November 2, 2005
"In fact, a secret statement of the
President’s views, which he signed on February 7, 2002, had a loophole
that applied worldwide. "I…determine that none of the provisions of
Geneva apply to our conflict with Al Qaeda in Afghanistan or elsewhere
throughout the world," the President asserted. He also stated that he
had "the authority under the Constitution to suspend Geneva as between
the United States and Afghanistan, but I decline to exercise that
authority at this time." In other words, detainees had no inherent
protections under the Geneva Conventions – the condition of their
imprisonment, good, bad, or otherwise, was solely at his discretion."1 Seymour Hersh
I. Introduction
Let us imagine for just a moment the following: that
hundreds of American citizens are picked up from around the world by a
foreign government (a powerful one like China, for example). Those
Americans, including small children, are strapped, shackled,
blindfolded, and have their heads covered with black hoods. They are
put into big metal containers, which are loaded onto Chinese transport
planes. The American captives are forced to urinate and defecate while
strapped and shackled in those containers. They cannot move. Many pass
out due to heat and lack of air. In fact, many die in those containers
while being transported – just as Jews died in the hundreds while being
transported in cattle trucks and train cars to the concentration camps.
Finally the American prisoners – terrorists the Chinese are calling
them - reach the military base on one of the many scenic islands off
the coast of China. The guards shove them into tiny, nine by four foot
cages, which are outside and open to the elements. Other cells are
underground where no daylight comes. Once in this camp, these American
terrorists are taken out every day to different rooms to be
interrogated. In the process of interrogation they are tortured. These
prisoners have no rights. They are held incommunicado. They have no
access to lawyers, family members or courts. Soap and toothpaste are
also denied. After some time their cell building reeks of the smell of
unwashed human beings. Torture is a daily occurrence. Sometimes the
guards strip the men and women and keep them naked, while making fun of
their bodies, and particularly sexual organs. Some guards force the men
to perform masturbation or have oral sex with one another, for sheer
entertainment purposes. The American women are forced to walk naked in
front of the men prisoners and the guards. At night, Chinese soldiers
come in and throw the naked women and girls on the ground and rape them
over and over, beating those that give any resistance. In the US
this may or may not be a big deal, as per the morality of American
culture. In other countries, however, such as the Middle East,
Pakistan, such women are damned for life. They will try to commit
suicide. If they don’t succeed, upon their release their brothers,
husbands or fathers will execute them for bringing shame on the
family. On other days, the guards bring in dogs – large, vicious
German Shepherds trained to attack, bite and kill. Sometimes the
guards make the naked American men lie on the floor, then tie a leash
around their neck and pull them around like dogs.
Now it may happen that some of the Chinese people
learn about these goings-on and protest this unjust treatment of
American prisoners, saying it is against international law. In
response, the Chinese arrest the protestors, declare them as aiding and
abetting terrorists, and throw them in prison, keeping them
indefinitely without charges and without habeas corpus. Suppose at the
time of interrogation, the interrogators instruct the guards to chain
the naked men, then shackle them lying face down on their stomachs to a
ring fastened to the floor. Then the questions and beatings start.
After several hours the interrogators leave the room and leave the
naked prisoner shackled to the ring face down on the floor for a day or
two days – leaving him to urinate and defecate and then lie in his own
filth, without food, without water. Then, to shut up further protests
from an alert populace, the government announces that special military
commissions will be created to try the American prisoners.
International law has no information about such military commissions,
created by the president. However, the protests grow. In response, the
government avoids setting up the military commissions and instead
simply continues to keep the American terrorists locked up for two,
three, maybe four years inside their cages and cells.
Suppose the Chinese government declares that all
these American terrorists are not covered by international
law. Instead, the president makes up new vocabulary for these
dreaded terrorists. The Chinese refer to them as "enemy combatants,"
"detainees," "School of the Americas" and "Sons of Liberty" – a
political party that presently has control of the US. Of course,
the Chinese government declares the Sons of Liberty illegal,
illegitimate; consequently, they do not have the protection of
international law. And for members of the School of the Americas,
they are all terrorists, and terrorists do not come under the realm of
existing international law. In this given scenario, how would we feel?
The United States has done all these things and more. They have committed all these atrocities2
in our name – in the name of the people of the United States. How can
it be? Did we ever agree to permit such tortures on other human
beings? Did we ever agree that our government should break nearly
every convention and treaty that comprises international law? Did
we not rely on our senators and congressmen and women to make the right
decisions and vote in the interest of law and justice for all when
casting their votes? Does this mean that we cannot rely on our
elected representatives to do the right thing?
It has become essential to document, in simple,
clear language, the shameless conduct of the United States government
with regard to the rights of prisoners held by the US military, in
collusion with the CIA, FBI and private contractors since September 11,
2001. The crimes of the US government must be examined in light of
international laws governing civilians, civilian criminals, and
prisoners of war (POWs) as stated in various legal documents such as
the UN Charter, the Geneva Conventions, and the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. Mention will also be made of US law, simply to point
out that the Bush administration grossly violated and continues to
trample on not only international law but also the United States
Constitution.
