Guantanamo and the Rejection of the Uniform Code of Military Justice and the Geneva Conventions

In early 2002, Americans heard for the first time about the hundreds of men being picked up on or near the battlefields of Afghanistan, and only much later, in late 2004, of many others who were rendered to or picked up by U.S. forces from places far from any battlefield - Bosnia, Zambia, and The Gambia - torn from their families, careers, and communities. All of these men were eventually transported to Guantánamo Bay, Cuba, a naval base operated exclusively by the U.S. since 1903, to a place called Camp X-ray.[i]

Petitions for Guantánamo prisoners were filed in the wake of the Supreme Court’s 2004 decision in Rasul v. Bush, which held that foreign nationals in U.S. military custody in Guantánamo were entitled to have the lawfulness of their detention reviewed in the U.S. federal courts.[ii] In November 2004, District Court Judge Kollar-Kotelly ruled that counsel could meet with their clients in Guantánamo.[iii] Since that time, attorneys from a wide range of practices, including private firms, universities, and NGOs, have obtained security clearances and traveled to Guantánamo to meet with their clients. During those meetings, habeas counsel learned not only of facts strongly suggesting that the vast majority of the detentions were unlawful, but also disturbing information about the conditions under which prisoners were confined and the treatment to which they were subjected. These attorneys have spoken with the men who have been called the “worst of the worst.”[iv] Yet, they are all now firmly are convinced that their clients are being held unlawfully and have been subject to treatment that amounts to torture. Indeed, the U.S. military has acknowledged that many of the men at Guantánamo do not belong there. In October, 2004, Brigadier General Martin Lucenti, then-deputy commander of the military task force that runs the detention center at Guantánamo, stated:  “[o]f the 550 [detainees] that we have, I would say most of them, the majority of them, will either be released or transferred to their own countries. . . .  Most of these guys weren’t fighting. They were running.”[v] The Government subsequently sought to downplay General Lucenti’s statement,[vi] but his comments have been echoed by an active duty interrogator at Guantánamo, who reportedly stated that “the United States is holding dozens of prisoners at the U.S. Navy Base at Guantánamo who have no meaningful connection to al-Qaida or the Taliban and is denying them access to legal representation. . . .  There are a large number of people at Guantánamo who shouldn’t be there.”[vii]

The Imprisonment of Innocent Men

The lack of accurate intelligence, the reliance on a policy of sweeping every person into a net of executive detention, and the use of torture techniques during interrogations, resulted in the problem identified by the military: the imprisonment of hundreds of men who are innocent. For nearly two years, Shafiq Rasul and Asif Iqbal, along with another friend from Tipton, Rhuhel Ahmed, consistently and vehemently denied any involvement in any terrorist activity. However, under extreme duress caused by hundreds of hours of interrogation, long periods of isolation, and physical and psychological abuse, Shafiq, Asif, and Rhuhel confessed to having been in a terrorist training camp in Afghanistan, and to have appeared in a videotape with Osama bin Laden in August 2000. Shafiq explained that he had been held in complete isolation for two long periods—many months--when an interrogator showed him the video of bin Laden, and he agreed that he was one of the people in it. "I could not bear another day of isolation, let alone the prospect of another year," he said.[viii] The British intelligence agency MI5 undertook an investigation to determine the veracity of the men’s Guantanamo confessions. It took the agency less than 24 hours to determine definitively that “the men had been in England when the video was shot, and during the time they were supposed to have been in Al Qaeda training camps.”[ix]
         In March 2002, the Associated Press reported that Afghan intelligence officers began offering rewards for the capture of Al Qaeda fights the day after they participated in a five-hour meeting with U.S. Special Forces.[x] That day, according to news reports and interviews with a local human rights leader, loudspeaker announcements from buildings and helicopters were made over the Afghan mountains promising “the big prize” to people who turned in Al Qaeda fighters to the military.[xi] One such leaflet stated:

You can receive millions of dollars . . .  This is enough to take care of your family, your village, your tribe for the rest of your life – pay for livestock and doctors and school books and housing for all your people.

