Hospitals & Asylums
Close Guantánamo HA-11-1-08
By Tony Sanders
January
11th 2008 is the sixth anniversary of the first arrival of prisoners at Guantánamo Bay. Guantánamo
Bay has tarnished America’s image and diminished our ideals. It is a symbol of
torture, abuse, and injustice. Its closure is long overdue. On January 11 the ACLU is calling on people
of conscience everywhere to wear orange to symbolize their sadness and disgust with
this national shame. To organize
protests on January 11 the ACLU prepared a Toolkit. The initial successes of the federal courts
to hear detainees challenge the legality of their detention that led to the
release of over 200 prisoners was tarnished by the Military Commissions Act of October 17, 2006 that is unconstitutional
after section 5. Previously the ACLU organized the
Day of Action to Restore Law and Justice on June 26, 2007 that focused on the closure
of Guantanamo Bay and the unconstitutionality of the Military Commissions Act. The Commission on Human Rights and
Committee Against Torture Reported on the Situation of Detainees at Guantanamo
Bay on February 15 and May 6 2006 respectively. The difficulty closing this disgraceful symbol of torture
highlights the challenge faced by a nation that must close 1,000 jails to
achieve a semblance of legality.
Four thousand Americans
traveled from across the nation to Capitol Hill to demand that Congress restore
due process rights, and the rule of law as enshrined in the Constitution for
the Day of Action to Restore Law and Justice on June 26, 2007. Nearly twice the
twenty five hundred expected. Over
eighty organizations, led by the American Civil Liberties Union, Amnesty
International USA, the Leadership Conference on Civil Rights, and the National
Religious Campaign Against Torture, came together to organize a rally and lobby
visits to Congress on the annual International Day in Support of
Victims of Torture that is commemorated on 26 June for the eradication of
torture and the effective functioning of the 1984 Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered
into force on 26 June 1987. In addition to the rally, attendees at the Day of Action to
Restore Law & Justice delivered over 250,000 petition signatures to
Washington lawmakers, urging them to:
1. Restore habeas corpus and
due process.
2. Pass the Restoring the Constitution Act of 2007.
3. End torture and abuse in secret prisons.
4. Stop extraordinary rendition: secretly kidnapping people and sending them to
countries that torture.
5. Close the detention center at Guantánamo Bay and give those held currently
access to justice.
6. Investigate wrongdoing and ensure those who broke the law are held
accountable.
7. Return to the rule of law.
A cheerful man in a blue button down
shirt and magenta tie was talking with a woman at the media sign in table. I began writing. The man whom I thought had some hidden sorrow underneath his
cheerful demeanor introduced himself to me, “Hi, I’m Anthony Romero.” I shook his hand and responded, “I’m Anthony
Sanders”, before he continued on his way without breaking stride.
Walter Sullivan, a retired Catholic
Bishop from Virginia opened the speakers with a prayer at around 11 am. “There
are many people here with a common desire for the nation to end torture and
stop denying habeas corpus. O God you
created this world so intricately that scientists have taken millennium to
understand it. We meet here with tears
in our eyes because people are being denied ancient habeas corpus rights. O God we want a world where everyone is
treated with compassion, even our enemies, with dignity and justice”.
Anthony D. Romero introduced Carolyn
Fredericks, ACLU legislative director.
She said, “It is a fabulous day.
Thanks for coming. Lobbying is
more effective when thousands of people are assembled. Senator Leahy is a friend of the
Constitution, he is fighting to restore habeas corpus protections. We have removed this check on the legal
system, it is wrong and unconstitutional.”
Senator Patrick J. Leahy (D-Vt)
Chairman of the Judiciary Committee took the podium and said, “I am proud to be
an American and I look forward to the day when we will uphold the Constitution
again. The rule of law has been taken
from us. Let us restore it. Congress made a mistake last year with the
Military Commissions Act. We must
restore habeas corpus and close Guantanamo.
Today is a day of action to restore law and justice. We cannot live in fear. We did not protect the Japanese from
internment in WWII and created a stain on our history. Habeas corpus let’s us go to court to
contest our charges. The Military
Commissions Act denies this right to foreigners accused of being enemy
combatants. This is un-American. Restore America to America”.
