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==Summary of October 21 |
==Summary of [[October 21]] [[2005]] Update Report== |
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The October 21 |
The [[October 21]] [[2005]] update to the Periodic Report provides the [[U.S]] justification for continued detention of detainees in [[Guantanamo Bay]] and rebuts the allegations of abuse, while admitting ten instances of misconduct. |
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=== |
===Background on the war against Al-qaida, the Taliban and their affiliates and supporters=== |
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The report notes that United States and its coalition partners are engaged in a war against [[al-Qaida]], the [[Taliban]], and their affiliates and supporters and that ‘there is no question that under the law of armed conflict, the United States has the authority to detain persons who have engaged in unlawful belligerence until the cessation of hostilities. Like other wars, when they start we do not know when they will end. Still, we may detain combatants until the end of the war. “ At the same time, the report continues, there is a commitment to humane treatment of prisoners. |
The report notes that United States and its coalition partners are engaged in a war against [[al-Qaida]], the [[Taliban]], and their affiliates and supporters and that ‘there is no question that under the law of armed conflict, the United States has the authority to detain persons who have engaged in unlawful belligerence until the cessation of hostilities. Like other wars, when they start we do not know when they will end. Still, we may detain combatants until the end of the war. “ At the same time, the report continues, there is a commitment to humane treatment of prisoners. |
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===Summary of |
===Summary of unlawful belligerent acts committed by al-Qaida=== |
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The report notes that although the events of September 11 |
The report notes that although the events of [[September 11]] [[2001]] indisputably brought conflict to U.S. soil, al-Qaida had engaged in acts of war against the United States long before that date. The reality is that for almost a decade before [[September 11]], [[2001]], al-Qaida and its affiliates waged a war against the United States, although it did not show the depth of its goals until the morning of [[September 11]] [[2001]]. |
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*In [[1996]], [[Usama bin Ladin]] issued a [[fatwa]] declaring war on the United States. In[[ February]] [[1998]], he repeated the fatwa stating that it was the duty of all [[Muslim]]s to kill U.S. citizens -- civilian or military -- and their allies everywhere. Six months later, on August 7 |
*In [[1996]], [[Usama bin Ladin]] issued a [[fatwa]] declaring war on the United States. In[[ February]] [[1998]], he repeated the fatwa stating that it was the duty of all [[Muslim]]s to kill U.S. citizens -- civilian or military -- and their allies everywhere. Six months later, on [[August 7]] [[1998]], al-Qaida attacked two U.S. Embassies in [[Kenya]] and [[Tanzania]], killing over 200 people and injuring approximately 5,000. |
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*In [[1999]], an al-Qaida member attempted to carry out a bombing plot at the Los Angeles International Airport during the Millennium Celebrations. U.S. law enforcement foiled this attack, arresting [[Ahmed Ressam]] at Port Angeles at the U.S./Canadian border. The United States now knows that in October 2000, al-Qaida directed the attack on a U.S. naval warship, the [[USS Cole]], while docked in the port of Aden, Yemen. This attack killed 17 U.S. sailors and injured 39. *The horrific events of September 11 |
*In [[1999]], an al-Qaida member attempted to carry out a bombing plot at the Los Angeles International Airport during the Millennium Celebrations. U.S. law enforcement foiled this attack, arresting [[Ahmed Ressam]] at Port Angeles at the U.S./Canadian border. The United States now knows that in October 2000, al-Qaida directed the attack on a U.S. naval warship, the [[USS Cole]], while docked in the port of Aden, Yemen. This attack killed 17 U.S. sailors and injured 39. |
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*The horrific events of [[September 11]] [[2001]] are well known. On that day, the United States suffered massive and brutal attacks carried out by nineteen al-Qaida suicide hijackers who crashed three U.S. commercial jets into the World Trade Center and the Pentagon, and were responsible for the downing of one commercial jet in [[Shanksville, Pennsylvania]].. These attacks resulted in approximately 3,000 individuals of 78 different nationalities reported dead or missing. |
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*The [[United Nations Security Council]] immediately condemned these terrorist acts as a "threat to international peace and security" and recognized the "inherent right of individual or collective self-defense in accordance with the United Nations Charter." U.N. Sec. Council Res. 1368, U.N. Doc. No. S/RES/1368 ( |
*The [[United Nations Security Council]] immediately condemned these terrorist acts as a "threat to international peace and security" and recognized the "inherent right of individual or collective self-defense in accordance with the United Nations Charter." U.N. Sec. Council Res. 1368, U.N. Doc. No. S/RES/1368 ([[12 September]] [[2001]]) [http://daccessdds.un.org/doc/UNDOC/GEN/N01/533/82/PDF/N0153382.pdf?OpenElement>] see U.N. Sec. Council Res. 1373, U.N. Doc. No. S/RES/1373 ([[28 September]] [[2001]]) [http://www.un.org/News/Press/docs/2001/sc7158.doc.htm] (deciding that all States shall take certain steps to combat terrorism). |
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*On [[September 12]], [[2001]], less than 24 hours after the terrorist attacks against the United States, [[NATO]] declared the attacks to be an attack against all the 19 NATO member countries. The Allies - for the first time in NATO's history - invoked Article 5 of the Washington Treaty, which states that an armed attack against one or more NATO member countries is an attack against all. NATO followed this landmark decision by implementing practical measures aimed at assisting the United States. [http://www.nato.int/terrorism/index.htm#a] *On September 11 |
*On [[September 12]], [[2001]], less than 24 hours after the terrorist attacks against the United States, [[NATO]] declared the attacks to be an attack against all the 19 NATO member countries. The Allies - for the first time in NATO's history - invoked Article 5 of the Washington Treaty, which states that an armed attack against one or more NATO member countries is an attack against all. NATO followed this landmark decision by implementing practical measures aimed at assisting the United States. [http://www.nato.int/terrorism/index.htm#a] *On [[September 11]] [[2001]], the [[Organization of American States]] (OAS) General Assembly immediately "condemned in the strongest terms, the terrorist acts visited upon the cities of New York and Washington, D.C." and expressed "full solidarity" with the government and people of the United States. Immediately thereafter, the foreign ministers of the States Parties to the 1947 Inter-American Treaty of Reciprocal Assistance (the Rio Treaty) declared, "these terrorist attacks against the United States of America are attacks against all American states." The ministers passed a resolution agreeing to "use all legally available measures to pursue, capture, extradite, and punish" anyone in their territories believed to be involved in terrorist activities. [http://www.oas.org/Assembly2001/assembly/gaassembly2000/GAterrorism.htm] |
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*The Prime Minister of Australia also considered the attacks to be an armed attack justifying action in self-defense under Article IV of the ANZUS Treaty. See Statement of the Prime Minister, Application of Anzus Treaty to Terrorist Attacks on the United States, September 14 |
*The Prime Minister of Australia also considered the attacks to be an armed attack justifying action in self-defense under Article IV of the ANZUS Treaty. See Statement of the Prime Minister, Application of Anzus Treaty to Terrorist Attacks on the United States, [[September 14]] [[2001]] [http://www.pm.gov.au/news/media_releases/2001/media_release1241.htm] *The seriousness of the threat al-Qaida and its supporters posed to the security of the United States compelled it to act in self-defense. |
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*On [[October 7]], [[2001]], President Bush invoked the United States' inherent right of self-defense and, as Commander in Chief of the Armed Forces of the United States, ordered U.S. Armed Forces to initiate action against terrorists and the Taliban regime harboring them in Afghanistan. The U.S. Armed Forces "initiated actions designed to prevent and deter further attacks on the United States . . . [including] measures against Al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan." Letter from John Negroponte, U.S. Permanent Representative to the U.N., to Richard Ryan, President of the U.N. Security Council, U.N. Doc. No. S/2001/946 ( |
*On [[October 7]], [[2001]], President Bush invoked the United States' inherent right of self-defense and, as Commander in Chief of the Armed Forces of the United States, ordered U.S. Armed Forces to initiate action against terrorists and the Taliban regime harboring them in Afghanistan. The U.S. Armed Forces "initiated actions designed to prevent and deter further attacks on the United States . . . [including] measures against Al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan." Letter from John Negroponte, U.S. Permanent Representative to the U.N., to Richard Ryan, President of the U.N. Security Council, U.N. Doc. No. S/2001/946 ([[7 October]] [[2001]]), 40 I.L.M. 1281 (2001). (At [http://www.un.int/usa/s-2001-946.htm] The attacks commenced when United States and coalition forces launched "strikes against al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan . . . designed to disrupt the use of Afghanistan as a terrorist base of operations, and to attack the military capability of the Taliban regime." (At [http://www.whitehouse.gov/news/releases/2001/10/20011007-8.html]*President Bush later stated that "[i]nternational terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces." U.S. Military Order; Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism ([[13 November]] [[2001]]), 66 Fed. Reg. 57,833 (2001), at Section 1(a). [http://www.whitehouse.gov/news/releases/2001/11/print/20011113-27.html] . |
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*Al-Qaida continues to wage armed conflict against the United States and its allies. On December 22 |
*Al-Qaida continues to wage armed conflict against the United States and its allies. On [[December 22]] [[2001]], an al-Qaida associate, [[Richard Reid (terrorist)|Richard Reid]], attempted to destroy a U.S. airliner using explosives concealed in his shoe, a plot that the airline passengers foiled. In April 2002, al-Qaida firebombed a synagogue in Djerba, Tunisia, killing at least 20 people and injuring dozens. In June 2002, al-Qaida detonated a bomb outside the U.S. Consulate in Karachi, Pakistan, killing 11 persons and injuring 51. On [[October 6]] [[2002]], al-Qaida was most likely responsible for a suicide attack against the French oil tanker, the MV Limburg, off the coast of Yemen, killing one and injuring four. On [[October 8]] [[2002]], al-Qaida gunmen attacked U.S. Marines on Failaka Island in Kuwait, killing one U.S. Marine and wounding another. On [[November 28]] [[2002]], in Mombasa, Kenya, al-Qaida detonated a car bomb in front of the Paradise Hotel, killing 15 persons and wounding 40 others. That same day, terrorists launched two anti-aircraft missiles at a civilian aircraft, and narrowly missed downing a Boeing 757 taking off from Mombassa en route to Israel. Al-Qaida claimed responsibility for the attacks. |
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*On May 12 |
*On [[May 12]] [[2003]], al-Qaida suicide bombers in Saudi Arabia attacked three residential compounds for foreign workers, killing 34, including 10 U.S. citizens, and injuring 139 others. On [[November 9]] [[2003]], al-Qaida was responsible for the assault and bombing of a housing complex in Riyadh, Saudi Arabia, that killed 17 and injured 100 others. On [[November 15]] [[2003]], two al-Qaida suicide truck bombs exploded outside the Neve Shalom and Beth Israel Synagogues in Istanbul, killing 20 and wounding 300 more. On [[November 20]] [[2003]], two al-Qaida suicide truck bombs exploded near the British consulate and the HSBC Bank in Istanbul, killing 30, including the British Consul General, and injuring more than 309. In December 2003, al-Qaida conducted two assassination attempts against Pakistan President Musharraf. |
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*In 2004, the Saudi-based al-Qaida network and associated extremists launched at least 11 attacks, killing more than 60 people, including 6 Americans, and wounding more than 225. Al-Qaida primarily focused on targets associated with U.S. and Western presence and Saudi security forces located in Riyadh, Yanbu, Jeddah, and Dhahran. *In October 2004, Abu Mus'ab al-Zarqawi announced a merger between his organization, Jama`at al-Tawhid was-al-Jihad or JTJ and Usama bin Ladin's al-Qaida. Bin Ladin endorsed Zarqawi as his official emissary in Iraq in December. The new organization, Al-Qaida of Jihad organization in the Land of the Two Rivers or QJBR, has the immediate goal of establishing an Islamic state in Iraq. Prior to the merger of the two organizations, Zarqawi’s groups had been conducting a number of attacks in Iraq, including the attack responsible for the death of the Secretary-General’s Special Representative for Iraq. |
*In 2004, the Saudi-based al-Qaida network and associated extremists launched at least 11 attacks, killing more than 60 people, including 6 Americans, and wounding more than 225. Al-Qaida primarily focused on targets associated with U.S. and Western presence and Saudi security forces located in Riyadh, Yanbu, Jeddah, and Dhahran. *In October 2004, Abu Mus'ab al-Zarqawi announced a merger between his organization, Jama`at al-Tawhid was-al-Jihad or JTJ and Usama bin Ladin's al-Qaida. Bin Ladin endorsed Zarqawi as his official emissary in Iraq in December. The new organization, Al-Qaida of Jihad organization in the Land of the Two Rivers or QJBR, has the immediate goal of establishing an Islamic state in Iraq. Prior to the merger of the two organizations, Zarqawi’s groups had been conducting a number of attacks in Iraq, including the attack responsible for the death of the Secretary-General’s Special Representative for Iraq. |