The violation of international law since 9/11, the horrible abuse of prisoners, the stripping and raping of women, sodomizing of men, including young boys,4
the numerous torture tactics in use right now at Guantanamo, Abu Ghraib
and Bagram as well as countries cooperating with the US government that
serve as "torture" sites5
- all this reflects a complete breakdown of international law, since,
according to Mr. Bush, he can do whatever he likes. He is not obligated
to follow any laws because the US is in a state of Bush-declared
perpetual war on terror, which provides him the justification to seize
unlimited powers and become a virtual dictator of America and the
world. What the axis of evil called Bush-Cheney-Rumsfeld has done, what
crimes they have committed in Guantanamo, Abu Ghraib, Bagram and
elsewhere, must be told to the American people. The Military Order No. 16 passed
by Bush directly after 9/11 gives him the right to 'disappear’ even
American citizens. This is unprecedented power. It is immoral and
illegal, and it must be told to the American people, so that as one
outraged body they denounce all Bush infractions of international law
and compel the retraction of all new, illegal and unconstitutional laws
passed by Bush since 9/11.
The torture of prisoners conducted by
Bush-Cheney-Rumsfeld reflects abominable, callous indifference to
fundamental human rights. This axis of evil continues today to
illegally hold hundreds of additional photos of Abu Ghraib7
which, if handed over to the Center for Constitutional Rights (CCR) and
thereafter the mainstream media, would set the whole world on
fire. Knowing this full well, the threesome are illegally holding
those photos, when by law they must turn them over to the CCR. Bush
will go down in history as (1) the first illegal president – that too,
illegally placed in office in two consecutive, rigged elections;
and (2) the cruelest, most vicious president in US history. His actions
replicate the actions of the dreaded Pinochet and other third world
dictators, including Saddam Hussein. He is the president under whom
rendition got taken to new extremes. Rendition means, the outsourcing
of torture. Just as today companies outsource x-ray diagnosis and
manual production, so Mr. Bush and cohorts outsource torture to
countries that specialize in the most inhuman methods to destroy a
human being. In these horrifying times, when citizens have been stripped of fundamental rights and freedoms
under the rule of the neocons, it becomes the duty of us all to expose
these new 'laws’ by which the axis of evil perpetrates unbounded
torture and suffering upon tens of thousands of innocent civilians here
and abroad.
Each one of us must ask each other the
question: How is that that American men and women could treat the
Iraqi prisoners like dogs – worse than dogs? What has happened to
American culture, American way of life, that we could stoop so low,
that we became so callous and cruel, that in front of the whole world
we behaved like barbarians? No country in the world today looks up
to America. By behaving worse than animals, we became the moral
outcastes of the world. By torturing innocent men, women and children,
by stripping them, forcing women to walk naked in front of men,8 by sodomizing young boys screaming in pain,
the US became nothing in this world. We became the ultimate moral
disgrace. How do we climb out of this moral morass that we fell into by
blindly following George Bush? These sadistic tortures and
horrific degradations of other human beings are taking place IN OUR
NAME! Why does the US government hire private contractors to
torture? Is torture for hire! These companies are making hefty profits by carrying out sadistic tortures for the US government.
The US government claims that what happened at Abu
Ghraib was some temporary madness. But in fact, as the PBS
Frontline documentary, "The Torture Question," aired on national television on October 18th,
2005, demonstrates, the orders came straight from the top, from Defense
Secretary Donald Rumsfeld. John Yoo, an extreme conservative belonging
to the Federalist Society, wrote new statutes
that gave Bush unprecedented legal powers, greater than any president
in US history. Congress passed these new powers by a landslide, without
so much as a question. The new memos of Gonzales, Yoo and Delahunty
gave the administration the power to act unilaterally in defining the
rules of war. As Dana Priest of the Washington Post said, 9/11 gave the Bush administration carte blanche to do whatever it wanted.
II. International Law Regarding Rights of Prisoners
"Our government is the potent, the omnipresent
teacher, For good or ill, it teaches the whole people by its example.
Crime is contagious. If the government becomes a lawbreaker, it breeds
contempt for the law; it invites every man to become a law unto
himself."Justice Louis D. Brandeis - 1920
Today The executive branch of the US government is
accumulating obscene amounts of power unto itself. In a time of war,
says Bush, the Supreme Court has no right to review issues. But, the
Supreme Court said, yes we do! More and more power is being abrogated
to the executive. We should not be suspending our constitution. We
should not be undermining international law in the name of
democracy.
The Third Geneva Convention
requires that any dispute about a prisoner’s status be decided on by a
'competent tribunal.’ During the First Gulf War in 1991, American
forces held many such tribunals. But today, Mr. Bush has refused
to comply with the Geneva Conventions. He declared all Guantanamo
inmates as "unlawful combatants." He says they are not regular
soldiers and hence are not eligible to protections normally guaranteed
to prisoners of war (POWs). Rather, he says, they are terrorists. The
term "enemy combatant" has no legal meaning. It does not exist in the
law books. By using this term, he is creating his own personal laws,
and disregarding the entire body of international law that evolved over
the past two centuries. He is also disregarding the United States
Constitution.
The Bush administration declared that the president,
in his capacity as commander in chief, has determined that Guantanamo
detainees are not entitled to prisoner-of-war status under the Geneva
Conventions. With this statement, Bush violated the Geneva
Conventions and then refused to let American courts consider the
issue. Mr. Bush further decided that American citizens are not
subject to the new International Criminal Court, which has a mandate to punish genocide and war crimes.
Mr. Bush further declared that he can designate any
American citizen as an "enemy combatant." Based on this designation, he
can detain that American in prison indefinitely, without charges,
without trial, and without habeas corpus.9 Mr.