Bounty rewards were publicized by radio spots and the circulation of posters and matchbooks with photographs of the hunted in remote villages in countries such as Iraq, Pakistan, and Indonesia.[xii] Documents provided to the Associated Press by the Government in June 2005 revealed testimony from dozens of detainees about bounties ranging from $3000 to $25,000 that were paid by tribal leaders to Pakistani and Afghan tribesmen who then turned the men in to the American military.[xiii] The State Department has confirmed the existence of the “U.S. Rewards for Justice” program which it says has paid out more than $60 million for information leading to the capture of suspected terrorists.[xiv] 

The Use of Torture and Other Abusive Measures during Interrogation

Both present and former prisoners have made consistent allegations of systematic prisoner abuse at the hands of U.S. military personnel in Guantánamo, allegations which have now been corroborated by public, unclassified sources, including government documents. Specifically, prisoners’ allegations of abuse correspond with descriptions of abuse recorded in government documents released through a Freedom of Information Act. Sergeant Eric Saar, a former Guantánamo military intelligence linguist, provides support for the allegations in his book Inside the Wire: A Military Intelligence Soldier’s Eyewitness Account of Life at Guantánamo,[xv] and corroboration can also be found in the account For God and Country:  Faith and Patriotism Under Fire by James Yee, a former Muslim chaplain at Guantánamo who was falsely accused of spying for Al Qaeda.[xvi] The Government has tried to dismiss prisoner accounts of mistreatment by claiming that they are hardened terrorists, trained to allege torture as part of their indoctrination by Al Qaeda, but these claims have been belied by the continually mounting evidence.[xvii] 
         Interrogation techniques approved for use at Guantanamo include isolation for up to 30 days, 28-hour interrogations, extreme and prolonged stress positions, sleep deprivation, sensory assaults, exposure to extreme temperatures, forced nudity, hooding, and the use of dogs.[xviii] At least 17 interrogation techniques authorized for use at Guantanamo went far beyond those permitted by the Army Interrogation Manual.[xix]  
         According to records released under the Freedom of Information Act, the Government’s treatment of the detainees crossed the line into cruel, inhuman, and degrading treatment and torture. FBI agents who participated in interrogations complained about the “torture techniques” and “extreme interrogation techniques” employed at Guantanamo.[xx] FBI agents reported, among other incidents: (1) a female interrogator grabbing the genitals of a detainee and bending his thumbs back; (2) a detainee gagged with his head wrapped with duct tape; (3) the use of dogs to intimidate detainees; (4) a detainee left in isolation for three months in a cell constantly flooded with bright light who afterward showed signs of “extreme psychological trauma”; (5) detainees left chained “hand and foot in a fetal position to the floor, with no chair, food, or water,” for periods of 24 hours or more, with the result that the detainees had “urinated or defecated on themselves”; (6) a detainee left in an unventilated interrogation room with no air conditioning with the temperature “probably well over 100 degrees” and the detainee “almost unconscious on the floor, with a pile of hair next to him” because “[h]e had apparently been literally pulling his own hair out throughout the night”; and (7) a detainee left in an interrogation room where “the temperature [was] unbearably hot” and “extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor.”[xxi] 
         Many in the military have voiced their strong opposition to the policy decisions that have resulted in alleged prisoner abuse. In the words of Major General Jack L. Rives, Deputy Judge Advocate General for the Air Force, “[T]he use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history.  We have taken the legal and moral ‘high-road’ in the conduct of our military operations regardless of how others may operate.”[xxii] 
         Denying the protections of the Constitution, the Uniform Code of Military Justice (“UCMJ”), the Geneva Conventions,[xxiii] the International Covenant for Civil and Political Rights (“ICCPR”),[xxiv] the United Nations Convention Against Torture (“CAT”), and the American Declaration of the Rights and Duties of Man,[xxv] to name several among the many other domestic and international obligations binding on the U.S. Government to persons apprehended in the “war on terror”:  1) is unlawful and places U.S. military personnel at risk of prosecution for war crimes such as improperly trying a person unlawfully denied prisoner-of-war status; 2) represents a radical departure from the standards that have guided U.S. military operations for decades and places U.S. service members and civilians detained by enemy forces at greater risk of mistreatment in future armed conflicts; and 3) sends a message to the world that the Geneva Conventions are not binding law, but rather merely policies that can be changed according to each successive government’s whim.  The idea that the fundamental human rights principles embodied in the Geneva Conventions can be cavalierly disregarded will have a profound impact on future armed conflicts and all people affected by them, including Americans.   