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*More recently, al-Qaida has claimed credit for the spectacular July 2005 suicide bomb attacks in London’s Underground and bus transport system, which killed 56 and wounded hundreds. The Salafist Group for Call and Combat (GSPC), publicly affiliated with al-Qaida, has been responsible for numerous attacks in Algeria as well as the June 4 |
*More recently, al-Qaida has claimed credit for the spectacular July 2005 suicide bomb attacks in London’s Underground and bus transport system, which killed 56 and wounded hundreds. The Salafist Group for Call and Combat (GSPC), publicly affiliated with al-Qaida, has been responsible for numerous attacks in Algeria as well as the [[June 4]] [[2005]] attack against the Mauritanian military post at El Mhreiti that killed 14 soldiers and wounded an equal number. Other groups with reported al-Qaida affiliation, including Al Ittihad al Islami (AIAI), have carried out assassinations and other attacks in Somalia and east Africa. An [[October 1]] [[2005]] triple bombing in Bali killed 22 and injured more than 120, demonstrating continuing threats from the al-Qaida-linked terrorist group Jemaah Islamiya (JI). In conclusion, it is clear that al-Qaida and its affiliates and supporters have planned and continue to plan and perpetrate armed attacks against the United States and its coalition partners, and they directly target civilians in blatant violation of the law of war. |
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===Detainees=== |
===Detainees=== |
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⚫ | During the course of the war in Afghanistan, the U.S. Armed Forces and allied forces have captured or procured the surrender of thousands of individuals fighting as part of the al-Qaida and Taliban effort. The law of war has long recognized the right to detain combatants until the cessation of hostilities.[3] Detaining enemy combatants prevents them from returning to the battlefield and engaging in further armed attacks against innocent civilians and U.S. forces. Further, detention serves as a deterrent against future attacks by denying the enemy the fighters needed to conduct war. Interrogations during detention enable the United States to gather important intelligence to prevent future attacks during ongoing hostilities. The first group of enemy combatants captured in the war against al-Qaida, the Taliban, and their affiliates and supporters arrived in [[Guantanamo Bay]], Cuba, in January 2002. The United States has approximately 505 detainees in custody at Guantanamo (at http://www.defenselink.mil/releases/2005/nr20050822-4501.html (visited [[October 13]] [[2005]])) and slightly more than 400 detainees in Afghanistan. These numbers represent a small percentage of the total number of individuals the United States has detained, at one point or another, in fighting the war against al-Qaida and the [[Taliban]]. |
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⚫ | During the course of the war in Afghanistan, the U.S. Armed Forces and allied forces have captured or procured the surrender of thousands of individuals fighting as part of the al-Qaida and Taliban effort. The law of war has long recognized the right to detain combatants until the cessation of hostilities.[3] Detaining enemy combatants prevents them from returning to the battlefield and engaging in further armed attacks against innocent civilians and U.S. forces. Further, detention serves as a deterrent against future attacks by denying the enemy the fighters needed to conduct war. Interrogations during detention enable the United States to gather important intelligence to prevent future attacks during ongoing hostilities. The first group of enemy combatants captured in the war against al-Qaida, the Taliban, and their affiliates and supporters arrived in [[Guantanamo Bay]], Cuba, in January 2002. The United States has approximately 505 detainees in custody at Guantanamo (at http://www.defenselink.mil/releases/2005/nr20050822-4501.html (visited October 13 |
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Since the war began in Afghanistan (and long before the [[U.S. Supreme Court]] decisions in the detainee cases of June 2004), the United States has captured, screened and released more than 10,000 individuals. It transferred to Guantanamo fewer than ten percent of those screened. The United States only wishes to hold those enemy combatants who are part of or are supporting Taliban or al-Qaida forces (or associated forces) and who, if released, would present a threat of reengaging in belligerent acts or directly aiding and supporting ongoing hostilities against the United States or its allies. |
Since the war began in Afghanistan (and long before the [[U.S. Supreme Court]] decisions in the detainee cases of June 2004), the United States has captured, screened and released more than 10,000 individuals. It transferred to Guantanamo fewer than ten percent of those screened. The United States only wishes to hold those enemy combatants who are part of or are supporting Taliban or al-Qaida forces (or associated forces) and who, if released, would present a threat of reengaging in belligerent acts or directly aiding and supporting ongoing hostilities against the United States or its allies. |
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Examples of enemy combatants held in U.S. custody include: |
Examples of enemy combatants held in U.S. custody include: |
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*Terrorists linked to major al-Qaida attacks on the United States, such as the East Africa U.S. Embassy bombings and the USS Cole attack; *Terrorists who taught or received training on arms, explosives, surveillance, and interrogation resistance techniques at al-Qaida camps; *Terrorists continuing to express their desire to kill Americans if released. In particular, some have threatened their guards and the families of the guards; |
*Terrorists linked to major al-Qaida attacks on the United States, such as the East Africa U.S. Embassy bombings and the USS Cole attack; |
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*Terrorists who taught or received training on arms, explosives, surveillance, and interrogation resistance techniques at al-Qaida camps; |
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*Terrorists continuing to express their desire to kill Americans if released. In particular, some have threatened their guards and the families of the guards; |
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* Terrorists who have sworn personal allegiance ("bayat") to [[Usama bin Ladin]]; and |
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* Terrorists linked to several al-Qaida operational plans, including the targeting of U.S. facilities and interests. |
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Representative examples of specific Guantanamo detainees include: |
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*An al-Qaida explosives trainer who has provided information on the September 2001 assassination of Northern Alliance leader [[Ahmad Shah Masoud]]; |
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*A Taliban fighter linked to al-Qaida operatives connected to the [[East Africa U.S. Embassy bombings]]; |
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*An individual captured on the battlefield, with links to a financier of the [[September 11]] plots, who attempted to enter the United States in August 2001 to meet hijacker Mohammed Atta; |
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*Two individuals associated with senior al-Qaida members developing remotely detonated explosive devices for use against U.S. forces; |
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*A member of an al-Qaida supported terrorist cell in Afghanistan that targeted civilians and was responsible for a grenade attack on a foreign journalist’s automobile; |
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*An al-Qaida member who plotted to attack oil tankers in the [[Persian Gulf]]; |
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*An individual who served as a bodyguard for Usama bin Ladin; |
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*An al-Qaida member who served as an explosives trainer for al-Qaida and designed a prototype [[shoe bomb]] and a magnetic mine; and |
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*An individual who trained al-Qaida associates in the use of explosives and worked on a plot to use [[cell phones]] to detonate bombs. |
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====Status of Detainees at Guantanamo Bay and in Afghanistan |
====Status of Detainees at Guantanamo Bay and in Afghanistan==== |
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The report goes on to justify the continued detention of individuals at Guantanamo Bay and in Afghanistan *Under Article 4 of the Geneva Convention, . . . Taliban detainees are not entitled to POW status . . . . |
The report goes on to justify the continued detention of individuals at Guantanamo Bay and in Afghanistan *Under Article 4 of the Geneva Convention, . . . Taliban detainees are not entitled to POW status . . . . |
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*The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. . . . |
*The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. . . . |
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*Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the treaty.Statement by the U.S. Press Secretary, The James S. Brady Briefing Room, in Washington, D.C. ( |
*Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the treaty.Statement by the U.S. Press Secretary, The James S. Brady Briefing Room, in Washington, D.C. ([[7 February]] [[2002]]) (at [http://www.state.gov/s/l/38727.htm] ; see also, White House Memorandum - Humane Treatment of al Qaeda and Taliban Detainees, [[February 7]] [[2002]], at 2(c) & (d) (released and declassified in full on [[June 17]] [[2004]]). (At [http://www.washingtonpost.com/wp-srv/nation/documents/020702bush.pdf ] |
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*The report notes that after the decisions of the U.S. Supreme Court in Rasul v. Bush, 124 S.Ct. 2686 (2004), and Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004), which are described below in Section G, the U.S. Government established a process on July 7 |
*The report notes that after the decisions of the U.S. Supreme Court in Rasul v. Bush, 124 S.Ct. 2686 (2004), and Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004), which are described below in Section G, the U.S. Government established a process on [[July 7]] [[2004]], to conduct Combatant Status Review Tribunals (CSRTs) at Guantanamo Bay. [http://www.defenselink.mil/transcripts/2004/tr20040707-0981.html] (Department of Defense Briefing on Combatant Status Review Tribunal, dated [[July 7]] [[2004]])). Consistent with the Supreme Court decision in Rasul, these tribunals supplement the prior screening procedures and serve as fora for detainees to contest their designation as enemy combatants and thereby the legal basis for their detention. The tribunals were established in response to the Supreme Court decision in Rasul and draw upon guidance contained in the U.S. Supreme Court decision in Hamdi that would apply to citizen-enemy combatants in the United States. |
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====Discussion of Combatant Status Review Tribunals (CSRTs) for Detainees at Guantanamo Bay |
====Discussion of Combatant Status Review Tribunals (CSRTs) for Detainees at Guantanamo Bay==== |
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The report discussed the Combatant Status Review Tribunals (CSRTs) have reviewed the status of all individuals detained at Guantanamo, and characterizes tem as fact-based proceeding, to determine whether the individual is still classified as an enemy combatant. As reflected in the Order establishing the CSRTs, an enemy combatant is "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. CSRTs offer many of the procedures contained in US Army Regulation 190-8. The Supreme Court specifically cited these Army procedures as sufficient for U.S. citizen-detainees entitled to due process under the U.S. Constitution. For example: |
The report discussed the Combatant Status Review Tribunals (CSRTs) have reviewed the status of all individuals detained at Guantanamo, and characterizes tem as fact-based proceeding, to determine whether the individual is still classified as an enemy combatant. As reflected in the Order establishing the CSRTs, an enemy combatant is "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. CSRTs offer many of the procedures contained in US Army Regulation 190-8. The Supreme Court specifically cited these Army procedures as sufficient for U.S. citizen-detainees entitled to due process under the U.S. Constitution. For example: |
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* Decisions are by a preponderance of the evidence by a majority of the voting members who are sworn to execute their duties impartially; |
* Decisions are by a preponderance of the evidence by a majority of the voting members who are sworn to execute their duties impartially; |
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*The detainee has the right to (a) call reasonably available witnesses, (b) question witnesses called by the tribunal, (c) testify or otherwise address the tribunal, (d) not be compelled to testify, and (e) attend the open portions of the proceedings; |
*The detainee has the right to (a) call reasonably available witnesses, (b) question witnesses called by the tribunal, (c) testify or otherwise address the tribunal, (d) not be compelled to testify, and (e) attend the open portions of the proceedings; |
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*An interpreter is provided to the detainee, if necessary; and *The Tribunal creates a written report of its decision that the Staff Judge Advocate reviews for legal sufficiency. See CSRT Implementation Memorandum, July 29 |
*An interpreter is provided to the detainee, if necessary; and *The Tribunal creates a written report of its decision that the Staff Judge Advocate reviews for legal sufficiency. See CSRT Implementation Memorandum, [[July 29]] [[2004]] http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf |
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*Unlike an Article 5 tribunal, the CSRT guarantees the detainee additional rights, such as the right to a personal representative to assist in reviewing information and preparing the detainee’s case, presenting information, and questioning witnesses at the CSRT. The rules entitle the detainee to receive an unclassified summary of the evidence in advance of the hearing in the detainee’s native language, and to introduce relevant documentary evidence. See CSRT Order g(1); Implementation Memorandum Encl. (1) F(8), H (5); CSRT Order g(10); Implementation Memorandum Encl. (1) F (6). In addition, the rules require the Recorder to search government files for, and provide to the Tribunal, any "evidence to suggest that the detainee should not be designated as an enemy combatant." See Implementation Memorandum Encl. (2), B(1). |