Bush’s lawyers said that Bush gets the last word, and will not submit
to any checks and balances from courts, Congress or the world. Bush
became the king of the world!
In his 2003 State of the Union address,
Mr. Bush said that more than 3,000 suspected terrorists have been
arrested. And "many others have met a different fate. Let’s put it this
way. They are no longer a problem for the United States." Does
this mean that Mr. Bush gets to kill at will whoever he wants whenever
he wants? Does some law – American or international - give him
this kind of power?
Habeas Corpus has been a part of Anglo-American law
for the past three centuries. Habeas corpus is a request to the court
to order a government official to bring the prisoner before the court
in order to justify the lawfulness of his detention. Prior to the
existence of habeas corpus, certain countries used to send their
prisoners off to remote islands called penal colonies, which were
beyond the reach of the law – just like Guantanamo. British
Parliament three centuries ago banned this activity by adopting the law
called Habeas Corpus. George Bush is abandoning a 300-year-old
tradition and reviving the now ancient system of penal colonies, which
means he is dragging us all back into the age of
barbarism. Declaring the non-applicability of habeas corpus to
Guantanamo prisoners is completely illegal. In Guantanamo, the
authorities are subjecting prisoners to cruel, inhuman, and degrading
treatment. It is against the Geneva Conventions and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
In the case filed by the Center for Constitutional Rights, the lower
federal courts ruled that Guantanamo prisoners have no right to a writ
of habeas corpus. The prisoners of Guantanamo, Iraq and
Afghanistan and renditioned prisoners are entitled to be treated in
accordance with the law – either criminal law or the Geneva Conventions
which apply to prisoners of war.
The Magna Carta
was signed in 1215, nearly 800 years ago. It gives every human being
the right to some kind of judicial process before being thrown into
prison. It says societies function based on laws and not the dictate of
kings. Prior to the Magna Carta, issues were decided by executive fiat,
i.e., the king decided on his own whim what would be done. The
Magna Carta was signed in order to end the primitive rule of dictates
of kings.10
There is no place on this earth that is
law-free. It means, there is no land that is beyond the
law. Whatever land a person walks on or is kept on, that person is
entitled to the rights guaranteed at least in international law – the Declaration of the Rights of Man, the Universal Declaration of Human Rights, the Geneva Conventions, and the International Covenant on Civil and Political Rights. Prisoners
at Guantanamo must be treated in accordance with criminal law or with
the Geneva Conventions. We cannot ignore both bodies of law. If we
do, then we have become lawless – a lawless nation.
The Third Geneva Convention of 1949 is an
international treaty created to protect prisoners of war from inhumane
treatment at the hands of their captors. The Geneva Conventions
comprise of four treaties created at the end of World War II,
specifically to reduce human suffering caused by war. The four
treaties cover the four categories of persons: (1) the military wounded
and sick in land conflicts; (2) the military wounded, sick and
shipwrecked in conflicts at sea; (3) military persons and civilians
accompanying the military; and (4) civilian non-combatants.11
The Geneva Conventions state that those captured in
war are to be called prisoners of war (POWs). If there is any ambiguity
as to status, then a 'competent tribunal’ is to be set up to ascertain
whether a person is a prisoner of war. If not, then he is be tried as a
civilian in a criminal civil court. The bottom line is, every human
being picked up in a war is protected by the Geneva Conventions, which
provide him certain inalienable rights, such as due process of law.
On January 25, 2002, then Counsel to the President
Alberto R. Gonzales sent a memo to Mr. Bush recommending that the
Geneva Conventions not be applied to the Taliban and al Qaeda.
According to Center for Constitutional Rights Director Michael Ratner,
this was the beginning of the end of the rules of law.12 According to Douglas A. Johnson, Executive Director of the Center for Victims of Torture
in Minneapolis, Minnesota, the memorandum has grievous errors, which
are not only legal errors regarding prohibition of torture, but also
grave moral and political errors that will seriously jeopardize the
reputation of our nation in the world. Johnson, in his testimony before
the Judicial Hearing on the Nomination of Alberto Gonzales to become
the Attorney General of the US,13
said that all the memos from Gonzales to Bush showed an utter disdain
for human rights and democracy, and a complete lack of recognition of
the physical and psychological damage of torture. Johnson
continued by saying that more than half a million survivors of torture
have taken refuge in the United States. Most of these refugees suffer
from post-traumatic stress disorder (PTSD) and major depression (DSM
IV). This is in addition to a host of other psychological symptoms that
transcend cultural and national boundaries in their
commonalities. The psychological trauma after torture generally
continues until the end of life. Torture victims have far higher
rates of depression and suicide than the general population. Even the
children and grandchildren of torture victims have higher rates of
mental depression and suicide. It means that the effects of torture are
devastating and continue even into descendants of the victim.14 Since
the circulation of Gonzales’ memo, hundreds or thousands of 'detainees’
have been tortured and undergone inhumane and degrading treatment at
the hands of the US Army, the CIA, the FBI, foreign intelligence
agents, as well as private mercenaries and contractors such as
Blackwater, Inc. Examples of the kinds of torture meted out by
these groups are reflected in the horrific, damning photos taken in Abu
Ghraib – photos that were dirty, degrading and sexually humiliating. At
present the Pentagon is refusing to turn over another 800 photos taken
in Abu Ghraib, because the images in these photos of rapes, sodomizing, etc.
will set the entire world on fire. Article 1.1 of the UN
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment reads as follows:
"For the purposes of this Convention, torture
means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions."15
According to Douglas Johnson, the correspondence
between Gonzales and Bush reveal that they are not concerned with
treatment of prisoners qualifying as "cruel, inhuman, or degrading
treatment or punishment." Both the Torture Convention and US law
prohibit torture as well as inhuman and degrading treatment. Johnson
said that the US is supposed to stand by Article 10 of the Covenant on
Civil and Political Rights, which says: "All persons deprived of their
liberty shall be treated with humanity and with respect for the
inherent dignity of the person."