The CIA’s Extraordinary Rendition Program

Detainees who have allegedly refused to cooperate during interrogations have been transferred or “rendered” to the intelligence forces of the governments in Jordan, Egypt, Syria, Morocco, and an untold number of other countries. These transfers have been undertaken throughout the United State’s prosecution of its “war on terror” despite the fact that our own State Department has long documented the history of the intelligence agencies in these countries using torture techniques in the interrogation of prisoners.
         In March 2002, The Washington Post published an article detailing U.S. involvement in seizing terrorist suspects in third countries and shipping them with few, if any, legal proceedings to third countries, including Pakistan and Egypt.[xxvi] Transfers have also occurred directly from the United States. For example, in October 2002, in the face of strong diplomatic protests by the Canadian government, the U.S. government deported Maher Arar, a Canadian citizen of Syrian descent, to Syria.  Mr. Arar was arrested, detained and questioned by INS and FBI officials when transiting through John F. Kennedy Airport, New York, on his way back to Canada from Tunisia where he was visiting with his wife and her family. Mr. Arar was interrogated in New York and then deported to Syria despite the fact that he had left that country fifteen years previously and was traveling on his Canadian passport. Both U.S. Department of State Reports and reports of non-governmental human rights organizations, such as Amnesty International, noted at the time that the use of torture and other inhuman and degrading treatment in Syria was commonplace.[xxvii] 
         All persons detained by the United States, even those persons rendered by the U.S. to other countries, remain under the ultimate control of the United States. The Washington Post article quotes a senior U.S. official discussing interrogations of terrorist suspects rendered to Saudi Arabia as saying that the CIA are “still very much in control” and that they will often “feed questions to their investigators.”[xxviii] 
         As the details of the CIA’s Extraordinary Rendition program came to light during 2005 and 2006, government officials from then Attorney General Alberto Gonzales to Secretary of State Condolezza Rice sought to defend the practice first by declaring that the program’s purpose was not to send detainees “to countries where we believe or we know that they’re going to be tortured”[xxix] and second, by noting that the United States seeks diplomatic assurances that torture will not be used against the transferred detainee if the country receiving the individual has a long history of state-sponsored torture.[xxx] Although he acknowledged that the United States cannot control what other countries will do, it is what Attorney General Gonzales did not say that is of importance. He did not say that the United States takes any steps to monitor whether receiving countries comply with the assurances that they purportedly give to the United States government. Even more disturbingly, what Gonzales did not say is that the United States sent dossiers with suggested questions along with the detainees it transfers and then waits for the foreign intelligence interrogators to extract the information from their prisoners by whatever method they find most expedient.[xxxi]
         Our government is now running one of the largest CIA covert action programs in the country’s history. Known publicly only as “GST,” an abbreviation of a classified code name, this CIA initiative was authorized by President Bush within six days of the September 11 attacks.[xxxii]  According to intelligence officials interviewed by Washington Post reporters, the presidential order empowered the CIA and other intelligence agencies to undertake a covert action within the meaning of the National Security Act of 1947 and create the infrastructure for a counterterrorism initiative with that would literally span the globe.[xxxiii] 
         The GST initiative is comprised of many different secret programs, including the Extraordinary Rendition program allowing the CIA to seize terrorism suspects from foreign countries (sometimes with help from foreign intelligence agencies) and transport them to other countries for indefinite preventive detention or interrogation, to create and operate a web of secret prisons abroad, to use interrogation techniques that violate domestic and international law, and to run an aircraft fleet to accomplish these ends.[xxxiv] According to published reports, the top secret presidential order even empowered the CIA to hunt down and kill designated persons around the world. This authorization, like the rest of the covert order, is justified by the Bush administration as acting in self-defense and as tacitly endorsed by Congress in the Authorization for the Use of Military Force passed on September 14, 2001.        
         Over the past seven years, U.S. military detention and interrogation policies have been marked by egregious violations of detainees’ fundamental human rights and this country’s binding humanitarian law obligations. During this time, these violations have included the use of enhanced interrogation techniques, such as exposure to frigid temperatures, waterboarding, and head-slapping.^[xxxv] 
         Further, to the extent they have been employed by or at the direction of U.S. officials, the use of “enforced disappearances”, (the practice of seizing or abducting a person suspected of participating in terrorist activities, detaining him in secret, and refusing to disclose his location to the public or any domestic or international oversight agency) and the operation of the CIA’s “extraordinary rendition program”, give rise to significant questions as to compliance with U.S. domestic law, customary international law, human rights treaties, and the laws of war. These laws are intended to protect all individuals from arbitrary detention, the denial of the fundamental basics of due process, torture (either direct or resulting from indefinite detention without charge or trial), cruel, inhuman, and degrading treatment, and transfer to another country where the detainee will face a substantial risk of torture or cruel, inhuman, and degrading treatment. To the extent that any practices by U.S. officials or at their direction violate these rights, they must be stopped immediately.  Though little information has been publicly disclosed, human rights groups have gathered evidence showing that the United States bears responsibility for the continued enforced disappearance of at least 39 individuals who are still missing as of the date of this report.[xxxvi]  
         Our allies increasingly decline to cooperate in our counterterrorism and counterinsurgency operations because of public sentiment about U.S. detainee treatment policies and practices and the risk of taint from being associated with them. These concerns are exacerbated by reports of secret detentions by U.S. government officials, in particular the CIA. Moreover, the secret detention policies created fertile conditions for the use of questionable interrogation techniques, impair the country’s ability to influence the human rights practices of other nations due to the loss of credibility, and endanger the future safety of our own troops. Interrogation experts agree that the use of abusive interrogation techniques results in the provision of false and misleading information,[xxxvii] the loss of critical intelligence, and that they ultimately constitute a waste of valuable and frequently scarce resources.