*Unlike an Article 5 tribunal, the CSRT guarantees the detainee additional rights, such as the right to a personal representative to assist in reviewing information and preparing the detainee’s case, presenting information, and questioning witnesses at the CSRT. The rules entitle the detainee to receive an unclassified summary of the evidence in advance of the hearing in the detainee’s native language, and to introduce relevant documentary evidence. See CSRT Order g(1); Implementation Memorandum Encl. (1) F(8), H (5); CSRT Order g(10); Implementation Memorandum Encl. (1) F (6). In addition, the rules require the Recorder to search government files for, and provide to the Tribunal, any "evidence to suggest that the detainee should not be designated as an enemy combatant." See Implementation Memorandum Encl. (2), B(1). |
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The detainee’s Personal Representative also has access to the government files and can search for and provide relevant evidence that would support the detainee’s position. The report notes that as of March 29 |
The detainee’s Personal Representative also has access to the government files and can search for and provide relevant evidence that would support the detainee’s position. The report notes that as of [[March 29]] [[2005]], the CSRT Director had taken final action in all 558 cases. Thirty-eight detainees were determined no longer to be enemy combatants; twenty-eight of them have been subsequently released to their home countries, and at the time of this Report's submission, arrangements are underway or being pursued for the release of the others. [http://www.defenselink.mil/releases/2005/nr20050419-2661.html] |
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====Assessing |
====Assessing detainees for release or transfer==== |
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The report discusses the assessment of detainees for release, or transfer. |
The report discusses the assessment of detainees for release, or transfer. |
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=====Guantanamo Bay |
=====Guantanamo Bay===== |
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The detention of each Guantanamo detainee is reviewed annually by an Administrative Review Board (ARB), established by an order on May 11 |
The detention of each Guantanamo detainee is reviewed annually by an Administrative Review Board (ARB), established by an order on [[May 11]] [[2004]] (Review Procedure Announced for Guantanamo Detainees, Department of Defense Press Release, [[May 18]] [[2004]]) [http://www.defenselink.mil/releases/2004/nr20040518-0806.html] and supplemented by an implementing directive on [[September 14]] [[2004]]. See Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba (at [http://www.defenselink.mil/news/Sep2004/d20040914adminreview.pdf] |
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The ARB assesses whether an enemy combatant continues to pose a threat to the United States or its allies, or whether there are other factors bearing on the need for continued detention. The process permits the detainee to appear in person before an ARB panel of three military officers to explain why the detainee is no longer a threat to the United States or its allies, and to provide information to support the detainee’s release. |
The ARB assesses whether an enemy combatant continues to pose a threat to the United States or its allies, or whether there are other factors bearing on the need for continued detention. The process permits the detainee to appear in person before an ARB panel of three military officers to explain why the detainee is no longer a threat to the United States or its allies, and to provide information to support the detainee’s release. |
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The Board also makes a written recommendation on whether detention should be continued. The recommendations of the board are reviewed by a judge advocate for legal sufficiency and then go to the Designated Civilian Official (currently Secretary of the Navy Gordon England), who decides whether to release, transfer or continue to detain the individual. |
The Board also makes a written recommendation on whether detention should be continued. The recommendations of the board are reviewed by a judge advocate for legal sufficiency and then go to the Designated Civilian Official (currently Secretary of the Navy Gordon England), who decides whether to release, transfer or continue to detain the individual. |
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As of September 26 |
As of [[September 26]] [[2005]], the Department of Defense (DoD) has announced its intent to conduct Administrative Review Board reviews for 460 detainees; it has informed the detainees' respective host countries and asked them to notify the detainees' relatives; and it has invited them to provide information for the hearings. [http://www.defenselink.mil/news/combatant_Tribunals.html] |
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The first Annual Administrative Review Board began on December 14 |
The first Annual Administrative Review Board began on [[December 14]] [[2004]], and 250 Administrative Review Boards have been conducted as of [[September 26]] [[2005]]. The report notes that as of [[September 26]] [[2005]], the United States has transferred 246 persons from Guantanamo—178 transferred for release and 68 transferred to the custody of other governments for further detention, investigation, prosecution, or control. Of the 68 detainees who were transferred to the control of other governments, 29 were transferred to Pakistan, seven to Russia, five to Morocco, nine to the United Kingdom, six to France, four to Saudi Arabia, two to Belgium, one to Kuwait, two to Spain, one to Australia, one to Denmark and one to Sweden. The report notes that some of the released individuals have returned to the fight I: |
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*A former Guantanamo detainee who reportedly killed an Afghan judge leaving a mosque in Afghanistan; |
*A former Guantanamo detainee who reportedly killed an Afghan judge leaving a mosque in Afghanistan; |
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* Two detainees (released from Guantanamo in May 2003 and April 2004, respectively) who were killed in the summer of 2004 while engaged in combat operations in Afghanistan. The report argues that the fact that some detainees upon their release are returning to combat underscores the ongoing nature of the armed conflict with al-Qaida and the practical reality that in defending itself against al-Qaida, the United States must proceed very carefully in its determination of whether a detainee no longer poses a threat to the United States and its allies. |
* Two detainees (released from Guantanamo in May 2003 and April 2004, respectively) who were killed in the summer of 2004 while engaged in combat operations in Afghanistan. The report argues that the fact that some detainees upon their release are returning to combat underscores the ongoing nature of the armed conflict with al-Qaida and the practical reality that in defending itself against al-Qaida, the United States must proceed very carefully in its determination of whether a detainee no longer poses a threat to the United States and its allies. |
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=====Afghanistan===== |
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The report notes that detainees under DoD control in Afghanistan are subject to a review process that first determines whether an individual is an enemy combatant. The detaining Combatant Commander, or designee, shall review the initial determination that the detainee is an enemy combatant. This review is based on all available and relevant information available on the date of the review and may be subject to further review based upon newly discovered evidence or information. The Commander will review the initial determination that the detainee is an enemy combatant within 90 days from the time that a detainee comes under DoD control. After the initial 90-day status review, the detaining combatant commander, on an annual basis, is required to reassess the status of each detainee. Detainees assessed to be enemy combatants under this process remain under DoD control until they no longer present a threat. The review process is conducted under the authority of the Commander, U.S. Central Command (USCENTCOM). If, as a result of the periodic Enemy Combatant status review (90-day or annual), a detaining combatant commander concludes that a detainee no longer meets the definition of an enemy combatant, the detainee is released. |
The report notes that detainees under DoD control in Afghanistan are subject to a review process that first determines whether an individual is an enemy combatant. The detaining Combatant Commander, or designee, shall review the initial determination that the detainee is an enemy combatant. This review is based on all available and relevant information available on the date of the review and may be subject to further review based upon newly discovered evidence or information. The Commander will review the initial determination that the detainee is an enemy combatant within 90 days from the time that a detainee comes under DoD control. After the initial 90-day status review, the detaining combatant commander, on an annual basis, is required to reassess the status of each detainee. Detainees assessed to be enemy combatants under this process remain under DoD control until they no longer present a threat. The review process is conducted under the authority of the Commander, U.S. Central Command (USCENTCOM). If, as a result of the periodic Enemy Combatant status review (90-day or annual), a detaining combatant commander concludes that a detainee no longer meets the definition of an enemy combatant, the detainee is released. |
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====Transfers or releases to third countries==== |
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The report notes that those deemed releasable, are subject to the following. U.S. policy is not to transfer a person to a country if it is determined that it is more likely than not that the person will be tortured or, in appropriate cases, that the person has a well-founded fear of persecution and would not be disqualified from persecution protection on criminal- or security-related grounds. If a case were to arise in which the assurances obtained from the receiving government are not sufficient when balanced against treatment concerns, the United States would not transfer a detainee to the control of that government unless the concerns were satisfactorily resolved. Circumstances have arisen in the past where the Department of Defense elected not to transfer detainees to their country of origin because of torture concerns. With respect to the application of these policies to detainees at Guantanamo Bay, the U.S. Government in February of 2005 filed factual declarations with a Federal court for use in domestic litigation. These declarations describe in greater detail the application of the policy described above as it applies to the detainees at Guantanamo Bay, and are attached to this document as Tab 1. |
The report notes that those deemed releasable, are subject to the following. U.S. policy is not to transfer a person to a country if it is determined that it is more likely than not that the person will be tortured or, in appropriate cases, that the person has a well-founded fear of persecution and would not be disqualified from persecution protection on criminal- or security-related grounds. If a case were to arise in which the assurances obtained from the receiving government are not sufficient when balanced against treatment concerns, the United States would not transfer a detainee to the control of that government unless the concerns were satisfactorily resolved. Circumstances have arisen in the past where the Department of Defense elected not to transfer detainees to their country of origin because of torture concerns. With respect to the application of these policies to detainees at Guantanamo Bay, the U.S. Government in February of 2005 filed factual declarations with a Federal court for use in domestic litigation. These declarations describe in greater detail the application of the policy described above as it applies to the detainees at Guantanamo Bay, and are attached to this document as Tab 1. |
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====Military Commissions to Try Detainees Held at Guantanamo Bay==== |
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The report notes that in 2001, the President authorized military commissions to try certain individuals for violations of the law of war and other applicable laws. See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, November 13 |