The moral and political reasons that prohibit
torture are as follows: Torture violates three principles embedded in
the US Constitution. These principles are also supposedly embedded in
American minds and are considered to be part of American
values. They are:
1. "One is innocent until proven guilty." It
means that no one, no prisoner, should be tortured or harmed before
proven guilty. As Johnson says, torture before guilt is "anathema
to American values."16
2. "Punishment must fit the crime, but should never descend to barbarity."17 Therefore the Eighth Amendment to the US Constitution prohibits all forms of "cruel and unusual punishment."18
The Fifth Amendment gives everyone the privilege against
self-incrimination. The Fourth Amendment prohibits unlawful searches
and seizures.
3. The Fifth Amendment is the greatest protection against torture, because it protects the accused from self-incrimination.19
It protects the accused from self-incrimination. The purpose of this
amendment was to put the onus of proving guilt on the state. As Johnson
said in his appearance before the Judiciary Hearing, "freedom from
torture was one of the key struggles of the 19th century Enlightenment."20
In his further testimony, Johnson explained to the committee that there are eight lessons his Center has learned regarding the use of torture in the world:
1. "Torture does not yield reliable information." Torture in essence does not work. Torture only causes victims to confess to anything to stop the pain.
2. "Torture does not yield information quickly." People
are tortured a long time before they confess, before they agree to tell
complete lies. It is unnecessary and morally repugnant.
3. "Torture will not be used only against the guilty." According to the International Commission of the Red Cross, 70-90 percent of prisoners being held in Abu Ghraib are innocent!21
4. "Torture has a corrupting effect on the perpetrator." The
perpetrators of torture find various ways to justify to themselves that
their victims are sub-human, hence they – the torturers – are still
good, moral citizens and family persons.
5. "Torture has never been confined to narrow conditions." It is always used on
hundreds or thousands of people. Hence it is a war crime of huge proportions.
6. "Psychological torture is [the most] damaging." Victims
invariably report that they recover from the physical torture but never
recover from the psychological torture. The mental torture remains with
them for life, in the form of nightmares, lack of self-esteem and
mental depression. This parallels the victims of domestic violence –
women who may or may not have suffered physical abuse at the hands of
their husbands but who could never forget the psychological abuse and
torture meted out to them. It remains with them for life.
7. "Stress and duress techniques are [also] forms of torture."
The Israeli Supreme Court has declared these techniques as illegitimate
(although some sources indicate that stress and duress torture
continues in Israeli prisons.)
8. "We cannot use torture and still retain the moral high ground."22 If
the US engages in torture of prisoners, then the US becomes on a
parallel to other regimes known to use torture, such as Syria, Iran,
Iraq, Libya, Morocco, Uzbekistan, Chile and other countries. Torture is
used in third world countries primarily, not in first world countries
where there is somewhat more transparency and accountability. Clearly,
the US government is taking America back to the status of a brutish,
barbaric, third world country.
(Note: Statements in quotations are taken verbatim from Douglas Johnson’s testimony at the Hearing on the nomination of Alberto Gonzales to be the Attorney General.)
For the past two decades, the US was regarded as a
safe haven for torture victims. Today those same victims feel fear at
the new direction of the American government. They no longer feel safe.
They read in the newspapers and on the Internet what the US is doing in
Guantanamo, Abu Ghraib and Bagram. They may be reading also about
sites of rendition, which may be their own countries of birth. Johnson
mentions a recent human rights symposium in Ankara, Turkey, where a
number of human rights defenders told him that their governments now
tell them that they are only doing the same thing that the Americans
are doing.23
Torture in theory and in reality should be a line
that we never cross. It should be a line that no country crosses. But,
in the case of the US, it is particularly damaging to cross that line
and engage in torture for the simple reason that still today, in spite
of our crimes, many countries 'look up’ to us. Hence, the full scope of
American law and international law must be used to denounce torture
wherever it rears its ugly head. Perpetrators must be duly tried
and prosecuted – including American perpetrators. Until today,
this has not been done. Rather, torture has remained the policy in
all three locations – Guantanamo, Iraq and Afghanistan, as well as in
rendition countries.
