The United States government has been widely condemned for violating basic human rights in the fight against terrorism. Since 2001, the Bush administration has authorized interrogation techniques widely considered torture, including by its own Department of State in its annual human rights reports. It has held an unknown number of detainees as “ghosts” beyond the reach of all monitors, including the International Committee of the Red Cross. And it has become the only government in the world to seek legislative sanction to treat detainees inhumanely.
- Guantanamo Bay and Military Commissions
- Torture Policy
- Detainee Abuse
- Al-Marri and Padilla
- Material Witnesses
- The Death Penalty and Other Cruel Sentences
- International Treaty Obligations
Guantanamo Bay and Military Commissions
Approximately 505 men remain in long-term indefinite detention at Guantanamo Bay, Cuba. The United States continues to assert authority to hold “enemy combatants” without charges and without regard to the laws of armed conflict as long as the war on terror continues.
In March 2005, the Pentagon completed a one-time administrative review of each detainee at Guantanamo to determine whether he should be considered an “enemy combatant.” The proceedings were stacked against the detainees: they were presumed to be enemy combatants, were denied the assistance of counsel, were not able to bring in outside witnesses, and were not able to see all of the evidence against them. All but thirty-eight of the detainees were deemed enemy combatants (most of the thirty-eight are believed to be Uighurs from China). The Pentagon is also conducting annual reviews to determine if an enemy combatant is no longer a threat or useful for intelligence-gathering purposes and can be released. Neither U.S. domestic law nor international laws of war authorize such grounds for indefinite detention.
A total of nine detainees have been charged with crimes, including a Canadian citizen who was fifteen years old at the time of his arrest in Afghanistan. These detainees would be tried by military commissions, but commission proceedings are halted until the U.S. Supreme Court rules on their legality. The Court’s ruling is not expected until mid 2006.
Responding to a consistent critique of the commissions by human rights groups and others, the U.S. Senate passed legislation—not yet approved by the full Congress at this writing—that would permit civilian appellate court review of military commission rulings. Following a 2004 U.S. Supreme Court ruling that the Guantanamo detainees must have a meaningful opportunity to contest their detention before a neutral decision-maker, habeas corpus cases for some seventy-four detainees have been filed in U.S. courts. In a frontal attack on the detainees’ use of habeas proceedings, the Senate passed legislation in November 2005 to curtail their access to the courts to challenge indefinite detention or torture. The full Congress was expected to approve the legislation by year’s end.
At least 131 detainees began a hunger strike in August 2005 to protest their indefinite confinement, pledging to starve themselves to death unless they were brought to trial or released. Two dozen have been kept alive by force-feeding.
In October, the United States responded to a three-year-old request by a team of independent United Nations experts to visit Guantanamo, but denied them the ability to meet privately with the detainees. The experts refused the invitation, because having access to detainees is a requirement for all their prison visits.
The Bush administration asserts that it does not use or condone torture. Its definition of torture, however, remains unclear. At the end of 2004, the Department of Justice (DOJ) issued a memorandum repudiating earlier policies that had permitted a broad range of brutal interrogation tactics by, among other legal sleights-of-hand, redefining torture to exclude all techniques that did not inflict pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.” The Department has not, however, ever revealed what its definition currently is.
Authorized Central Intelligence Agency (CIA) interrogation techniques apparently include a notorious method the administration has renamed “waterboarding” (when practiced by Latin American dictatorships, it was called “the submarine”)—forcefully submerging a suspect’s head in water or otherwise making him believe he is about to drown. The director of the CIA has stated that waterboarding is a “professional interrogation technique.”
As noted above, the Bush Administration asserts that U.S. treaty obligations to refrain from cruel, inhuman and degrading (CID) treatment do not apply to the conduct of nonmilitary U.S. personnel interrogating non-U.S. citizens outside of the United States.
Led by Vice President Cheney, the Bush administration strongly resisted efforts by Congress to strengthen the legal ban against torture. A measure proposed by Republican Senator John McCain to prohibit torture and other ill-treatment of detainees anywhere by the U.S. military and the CIA passed 90-9 in the Senate but at this writing had not been approved by the full Congress at least in part because of administration objections.
Reports of abuse of detainees in U.S. custody in Afghanistan, Iraq, Guantanamo Bay, and at secret detention facilities continue to mount. Since 2002, over three hundred specific cases of serious detainee abuse have surfaced. At least eighty-six detainees have died in U.S. custody since 2002, and the U.S. government has admitted that at least twenty-seven of these cases were criminal homicides.