The report notes that in 2001, the President authorized military commissions to try certain individuals for violations of the law of war and other applicable laws. See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, [[November 13]] [[2001]] [http://www.whitehouse.gov/news/releases/2001/11/print/20011113-27.html] Military commissions have a long history as a legitimate forum to try those persons who engage in belligerent acts in contravention of the laws of war. The United States has used military commissions throughout its history. During the Civil War, Union Commanders conducted more than 2,000 military commissions. Following the Civil War, the United States used military commissions to try eight conspirators (all U.S. citizens and civilians) involved in President Lincoln’s assassination. During World War II, President Roosevelt used military commissions to prosecute eight Nazi saboteurs for spying (including at least one U.S. citizen). A military commission tried a Japanese General for war crimes committed while occupying the Philippine Islands. In addition to the international war crimes tribunals, Allied Powers States, including England, France, and the United States, tried hundreds of lesser-known persons by military commissions in Germany and the Pacific theater after World War II. To date, the President has designated seventeen individuals as eligible for trial by military commission. Of those, the United States has since transferred three of those designated to their country of nationality, where they have been released. Four Guantanamo detainees have been charged and have had preliminary hearings before a military commission. Pending the outcome of the appeal in Hamdan v. Rumsfeld, the Appointing Authority issued a directive on [[December 10]] [[2004]], holding in abeyance these four cases. On [[September 20]] [[2005]], the Appointing Authority revoked this Directive as to the case of United States v. David Mathew Hicks. On [[September 23]] [[2005]], the Presiding Officer scheduled the initial session in this case for [[November 18]] [[2005]]. In Federal Court litigation concerning military commissions, the Court of Appeals for the District of Columbia Circuit recently confirmed the President’s authority to convene military commissions as part of the conduct of war.. Hamdan v. Rumsfeld, 415 F.3d 33, 37-38 (D.C. Cir. [[July 15]] [[2005]]). The petitioner in that case, Salim Ahmed Hamdan, has sought review of this decision by the U.S. Supreme Court. The Supreme Court has not decided whether it will consider the appeal. On [[August 31]] [[2005]], the Secretary of Defense approved several changes to the rules governing military commissions. These changes follow a careful review of commission procedures and take into account a number of factors, including issues that arose in connection with military commission proceedings that began in late 2004. Other factors included a review of relevant domestic and international legal standards and suggestions from outside organizations on possible improvements to the commission process. DoD will continue to evaluate how it conducts commissions and, where appropriate, make changes that improve the process. The principal effect of these changes is to make the presiding officer function more like a judge and the other panel members function more like a jury. Under previous procedures, the presiding officer and other panel members together would determine findings and sentences, as well as resolve most legal questions. The new procedures remove the presiding officer from voting on findings and sentencing and give the other panel members sole responsibility for these determinations, while allocating responsibility for ruling on most questions of law to the presiding officer. The new changes also clarify the provisions governing the presence of the accused at trial and access by the accused to classified information. The new provisions make clear that the accused shall be present except when necessary to protect classified information and where the presiding officer has concluded that admission of such information in the absence of the accused would not prejudice a fair trial. These changes also make clear that the presiding officer must exclude information from trial if the accused would be denied a full and fair trial from lack of access to the information. If the accused is denied access to classified information admitted at trial, his military defense counsel will continue to have access to the information. Other changes approved include lengthening the amount of time for the Military Commissions Review Panel to review the trial record of each case. |
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===Access to U.S. Courts=== |
===Access to U.S. Courts=== |
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The report summarizes the pending and closed habeas corpus law suits filed on behalf of detainees. |
The report summarizes the pending and closed habeas corpus law suits filed on behalf of detainees. |
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====Description of Conditions of Detention at Department of Defense Facilities==== |
====Description of Conditions of Detention at Department of Defense Facilities==== |
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=====Guantanamo Bay===== |
=====Guantanamo Bay===== |
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[[Image:Camp x-ray detainees.jpg|right|thumb|250px|Detainees Guantanamo, January 2002]] |
[[Image:Camp x-ray detainees.jpg|right|thumb|250px|Detainees Guantanamo, January 2002]] |
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=====Afghanistan===== |
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The report notes that the Department of Defense holds individuals in Afghanistan in a safe, secure, and humane environment. The primary focus of DoD detainee operations in Afghanistan is to secure detainees from harm, recognizing the reality that the U.S. Armed Forces continue to engage in combat in Afghanistan. The Department of Defense operates theater internment facilities at Kandahar and Bagram. These facilities house enemy combatants identified in the war against al-Qaida, the Taliban and their affiliates. The Department of Defense has registered with the ICRC individuals held under its control in Afghanistan. ICRC has access to these DoD facilities and conducts private interviews with detainees. In addition, the U.S. Armed Forces operates forward operating bases that, from time to time, may house on a temporary basis individuals detained because of combat operations against al-Qaida, Taliban, and affiliated forces. The Department of Defense provides detainees in Afghanistan with adequate food, shelter, clothing, and opportunity to worship. In addition, DoD initiatives will increase available resources for literacy and education training. The Department of Defense also gives Afghani detainees information regarding the establishment of the new Afghan government, as well as a copy of the Afghan Constitution. The U.S. Government is also in a process of improving the detention facilities at both Bagram and Kandahar. Improved facilities should be available to detainees later in 2005. |
The report notes that the Department of Defense holds individuals in Afghanistan in a safe, secure, and humane environment. The primary focus of DoD detainee operations in Afghanistan is to secure detainees from harm, recognizing the reality that the U.S. Armed Forces continue to engage in combat in Afghanistan. The Department of Defense operates theater internment facilities at Kandahar and Bagram. These facilities house enemy combatants identified in the war against al-Qaida, the Taliban and their affiliates. The Department of Defense has registered with the ICRC individuals held under its control in Afghanistan. ICRC has access to these DoD facilities and conducts private interviews with detainees. In addition, the U.S. Armed Forces operates forward operating bases that, from time to time, may house on a temporary basis individuals detained because of combat operations against al-Qaida, Taliban, and affiliated forces. The Department of Defense provides detainees in Afghanistan with adequate food, shelter, clothing, and opportunity to worship. In addition, DoD initiatives will increase available resources for literacy and education training. The Department of Defense also gives Afghani detainees information regarding the establishment of the new Afghan government, as well as a copy of the Afghan Constitution. The U.S. Government is also in a process of improving the detention facilities at both Bagram and Kandahar. Improved facilities should be available to detainees later in 2005. |
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====Allegations of Mistreatment of Persons Detained by the Department of Defense |
====Allegations of Mistreatment of Persons Detained by the Department of Defense==== |
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The report contends that no serious mistreatment has been substantiated, but that there are ten admitted incidents of misconduct and the perpetrators will be disciplined. |
The report contends that no serious mistreatment has been substantiated, but that there are ten admitted incidents of misconduct and the perpetrators will be disciplined. |
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=====Introduction===== |
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The report notes that the United States is well aware of the concerns about the mistreatment of persons detained by the Department of Defense in Afghanistan and at Guantanamo Bay, Cuba. Indeed, the United States has taken and continues to take all allegations of abuse very seriously. Specifically, in response to specific complaints of abuse in Afghanistan and at Guantanamo Bay, Cuba, the Department of Defense has ordered a number of studies that focused, inter alia, on detainee operations and interrogation methods to determine if there was merit to the complaints of mistreatment. |
The report notes that the United States is well aware of the concerns about the mistreatment of persons detained by the Department of Defense in Afghanistan and at Guantanamo Bay, Cuba. Indeed, the United States has taken and continues to take all allegations of abuse very seriously. Specifically, in response to specific complaints of abuse in Afghanistan and at Guantanamo Bay, Cuba, the Department of Defense has ordered a number of studies that focused, inter alia, on detainee operations and interrogation methods to determine if there was merit to the complaints of mistreatment. |
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Although these extensive investigative reports have identified problems and proffered recommendations, none of them found that any governmental policy directed, encouraged or condoned these abuses. The reports pertaining to Guantanamo Bay are summarized in Section B.2 below and those pertaining to Afghanistan are summarized in Section B.3 below. In general, for both Afghanistan and Guantanamo Bay, these reports have assisted in identifying and investigating all credible allegations of abuse. When a credible allegation of improper conduct by DoD personnel surfaces, it is reviewed, and when factually warranted, investigated. As a result of investigation, administrative, disciplinary, or judicial action is taken as appropriate. Those credible allegations were and are now being resolved within the Combatant Command structure. |
Although these extensive investigative reports have identified problems and proffered recommendations, none of them found that any governmental policy directed, encouraged or condoned these abuses. The reports pertaining to Guantanamo Bay are summarized in Section B.2 below and those pertaining to Afghanistan are summarized in Section B.3 below. In general, for both Afghanistan and Guantanamo Bay, these reports have assisted in identifying and investigating all credible allegations of abuse. When a credible allegation of improper conduct by DoD personnel surfaces, it is reviewed, and when factually warranted, investigated. As a result of investigation, administrative, disciplinary, or judicial action is taken as appropriate. Those credible allegations were and are now being resolved within the Combatant Command structure. |
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Concerns have also been generated by an August 1 |
Concerns have also been generated by an [[August 1]] [[2002]], memorandum prepared by the Office of Legal Counsel (OLC) at the U.S. Department of Justice (DOJ), on the definition of torture and the possible defenses to torture under U.S. law and a DoD [[working group]] report on detainee operations, dated [[April 4]] [[2003]], the latter of which was the basis for the Secretary of Defense’s approval of certain counter resistance techniques on [[April 16]] [[2003]]. The 2002 DOJ OLC memorandum was withdrawn on [[June 22]] [[2004]] and replaced with a [[December 30]] [[2004]], memorandum interpreting the legal standards applicable under 18 U.S.C. 2340-2340A, also known as the Federal Torture Statute. On [[March 17]] [[2005]], the Department of Defense determined that the Report of the Working Group on Detainee Interrogations is to be considered as having no standing in policy, practice, or law to guide any activity of the Department of Defense. |
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On March 10 |
On [[March 10]] [[2005]], Vice Admiral Church (the former U.S. Naval Inspector General) released an executive summary of his report, which included an examination of this issue. His Report examined the precise question of "whether DoD had promulgated interrogation policies or guidance that directed, sanctioned or encouraged the abuse of detainees." Church Report, Executive Summary, at 3, released [[March 10]] [[2005]] (relying upon data available as of [[September 30]] [[2005]]) [http://www.defenselink.mil/news/Mar2005/d20050310exe.pdf]. In his Report, he wrote that "this was not the case," id., finding that "it is clear that none of the approved policies – no matter which version the interrogators followed – would have permitted the types of abuse that occurred." Id., at 15. |
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In response to intensive questioning before the U.S. Senate Armed Services Committee as to whether the 2002 DOJ memo or subsequently authorized interrogation practices had contributed to individual soldiers committing abuses, he responded that "clearly there was no policy, written or otherwise, at any level, that directed or condoned torture or abuse; there was no link between the authorized interrogation techniques and the abuses that, in fact, occurred." Transcript at 7. Although Vice Admiral Church’s investigation is the most comprehensive to date on this issue, it was consistent with the findings of earlier investigations on this point. See, e.g., Army Inspector General Assessment, released July 2004 (at http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/index.html (visited October 13 |
In response to intensive questioning before the U.S. Senate Armed Services Committee as to whether the 2002 DOJ memo or subsequently authorized interrogation practices had contributed to individual soldiers committing abuses, he responded that "clearly there was no policy, written or otherwise, at any level, that directed or condoned torture or abuse; there was no link between the authorized interrogation techniques and the abuses that, in fact, occurred." Transcript at 7. Although Vice Admiral Church’s investigation is the most comprehensive to date on this issue, it was consistent with the findings of earlier investigations on this point. See, e.g., Army Inspector General Assessment, released July 2004 (at http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/index.html (visited [[October 13]] [[2005]])). |
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Vice Admiral Church’s finding was also consistent with earlier statements by high-level U.S. officials, including by the previous White House Counsel Alberto Gonzales, who had stated: The administration has made clear before and I will reemphasize today that the President has not authorized, ordered or directed in any way any activity that would transgress the standards of the torture conventions or the torture statute, or other applicable laws.. . . . . . . [L]et me say that the U.S. will treat people in our custody in accordance with all U.S. obligations including federal statutes, the U.S. Constitution and our treaty obligations. The President has said we do not condone or commit torture. Anyone engaged in conduct that constitutes torture will be held accountable.Press Briefing by White House Counsel Judge Alberto Gonzales, DoD General Counsel William Haynes, DoD Deputy General Counsel Daniel Dell'Orto and Army Deputy Chief of Staff for Intelligence General Keith Alexander, June 22 |