Anthony Romero announced, “We have
250,000 petitions addressed to the House and Senate. We have lived through dark times these past six years. Looking at this crowd we cannot help but
feel that the pendulum is going to swing back the other way. We have people from every state of the
Union. Habeas corpus must be restored,
it is illegal and immoral to hold people without charge. Guantanamo must be closed and special
renditions to countries likely to torture need to stop. We joined together because we cannot let
fear override our rights”.
Senator Tom Harkin (D-Iowa) said,
“Thanks for being here. I am the leader
of the bill to close Guantanamo. We
don’t need Patriot Acts, we need patriots to stand up to the White House, to
tell them no, we won’t torture. My bill
will settle the legal status of Guantanamo detainees. Years ago, as a legislative assistant, I played a role closing a
similar detention center on an island outside of Vietnam where Vietnamese were
tortured without the protection of habeas corpus or the Geneva
Conventions. In both cases detainees
were deprived of their rights and were not tried as Prisoners of War to deny
them the protection of the Geneva Conventions.
This is not upholding the values we hold other nations to. The solution is to the tear down that
prison.”
Representative Jerrold Nadler
(D-NY-8th) of the
House Judiciary Subcommittee on the Constitution, Civil Rights and Civil
Liberties stated, “ It is not a pleasure to restore what we always had. Let’s restore liberty. We pioneered liberty under law. We always had flaws. In most of our wars we trampled on civil
liberties. During the War on Terror we
have abolished habeas corpus. The
president can designate you an enemy combatant and jail you forever. No English speaking executive has claimed
such power since the Magna Carta was signed 800 years ago, whereby the even the
King does not have the power to hold people without charge. One of the dastardly actions justifying
revolution in the Declaration of Independence was the deprivation of the right
to a jury trial. George II is worse
because we have no recourse to justice.
There is nothing more important.
Nobody can hold people without due process. We must restore habeas corpus and kick out the ignoramuses”.
Larry
Cox of Amnesty USA said, “Thank you.
Amnesty has worked for forty years to protect people from arbitrary
detention and torture. The past six
years have been a slump. We will never
accept a war on terror that has become a war on human rights. We demand Congress fix the Military
Commissions Act. We need a US that is
free. The US flag has been flown at
Gitmo and Abu Ghraib. We want it
back. We want a nation that aspires to
honor the pledge of liberty and justice for all”.
Deavid
Kean, Chair of the American Conservative Union spoke, “I am here today because
as a conservative I feel our nation is the greatest and I want our children to
say the same. As citizens we need
realistic methods to protect ourselves.
Our right must survive. No right
is more important than being free from arbitrary detention. We must remind our leaders what it is they
are fighting to defend”.
Representative
Dennis Kucinich (D-OH-10th) said, “In the long constitutional
history of our country we are at a moment when we are called upon to defend the
letter of the constitution. The
document has been under assault, which is why I introduced articles of
impeachment. Our criminal justice
system has been trampled and we must restore habeas corpus. We recognize that to save our constitution
we must challenge this administration”.
Senator
Chris Dodd (D-Conn) said, “You are patriots.
There is no more patriotic act than to defend the constitution. The constitution is there to defend us. Habeas corpus, Geneva Conventions and ban on
torture need to be restored. America
must get back on its feet again”.
The
speaker of the Religious Campaign Against Torture that was founded in 2006
quoted, “De’Toqueville said, ‘America is great because America is good. If America ceases to be good it will cease
to be great’. The religious community
has decided that torture is a moral issue.
Governments are not behaving well when habeas corpus is denied, when
they send people to nations where they face torture. If we want our great nation we must work to ensure a good
one. Respect, dignity and fairness are
important”.
In
conclusion Reverend Lennux Yearwood spoke on behalf of the Hip Hop Caucus. He said, “If you want to restore habeas
corpus make some noise. I came here
because I’m looking for something that got lost. I’m looking for habeas.
We are in a state of emergency.
To overcome the vicious forces we must come together as human beings
fighting for justice. The reason that
the hop hop community is here is because if we don’t stand up there will be no
22nd century. I am happy to
see blacks, whites and Asians stand up for habeas. Our parents had Jim Crowe.
We are fighting something more insidious that I call Jim Crowe Jr. Esq.
We’re not going to forget it. Stop
torture now, restore habeas corpus so that we can say, like Martin Luther King
Jr. ‘ free at last, free at last, thank God I am free at last’”.
