and rejected international human rights law. The legislation would backdate the "war on terror" to before the 11 September 2001 in order to be able to try individuals in front of military commissions for "war crimes" committed before that date.
Meanwhile the human rights violations continue. The CIA’s secret detention and interrogation program retains the full support of President Bush. During the debates on the Military Commissions Act, members of Congress expressed their support for the program, despite the fact that it violates international law. Thousands of detainees remain in indefinite detention without charge or trial in US custody in Iraq, Afghanistan and Guantánamo. In passing the Military Commissions Act, Congress has failed these detainees and their families.
Those defending human rights should be prepared for a long struggle.
(The entire document is here.)
Here's Human Rights Watch on U.S. torture:
Call Cruelty What It Is
By Tom Malinowski, Washington Advocacy Director, published in Washington Post
Monday, September 18, 2006
President Bush is urging Congress to let the CIA keep using "alternative" interrogation procedures -- which include, according to published accounts, forcing prisoners to stand for 40 hours, depriving them of sleep and use of the "cold cell," in which the prisoner is left naked in a cell kept near 50 degrees and doused with cold water.
Bush insists that these techniques are not torture -- after all, they don't involve pulling out fingernails or applying electric shocks. He even says that he "would hope" the standards he's proposing are adopted by other countries. But before he again invites America's enemies to use such "alternative" methods on captured Americans, he might benefit from knowing a bit of their historical origins and from hearing accounts of those who have experienced them. With that in mind, here are some suggestions for the president's reading list.
He might begin with Robert Conquest's classic work on Stalin, "The Great Terror." Conquest wrote: "When there was time, the basic [Soviet Secret police] method for obtaining confessions and breaking the accused man was the 'conveyor' -- continual interrogation by relays of police for hours and days on end. As with many phenomena of the Stalin period, it has the advantage that it could not easily be condemned by any simple principle. Clearly, it amounted to unfair pressure after a certain time and to actual physical torture later still, but when? . . . At any rate, after even twelve hours, it is extremely uncomfortable. After a day, it becomes very hard. And after two or three days, the victim is actually physically poisoned by fatigue. It was as painful as any torture."
Conquest stated: "Interrogation usually took place at night and with the accused just roused -- often only fifteen minutes after going to sleep. The glaring lights at the interrogation had a disorientating effect." He quoted a Czech prisoner, Evzen Loebl, who described "having to be on his feet eighteen hours a day, sixteen of which were devoted to interrogation. During the six-hour sleep period, the warder pounded on the door every ten minutes. . . . If the banging did not wake him, a kick from the warder would. After two or three weeks, his feet were swollen and every inch of his body ached at the slightest touch; even washing became a torture."
Conquest quoted a Polish prisoner, Z. Stypulkowski, from 1945: "Cold, hunger, the bright light and especially sleeplessness. The cold is not terrific. But when the victim is weakened by hunger and sleeplessness, then the six or seven degrees above the freezing point make him tremble all the time. . . . After fifty or sixty interrogations with cold and hunger and almost no sleep, a man becomes like an automaton -- his eyes are bright, his legs swollen, his hands trembling. In this state, he is often convinced he is guilty."
(There is more, here.)
Human Rights watch again:
U.S. Torture and Abuse of Detainees
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
—The Universal Declaration of Human Rights, Article 5 (1948)
Each day brings more information about the appalling abuses inflicted upon men and women held by the United States in Iraq, Afghanistan, and elsewhere around the world. U.S. forces have used interrogation techniques including hooding, stripping detainees naked, subjecting them to extremes of heat, cold, noise and light, and depriving them of sleep—in violation of the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This apparently routine infliction of pain, discomfort, and humiliation has expanded in all too many cases into vicious beatings, sexual degradation, sodomy, near drowning, and near asphyxiation. Detainees have died under questionable circumstances while incarcerated.
(There is a page full of reports referenced here.)