Vice Admiral Church’s finding was also consistent with earlier statements by high-level U.S. officials, including by the previous White House Counsel Alberto Gonzales, who had stated: The administration has made clear before and I will reemphasize today that the President has not authorized, ordered or directed in any way any activity that would transgress the standards of the torture conventions or the torture statute, or other applicable laws.. . . . . . . [L]et me say that the U.S. will treat people in our custody in accordance with all U.S. obligations including federal statutes, the U.S. Constitution and our treaty obligations. The President has said we do not condone or commit torture. Anyone engaged in conduct that constitutes torture will be held accountable.Press Briefing by White House Counsel Judge Alberto Gonzales, DoD General Counsel William Haynes, DoD Deputy General Counsel Daniel Dell'Orto and Army Deputy Chief of Staff for Intelligence General Keith Alexander, [[June 22]] [[2004]], [http://www.whitehouse.gov/news/releases/2004/06/20040622-14.html] Subsequent to the release of the December 2004 DOJ memo interpreting the Federal Torture Statute, the Deputy Secretary of Defense ordered a "top-down" review within the Department to ensure that the policies, procedures, directives, regulations, and actions of the department comply fully with the requirements of the new Justice Department Memorandum.[7] The Office of Detainee Affairs in the Office of the Under Secretary of Defense for Policy coordinates this process of review. |
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=====Reports of Abuses, Summary of Abuse Investigations and Actions to Hold Persons Accountable - Guantanamo Bay===== |
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The report goes on to note that although there have been allegations of serious abuse of detainees at Guantanamo Bay, the United States has not found evidence substantiating such claims. Instead, it has identified 10 substantiated incidents[9] of misconduct at Guantanamo: |
The report goes on to note that although there have been allegations of serious abuse of detainees at Guantanamo Bay, the United States has not found evidence substantiating such claims. Instead, it has identified 10 substantiated incidents[9] of misconduct at Guantanamo: |
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*A female interrogator inappropriately touched a detainee on April 17 |
*A female interrogator inappropriately touched a detainee on [[April 17]] [[2003]] by running her fingers through the detainee’s hair, and made sexually suggestive comments and body movements, including sitting on the detainee’s lap, during an interrogation. The female interrogator received a written admonishment and additional training. |
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* On April 22 |
* On [[April 22]] [[2003]], an interrogator assaulted a detainee by directing military policemen repeatedly to bring the detainee from a standing to a prone position and back. A review of medical records indicated superficial bruising to the detainee’s knees. The interrogator received a letter of reprimand. |
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* A female interrogator, at an unknown date, in response to being spit upon by a detainee, assaulted the detainee by wiping red dye from a red magic marker on the detainee’s shirt and telling the detainee that the red stain was blood. The interrogator received a verbal reprimand for her behavior. |
* A female interrogator, at an unknown date, in response to being spit upon by a detainee, assaulted the detainee by wiping red dye from a red magic marker on the detainee’s shirt and telling the detainee that the red stain was blood. The interrogator received a verbal reprimand for her behavior. |
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*In October 2002, an interrogator used duct tape to tape shut the mouth of a detainee who was being extremely disruptive during an interrogation. The tape did not harm the detainee and the interrogator received a verbal reprimand for his behavior. |
*In October 2002, an interrogator used duct tape to tape shut the mouth of a detainee who was being extremely disruptive during an interrogation. The tape did not harm the detainee and the interrogator received a verbal reprimand for his behavior. |
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* A military policeman (MP) assaulted a detainee on September 17 |
* A military policeman (MP) assaulted a detainee on [[September 17]] [[2002]], by attempting to spray him with a hose after the detainee had thrown an unidentified, foul-smelling liquid on the MP. The MP received non-judicial punishment that included seven days restriction and reduction in grade from Specialist (E-4) to Private First Class (E-3). |
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* On [[March 23]] [[2003]], after a detainee threw unidentified liquid on an MP, the MP sprayed the detainee with pepper spray. The MP declined non-judicial punishment,[10] and he was subsequently tried by special court-martial where he was acquitted of all charges. |
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* On |
* On [[April 10]] [[2003]], after a detainee had struck an MP in the face (causing the MP to lose a tooth) and bitten another MP, the MP struck the detainee with a handheld radio. This MP was given non-judicial punishment, received 45 days extra-duty, and was reduced in grade from Specialist (E-4) to Private First Class (E-3). |
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* On |
* On [[January 4]] [[2004]], an MP platoon leader received an initial allegation that one of his guards had thrown cleaning fluid on a detainee and later made inappropriate comments to the detainee. The platoon leader, however, did not properly investigate the allegation or report it to his chain of command. The initial allegation against the guard ultimately turned out to be substantiated. The MP was given non-judicial punishment and received forfeiture of pay of $150 per month for two months and reduction in grade from Private (E-2) to Private (E-1). The platoon leader was issued a reprimand for dereliction of duty. |
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* On [[February 10]] [[2004]], an MP inappropriately joked with a detainee, and dared the detainee to throw a cup of water on him. After the detainee did so, the MP threw a cup of water on the detainee. The MP was removed from further duty because of these inappropriate actions. |
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*• On January 4, 2004, an MP platoon leader received an initial allegation that one of his guards had thrown cleaning fluid on a detainee and later made inappropriate comments to the detainee. The platoon leader, however, did not properly investigate the allegation or report it to his chain of command. The initial allegation against the guard ultimately turned out to be substantiated. The MP was given non-judicial punishment and received forfeiture of pay of $150 per month for two months and reduction in grade from Private (E-2) to Private (E-1). The platoon leader was issued a reprimand for dereliction of duty. |
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* On |
* On [[February 15]] [[2004]], a barber intentionally gave two detainees unusual haircuts, including an "inverse Mohawk," in an effort to frustrate the detainees’ request for similar haircuts as a sign of unity. The barber and his company commander were both counseled because of this incident. The above list of substantiated abuses and the subsequent punishment of those responsible at Guantanamo Bay demonstrates that misconduct will not be tolerated. |
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====Afghanistan==== |
====Afghanistan==== |
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The report outlines substantiated abuse and response. The following are examples of substantiated abuses and a summary of the status: *The investigations into the death of two detainees (Mr. Mullah Habibullah and Mr. Dilawar) at the Bagram detention facility on December 4 and 10, 2002 identified 28 military members who may have committed offenses punishable under the UCMJ. Investigations determined that the detainees had been beaten by several military members. Commanders are considering the full range of administrative and disciplinary measures, including trial by court-martial. As of this writing, charges have been preferred against nine military members and a final result reached in eight of those cases. Five soldiers were found guilty of various offenses related to the death of these two detainees, two soldiers were acquitted of all charges, and one case is not yet concluded. Sentences ranged from forfeiture in pay and reduction in rank to confinement for a period of years. |
The report outlines substantiated abuse and response. The following are examples of substantiated abuses and a summary of the status: *The investigations into the death of two detainees (Mr. Mullah Habibullah and Mr. Dilawar) at the Bagram detention facility on [[December 4]] and 10, 2002 identified 28 military members who may have committed offenses punishable under the UCMJ. Investigations determined that the detainees had been beaten by several military members. Commanders are considering the full range of administrative and disciplinary measures, including trial by court-martial. As of this writing, charges have been preferred against nine military members and a final result reached in eight of those cases. Five soldiers were found guilty of various offenses related to the death of these two detainees, two soldiers were acquitted of all charges, and one case is not yet concluded. Sentences ranged from forfeiture in pay and reduction in rank to confinement for a period of years. |
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*The Naval Criminal Investigation Service (NCIS) opened an investigation in May 2004 involving allegations of an Afghan police officer who claimed he was abused in while under coalition control in Gardez and Bagram. This investigation remains open. |
*The Naval Criminal Investigation Service (NCIS) opened an investigation in May 2004 involving allegations of an Afghan police officer who claimed he was abused in while under coalition control in Gardez and Bagram. This investigation remains open. |
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==See also== |
==See also== |
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*[http://www.state.gov/g/drl/rls/55712.htm Update to Annex One of the Second Periodic Report] [[October 21]] |
*[http://www.state.gov/g/drl/rls/55712.htm Update to Annex One of the Second Periodic Report] [[October 21]] [[2005]] |
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*[http://www.state.gov/g/drl/rls/ State Department original documents pertaining to Reports to U.N.] on Second Periodic Report of the United States of America to the Committee Against Torture, and Third Periodic Report. |
*[http://www.state.gov/g/drl/rls/ State Department original documents pertaining to Reports to U.N.] on Second Periodic Report of the United States of America to the Committee Against Torture, and Third Periodic Report. |
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Revision as of 03:49, 7 March 2006
The Periodic Report of the United States of America to the United Nations Committee Against Torture is periodically submitted by the United States government, through the State Department, to the United Nations Committee Against Torture. In October 2005, the report focused on pretrial detention of suspects in the War on Terror, including those held in Guantánamo Bay. This particular Periodic Report is significant as the first official response of the U.S. government to allegations that prisoners are mistreated in Guantánamo Bay and in Afghanistan. The report denies those allegations. The report does not address detainees held by the CIA.
Introduction
Summary of October 21 2005 Update Report
The October 21 2005 update to the Periodic Report provides the U.S justification for continued detention of detainees in Guantanamo Bay and rebuts the allegations of abuse, while admitting ten instances of misconduct.
Background on the war against Al-qaida, the Taliban and their affiliates and supporters
The report notes that United States and its coalition partners are engaged in a war against al-Qaida, the Taliban, and their affiliates and supporters and that ‘there is no question that under the law of armed conflict, the United States has the authority to detain persons who have engaged in unlawful belligerence until the cessation of hostilities. Like other wars, when they start we do not know when they will end. Still, we may detain combatants until the end of the war. “ At the same time, the report continues, there is a commitment to humane treatment of prisoners.
Summary of unlawful belligerent acts committed by al-Qaida
The report notes that although the events of September 11 2001 indisputably brought conflict to U.S. soil, al-Qaida had engaged in acts of war against the United States long before that date. The reality is that for almost a decade before September 11, 2001, al-Qaida and its affiliates waged a war against the United States, although it did not show the depth of its goals until the morning of September 11 2001.
- In 1996, Usama bin Ladin issued a fatwa declaring war on the United States. InFebruary 1998, he repeated the fatwa stating that it was the duty of all Muslims to kill U.S. citizens -- civilian or military -- and their allies everywhere. Six months later, on August 7 1998, al-Qaida attacked two U.S. Embassies in Kenya and Tanzania, killing over 200 people and injuring approximately 5,000.
- In 1999, an al-Qaida member attempted to carry out a bombing plot at the Los Angeles International Airport during the Millennium Celebrations. U.S. law enforcement foiled this attack, arresting Ahmed Ressam at Port Angeles at the U.S./Canadian border. The United States now knows that in October 2000, al-Qaida directed the attack on a U.S. naval warship, the USS Cole, while docked in the port of Aden, Yemen. This attack killed 17 U.S. sailors and injured 39.
- The horrific events of September 11 2001 are well known. On that day, the United States suffered massive and brutal attacks carried out by nineteen al-Qaida suicide hijackers who crashed three U.S. commercial jets into the World Trade Center and the Pentagon, and were responsible for the downing of one commercial jet in Shanksville, Pennsylvania.. These attacks resulted in approximately 3,000 individuals of 78 different nationalities reported dead or missing.