This
trip was much more peaceful than the Freedom Riders who rode interstate buses
into the segregated south to test the decision in Boynton v. Virginia (1960)
364 US. The first Freedom
Ride left Washington DC on May 4, 1961, and was scheduled to arrive in New
Orleans on May 17, riders were however arrested for trespassing, unlawful
assembly, violating state and local Jim Crow laws, etc, many were severely
beaten by mobs, and they never made it.
Although more peaceful the spirit of this Day of Action was however the
same. People rode free buses to
Washington DC to encourage Congress to restore the rule of law, habeas corpus
and the constitution. Although the mob
violence is not so bad the government has backslid from discrimination and
segregation to outright slavery.
After
the speeches ended at noon people organized by state to lobby Congress. Led by a green shirt guide, people from Ohio
first went to the Hart Senate Building to visit Senator Voinovich in his glass
walled office. The line out the door
took more than half an hour to clear security.
One girl was treated for heat stroke inside, near the door. As the result of the long lines the
legislative assistant who had scheduled a moment to meet with us had to go to a
hearing on immigration and another had to be found. After fifteen minutes Matt Ortman met with us at a table and
heard our pleas for Congress to pass the Restore Habeas Corpus Act and
Restoring the Constitution Act.
We
then walked through the basement to the Russell Senate Building to speak with
freshman Senator Sherrod Brown.
Freshman Senators do not get such nice offices and he had to share his
small lobby with a half dozen other freshman Senators. A legislative assistant, Caroline Wells, led
us to an open space in the hallway to hear our petition for the sponsorship of
the restoration laws. We were then
directed to visit our local Congress people Rep. Chabot had however scheduled a
visit at 5 pm and my bus left at 5:30 pm so I decided to let a friend who drove
himself to the rally represent our interests.
The
bills supported by this Day of Action are Restoring the Constitution Act of
2007 S. 576
and HR 1415
and the Habeas Corpus Restoration Act of 2007 S.185, H.R.267, H.R.1189, H.R. 2543 and H.R.1416. All of these bills are trying to repeal the denial of the
privilege of habeas corpus to people alleged to be enemy combatants as the
result of the signing of the Military Commissions Act of 2006, S. 3930, on October 17, by the
President. This bill was immediately
denounced by human rights organizations.
When I read it I found that it needed to be repealed from section 5 on
because the amendments depriving detainees of the writ of habeas corpus were an
unconstitutional, cruel and unusual rebellion against the decision of the US
Supreme Court in Rasul
v. Bush No.
03-334 (2004) that found detainees at
Guantanamo did indeed have a right to challenge the legality of their detention
in federal court resulting in the release of more than two hundred prisoners.
The Military Commissions Act (S.
3930) of 17 October 2006 was opposed by 162 House Democrats and 32 Senate Democrats. Instead of increasing the trial of
unlawful combatants the Act diminished the capacity of the Administration and
flagrantly disrespects the Geneva Conventions and fails to exert martial law
under the Uniform Code of Military Justice as it applies to lawful combatants.
The penalty of death needs to be repealed from §948d(d). The
fair trial provisions are otherwise fair…
(1) that the accused must be presumed to be
innocent until his guilt is established by legal and competent evidence beyond
a reasonable doubt;
(2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;
(3) that, if there is reasonable doubt as to
the degree of guilt, the finding must be in a lower degree as to which there is
no reasonable doubt; and
(4) that the burden of proof to establish the
guilt of the accused beyond a reasonable doubt is upon the United States.
No person shall be convicted without 2/3 vote of at least 9 members of Commission present except in cases of the death penalty when 12 are required.
Convictions and sentences may
be appealed to the convening authority – the Secretary of Defense, who has the
authority to approve,
disapprove, commute, or suspend the sentence in whole or in part but may not
place the defendant in double jeopardy or cause them to suffer a more severe
sentence. The Secretary of Defense
shall establish a Court of Military Commission Review which shall be composed
of one or more panels, and each such panel shall be composed of not less than
three appellate military judges. For the purpose of reviewing military
commission decisions under this chapter, the court may sit in panels or as a
whole in accordance with rules prescribed by the Secretary and the matters of
law brought by the accused.
The United States Court of Appeals for the
District of Columbia Circuit shall have exclusive jurisdiction to determine the
validity of a final judgment rendered by a military commission. The jurisdiction of the Court of Appeals on
an appeal shall be limited to the consideration of whether the final decision
was consistent with the standards and procedures specified in this chapter; and
to the extent applicable, the Constitution and the laws of the United
States. The Supreme Court may review by
writ of certiorari the final judgment of the Court of Appeals pursuant to
section 1257 of title 28.