II.    Proposed Solutions

A.     Guiding Principles

1.      Complete, consistent, and transparent compliance with U.S. domestic law and international human rights and humanitarian law norms is wholly consistent with our fundamental democratic values and national security objectives.  There is no clash between these sets of principles; they work together.  By rejecting the use of techniques that provide fodder for our enemies and deter cooperation from our allies, we strengthen our strategic position in the short term, and lay the foundation for the country’s renewed commitment to maintaining human dignity and a reinvigorated role in the vanguard of those nations dedicated to ensuring world-wide acceptance of these principles.  

2.      The U.S. government should teach and demand strict compliance with the absolute ban on torture and other cruel, inhuman, and degrading treatment and enforce one unyielding standard of humane treatment for all detainees in U.S. custody.  The standard should incorporate the “Golden Rule”, which has long been embraced by the U.S. military: that we will not authorize or use any methods of interrogation that we would find unacceptable if used against American civilians or soldiers. 

B.     Proposed Solutions

1.      Enforce Prohibitions against Torture and Other Cruel, Inhuman and Degrading Treatment  

a.       The Executive branch 

                                                                     i.            Denounce torture and reaffirm our commitment to the absolute prohibition of torture in peacetime and in war.

                                                                   ii.            Denounce cruel, inhuman, and degrading treatment and reaffirm our commitment to the absolute prohibition of such treatment in peacetime and in war.

                                                                  iii.            Issue an Executive Order establishing a set of national standards for interrogation to be used by all Defense Department, intelligence, and law enforcement agencies.  An Executive Order would be highly compelling evidence that the new President and his Administration has unequivocally repudiated the recent unlawful policies on detainee treatment.

                                                                 iv.            Revoke all Executive Orders, policy statements, memoranda, and any other documents or verbal orders authorizing the use of certain techniques on detainees that may be considered cruel, inhuman or degrading treatment, and reaffirm the country’s commitment to compliance with the Geneva Conventions, the ICCPR, and the Convention Against Torture.

                                                                   v.            Review and reform intelligence gathering practices such that no person in U.S. government custody or control is held without charge solely for intelligence-gathering and/or preventive detention purposes.

                                                                 vi.            Support congressional efforts to prevent torture and cruel, inhuman, and degrading treatment.

                                                                vii.            Amend Appendix M of the U.S. Army Field Manual to eliminate the use of isolation, sleep deprivation, and sensory deprivation as interrogation or coercive techniques.  Make similar amendments to field manuals of all other branches of the armed forces

b.      The Legislative branch

                                                                     i.            Pass legislation delineating a single set of standards governing the interrogation of people held in detention by any U.S. department or agency and providing for severe penalties for violations of these standards. Such legislation might include such items as: requiring the video recording of all civilian intelligence, military, and law enforcement interrogations relating to terrorism investigations and providing for periodic review of such recordings by the Office of the Inspector General of the Justice Department.

                                                                   ii.            Repeal the Military Commissions Act of 2006 which allows introduction of evidence obtained by coercive interrogation techniques and limits the accountability of individuals responsible for using illegal techniques during interrogation.

2.      Enforce Prohibitions against Transfers to Torture and End the Rendition Program

a.                   The Executive branch

                                                                     i.            Denounce and repudiate all Executive branch policies, orders, memoranda, and statements authorizing or condoning the use of inter-state transfers to facilitate the interrogation of people seized by any U.S. agency, held at the request of any U.S. agency, and/or detained by any U.S. agency.

                                                                   ii.            Revoke all prior Executive branch actions authorizing the CIA’s “extraordinary rendition program”, and any other agency’s use of enforced disappearances or secret detentions.

                                                                  iii.            Announce the country’s commitment to working with the International Committee of the Red Cross (ICRC) to ensure that every detainee held around the world is listed properly as an internee, is permitted to meet with ICRC representatives, to send correspondence to family members through ICRC channels, and to receive humanitarian aid.

                                                                 iv.            Issue an Executive Order prohibiting the acceptance of “diplomatic assurances” or similar bilateral or multi-lateral agreements to justify renditions or any other form of involuntary transfer of individuals to countries where there is a risk of torture, other ill-treatment, or detention without charge or trial.