- The United Nations Security Council immediately condemned these terrorist acts as a "threat to international peace and security" and recognized the "inherent right of individual or collective self-defense in accordance with the United Nations Charter." U.N. Sec. Council Res. 1368, U.N. Doc. No. S/RES/1368 (12 September 2001) > see U.N. Sec. Council Res. 1373, U.N. Doc. No. S/RES/1373 (28 September 2001) [1] (deciding that all States shall take certain steps to combat terrorism).
- On September 12, 2001, less than 24 hours after the terrorist attacks against the United States, NATO declared the attacks to be an attack against all the 19 NATO member countries. The Allies - for the first time in NATO's history - invoked Article 5 of the Washington Treaty, which states that an armed attack against one or more NATO member countries is an attack against all. NATO followed this landmark decision by implementing practical measures aimed at assisting the United States. [2] *On September 11 2001, the Organization of American States (OAS) General Assembly immediately "condemned in the strongest terms, the terrorist acts visited upon the cities of New York and Washington, D.C." and expressed "full solidarity" with the government and people of the United States. Immediately thereafter, the foreign ministers of the States Parties to the 1947 Inter-American Treaty of Reciprocal Assistance (the Rio Treaty) declared, "these terrorist attacks against the United States of America are attacks against all American states." The ministers passed a resolution agreeing to "use all legally available measures to pursue, capture, extradite, and punish" anyone in their territories believed to be involved in terrorist activities. [3]
- The Prime Minister of Australia also considered the attacks to be an armed attack justifying action in self-defense under Article IV of the ANZUS Treaty. See Statement of the Prime Minister, Application of Anzus Treaty to Terrorist Attacks on the United States, September 14 2001 [4] *The seriousness of the threat al-Qaida and its supporters posed to the security of the United States compelled it to act in self-defense.
- On October 7, 2001, President Bush invoked the United States' inherent right of self-defense and, as Commander in Chief of the Armed Forces of the United States, ordered U.S. Armed Forces to initiate action against terrorists and the Taliban regime harboring them in Afghanistan. The U.S. Armed Forces "initiated actions designed to prevent and deter further attacks on the United States . . . [including] measures against Al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan." Letter from John Negroponte, U.S. Permanent Representative to the U.N., to Richard Ryan, President of the U.N. Security Council, U.N. Doc. No. S/2001/946 (7 October 2001), 40 I.L.M. 1281 (2001). (At [5] The attacks commenced when United States and coalition forces launched "strikes against al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan . . . designed to disrupt the use of Afghanistan as a terrorist base of operations, and to attack the military capability of the Taliban regime." (At [6]*President Bush later stated that "[i]nternational terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces." U.S. Military Order; Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (13 November 2001), 66 Fed. Reg. 57,833 (2001), at Section 1(a). [7] .
- Al-Qaida continues to wage armed conflict against the United States and its allies. On December 22 2001, an al-Qaida associate, Richard Reid, attempted to destroy a U.S. airliner using explosives concealed in his shoe, a plot that the airline passengers foiled. In April 2002, al-Qaida firebombed a synagogue in Djerba, Tunisia, killing at least 20 people and injuring dozens. In June 2002, al-Qaida detonated a bomb outside the U.S. Consulate in Karachi, Pakistan, killing 11 persons and injuring 51. On October 6 2002, al-Qaida was most likely responsible for a suicide attack against the French oil tanker, the MV Limburg, off the coast of Yemen, killing one and injuring four. On October 8 2002, al-Qaida gunmen attacked U.S. Marines on Failaka Island in Kuwait, killing one U.S. Marine and wounding another. On November 28 2002, in Mombasa, Kenya, al-Qaida detonated a car bomb in front of the Paradise Hotel, killing 15 persons and wounding 40 others. That same day, terrorists launched two anti-aircraft missiles at a civilian aircraft, and narrowly missed downing a Boeing 757 taking off from Mombassa en route to Israel. Al-Qaida claimed responsibility for the attacks.
- On May 12 2003, al-Qaida suicide bombers in Saudi Arabia attacked three residential compounds for foreign workers, killing 34, including 10 U.S. citizens, and injuring 139 others. On November 9 2003, al-Qaida was responsible for the assault and bombing of a housing complex in Riyadh, Saudi Arabia, that killed 17 and injured 100 others. On November 15 2003, two al-Qaida suicide truck bombs exploded outside the Neve Shalom and Beth Israel Synagogues in Istanbul, killing 20 and wounding 300 more. On November 20 2003, two al-Qaida suicide truck bombs exploded near the British consulate and the HSBC Bank in Istanbul, killing 30, including the British Consul General, and injuring more than 309. In December 2003, al-Qaida conducted two assassination attempts against Pakistan President Musharraf.
- In 2004, the Saudi-based al-Qaida network and associated extremists launched at least 11 attacks, killing more than 60 people, including 6 Americans, and wounding more than 225. Al-Qaida primarily focused on targets associated with U.S. and Western presence and Saudi security forces located in Riyadh, Yanbu, Jeddah, and Dhahran. *In October 2004, Abu Mus'ab al-Zarqawi announced a merger between his organization, Jama`at al-Tawhid was-al-Jihad or JTJ and Usama bin Ladin's al-Qaida. Bin Ladin endorsed Zarqawi as his official emissary in Iraq in December. The new organization, Al-Qaida of Jihad organization in the Land of the Two Rivers or QJBR, has the immediate goal of establishing an Islamic state in Iraq. Prior to the merger of the two organizations, Zarqawi’s groups had been conducting a number of attacks in Iraq, including the attack responsible for the death of the Secretary-General’s Special Representative for Iraq.
- More recently, al-Qaida has claimed credit for the spectacular July 2005 suicide bomb attacks in London’s Underground and bus transport system, which killed 56 and wounded hundreds. The Salafist Group for Call and Combat (GSPC), publicly affiliated with al-Qaida, has been responsible for numerous attacks in Algeria as well as the June 4 2005 attack against the Mauritanian military post at El Mhreiti that killed 14 soldiers and wounded an equal number. Other groups with reported al-Qaida affiliation, including Al Ittihad al Islami (AIAI), have carried out assassinations and other attacks in Somalia and east Africa. An October 1 2005 triple bombing in Bali killed 22 and injured more than 120, demonstrating continuing threats from the al-Qaida-linked terrorist group Jemaah Islamiya (JI). In conclusion, it is clear that al-Qaida and its affiliates and supporters have planned and continue to plan and perpetrate armed attacks against the United States and its coalition partners, and they directly target civilians in blatant violation of the law of war.
Detainees
For the deaths being treated as homicide by the US Military, Habibullah and Dilawar, see Bagram torture and prisoner abuse.
Brief Overview of the Detainee Populations Held by the U.S. Armed Forces at Guantanamo Bay and in Afghanistan
During the course of the war in Afghanistan, the U.S. Armed Forces and allied forces have captured or procured the surrender of thousands of individuals fighting as part of the al-Qaida and Taliban effort. The law of war has long recognized the right to detain combatants until the cessation of hostilities.[3] Detaining enemy combatants prevents them from returning to the battlefield and engaging in further armed attacks against innocent civilians and U.S. forces. Further, detention serves as a deterrent against future attacks by denying the enemy the fighters needed to conduct war. Interrogations during detention enable the United States to gather important intelligence to prevent future attacks during ongoing hostilities. The first group of enemy combatants captured in the war against al-Qaida, the Taliban, and their affiliates and supporters arrived in Guantanamo Bay, Cuba, in January 2002. The United States has approximately 505 detainees in custody at Guantanamo (at http://www.defenselink.mil/releases/2005/nr20050822-4501.html (visited October 13 2005)) and slightly more than 400 detainees in Afghanistan. These numbers represent a small percentage of the total number of individuals the United States has detained, at one point or another, in fighting the war against al-Qaida and the Taliban.
Since the war began in Afghanistan (and long before the U.S. Supreme Court decisions in the detainee cases of June 2004), the United States has captured, screened and released more than 10,000 individuals. It transferred to Guantanamo fewer than ten percent of those screened. The United States only wishes to hold those enemy combatants who are part of or are supporting Taliban or al-Qaida forces (or associated forces) and who, if released, would present a threat of reengaging in belligerent acts or directly aiding and supporting ongoing hostilities against the United States or its allies.
We have made mistakes: of the detainees we have released, we have later recaptured or killed about 5% of them while they were engaged in hostile action against U.S. forces. Detainees in Afghanistan and Guantanamo include many senior al-Qaida and Taliban operatives and leaders, in addition to rank-and-file jihadists who took up arms against the United States. The individuals currently held by the United States were at one time actively committing belligerent terrorist acts as part of al-Qaida, the Taliban or their affiliates and supporters who engaged in hostilities against the United States and its allies. Generally, the enemy combatants held at Guantanamo Bay comprise unlawful combatants who are part of al-Qaida, the Taliban, or affiliated forces, or their supporters, whether captured committing acts of belligerency themselves or directly supporting hostilities in aid of such enemy forces.
Examples of enemy combatants held in U.S. custody include:
- Terrorists linked to major al-Qaida attacks on the United States, such as the East Africa U.S. Embassy bombings and the USS Cole attack;
- Terrorists who taught or received training on arms, explosives, surveillance, and interrogation resistance techniques at al-Qaida camps;
- Terrorists continuing to express their desire to kill Americans if released. In particular, some have threatened their guards and the families of the guards;
- Terrorists who have sworn personal allegiance ("bayat") to Usama bin Ladin; and
- Terrorists linked to several al-Qaida operational plans, including the targeting of U.S. facilities and interests.
Representative examples of specific Guantanamo detainees include:
- An al-Qaida explosives trainer who has provided information on the September 2001 assassination of Northern Alliance leader Ahmad Shah Masoud;
- A Taliban fighter linked to al-Qaida operatives connected to the East Africa U.S. Embassy bombings;
- An individual captured on the battlefield, with links to a financier of the September 11 plots, who attempted to enter the United States in August 2001 to meet hijacker Mohammed Atta;
- Two individuals associated with senior al-Qaida members developing remotely detonated explosive devices for use against U.S. forces;
- A member of an al-Qaida supported terrorist cell in Afghanistan that targeted civilians and was responsible for a grenade attack on a foreign journalist’s automobile;
- An al-Qaida member who plotted to attack oil tankers in the Persian Gulf;
- An individual who served as a bodyguard for Usama bin Ladin;
- An al-Qaida member who served as an explosives trainer for al-Qaida and designed a prototype shoe bomb and a magnetic mine; and
- An individual who trained al-Qaida associates in the use of explosives and worked on a plot to use cell phones to detonate bombs.
Status of Detainees at Guantanamo Bay and in Afghanistan
The report goes on to justify the continued detention of individuals at Guantanamo Bay and in Afghanistan *Under Article 4 of the Geneva Convention, . . . Taliban detainees are not entitled to POW status . . . .
- The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. . . .
- Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the treaty.Statement by the U.S. Press Secretary, The James S. Brady Briefing Room, in Washington, D.C. (7 February 2002) (at [8] ; see also, White House Memorandum - Humane Treatment of al Qaeda and Taliban Detainees, February 7 2002, at 2(c) & (d) (released and declassified in full on June 17 2004). (At [9]
- The report notes that after the decisions of the U.S. Supreme Court in Rasul v. Bush, 124 S.Ct. 2686 (2004), and Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004), which are described below in Section G, the U.S. Government established a process on July 7 2004, to conduct Combatant Status Review Tribunals (CSRTs) at Guantanamo Bay. [10] (Department of Defense Briefing on Combatant Status Review Tribunal, dated July 7 2004)). Consistent with the Supreme Court decision in Rasul, these tribunals supplement the prior screening procedures and serve as fora for detainees to contest their designation as enemy combatants and thereby the legal basis for their detention. The tribunals were established in response to the Supreme Court decision in Rasul and draw upon guidance contained in the U.S. Supreme Court decision in Hamdi that would apply to citizen-enemy combatants in the United States.