The United States has signed numerous conventions
and treaties that forbid torture. They include the UN Charter, the UN
Universal Declaration of Human Rights, the UN Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, UN Standard Minimum Rules for the Treatment of Prisoners,
and the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. The Universal Declaration of
Human Rights states: "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment." The Geneva Convention
states: "Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction…" In
addition to the above laws, the US War Crimes Act says that US forces
will comply with (1) the Annex to the Hague Convention Respecting the Laws and Customs of War on Land and (2) the Geneva Convention Relative to the Treatment of Prisoners of War.24
American medical and health care personnel employed
by the military have tossed out their Hippocratic oaths and instead
chosen to aid and abet the torture of human beings, even using their knowledge to increase the torture. 25 Knowledge
of medical doctors aiding and abetting torture is common in
dictatorships such as Chile, Egypt, Turkey, Morocco, Libya and
Argentina during the "disappearances." But today, it is the United
States military medical personnel of all ranks who participate in the
torture of prisoners in Iraq, Guantanamo, Afghanistan, and countries of
rendition. The Bush regime has brought to an end the illusion that
the United States is the leader of the world, unless it be the leader
of war crimes. Furthermore, the Bush regime, through its heinous
crimes, has once and for all shattered the myth of white supremacy. The
Geneva Conventions states clearly: "Although [medical personnel] shall
be subject to the internal discipline of the camp…such personnel may
not be compelled to carry out any work other than that concerned with
their medical…duties." It refers to "the duties of physicians,
surgeons, dentists, nurses, and medical orderlies."26 The United Nations Principles of Medical Ethics Relevant to the Protection of Prisoners Against Torture
mentions "health personnel,’ 'particularly physicians,’ but including
also 'physicians’ assistants,’ 'paramedics,’ 'physical therapists and
nurse practitioners.’ Hence it is clear that all medical personnel
at all levels are to protect and safeguard the health of the prisoners.
As a direct result of the violation of this Article,
numerous groups have sprung up demanding the medical protection and
care of prisoners, including Physicians for Human Rights and Amnesty International’s Health Professionals Network.27 However,
it would be more fitting, more just, for the medical perpetrators and
participants of torture of prisoners to be tried for these war crimes
in the International Criminal Court in Rome. We must demand reforms
that entail strict monitoring of violations along with global
condemnation and prosecution of those countries perpetrating torture.
Until this happens, citizens of governments that perpetrate torture on
citizens of other countries today stand at far greater risk of
themselves being tortured, as a form of vigilante justice, by those
same countries, particularly when state leaders fail to unitedly
condemn, punish, or at least ostracize war criminals posing as leaders
of countries.
On October 17, Britain’s high court convened
to decide whether information gained by torture in other countries is
permitted in domestic British law. This is an appeal against a majority
decision by the Court of Appeal that entitled the British government to
rely on torture evidence in special terrorism cases.28 However,
numerous Conventions and Treaties comprising international law ban the
use of evidence gained through physical or psychological
torture. Hence, Britain as represented by her court members is
taking a deep step backwards in the arena of justice and human
rights. For this very reason, Marie Woolf, Raymond Whitaker and
Severin Carrell, in their article, "Judges liken terror laws to Nazi Germany," published in The Independent (UK) on October 16, 2005,29
tell us that a powerful group of British judges, lawyers and senior
politicians in Britain have warned the public that the present British
government is undermining fundamental freedoms that British citizens
have enjoyed and taken for granted for centuries, that furthermore
Britain is presently moving towards a police state, and that the
present suppressive political trends in UK are eerily similar to the
steps Adolf Hitler took to create his own police state in the 1930s and
1940s.30 Former
law lord Lord Ackner deplored the meddling of politicians into the
judiciary, saying that inalienable rights will disappear swiftly unless
there is a check on Tony Blair, who never ceases to attack the
judiciary and the freedoms enshrined in the British Human Rights Act.31 All
of this stripping of civil liberties is done in the name of stamping
out terrorism, catching terrorists, imprisoning new enemy
combatants. Human rights lawyer Lord Lester also decried the UK
government’s flouting of human rights law and meddling with the
courts. He said that if it continues, then Parliament will have to
start the process of creating a written constitution. Deputy High
Court judge Lord Carlile said that the US Patriot Act
allows a witness to a terrorist act to be put in prison for up to one
year. Home Affairs spokesman Mark Oaten said that Tony Blair is turning
Britain into an authoritarian state.32 The
UK government along with the US, Canadian German and Australian
governments are stripping the people of civil liberties all on the
pretext of terrorism. One wonders if this was the ultimate goal of
having certain terrorist acts take place - to serve the purpose of
extant political leaders consolidating their power to the extent of
declaring martial law whenever they please.
On October 17, the British high court decided that information obtained under torture was legitimate. But in fact, The Anti-Terrorism Crime and Security Act
passed in Britain in 2001 is anathema to the postulates of
international law, as is the act of using information obtained under
torture. The British government, like the US government, appears
to disdain the entire body of international law, starting with the
Magna Carta, created in the UK in 1215. Numerous organizations,
including The AIRE Center, REDRESS, Amnesty International, INTERIGHTS,
the Association for the Prevention of Torture, British Irish Rights
Watch, Human Rights Watch, The Committee on the Administration of
Justice, Doctors for Human Rights, The International Federation of
Human Rights, The Law Society of England and Wales, Liberty, the
Medical Foundation for the Care of Victims of Torture and the World
Organisation Against Torture, have formed a coalition to fight the
draconian new laws that strip away fundamental rights of prisoners,
torture victims and civil society by governments veering on a fast
course towards fascist dictatorship.33
-
Afghanistan
"The CIA’s secret interrogation center in Kabul,
Afghanistan, was called "the Pit" because of its terrible conditions.