                                                                   v.            Call upon Congress to commence a prompt, thorough, and independent investigation into all allegations involving the torture or abuse of individuals in U.S. custody or effective control during the “war on terror” regardless of where the misconduct has occurred.

                                                                 vi.            Issue an Executive Order requiring the State Department to assist all detainees eligible for release who cannot be returned to their countries of origin or habitual residence because they would be at risk of grave human rights abuses, with their efforts to resettle in third countries. Ensure that any transfers to third countries are made only with the informed consent of the individuals concerned, and that detainees being transferred are not subjected to any pressures or restrictions that may compel them to choose to resettle in any particular third country.

                                                                vii.            Commit the U.S. to providing prompt and adequate reparations, including restitution, rehabilitation, and fair and adequate financial compensation to released “war on terror” detainees for the period spent unlawfully detained and other constitutional and human rights violations that they may have suffered.

b.      The Legislative branch

                                                                     i.            Pass legislation outlawing the use of rendition for any and all purposes. Such a law should: 

a)      prohibit the return or transfer of people to places where they are at risk of torture, ill-treatment or detention without charge or trial;

b)      ensure that anyone held in U.S. custody in any part of the world can exercise the right to legal representation and to a fair and transparent legal process;

c)      require the disclosure of the location and status of all detention centers in operation from October 1, 2001 to the present, the identities and whereabouts of all detainees held in secret facilities and their legal status, and permit the ICRC to have full and regular access to all persons detained by the U.S.;

d)      immediately cease the practices of incommunicado and secret detention wherever it is being used;

e)      authorize the holding of detainees solely in officially and publicly recognized places of detention with access to family, legal counsel, and the courts;

f)        release all detainees held in U.S. custody at undisclosed locations unless they are to be charged with internationally cognizable criminal or military offenses and brought to trial promptly and fairly in accordance with relevant constitutional, military, and/or international standards;

g)      prohibit the acceptance of “diplomatic assurances” or similar bilateral or multilateral agreements to justify renditions or any other form of involuntary transfer of individuals to countries where there is a risk of torture, other ill-treatment, or detention without charge or trial;

h)      ensure that the U.S. does not render or otherwise transfer to the custody of another state anyone suspected or accused of terrorist activities or national security offenses or other crimes unless the transfer is carried out under judicial supervision and in full observance of domestic and/or international due process requirements;

i)        ensure that anyone subject to transfer has the right to challenge its legality before an independent tribunal, access to an independent lawyer, and an effective right of appeal;

j)        ensure that the U.S. does not receive into custody anyone suspected or accused of national security offenses or terrorist activities unless the transfer is carried out under judicial supervision and in full observance of domestic and/or international due process requirements;

k)      ensure that the personal details of each detainee are promptly supplied to the family and lawyer of the detainee and the ICRC;

l)        ensure that all detainees have prompt access to legal counsel and to family members, and that counsel and family members are kept informed of the detainee’s whereabouts;

m)    ensure that detainees who are not nationals of the detaining country are provided with access to diplomatic or other representatives of their country of nationality or former habitual residence; and

n) ensure that airports and airspace are not used to support and facilitate rendition flights.

                                                                   ii.            Pass legislation creating an independent commission and authorize it to commence a prompt, thorough, and independent investigation into all allegations that the U.S. hosts or has hosted secret detention facilities, has tortured or abused individuals in U.S. custody or effective control, regardless of where the misconduct has occurred, and make public the results of such investigations.  Such a law should authorize the independent commission to:

a)      operate completely independently from any agency that is the focus of or implicated in any way in the abuse allegations;

b)      have subpoena power and the authority to command the taking of sworn statements;

c)      have adequate resources and staff to be able to conduct a far-reaching investigation into events of such great public concern;

d)      have the authority to investigate any person in the military and civilian command structure;

e)      have the authority to examine the relationships among military forces, the military police, and military intelligence units, and between and among military personnel and the personnel of agencies outside the Defense Department; and

f)        have the power to recommend corrective action including the prosecution of individuals who should be held accountable for the abuses committed.

                                                                  iii.            Create an independent oversight body to investigate complaints of torture and abuse and monitor the conditions and treatment of detainees being held in all U.S. jails, prisons, and detention centers.

                                                                 iv.            Adopt legislation that creates an effective legal scheme and enforcement agency to hold all individuals, including government officials, members of the armed forces, intelligence personnel, police, prison guards, medical personnel, and private government contractors who authorized, condoned, or committed torture or cruel, inhuman or degrading treatment or punishment accountable for their actions.

                                                                   v.            Adopt legislation creating a compensation scheme to ensure that the victims of the U.S. Government’s unlawful conduct and their families receive restitution, compensation, and rehabilitation services.