In recent days, human rights violations perpetrated by the USA throughout the "war on terror" have in effect been given the congressional stamp of approval. With the passing of the Military Commissions Act of 2006 by the US House of Representatives on 27 September and the Senate on 28 September, Congress has turned bad executive policy into bad law. This document looks back on the evolution of the executive’s "war on terror" detention policies, in order to illustrate the sort of violations in which Congress, through inaction and now legislation, has become complicit. Amnesty International will continue to campaign for the USA’s "war on terror" detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.
On 21 September 2001, Amnesty International faxed a letter to President George W. Bush. The organization urged the President to put respect for human rights and the rule of law at the heart of his country’s response to the crime against humanity that was perpetrated on 11 September 2001. "In the wake of a crime of such magnitude", the letter said, "principled leadership becomes crucial… We urge you to lead your government to take every necessary human rights precaution in the pursuit of justice."
Amnesty International deeply regrets that its appeal fell on deaf ears. The past five years have seen the USA engage in systematic violations of international law, with a distressing impact on thousands of detainees and their families. Human rights violations have included:
o Secret detention
o Enforced disappearance
o Torture and other cruel, inhuman or degrading treatment
o Outrages upon personal dignity, including humiliating treatment
o Denial and restriction of habeas corpus
o Indefinite detention without charge or trial
o Prolonged incommunicado detention
o Arbitrary detention
o Unfair trial procedures
Yet at the same time, US officials have continued to characterize the USA as a "nation of laws" and one that in the "war on terror" is committed to what it calls the "non-negotiable demands of human dignity", including the "rule of law".
....
Now Congress has passed the Military Commissions Act. Amnesty International will work for the repeal of this legislation which violates human rights principles. Among other things, the Military Commissions Act will:
o Strip the US courts of jurisdiction to hear or consider habeas corpus appeals challenging the lawfulness or conditions of detention of anyone held in US custody as an "enemy combatant". Judicial review of cases would be severely limited. The law would apply retroactively, and thus could result in more than 200 pending appeals filed on behalf of Guantánamo detainees being thrown out of court.
o Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.
o Permit the executive to convene military commissions to try "alien unlawful enemy combatants", as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes. This would violate the prohibition on the discriminatory application of fair trial rights.
o Permit civilians captured far from any battlefield to be tried by military commission rather than civilian courts, contradicting international standards and case law.
o Establish military commissions whose impartiality, independence and competence would be in doubt, due to the overarching role that the executive, primarily the Secretary of Defense, would play in their procedures and in the appointments of military judges and military officers to sit on the commissions.
o Permit, in violation of international law, the use of evidence extracted under cruel, inhuman or degrading treatment or punishment, or as a result of "outrages upon personal dignity, particularly humiliating or degrading treatment", as defined under international law.
o Permit the use of classified evidence against a defendant, without the defendant necessarily being able effectively to challenge the "sources, methods or activities" by which the government acquired the evidence. This is of particular concern in light of the high level of secrecy and resort to national security arguments employed by the administration in the "war on terror", which have been widely criticized, including by the UN Committee against Torture and the Human Rights Committee. Amnesty International is concerned that the administration appears on occasion to have resorted to classification to prevent independent scrutiny of human rights violations.
o Give the military commissions the power to hand down death sentences, in contravention of international standards which only permit capital punishment after trials affording "all possible safeguards to ensure a fair trial". The clemency authority would be the President. President Bush has led a pattern of official public commentary on the presumed guilt of the detainees, and has overseen a system that has systematically denied the rights of detainees.
o Limit the right of charged detainees to be represented by counsel of their choosing.
o Fail to provide any guarantee that trials will be conducted within a reasonable time.
o Permit the executive to determine who is an "enemy combatant" under any "competent tribunal" established by the executive, and endorse the Combatant Status Review Tribunal (CSRT), the wholly inadequate administrative procedure that has been employed in Guantánamo to review individual detentions.
o Narrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute "outrages upon personal dignity, particularly humiliating and degrading treatment" banned under Article 3 common to the four Geneva Conventions. Amnesty International believes that the USA has routinely failed to respect the human dignity of detainees in the "war on terror".
o Prohibit the US courts from using "foreign or international law" to inform their decisions in relation to the War Crimes Act. The President has the authority to "interpret the meaning and application of the Geneva Conventions". Under President Bush, the USA has shown a selective disregard for the Geneva Conventions and the absolute prohibition of torture or other ill-treatment.
o Endorse the administration’s "war paradigm" – under which the USA has selectively applied the laws of war and rejected international human rights law. The legislation would backdate the "war on terror" to before the 11 September 2001 in order to be able to try individuals in front of military commissions for "war crimes" committed before that date.