Abdul Wali, who had fought the Soviets in Afghanistan and…had turned
himself in for questioning…died in the hands of a CIA contractor…Sayed
Nabi Siddiqui was taken prisoner after he attempted to report police
corruption. He too was battered, held naked, doused with cold water,
humiliated, and photographed by the Americans at various bases. At one
base he was crowded into a wire cage with twenty to thirty other
prisoners, with only a bucket as a communal toilet… Eighteen-year-old
Afghan citizen Jamal Naseer and his friends had been taken to a Special
Operations base where they were hung upside down and beaten with
cables, rubber hoses, and sticks. They were also immersed in cold
water, forced to lie in the snow, and given electrical shocks. Naseer,
severely bruised, died after complaining of abdominal pains. Two other
Afghan prisoners held with a Mr. Dilawar, similarly described their
treatment at the Bagram compound. One had his hands chained to the
ceiling for seven to eight days until they turned black. The other was
kept naked and hooded, his legs shackled so tightly that the
circulation was cut off and he could no longer walk. Mr. Dilawar,
twenty-two years old, died. It was later disclosed that his leg had
been "pulpified" by some thirty blows from his US interrogators."34
Jennifer K. Harbury
On January 18, 2002 Mr Bush made a decision that
captured prisoners belonging either to Al Qaeda or the Taliban were not
protected by the Geneva POW Convention. As background to this decision,
the following memoranda were circulated: The Yoo Delahunty Memorandum
of January 9, 200235
provided the analytical basis for a blanket rejection of the Third
Geneva Convention as applied to Al Qaeda and the Taliban. The Rumsfeld
Order of January 19, 200236
was circulated to all combat commanders and stated that Al Qaeda and
Taliban prisoners were not entitled to prisoner of war status as laid
down in the Geneva Conventions of 1949.37 The Bybee Memorandum of January 22, 2002,38
written by Jay Bybee, Office of Legal Counsel for Alberto Gonzales, is
similar to the Yoo/Delahunty Memo but provides further analysis of
international law. The Alberto Gonzales memo of January 25, 2002
states that captured members of the Taliban were not protected under
the Geneva POW Convention. Gonzales gives the following reasons
why the Taliban need not be included under the Geneva POW rules. (1)
Afghanistan was a failed state not recognized by the global community
of nations, and (2) the Taliban were not a government but a militant,
terrorist-like group.39 In response to the January 25th
memo of Gonzales, then Secretary of State Colin Powell brought forth
counter arguments, including (1) past adherence by the US to the Geneva
Conventions, (2) probable furious condemnation by allied nations, (3)
encouragement of potential enemies to find 'loopholes’ to not apply the
Geneva Conventions, and (4) an undermining of US military culture
"which emphasizes maintaining the highest standards of conduct in
combat."40
In response, Gonzales said that "even if the GPW is
not applicable, we can still bring war crimes charges against anyone
who mistreats US personnel." On February 7, 2002 Bush signed an
Order which validated the Gonzales and Yoo memos and validated the
order of Rumsfeld on January 19th, 2002. T
The war in Afghanistan lasted just one
month. Thousands of men were taken prisoner. What to do with them
all? We can’t kill them. We can’t let them go. We can’t try them
in an ordinary court system. What happened was that these
thousands of prisoners were treated on a completely ad hoc
basis. The rules were made up by US soldiers as they went
along. From the moment of capture, the prisoners were tortured.
Many arrived with broken fingers and other bones, and already pummeled
to a pulp. It was no holds barred for the US soldiers. A few of the
prisoners were called "high value terrorists" (HVT). Both the FBI and
the CIA wanted these special prisoners. The FBI claimed them.
According to Frontline’s "The Torture Question"
documentary, more than 600 of those prisoners were shackled, wore
blinding goggles, hooded and strapped down in metal containers and
flown to Guantanamo. " They were "packaged," with no chance of
going to the bathroom, and in addition "had the crap kicked out of them."41
The photos of Abu Ghraib were not the first tortures carried out by the US government. Two years earlier the Washington Post
reported on incidents of torture and death during interrogations in
Afghanistan. The UN Special Rapporteur on Torture kept a continual
watch, along with the International Committee of the Red Cross (ICRC),
which is mandated to interpret and monitor the Geneva Conventions. The
ICRC had already expressed deep concerns regarding US methods of
interrogation and their hiding prisoners from the view of ICRC.
Generally, when a government does not allow the ICRC to view detainees
in any country, it is because they have been tortured and the signs are
evident.42
In the State Department’s annual human rights review, they are quick to
preach to the world about human rights abuses going on in various
corners of the world. However, long before Abu Ghraib, it was becoming
public knowledge regarding abuses, torture and inhumane treatment being
systematically implemented in US-controlled prisons. All these
abuses carried out by the US government are against the UN Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
On January 9th, 2002 the Yoo/Delahunty Memo was written in four parts.43
The first part looks at the 18 USC Section 2441 the War Crimes Act, and
some of the treaties it implicates. The second part of the Memo
looks at whether members of Al Qaeda can claim protection under the
Geneva Conventions. The Memo determines that Al Qaeda members cannot.
The third part explores whether the Geneva Conventions apply to members
of the Taliban. Again, it concludes that the Conventions do not apply
because (1) "the Taliban was not a government and Afghanistan was not …
a functioning State," (2) "the President has the constitutional
authority to suspend our treaties with Afghanistan pending restoration
of a legitimate government," and (3) "it appears … that the Taliban
militia may have been … intertwined with Al Qaeda," therefore the same
decision that applies to Al Qaeda also applies to the Taliban. The
fourth part of the memo concludes that customary international law is
not binding on the US military or the President.