3.      End Enforced Disappearances and Arbitrary Detention, and Abolish Secret Prisons and Hidden CIA Detentions

a.       The Executive branch

                                                                     i.            Repudiate and revoke any and all orders authorizing or providing legal justification for secret detentions.

                                                                   ii.            Issue an Executive Order banning the use of CIA-run secret detention centers and any other agency or department operations that enable the concealment of detentions.

                                                                  iii.            Direct the heads of the CIA, the Defense Department, the Defense Intelligence Agency, and any other agency or department presently or previously involved in secret detentions to account for every single individual who has been detained by each respective agency regardless of the length of the detention, and to publicly release all detainees’ names, the duration and locations of their detention in U.S. custody or in constructive U.S. custody, the asserted bases for their detention, and the dates and circumstances of their releases, transfers, or deaths.

                                                                 iv.            Issue an Executive Order requiring the Defense Department to provide the names of all persons in U.S. custody or in constructive U.S. custody in all detention facilities around the world to the ICRC and ensure that the Committee has unfettered access to all such prisoners.

                                                                   v.            Direct all Defense Department, intelligence, and law enforcement agencies to provide the names and locations of all U.S. detention facilities, whether under direct U.S. supervision or constructive U.S. supervision.

                                                                 vi.            Direct the heads of all Defense Department, intelligence, and law enforcement agencies to publicly announce the names and locations of all U.S. detention facilities, whether under direct U.S. supervision or constructive U.S. supervision;

                                                                vii.            Direct the heads of all Defense Department, intelligence, and law enforcement agencies to ensure that records are kept for every person held in U.S. custody or constructive custody documenting the place, time, and the circumstances of the seizure or arrest, and whether access to their home consulate has been afforded, the location and conditions of confinement, any legal process that has been afforded, and their medical status;

                                                              viii.            Direct the heads of all Defense Department, intelligence, and law enforcement agencies to ensure that all detainees held in U.S. custody or in constructive U.S. custody in all detention facilities around the world have regular and ongoing contact with family, counsel, and international inspection agencies;

                                                                 ix.            Ensure that all detainees in U.S. custody or in constructive U.S. custody in all detention facilities around the world have the right of access to counsel, meaningful judicial review of the legality of their detention and, if their detention is deemed unlawful, the right to seek an order of release;

                                                                   x.            Direct the heads of all Defense Department, intelligence, and law enforcement agencies to ensure that all Defense Department, intelligence, and law enforcement agency personnel involved in the seizure, arrest, or custody of persons are trained to enforce the above policies.^[xxxviii]

b.      The Legislative branch 

                                                         i.            Sign and ratify the Optional Protocol to the Convention against Torture,[xxxix]and the ICCPR Optional Protocal.

                                                       ii.            Pass implementing legislation to ensure that the Disappearances Convention and the Optional Protocol to the Convention against Torture create rights that are enforceable by individuals in U.S. courts.

                                                      iii.            Hold hearings in the appropriate House and Senate committees to commence an investigation into the unlawful practices used during the Bush Administration, including, among others: enforced disappearances, arbitrary detention, the use of secret prisons, and secret CIA detentions

III.             Allies*

Bill of Rights Defense Committee (BORDC)
                        Chip Pitts, President
                        chip.pitts (at) att.net

Common Cause
                        Sarah Dufendach, Vice President for Legislative Affairs
                        202-736-5709
                        www.commoncause.org

Council on American-Islamic Relations (CAIR)
                        Corey Saylor, National Legislative Director
                        csaylor (at) cair.com
                        202-384-8857 (c)
                        202-488-8787 (w)

Defending Dissent Foundation
                        Sue Udry, Director
                        Sue.udry (at) defendingdissent.org
                        202-549-4225
                        www.defendingdissent.org

Essential Information
                        John Richard or Robert Weissman
                        202-387-8034

            Government Accountability Project
                        Jesselyn Radack, Homeland Security Director
                        JesselynR (at) whistleblower.org
                        202-408-0034 (ext. 107)

International Justice Network
                        www.IJNetwork.org
                        Tina Monshipour Foster, Executive Director, 
                        tina.foster (at) IJNetwork.org 
                        917-442-9580

Liberty Coalition
                        Michael D. Ostrolenk, Co-Founder/National Director
                        www.libertycoalition.net
                        mostrolenk (at) libertycoalition.net
                        301-717-0599

National Association of Criminal Defense Lawyers (NACDL)
                        Michael W. Price
                        michael (at) nacdl.org
                        202-872-8600 (ext. 258)

National Institute of Military Justice (NIMJ)
                        Michelle Lindo McCluer, Director
                        202-895-4534
                        mmccluer (at) wcl.american.edu