The Secretary of Defense is authorized to
carry out a sentence imposed by a military commission under this chapter in
accordance with such procedures as the Secretary may
prescribe.
If the sentence of a military commission under this chapter extends to
death, that part of the sentence providing for death may not be executed until
approved by the President. In such a
case, the President may commute, remit, or suspend the sentence, or any part
thereof, as he sees fit.
The most offensive protocols are found in
Section 5 on page 32 that claims No person may invoke the Geneva Conventions or
any protocols thereto in any habeas corpus or other civil action or proceeding
to which the United States, or a current or former officer, employee, member of
the Armed Forces, or other agent of the United States is a party as a source of
rights in any court of the United States or its States or territories. Common Article 3 is simply not sufficient to
make peace with all the problems of war.
Section
7 is the most unconstitutional and makes provisions so that No court, justice,
or judge shall have jurisdiction to hear or consider an application for a writ
of habeas corpus filed by or on behalf of an alien detained by the United
States who has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.
The
Military Commissions Act is acceptable with the exception of the death penalty
that is sufficiently rectified with procedure to prevent its indiscriminate use
until Section 5 on page 32. The act
must be repealed from Section 5 to the end.
These sections do not conform to codification of the rest of the law nor
to the constitution of the United States that grants to the Courts in article
III section 2 jurisdiction in all cases regarding the Constitution and treaties
to which the USA is party. Dismissing
several hundred cases from the federal courts is not the way to achieve
justice. Now the trial of these
detainees is totally reliant upon the establishment of Military Commissions by
leaders who are otherwise busy. The
repeal of section 5 to the end is needed to make this act effective.
The
American Civil Liberties Union (ACLU)
expressed outrage and called the new law one of the worst civil liberties
measures ever enacted in American history.
With his signature, President Bush enacts a law that is both
unconstitutional and un-American. This president will be remembered as the one
who undercut the hallmark of habeas in the name of the war on terror. Nothing
separates America more from our enemies than our commitment to fairness and the
rule of law, but the bill signed today is an historic break because it turns
Guantánamo Bay and other U.S. facilities into legal no-man's-lands. The president can now - with the approval of
Congress - indefinitely hold people without charge, take away protections
against horrific abuse, put people on trial based on hearsay evidence,
authorize trials that can sentence people to death based on testimony literally
beaten out of witnesses, and slam shut the courthouse door for habeas
petitions. Nothing could be further from the American values we all hold in our
hearts than the Military Commissions Act.
The UN News Center reported that the MCA violates the international obligations of
the United States under human rights laws in several areas, including the right
to challenge detention and to see exculpatory evidence. A number of provisions of the MCA appear to
contradict the universal and fundamental principles of fair trial standards and
due process enshrined in Common Article 3 of the Geneva Conventions. One of the most serious aspects of this
legislation is the power of the President to declare anyone, including US
citizens, without charge as an ‘unlawful enemy combatant’ - a term unknown in
international humanitarian law - resulting in these detainees being subject to
the jurisdiction of a military commission composed of commissioned military
officers. Further, in manifest
contradiction with article 9, paragraph 4 of the International Covenant on
Civil and Political Rights, the MCA denies non US citizens (including legal
permanent residents) in US custody the right to challenge the legality of their
detention by filing a writ of habeas corpus, with retroactive effect. In September five UN human rights
rapporteurs rejected US denials that people were tortured at the Guantánamo
detention centre and reiterated calls that it be closed down. The MCA makes it out that the President is
breeching his treaty promise to close the Guantanamo Bay Detention center and
other PoW camps.
The Military Commissions Act is unconstitutional under Hamdan v. Rumsfeld No. 05-184 of 29 June 2006 that specifically decided not to hold military commissions. In Rasul v. Bush No. 03-334 (2004) the Supreme Court held that detainees have a right to sue in the District Court to challenge the legality of their detention as enemy combatants and the law has served to permit civilian lawyers access to records and the opportunity to represent the detainees resulting in the release of nearly 200. In Hamdi v. Rumsfield No. 03-6696.(2004) the Court ensured that detainees alleged of being enemy combatants are swiftly tried and repatriated to their home countries with their records upon cessation of hostilities in conformity with Art. 118 of the Third Geneva Convention of 1949 relating to the treatment of Prisoners of War, and this obviously requires reinforcement by the Citizenship and Immigration Service. For the US to comply with the agreement with the UN and American people to close the Guantanamo Bay facility they will need to repeal Section 5 and on of the MCA and should put in a provision closing that facility.