In fact, the Taliban was very much a functioning
government until the US pre-emptive invasion. They controlled the
majority of the land and the population. They created and enforced laws
and mandates. They carried out military operations and appointed people
to military posts. They received diplomatic recognition from several
countries. In fact, the US government had relations and negotiations
with the Taliban government on several occasions. Hence, the
statement in the Yoo/Delahunty Memo that the Taliban was not a
legitimate government is a false statement based on the
evidence. The statement in the Yoo/Delahunty Memo that Afghanistan
was not a functioning state is also a false statement based on the
evidence. It was a functioning government. Its prime defect was that it
did not care for the wishes of the US government. It refused to be
controlled by the US government. In its last year in power, it stopped
growing opium – something the US could not tolerate. The Taliban, for
religious reasons and because they saw it destroying so many lives,
wanted to eliminate the opium trade in Afghanistan. The Taliban
government also refused to allow the US to build a pipeline through its
country for oil from the Caspian Sea to the Gulf. For these two
reasons, the US needed regime change in Afghanistan, and hence invaded
– to build pipelines to bring oil from the Caspian Sea to the Gulf, to
make that oil available to US oil corporations, and to restore the
opium crop. Since the US occupation, the opium trade has been revived
and is now thriving. Today Afghanistan is the third largest exporter of
opium in the world. It is one of the main sources of revenue for the US Central Intelligence Agency.44
Regarding the status of prisoners who belong to the
Taliban or to Al Qaeda, the Third Geneva Convention (1949) applies.
Article 5 of that Convention says that "Should any doubt arise as to
whether persons, having committed a belligerent act and having fallen
into the hands of the enemy, belong to any of the categories enumerated
in Article 5, such persons shall enjoy the protection of the present
Convention until such time as their status has been determined by a
competent tribunal." Mr. Bush disagrees with this statement and bases
all his decisions regarding prisoners on the Yoo/Delahunty
Memo. Whether Bush considers the Taliban to have been a
functioning government or not is irrelevant. The individuals captured
are citizens of Afghanistan. The US was at war with Afghanistan. Hence
captured Afghani citizens are prisoners of war. Afghanistan was a
functioning state. However, Mr. Bush recognizes the marionette
government of Hamid Karzai, who was sworn into office on December 22,
2001.
IV. Guantanamo
"What is new about President Bush’s [Military
Order No. 1 issued on November 13, 2001] is that it radically erases
any legal status of the individual, thus producing a legally unnamable
and unclassifiable being. Not only do the Taliban captured in
Afghanistan not enjoy the status of POWs as defined by the Geneva
Convention, they do not even have the status of persons charged with a
crime according to American laws. Neither prisoners nor persons
accused, but simply "detainees," they are the object of a pure de facto
rule, of a detention that is indefinite not only in the temporal sense
but in its very nature as well, since it is entirely removed from the
law and from judicial oversight. The only thing to which it could
possibly be compared is the legal situation of the Jews in the Nazi
Lager [camps], who, along with their citizenship, had lost every legal
identity, but at least retained their identity as Jews. As Judith
Butler has effectively shown, in the detainee at Guantanamo, bare life
reaches its maximum indeterminacy."45
Giorgio Agamben in State of Exception
On arrival in Guantanamo, prisoners coming out of
the metal containers from the planes were put into dog cages,
constructed of chain link fences attached to concrete floors. The
smell, as described in the Frontline documentary, "The Torture
Question," was a rancid, filthy smell. "It’s raw human beings down
there."46 Apparently,
whatever happened in Iraq first happened in Guantanamo. Guantanamo
was the training ground, where experiments were conducted on prisoners
in laboratories (also called cages). All the sexual degradation,
the stripping of prisoners, shackling them to the floor naked, keeping
them there ten-twenty hours at a time, thus forcing them to defecate
and lie in their own defecation – Major General Jeffrey D. Miller
referred to all this as "facilitating" interrogation. He said it was to
"soften up" the prisoners and prepare them for interrogation. This
Major General Miller was sent to Iraq to "Gitmoize" Abu Ghraib. Of
course, all this softening up, all this 'facilitation’ is against the
Geneva Conventions and Convention Against Torture. Only because the
American government was forced by law to release a few prisoners from
Guantanamo has the whole story of horrendous abuses come out in the
open – like a Pandora’s box. The fact that the US government kept
prisoners in Guantanamo without court hearings, incommunicado, without
habeas corpus, and under conditions of torture already means that the
US government has committed war crimes. In both Guantanamo and Iraq
there are private contractors like CACI International47
that are engaged in torturing prisoners. Yet, international law applies
both to individual citizens as well as to nation states. It was
George H.W. Bush in 1990 who first decided arbitrarily that Guantanamo
was a law-free zone. He declared that the US Constitution did not apply
to Guantanamo.48
The New York-based Center for Constitutional Rights
first became alert on learning that so-called terrorists would be
shipped to and incarcerated in Guantanamo. They understood that
Bush had declared this as a law-free zone, not bound either by American
law or international law. They knew that those arrested would be
held without charges, incommunicado, be denied court hearings, and thus
would be there forever, under likely horrible conditions, including the
use of torture. The Center for Constitutional Rights stated that the
courts of America "will reaffirm the principle that we are a country of
laws where people cannot be imprisoned at the whim of the chief
executive."49 As
CCR Director Michael Ratner says, the prison complexes at Guantanamo
are "a symbol of the disdain with which the Bush administration has
brushed aside longstanding precepts of international law and civilized
conduct. It is indeed a national disgrace."50
Guantanamo has provided the US government a
geographical location in which they can hold prisoners and claim that
the prisoners are outside any legal or moral system because Guantanamo
does not constitute a legal part of the US.