National Litigation Project of the Lowenstein International Human Rights Clinic, Yale Law School
            Hope Metcalf
            hope.metcalf (at) yale.edu

Ramzi Kassem 
            ramzi.kassem (at) yale.edu
            203-432-4800

                Physicians for Human Rights
                       Sara B. Greenberg, JD, MALD                                 
                               Advocacy Associate                                
                               sgreenberg(at)phrusa.org
                       202-728-5335

OpenTheGovernment.org
                        Patrice McDermott
                        pmcdermott (at) openthegovernment.org
                        202-332-6736

            South Asian Americans Leading Together
                        Priya Murthy
                        priya (at) saalt.org
                        301-270-1855

Stanford Law School - Mills International Human Rights Clinic
                        Barbara J. Olshansky, Leah Kaplan Visiting Professor and Clinic Director
                        Kathleen Kelly, Clinical Teaching Fellow
                        bj.olshansky (at) gmail.com 
                        650-736-2312

U.S. Bill of  Rights Foundation
                        Dane vonBreichenruchardt, President
                        usbor (at) aol.com
                        202-546-7079

*          These groups and individuals support the general principles expressed in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposal, but they do agree that the proposals reflect the general principles that should govern policy in this area.  Please contact the individuals and organizations listed in this section for more information.

IV.              Counter-Arguments and Rebuttal

A.     Isn’t torture sometimes necessary under certain conditions in order to obtain crucial information regarding terrorist activities, such as in the case of a suspected terrorist with knowledge about a “ticking time bomb”?

         Interrogation experts agree that the use of coercive and abusive interrogation techniques results in provision of false and misleading information.[xl]  The overwhelming evidence has shown that  the use of interrogation techniques amounting to torture or cruel, inhuman or degrading treatment does not lead to better intelligence. In fact, to the contrary, the use of torture can compel detainees to offer information they think their interrogators want to hear in order to get the abuse to cease even if such information is false. Such was true in the case of Ibn al-Shaykh al-Libi, who told U.S. interrogators under the threat of torture that Saddam Hussein was linked to Al Qaeda.  This information, which was used in part to make the case for the invasion of Iraq, was false.  As Mr. Al Libi later stated: “They were killing me, I had to tell them something.”
         Furthermore, while the “ticking time bomb” scenario is frequently invoked as the quintessential example of the circumstances under which torture should be permitted (i.e. to obtain information regarding an imminent attack in order to save many lives), there is no empirical evidence that anything close to such a scenario ever occurs. 
         Finally, the use of torture and cruel, inhuman, and degrading treatment in the “war on terror” has engendered hostility toward the United States by many groups and states around the world. By rejecting the use of techniques that fan the fires of hatred and deter cooperation from our allies, we lay the foundation for the country’s renewed commitment to maintaining human dignity and its assumption of a reinvigorated role among the nations dedicated to ensuring world-wide acceptance of these principles.

B.     Why should the U.S. be forced to obey international law?

         Besides the moral obligation that the U.S. has to obey international laws and treaties that it has signed and ratified, it is crucial for political and practical reasons that the country do so.  First, not only has the U.S. abided by the provisions of the Geneva Conventions in virtually every single war since the U.S. signed the conventions over a century ago. Second, many of the obligations of the Geneva Conventions and other international treaties are codified in our domestic laws.  
         Additionally, political and practical reasons make it necessary for the U.S. to follow international norms for the treatment of detainees. Our allies are increasingly declining to cooperate in counterterrorism and counterinsurgency operations because of public sentiment about U.S. detainee treatment policies and practices and the risk of taint from being associated with them. Our national security is compromised by the lack of such cooperation and support.

C.     Why should detainees seized and detained in the “war on terror” be afforded the same due process rights as U.S. citizens?

         We are insisting only that these detainees receive the full rights owed to them under the Due Process Clause (and other protections to which the U.S. is bound), with the understanding that due process may not afford them the same rights as citizens given the nature of their offending conduct, the circumstances of their seizure, their citizenship, or their combatant status. Under the current regime, detainees are held for years without charge or trial and without access to counsel or any neutral tribunal to review the legality of their detention. Such a system is inconsistent with this country’s core democratic values.