Discussion of Combatant Status Review Tribunals (CSRTs) for Detainees at Guantanamo Bay
The report discussed the Combatant Status Review Tribunals (CSRTs) have reviewed the status of all individuals detained at Guantanamo, and characterizes tem as fact-based proceeding, to determine whether the individual is still classified as an enemy combatant. As reflected in the Order establishing the CSRTs, an enemy combatant is "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. CSRTs offer many of the procedures contained in US Army Regulation 190-8. The Supreme Court specifically cited these Army procedures as sufficient for U.S. citizen-detainees entitled to due process under the U.S. Constitution. For example:
- Tribunals are composed of three neutral commissioned officers, plus a non-voting officer who serves as a recorder;
- Decisions are by a preponderance of the evidence by a majority of the voting members who are sworn to execute their duties impartially;
- The detainee has the right to (a) call reasonably available witnesses, (b) question witnesses called by the tribunal, (c) testify or otherwise address the tribunal, (d) not be compelled to testify, and (e) attend the open portions of the proceedings;
- An interpreter is provided to the detainee, if necessary; and *The Tribunal creates a written report of its decision that the Staff Judge Advocate reviews for legal sufficiency. See CSRT Implementation Memorandum, July 29 2004 http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf
- Unlike an Article 5 tribunal, the CSRT guarantees the detainee additional rights, such as the right to a personal representative to assist in reviewing information and preparing the detainee’s case, presenting information, and questioning witnesses at the CSRT. The rules entitle the detainee to receive an unclassified summary of the evidence in advance of the hearing in the detainee’s native language, and to introduce relevant documentary evidence. See CSRT Order g(1); Implementation Memorandum Encl. (1) F(8), H (5); CSRT Order g(10); Implementation Memorandum Encl. (1) F (6). In addition, the rules require the Recorder to search government files for, and provide to the Tribunal, any "evidence to suggest that the detainee should not be designated as an enemy combatant." See Implementation Memorandum Encl. (2), B(1).
The detainee’s Personal Representative also has access to the government files and can search for and provide relevant evidence that would support the detainee’s position. The report notes that as of March 29 2005, the CSRT Director had taken final action in all 558 cases. Thirty-eight detainees were determined no longer to be enemy combatants; twenty-eight of them have been subsequently released to their home countries, and at the time of this Report's submission, arrangements are underway or being pursued for the release of the others. [11]
Assessing detainees for release or transfer
The report discusses the assessment of detainees for release, or transfer.
Guantanamo Bay
The detention of each Guantanamo detainee is reviewed annually by an Administrative Review Board (ARB), established by an order on May 11 2004 (Review Procedure Announced for Guantanamo Detainees, Department of Defense Press Release, May 18 2004) [12] and supplemented by an implementing directive on September 14 2004. See Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba (at [13]
The ARB assesses whether an enemy combatant continues to pose a threat to the United States or its allies, or whether there are other factors bearing on the need for continued detention. The process permits the detainee to appear in person before an ARB panel of three military officers to explain why the detainee is no longer a threat to the United States or its allies, and to provide information to support the detainee’s release.
Each enemy combatant is provided with an unclassified written summary of the primary factors favoring the detainee’s continued detention and the primary factors favoring the detainee’s release or transfer from Guantanamo. The enemy combatant is also provided with a military officer to provide assistance throughout the ARB process. In addition, the review board will accept written information from the government of nationality, and from the detainee’s relatives through that government, as well as from counsel representing detainees in habeas corpus proceedings.
Based on all of this information, as well as submissions by U.S. Government agencies, the ARB makes a written assessment by majority vote on whether there is reason to believe that the enemy combatant no longer poses a threat to the United States or its allies in the ongoing armed conflict and any other factors bearing on the need for continued detention.
The Board also makes a written recommendation on whether detention should be continued. The recommendations of the board are reviewed by a judge advocate for legal sufficiency and then go to the Designated Civilian Official (currently Secretary of the Navy Gordon England), who decides whether to release, transfer or continue to detain the individual.
As of September 26 2005, the Department of Defense (DoD) has announced its intent to conduct Administrative Review Board reviews for 460 detainees; it has informed the detainees' respective host countries and asked them to notify the detainees' relatives; and it has invited them to provide information for the hearings. [14]
The first Annual Administrative Review Board began on December 14 2004, and 250 Administrative Review Boards have been conducted as of September 26 2005. The report notes that as of September 26 2005, the United States has transferred 246 persons from Guantanamo—178 transferred for release and 68 transferred to the custody of other governments for further detention, investigation, prosecution, or control. Of the 68 detainees who were transferred to the control of other governments, 29 were transferred to Pakistan, seven to Russia, five to Morocco, nine to the United Kingdom, six to France, four to Saudi Arabia, two to Belgium, one to Kuwait, two to Spain, one to Australia, one to Denmark and one to Sweden. The report notes that some of the released individuals have returned to the fight I:
- A former Guantanamo detainee who reportedly killed an Afghan judge leaving a mosque in Afghanistan;
- A former Guantanamo detainee (released by the United States in January 2004) who was recaptured in May 2004 when he shot at U.S. forces and was found to be carrying a letter of introduction from the Taliban; and
- Two detainees (released from Guantanamo in May 2003 and April 2004, respectively) who were killed in the summer of 2004 while engaged in combat operations in Afghanistan. The report argues that the fact that some detainees upon their release are returning to combat underscores the ongoing nature of the armed conflict with al-Qaida and the practical reality that in defending itself against al-Qaida, the United States must proceed very carefully in its determination of whether a detainee no longer poses a threat to the United States and its allies.
Afghanistan
The report notes that detainees under DoD control in Afghanistan are subject to a review process that first determines whether an individual is an enemy combatant. The detaining Combatant Commander, or designee, shall review the initial determination that the detainee is an enemy combatant. This review is based on all available and relevant information available on the date of the review and may be subject to further review based upon newly discovered evidence or information. The Commander will review the initial determination that the detainee is an enemy combatant within 90 days from the time that a detainee comes under DoD control. After the initial 90-day status review, the detaining combatant commander, on an annual basis, is required to reassess the status of each detainee. Detainees assessed to be enemy combatants under this process remain under DoD control until they no longer present a threat. The review process is conducted under the authority of the Commander, U.S. Central Command (USCENTCOM). If, as a result of the periodic Enemy Combatant status review (90-day or annual), a detaining combatant commander concludes that a detainee no longer meets the definition of an enemy combatant, the detainee is released.
Transfers or releases to third countries
The report notes that those deemed releasable, are subject to the following. U.S. policy is not to transfer a person to a country if it is determined that it is more likely than not that the person will be tortured or, in appropriate cases, that the person has a well-founded fear of persecution and would not be disqualified from persecution protection on criminal- or security-related grounds. If a case were to arise in which the assurances obtained from the receiving government are not sufficient when balanced against treatment concerns, the United States would not transfer a detainee to the control of that government unless the concerns were satisfactorily resolved. Circumstances have arisen in the past where the Department of Defense elected not to transfer detainees to their country of origin because of torture concerns. With respect to the application of these policies to detainees at Guantanamo Bay, the U.S. Government in February of 2005 filed factual declarations with a Federal court for use in domestic litigation. These declarations describe in greater detail the application of the policy described above as it applies to the detainees at Guantanamo Bay, and are attached to this document as Tab 1.
Military Commissions to Try Detainees Held at Guantanamo Bay
The report notes that in 2001, the President authorized military commissions to try certain individuals for violations of the law of war and other applicable laws. See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, November 13 2001 [15] Military commissions have a long history as a legitimate forum to try those persons who engage in belligerent acts in contravention of the laws of war. The United States has used military commissions throughout its history. During the Civil War, Union Commanders conducted more than 2,000 military commissions. Following the Civil War, the United States used military commissions to try eight conspirators (all U.S. citizens and civilians) involved in President Lincoln’s assassination. During World War II, President Roosevelt used military commissions to prosecute eight Nazi saboteurs for spying (including at least one U.S. citizen). A military commission tried a Japanese General for war crimes committed while occupying the Philippine Islands. In addition to the international war crimes tribunals, Allied Powers States, including England, France, and the United States, tried hundreds of lesser-known persons by military commissions in Germany and the Pacific theater after World War II. To date, the President has designated seventeen individuals as eligible for trial by military commission. Of those, the United States has since transferred three of those designated to their country of nationality, where they have been released. Four Guantanamo detainees have been charged and have had preliminary hearings before a military commission. Pending the outcome of the appeal in Hamdan v. Rumsfeld, the Appointing Authority issued a directive on December 10 2004, holding in abeyance these four cases. On September 20 2005, the Appointing Authority revoked this Directive as to the case of United States v. David Mathew Hicks. On September 23 2005, the Presiding Officer scheduled the initial session in this case for November 18 2005. In Federal Court litigation concerning military commissions, the Court of Appeals for the District of Columbia Circuit recently confirmed the President’s authority to convene military commissions as part of the conduct of war.. Hamdan v. Rumsfeld, 415 F.3d 33, 37-38 (D.C. Cir. July 15 2005). The petitioner in that case, Salim Ahmed Hamdan, has sought review of this decision by the U.S. Supreme Court. The Supreme Court has not decided whether it will consider the appeal. On August 31 2005, the Secretary of Defense approved several changes to the rules governing military commissions. These changes follow a careful review of commission procedures and take into account a number of factors, including issues that arose in connection with military commission proceedings that began in late 2004. Other factors included a review of relevant domestic and international legal standards and suggestions from outside organizations on possible improvements to the commission process. DoD will continue to evaluate how it conducts commissions and, where appropriate, make changes that improve the process. The principal effect of these changes is to make the presiding officer function more like a judge and the other panel members function more like a jury. Under previous procedures, the presiding officer and other panel members together would determine findings and sentences, as well as resolve most legal questions. The new procedures remove the presiding officer from voting on findings and sentencing and give the other panel members sole responsibility for these determinations, while allocating responsibility for ruling on most questions of law to the presiding officer. The new changes also clarify the provisions governing the presence of the accused at trial and access by the accused to classified information. The new provisions make clear that the accused shall be present except when necessary to protect classified information and where the presiding officer has concluded that admission of such information in the absence of the accused would not prejudice a fair trial. These changes also make clear that the presiding officer must exclude information from trial if the accused would be denied a full and fair trial from lack of access to the information. If the accused is denied access to classified information admitted at trial, his military defense counsel will continue to have access to the information. Other changes approved include lengthening the amount of time for the Military Commissions Review Panel to review the trial record of each case.
Access to U.S. Courts
The report summarizes the pending and closed habeas corpus law suits filed on behalf of detainees.
Description of Conditions of Detention at Department of Defense Facilities
Guantanamo Bay
- Photographs released: The Department of Defense has released to the public several photographs of the detention facilities in Guantanamo Bay. [16]. These photographs reflect U.S. policy and practices regarding treatment of detainees at Guantanamo Bay, including the U.S. requirement that all detainees receive adequate housing, recreation facilities, and medical facilities.
- Description of conditions:
- Three meals per day that meet cultural dietary requirements;
- Adequate shelter, including cells with beds, mattresses, and sheets;
- Adequate clothing, including shoes, uniforms, and hygiene items;
- Opportunity to worship, including prayer beads, rugs, and copies of the Koran;
- The means to send and receive mail;
- Reading materials, including allowing detainees to keep books in their cells; and
- Excellent medical care.