Many prisoners at Gitmo have their heads shaved and
are kept in metal cages subject to the elements- often in stifling heat
of the sun. What is happening in Guantanamo has incurred the
outrage of the entire world. What is happening in Guantanamo is a
moral blasphemy and a blight on the United States that will take
decades to erase. Further, if Americans treat foreigners like animals
by stripping them, putting then in cages, chaining them face down to
the floor, causing them to lie in their own excrement,51
then Americans should certainly be prepared to get the same treatment
by other countries. Even without the heinous war in Iraq,
Guantanamo alone became a symbol for the entire Muslim world of the
cruel, evil nature of the United States. No Muslim would tolerate
the crimes they know take place in Guantanamo. What evolved later
in Abu Ghraib surpassed all bounds for Muslims. It is the reason
why the US will never win the war in Iraq or in any other country,
because most countries have something called national pride. The people
will not allow themselves to be so much degraded. They will not allow
themselves to be treated like dogs. If a foreign occupier treats their
fellow citizens worse than dogs, there is no way the people of Iraq or
Afghanistan or any other Muslim country will tolerate it. The US, by
its atrocious, disgraceful behavior, has hastened the entire Muslim
world to bear arms against them. If a foreign country came and
occupied our country and took thousands of us prisoners, shaved our
heads, stripped us, forced us to walk naked in front of the opposite
sex, forced us to perform sodomy on each other, would we not do the
same? Would we not give full support to any insurrection to get such
barbaric people out of our country??
How did Guantanamo get started under Mr.
Bush? In October 2001, the Northern Alliance "scooped up ten
thousand people." Directly after this, the Northern Alliance
together with various Afghan warlords picked up another 35,000 to
40,000 people. Nearly all were civilians. We can call it the crime
of the 21st century. Most were handed over to the US
military, who kept the prisoners in Bagram and Kandahar, Afghanistan.
This is where the first interrogations began – the interrogations
outlawed by the Geneva Conventions. Some prisoners were picked up
in countries far away from Afghanistan, such as in Bosnia, Zambia and
Gambia. In January 2002 the US military began to ship the
prisoners (literally ship them in big containers,52
in which hundreds suffocated to death – reminiscent of when slaves were
brought from Africa in the holds of ships where thousands died) to
their new and apparently final prison in Guantanamo. At this point
in time, The US was in a state of war with Afghanistan. Hence at least
the Afghans taken as prisoners, according to international law, should
have been considered as prisoners of war (POWs) and treated according
to the laws laid down in the Geneva Conventions. It is legal to
set up a POW camp during time of war. But it is illegal to set up
an interrogation camp anywhere in the world. If there is any
question as to whether a particular prisoner is a POW, then again by
law, a tribunal must be set up to determine his status.53 But
the present Bush administration refuses to conduct even this minimal
act of justice. If the tribunal decides the prisoner is not a POW
but rather a civilian, then the prisoner must be tried as such for any
crimes committed. Sometimes the said tribunal will ascertain that
the prisoner is only a civilian, that he is not a POW, and neither did
he commit any crime. Rather he was picked up by mistake. For this very
reason, it is critical to conduct the "competent tribunal" procedure.
But, under no circumstances can he be classified as neither POW nor
civilian and be left suspended in mid-air, or as it turns out left
shackled to the floor of a cage, never to see justice in his life. To
do this to any human being is a war crime. It defies international law.
It defies the US Constitution. And it defies the laws of God – it
defies moral laws. As per international law, every human being in
the world is entitled to due process. No human being is outside
the law.
Guantanamo Bay Naval Station was a US military base
comprising 45 square miles at Guantanamo Bay, Cuba. The imperialistic
United States had coveted a base in Latin America and particularly had
an eye on Cuba and Puerto Rico. In 1898 when Cuba was fighting for
independence from Spain, the US intervened in what became known as the
Spanish-American War, with the pretense of helping Cuba. However, one
year later the US had complete control over Cuba, Puerto Rico and the
Philippines. Cuba wrote its own Constitution in 1901 which, due to
American coercion, included the Platt Agreement. This Agreement gave
the US the right to intervene in Cuba under certain conditions. It also
gave Guantanamo to the US as a military base. The lease, in order
to be terminated, must have the consent of both parties. Fidel Castro
wanted to terminate the lease in 1959 itself at the end of the
revolution. But to this day, he is unable to do so unless the US
government gives its consent. The lease states that the 45 square
miles of military base are to be used as a coaling station. But in
fact, the base has been used only as a brutal prison complex, either
for refugees or now for terrorists, and the US considers Guantanamo as
bound by no laws in the world. This means that the US government
has broken the stipulations and regulations in the Treaty which should
be grounds for dissolution of the Treaty. According to the CCR,
Guantanamo is a territory of the United States and is therefore bound
by US federal law. This would give American courts authority to
investigate detentions and allegations of wrongdoing in
Guantanamo. In addition, when