The Commission on Human Rights and Committee Against Torture Report on the Situation of Detainees at Guantanamo Bay of 15 February 2006 and Committee Against Torture Consideration of Reports Submitted by State Parties under Article 19 of the Convention of 18 May 2006 were successful in getting the US President to cooperate with the closure of the Guantanamo Bay Naval Base and the release and repatriation of all 450 remaining Guantanamo Detainees safely to their home countries. US detainees in Afghanistan and Iraq likewise need to be repatriated to the competent national authority
The Commission on Human Rights and Committee Against Torture Report on the Situation of Detainees at Guantanamo Bay of 15 February 2006 is the result of a joint study conducted by the Chairperson of the Working Group on Arbitrary Detention, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on freedom of religion or belief and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (the right to the highest attainable standard of health or the right to health). Since January 2002, the five mandate holders have been following the situation of detainees held at the United States Naval Base at Guantánamo Bay.
According to the information provided by the United States Government as of 21 October 2005, approximately 520 detainees were held in Guantánamo Bay. From the establishment of the detention centre in January 2002 until 26 September 2005, 264 persons were transferred from Guantánamo, of whom 68 were transferred to the custody of other Governments, including those of Pakistan, the Russian Federation, Morocco, the United Kingdom, France and Saudi Arabia. As of 21 October 2005, President Bush had designated 17 detainees eligible for trial by a military commission. Of those, the United States has since transferred three to their country of origin, where they have been released. As of the end of December 2005, a total of nine detainees had been referred to a military commission. The military Muslim cleric was removed from his position at Guantánamo Bay and was later arrested on suspicion of espionage and held in solitary confinement for 76 days.
The legal regime imposed on detainees at Guantánamo is regulated by the Military Order on the Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism of 13 November 2001. The fundamental proposition of the United States Government with regard to the deprivation of liberty of persons held at Guantánamo Bay is that “the law of war allows the United States – and any other country engaged in combat – to hold enemy combatants without charges or access to counsel for the duration of hostilities. The Human Rights Council shares the understanding that any person having committed a belligerent act in the context of an international armed conflict and having fallen into the hands of one of the parties to the conflict (in this case, the United States) can be held for the duration of hostilities, as long as the detention serves the purpose of preventing combatants from continuing to take up arms. In the context of armed conflicts covered by international humanitarian law, this rule constitutes the lex specialis justifying deprivation of liberty which would otherwise, under human rights law as enshrined by article 9 of ICCPR, constitute a violation of the right to personal liberty.
The indefinite detention of prisoners of war and civilian internees for purposes of continued interrogation is inconsistent with the provisions of the Geneva Conventions. Information obtained from reliable sources confirm, however, that the objective of the ongoing detention is not primarily to prevent combatants from taking up arms against the United States again, but to obtain information and gather intelligence on the Al-Qaeda network. Many of the detainees held at Guantánamo Bay were captured in places where there was – at the time of their arrest – no armed conflict involving the United States. This does not of course mean that none of the persons held at Guantánamo Bay should have been deprived of their liberty. Indeed, international obligations regarding the struggle against terrorism might make the apprehension and detention of some of these persons a duty for all States. Such deprivation of liberty is, however, governed by human rights law, and specifically articles 9 and 14 of ICCPR. This includes the right to challenge the legality of detention before a court in proceedings affording fundamental due process rights, such as guarantees of independence and impartiality, the right to be informed of the reasons for arrest, the right to be informed about the evidence underlying these reasons, the right to assistance by counsel and the right to a trial within a reasonable time or to release. Any person deprived of his or her liberty must enjoy continued and effective access to habeas corpus proceedings, and any limitations to this right should be viewed with utmost concern.
Rasul v. Bush No. 03-334 (2004) held that United States courts have the jurisdiction to consider challenges to the legality of the detention of foreign nationals detained at the Guantánamo Bay Naval Base. On 7 July 2004 the government created the Combatant Status Review Tribunal (CSRT), a body composed of three noncommissioned officers, to examine the legality of detentions. According to information received from the Government, all persons currently held at Guantánamo Bay had their status reviewed by the CSRT. On 11 May 2004, the US government established Administrative Review Boards (ARBs) to provide an annual review of the detention of each detainee. These institutions do not satisfy the requirement in article 9 (3) of ICCPR that “[a]nyone … detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”: the requirement in article 9 (4) of ICCPR that “[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”. Indeed, four years after the establishment of the detention facility, none of the inmates has been tried and the proceedings of only nine persons detained at Guantánamo Bay are close to the trial stage.