- All enemy combatants get state-of-the art medical and dental care that is comparable to that received by U.S. Armed Forces deployed overseas. Wounded enemy combatants are treated humanely and nursed back to health, and amputees are fitted with modern prosthetics.
- Detainees write to and receive mail from their families and friends. Detainees who are illiterate, but trustworthy enough for a classroom setting, are taught to read and write in their native language so they, too, can communicate with their families and friends.
- Enemy combatants at Guantanamo may worship as desired and in accordance with their beliefs. They have access to the Koran and other prayer accessories. Traditional garb is available for some detainees. Where security permits, detainees are eligible for communal living in a new Medium Security Facility, with fan-cooled dormitories, family-style dinners, and increased outdoor recreation time, where they play board games like chess and checkers, and team sports like soccer. The United States permits the International Committee of the Red Cross to visit privately with every detainee in DoD control at Guantanamo. Communications between the U.S. Government and the ICRC are confidential. In addition, legal counsel representing the detainees in habeas corpus cases have visited detainees at Guantanamo since late August 2004. As of September 2005, counsel in forty cases have personally met with the more than 100 detainees they represent. Some counsel have visited their clients more than once. To date, virtually every request by American counsel of record in the habeas cases to visit detainees at Guantanamo has been granted, after that counsel has received the requisite security clearance, agreed to the terms of the protective order issued by the Federal court and submitted a request at least 20 days in advance of the proposed visit. The proposed visit dates in some cases have been adjusted based on other counsel visits that were already scheduled for the same time period. The Government does not monitor these meetings (or the written correspondence between counsel and detainees), which occur in a confidential manner. The Government also allows foreign and domestic media to visit the facilities.
Afghanistan
The report notes that the Department of Defense holds individuals in Afghanistan in a safe, secure, and humane environment. The primary focus of DoD detainee operations in Afghanistan is to secure detainees from harm, recognizing the reality that the U.S. Armed Forces continue to engage in combat in Afghanistan. The Department of Defense operates theater internment facilities at Kandahar and Bagram. These facilities house enemy combatants identified in the war against al-Qaida, the Taliban and their affiliates. The Department of Defense has registered with the ICRC individuals held under its control in Afghanistan. ICRC has access to these DoD facilities and conducts private interviews with detainees. In addition, the U.S. Armed Forces operates forward operating bases that, from time to time, may house on a temporary basis individuals detained because of combat operations against al-Qaida, Taliban, and affiliated forces. The Department of Defense provides detainees in Afghanistan with adequate food, shelter, clothing, and opportunity to worship. In addition, DoD initiatives will increase available resources for literacy and education training. The Department of Defense also gives Afghani detainees information regarding the establishment of the new Afghan government, as well as a copy of the Afghan Constitution. The U.S. Government is also in a process of improving the detention facilities at both Bagram and Kandahar. Improved facilities should be available to detainees later in 2005.
Allegations of Mistreatment of Persons Detained by the Department of Defense
The report contends that no serious mistreatment has been substantiated, but that there are ten admitted incidents of misconduct and the perpetrators will be disciplined.
Introduction
The report notes that the United States is well aware of the concerns about the mistreatment of persons detained by the Department of Defense in Afghanistan and at Guantanamo Bay, Cuba. Indeed, the United States has taken and continues to take all allegations of abuse very seriously. Specifically, in response to specific complaints of abuse in Afghanistan and at Guantanamo Bay, Cuba, the Department of Defense has ordered a number of studies that focused, inter alia, on detainee operations and interrogation methods to determine if there was merit to the complaints of mistreatment.
Although these extensive investigative reports have identified problems and proffered recommendations, none of them found that any governmental policy directed, encouraged or condoned these abuses. The reports pertaining to Guantanamo Bay are summarized in Section B.2 below and those pertaining to Afghanistan are summarized in Section B.3 below. In general, for both Afghanistan and Guantanamo Bay, these reports have assisted in identifying and investigating all credible allegations of abuse. When a credible allegation of improper conduct by DoD personnel surfaces, it is reviewed, and when factually warranted, investigated. As a result of investigation, administrative, disciplinary, or judicial action is taken as appropriate. Those credible allegations were and are now being resolved within the Combatant Command structure.
Concerns have also been generated by an August 1 2002, memorandum prepared by the Office of Legal Counsel (OLC) at the U.S. Department of Justice (DOJ), on the definition of torture and the possible defenses to torture under U.S. law and a DoD working group report on detainee operations, dated April 4 2003, the latter of which was the basis for the Secretary of Defense’s approval of certain counter resistance techniques on April 16 2003. The 2002 DOJ OLC memorandum was withdrawn on June 22 2004 and replaced with a December 30 2004, memorandum interpreting the legal standards applicable under 18 U.S.C. 2340-2340A, also known as the Federal Torture Statute. On March 17 2005, the Department of Defense determined that the Report of the Working Group on Detainee Interrogations is to be considered as having no standing in policy, practice, or law to guide any activity of the Department of Defense.
On March 10 2005, Vice Admiral Church (the former U.S. Naval Inspector General) released an executive summary of his report, which included an examination of this issue. His Report examined the precise question of "whether DoD had promulgated interrogation policies or guidance that directed, sanctioned or encouraged the abuse of detainees." Church Report, Executive Summary, at 3, released March 10 2005 (relying upon data available as of September 30 2005) [17]. In his Report, he wrote that "this was not the case," id., finding that "it is clear that none of the approved policies – no matter which version the interrogators followed – would have permitted the types of abuse that occurred." Id., at 15.
In response to intensive questioning before the U.S. Senate Armed Services Committee as to whether the 2002 DOJ memo or subsequently authorized interrogation practices had contributed to individual soldiers committing abuses, he responded that "clearly there was no policy, written or otherwise, at any level, that directed or condoned torture or abuse; there was no link between the authorized interrogation techniques and the abuses that, in fact, occurred." Transcript at 7. Although Vice Admiral Church’s investigation is the most comprehensive to date on this issue, it was consistent with the findings of earlier investigations on this point. See, e.g., Army Inspector General Assessment, released July 2004 (at http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/index.html (visited October 13 2005)).
Vice Admiral Church’s finding was also consistent with earlier statements by high-level U.S. officials, including by the previous White House Counsel Alberto Gonzales, who had stated: The administration has made clear before and I will reemphasize today that the President has not authorized, ordered or directed in any way any activity that would transgress the standards of the torture conventions or the torture statute, or other applicable laws.. . . . . . . [L]et me say that the U.S. will treat people in our custody in accordance with all U.S. obligations including federal statutes, the U.S. Constitution and our treaty obligations. The President has said we do not condone or commit torture. Anyone engaged in conduct that constitutes torture will be held accountable.Press Briefing by White House Counsel Judge Alberto Gonzales, DoD General Counsel William Haynes, DoD Deputy General Counsel Daniel Dell'Orto and Army Deputy Chief of Staff for Intelligence General Keith Alexander, June 22 2004, [18] Subsequent to the release of the December 2004 DOJ memo interpreting the Federal Torture Statute, the Deputy Secretary of Defense ordered a "top-down" review within the Department to ensure that the policies, procedures, directives, regulations, and actions of the department comply fully with the requirements of the new Justice Department Memorandum.[7] The Office of Detainee Affairs in the Office of the Under Secretary of Defense for Policy coordinates this process of review.
Reports of Abuses, Summary of Abuse Investigations and Actions to Hold Persons Accountable - Guantanamo Bay
The report goes on to note that although there have been allegations of serious abuse of detainees at Guantanamo Bay, the United States has not found evidence substantiating such claims. Instead, it has identified 10 substantiated incidents[9] of misconduct at Guantanamo:
- A female interrogator inappropriately touched a detainee on April 17 2003 by running her fingers through the detainee’s hair, and made sexually suggestive comments and body movements, including sitting on the detainee’s lap, during an interrogation. The female interrogator received a written admonishment and additional training.
- On April 22 2003, an interrogator assaulted a detainee by directing military policemen repeatedly to bring the detainee from a standing to a prone position and back. A review of medical records indicated superficial bruising to the detainee’s knees. The interrogator received a letter of reprimand.
- A female interrogator, at an unknown date, in response to being spit upon by a detainee, assaulted the detainee by wiping red dye from a red magic marker on the detainee’s shirt and telling the detainee that the red stain was blood. The interrogator received a verbal reprimand for her behavior.
- In October 2002, an interrogator used duct tape to tape shut the mouth of a detainee who was being extremely disruptive during an interrogation. The tape did not harm the detainee and the interrogator received a verbal reprimand for his behavior.
- A military policeman (MP) assaulted a detainee on September 17 2002, by attempting to spray him with a hose after the detainee had thrown an unidentified, foul-smelling liquid on the MP. The MP received non-judicial punishment that included seven days restriction and reduction in grade from Specialist (E-4) to Private First Class (E-3).
- On March 23 2003, after a detainee threw unidentified liquid on an MP, the MP sprayed the detainee with pepper spray. The MP declined non-judicial punishment,[10] and he was subsequently tried by special court-martial where he was acquitted of all charges.
- On April 10 2003, after a detainee had struck an MP in the face (causing the MP to lose a tooth) and bitten another MP, the MP struck the detainee with a handheld radio. This MP was given non-judicial punishment, received 45 days extra-duty, and was reduced in grade from Specialist (E-4) to Private First Class (E-3).
- On January 4 2004, an MP platoon leader received an initial allegation that one of his guards had thrown cleaning fluid on a detainee and later made inappropriate comments to the detainee. The platoon leader, however, did not properly investigate the allegation or report it to his chain of command. The initial allegation against the guard ultimately turned out to be substantiated. The MP was given non-judicial punishment and received forfeiture of pay of $150 per month for two months and reduction in grade from Private (E-2) to Private (E-1). The platoon leader was issued a reprimand for dereliction of duty.
- On February 10 2004, an MP inappropriately joked with a detainee, and dared the detainee to throw a cup of water on him. After the detainee did so, the MP threw a cup of water on the detainee. The MP was removed from further duty because of these inappropriate actions.
- On February 15 2004, a barber intentionally gave two detainees unusual haircuts, including an "inverse Mohawk," in an effort to frustrate the detainees’ request for similar haircuts as a sign of unity. The barber and his company commander were both counseled because of this incident. The above list of substantiated abuses and the subsequent punishment of those responsible at Guantanamo Bay demonstrates that misconduct will not be tolerated.
Afghanistan
The report outlines substantiated abuse and response. The following are examples of substantiated abuses and a summary of the status: *The investigations into the death of two detainees (Mr. Mullah Habibullah and Mr. Dilawar) at the Bagram detention facility on December 4 and 10, 2002 identified 28 military members who may have committed offenses punishable under the UCMJ. Investigations determined that the detainees had been beaten by several military members. Commanders are considering the full range of administrative and disciplinary measures, including trial by court-martial. As of this writing, charges have been preferred against nine military members and a final result reached in eight of those cases. Five soldiers were found guilty of various offenses related to the death of these two detainees, two soldiers were acquitted of all charges, and one case is not yet concluded. Sentences ranged from forfeiture in pay and reduction in rank to confinement for a period of years.
- The Naval Criminal Investigation Service (NCIS) opened an investigation in May 2004 involving allegations of an Afghan police officer who claimed he was abused in while under coalition control in Gardez and Bagram. This investigation remains open.
Training
The report describes the training of troops to prevent further abuses.
See also
See also
- Update to Annex One of the Second Periodic Report October 21 2005
- State Department original documents pertaining to Reports to U.N. on Second Periodic Report of the United States of America to the Committee Against Torture, and Third Periodic Report.