 V.                 Recommended Documents for Further Information:

a.       Amnesty International, Cruel and Inhuman: Conditions of Isolation for Detainees at Guantanamo Bay, April 2, 2007, available at www.amnesty.org/en/library/asset/AMR51/051/2007/en/dom-AMR510512007en.html

b.      Declaration of Principles for a Presidential Executive Order on Prisoner Treatment, Torture and Cruelty, Campaign to Ban Torture website, http://www.campaigntobantorture.org/index.php?option=com_content&task=view&id=14&Itemid=43

c.       Center for National Security Studies and The Brennan Center recommendations, available at http://judiciary.senate.gov/pdf/08-0o7-16Kate_Martin_%20Testimony.pdf

d.      Sarah Mendelson, Opt Back In to the International System Part I: Counterterrorism, Center for Strategic and International Studies 3 (2007). available at,  http:/www.csis.org/media/csis/pubs/071001_mendelson_counterterrorism.pdf

e.       NYU School of Law Center for Human Rights and Global Justice, On the Record: U.S. Disclosures on Rendition, Secret Detention and Coercive Interrogation (2008)

f.        Center for Strategic and International Studies, Five Years After 9/11: An Assessment of America’s War on Terror (2006) (Julianne Smith and Thomas Sanderson, Ed.), available at http:/www.csis.org/media/csis/pubs/five_years_after_9-11smallsize.pdf

g.        Human Rights News, UN: ‘Disappearances’ Treaty a Major Advance, Countries Should Push for Treaty’s Worldwide Adoption and Ratification (2005), available at http://hrw.org/english/docs/2005/09/26/global11785.htm

h.       Testimony of Tom Malinowski, Washington Advocacy Director, Human Rights Watch, before the Senate Foreign Relations Committee on the CIA Secret Detention, Rendition, and Interrogation Program, July 26, 2007, available at http://www.senate.gov/~foreign/testimony/2007/MalinowskiTestimony070726.pdf

i.         International Committee of the Red Cross, Concerning the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishments (2006), available at http://www.icrc.org/web/eng/siteeng0.nsf/html/united-nations-statement-171006

j.        Paul Pillar in Dana Priest, Officials Relieved Secret is Shared, Wash. Post. Sept. 7, 2006, at A17, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/09/06/AR2006090602055_pf.html

k.      Human Rights Watch, Locked Up Alone: Detention Conditions and Mental Health at Guantanamo Bay,  June 2008, available at: http://hrw.org/english/docs/2008/06/04/usint19024.htm

l.         Human Rights Watch, Double Jeopardy: CIA Renditions to Jordan, April 2008, available at http://www.hrw.org/reports/2008/jordan0408/jordan0408web.pdf.

m.     Human Rights Watch, Ghost Prisoner: Two Years in Secret CIA Detention, Feb. 2007, available at http://hrw.org/reports/2007/us0207/us0207web.pdf.

n.       Human Rights Watch, Why Am I Still Here?  The  2007 Renditions and the Fate of Those Still Missing,  October 2008, available at: http://hrw.org/reports/2008/eastafrica1008/

o.        Fighting Terrorism Fairly and Effectively: Recommendations for President-Elect Barack Obama http://hrw.org/reports/2008/us1108/

p.      Center for Constitutional Rights, Ending Arbitrary Detention, Torture and Extraordinary Rendition, available at http://www.ccrjustice.org/100Days

q.      Report on FBI Interrogations Omits Lindh Case of Torture, Op-Ed, Phil. Inquirer, June 2, 2008, at A15, available at http://www.philly.com/inquirer/opinion/20080602_Report_on_FBI_interrogations_omits_the_Lindh_case_of_torture.html

r.        The Al-Marri Decision: A Victory for One Man, and for a Principle, But One With Limited or Nonexistent Political Consequence, FINDLAW (June 18, 2007), available at http://writ.news.findlaw.com/commentary/20070618_radack.html

s.       Complaint, Doe v. Rumsfeld, 1:08-cv-01902-CKK (D.D.C. 2008)

t.        The Government’s Opportunistic Use of the “Enemy Combatant” Label: How This Category Is Being Used as a Prosecution Tactic, Cnn.com (Oct. 15, 2004) available at http://www.cnn.com/2004/LAW/10/15/radack.enemy.combatant/index.html

u.        United States Citizens Detained as “Enemy Combatants”: The Right to Counsel as a Matter of Ethics, 12 Wm. & Mary Bill Rts. J. 221 (2003), available at http://2009transition.org/liberty-security/administrator/index2.php?option=com_docman§ion=documents&task=download&bid=5

v.       Catherine Powell, Human Rights at Home:  A Domestic Blueprint for the Next Administration (October 2008), available at http://www.acslaw.org/files/C%20Powell%20Blueprint.pdf

w.     Deborah N. Pearlstein, National Intelligence and the Rule of Law (2008), available at http://www.acslaw.org/files/National-Intelligence-Rule-Law.pdf

x.       Devon Chaffee, Rehabilitating the U.S. Ban on Torture:  A Call for Transparent Treatment Policy, available at http://www.acslaw.org/files/Chaffee%20FINAL.pdf