Terrorism suspects should be detained in accordance with criminal procedure that respects the safeguards enshrined in relevant international law. Accordingly, the United States Government should either expeditiously bring all Guantánamo Bay detainees to trial, in compliance with articles 9(3) and 14 of ICCPR, or release them without further delay. Consideration should also be given to trying suspected terrorists before a competent international tribunal.
1. The United States Government should close the Guantánamo Bay detention facilities without further delay. Until the closure, and possible transfer of detainees to pre-trial detention facilities on United States territory, the Government should refrain from any practice amounting to torture or cruel, inhuman or degrading treatment or punishment, discrimination on the basis of religion, and violations of the rights to health and freedom of religion. In particular, all special interrogation techniques authorized by the Department of Defense should immediately be revoked.
2. The United States Government should refrain from expelling, returning, extraditing or rendering Guantánamo Bay detainees to States where there are substantial grounds for believing they would be in danger of being tortured.
3. The United States Government should ensure that every detainee has the right to make a complaint regarding his treatment and to have it dealt with promptly and, if requested, confidentially. If necessary, complaints may be lodged on behalf of the detainee or by his legal representative or family.
4. The United States Government should ensure that all allegations of torture or cruel, inhuman or degrading treatment or punishment are thoroughly investigated by
an independent authority, and that all persons found to have perpetrated, ordered,
tolerated or condoned such practices, up to the highest level of military and political
command, are brought to justice.
5. The United States Government should ensure that all victims of torture or cruel, inhuman or degrading treatment or punishment are provided with fair and adequate compensation, in accordance with article 14 of the Convention against Torture, including the means for as full a rehabilitation as possible.
The Committee Against Torture Consideration of Reports Submitted by State Parties under Article 19 of the Convention of 18 May 2006 notes the receipt of the US’s second report in 2005 although it was due in 2001. The Committee welcomed the statement that all United States’ officials, including its contractors, are prohibited from engaging in torture at all times and in all places, and are prohibited from engaging in cruel, inhuman or degrading treatment or punishment. The United States stated that it does not transfer persons to countries where it believes it is “more likely than not” that they will be tortured. The Committee notes signing of the,
1. Detainee Treatment Act on 30 December 2005 that is not to be interpreted as a
derogation by the President from the absolute prohibition of torture.
2. The Prison Rape Elimination Act of 2003, which addresses sexual assault of persons
in the custody of correctional agencies, with the purpose, inter alia, of establishing a
“zero-tolerance
standard” for rape in detention facilities in the State party;
3.
National Detention Standards in 2000, set minimum standards for detention
facilities holding Department of Homeland Security detainees, including
asylum-seekers.
Notwithstanding the statement by the State party that “every act of torture within the meaning of the Convention is illegal under existing federal and/or state law”, no cases were initiated under the extraterritorial criminal torture statute. The US has finally brought their torture statute within the meaning of the International Convention. The US should ensure that acts of psychological torture, prohibited by the Convention, are not limited to “prolonged mental harm”. The US should investigate, prosecute and punish perpetrators under the federal extraterritorial criminal torture statute. The US is under mistaken impression that the Convention is not applicable in times and in the context of armed conflict. The US should recognize and ensure that the Convention applies at all times, whether in peace, war or armed conflict.
The Committee notes that the US does not always register its detainees and should register all persons it detains in any territory under its jurisdiction, as one measure to prevent acts of torture. Registration should contain the identity of the detainee, the date, time and place of the detention, the identity of the authority that detained the person, the ground for the detention, the date and time of admission to the detention facility and the state of health of the detainee upon admission and any changes thereto, the time and place of interrogations, with the names of all interrogators present, as well as the date and time of release or transfer to another detention facility. Allegations that the State party has established secret detention facilities, which are not accessible to the International Committee of the Red Cross are deeply concerning. The US must ensure that no one is detained in any secret detention facility under its de facto effective control. The US should adopt all necessary measures to prohibit and prevent enforced disappearance in any territory under its jurisdiction, and prosecute and punish perpetrators.
The US should cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured, in order to comply with its obligations under the Convention.