Meanwhile the human rights violations continue. The CIA’s secret detention and interrogation program retains the full support of President Bush. During the debates on the Military Commissions Act, members of Congress expressed their support for the program, despite the fact that it violates international law. Thousands of detainees remain in indefinite detention without charge or trial in US custody in Iraq, Afghanistan and Guantánamo. In passing the Military Commissions Act, Congress has failed these detainees and their families.
Those defending human rights should be prepared for a long struggle.
(The entire document is here.)
Here's Human Rights Watch on U.S. torture:
Call Cruelty What It Is
By Tom Malinowski, Washington Advocacy Director, published in Washington Post
Monday, September 18, 2006
President Bush is urging Congress to let the CIA keep using "alternative" interrogation procedures -- which include, according to published accounts, forcing prisoners to stand for 40 hours, depriving them of sleep and use of the "cold cell," in which the prisoner is left naked in a cell kept near 50 degrees and doused with cold water.
Bush insists that these techniques are not torture -- after all, they don't involve pulling out fingernails or applying electric shocks. He even says that he "would hope" the standards he's proposing are adopted by other countries. But before he again invites America's enemies to use such "alternative" methods on captured Americans, he might benefit from knowing a bit of their historical origins and from hearing accounts of those who have experienced them. With that in mind, here are some suggestions for the president's reading list.
He might begin with Robert Conquest's classic work on Stalin, "The Great Terror." Conquest wrote: "When there was time, the basic [Soviet Secret police] method for obtaining confessions and breaking the accused man was the 'conveyor' -- continual interrogation by relays of police for hours and days on end. As with many phenomena of the Stalin period, it has the advantage that it could not easily be condemned by any simple principle. Clearly, it amounted to unfair pressure after a certain time and to actual physical torture later still, but when? . . . At any rate, after even twelve hours, it is extremely uncomfortable. After a day, it becomes very hard. And after two or three days, the victim is actually physically poisoned by fatigue. It was as painful as any torture."
Conquest stated: "Interrogation usually took place at night and with the accused just roused -- often only fifteen minutes after going to sleep. The glaring lights at the interrogation had a disorientating effect." He quoted a Czech prisoner, Evzen Loebl, who described "having to be on his feet eighteen hours a day, sixteen of which were devoted to interrogation. During the six-hour sleep period, the warder pounded on the door every ten minutes. . . . If the banging did not wake him, a kick from the warder would. After two or three weeks, his feet were swollen and every inch of his body ached at the slightest touch; even washing became a torture."
Conquest quoted a Polish prisoner, Z. Stypulkowski, from 1945: "Cold, hunger, the bright light and especially sleeplessness. The cold is not terrific. But when the victim is weakened by hunger and sleeplessness, then the six or seven degrees above the freezing point make him tremble all the time. . . . After fifty or sixty interrogations with cold and hunger and almost no sleep, a man becomes like an automaton -- his eyes are bright, his legs swollen, his hands trembling. In this state, he is often convinced he is guilty."
(There is more, here.)
Human Rights watch again:
U.S. Torture and Abuse of Detainees
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
—The Universal Declaration of Human Rights, Article 5 (1948)
Each day brings more information about the appalling abuses inflicted upon men and women held by the United States in Iraq, Afghanistan, and elsewhere around the world. U.S. forces have used interrogation techniques including hooding, stripping detainees naked, subjecting them to extremes of heat, cold, noise and light, and depriving them of sleep—in violation of the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This apparently routine infliction of pain, discomfort, and humiliation has expanded in all too many cases into vicious beatings, sexual degradation, sodomy, near drowning, and near asphyxiation. Detainees have died under questionable circumstances while incarcerated.
(There is a page full of reports referenced here.)
Powered by Blogger
0 Comments:
Post a Comment
<< Home