The abuse did not end after Abu Ghraib became public; U.S. military personnel have revealed new cases of abuse in 2004 at forward-operating bases in Afghanistan and Iraq, where prisoners are kept temporarily. Detainees at the Guantanamo Bay detention center, scores of whom now have access to legal counsel, have made new allegations of prisoner mistreatment.
The United States continues to hold incommunicado at least twenty-five—and possibly as many as one hundred—“ghost detainees” at secret detention facilities around the world, without any rights and without access to legal counsel or to the International Committee of the Red Cross. New evidence emerged in 2005 suggesting that some “ghost” facilities may have operated at least through 2004 in Eastern Europe and in several Middle Eastern countries.
Additional evidence also emerged in 2005 about cases of “extraordinary rendition,” in which the United States sent detainees to third countries for interrogation, including countries with records of torture, such as Morocco, Jordan, and Egypt. Several current and former prisoners in Guantanamo claim they were taken to Jordan or Morocco for interrogation, and tortured, before being sent to Guantanamo.
Despite the unequivocal international prohibition on return of people to situations where there is a risk of torture, the Bush administration openly claims the right to send counterterrorism detainees to countries where there is such a risk so long as it obtains guarantees—so-called “diplomatic assurances”—from the authorities in the country concerned that the detainee in question will not be tortured. A growing number of cases—such as that of Mahar Arar, a Canadian-Syrian citizen who was transiting through John F. Kennedy airport on his way home to Canada when he was detained by U.S. authorities, sent to Syria via Jordan, and allegedly tortured—suggest that such diplomatic assurances are routinely violated.
The Bush administration has done little to address government policies or actions that may have led to abuse of detainees, continues to deny that widespread abuse has occurred, and resists calls for detention policy reforms.
Despite a number of investigations, the United States has not robustly prosecuted cases of alleged detainee abuse or homicide. In the majority of cases involving alleged abuse, military commanders have taken potential prosecutions before administrative hearing boards for non-judicial punishments, such as “reprimands,” “admonishments,” rank reductions, and discharges, instead of bringing them for criminal prosecutions before courts martial.
At this writing, the military had prosecuted only about forty cases of abuse or prisoner mistreatment. Although a few tough sentences have been handed down, most prosecutions have resulted in relatively light sentences—confinement for less than one year. Virtually all of those prosecuted have been lower-ranking military personnel, not officers. With civilians implicated in prisoner abuse, the record is even worse: despite extensive evidence that CIA personnel and civilian contractors were involved in several homicides, the DOJ has not prosecuted a single agent in a federal court for abuse, except for one CIA contractor, who was charged with assault in connection with a homicide committed in Afghanistan in 2003.
Al-Marri and Padilla
For most of 2005, the United States continued to detain in a U.S. navy brig two men whom President Bush has designated “enemy combatants” because of alleged links to al Qaeda. Both men were arrested in the United States and have been held for over three years, mostly in solitary confinement.
On November 22, one of the men, Jose Padilla, who is a U.S. citizen, was indicted on criminal charges. The Bush administration decision to bring Padilla into the civilian criminal justice system means that the Supreme Court likely will no longer hear Padilla’s challenge to an appellate court ruling that the president may subject American citizens to indefinite military detention without criminal charge or trial.
The other suspect, Qatari student Ali Saleh Kahlah al-Marri, was denied a writ of habeas corpus by a federal court in 2005 on grounds that President Bush has the authority to detain as enemy combatants non-citizens residing in the United States. Lawyers for al-Marri have also filed suit against U.S. Secretary of Defense Donald Rumsfeld, challenging the harsh conditions, including virtually complete isolation and denial of reading material, under which he initially was held.
Another form of arbitrary detention used by the United States since September 11, 2001, is the indefinite jailing of suspects without charges under a federal “material witness” law. Although there were no known cases at this writing, the Department of Justice has used this law to detain at least seventy men living in the United States and suspected of links to terrorism. The law was created to allow prosecutors to detain important witnesses to a crime who might flee to avoid testifying in a criminal proceeding.
Many of those detained were held for two months or more, and almost half were never brought to testify before any court or grand jury. Few proved to have any information about, much less links to, terrorism. The U.S. government has since apologized to thirteen for wrongly detaining them. It refuses to reveal how many material witnesses it has detained in connection with its post-September 11 efforts.
The United States incarcerates people at a greater rate than any other country, 724 per one hundred thousand residents. Seven million people—or one in every thirty-one persons—is in prison, or on probation or parole. Black men between the ages of twenty-five and twenty-nine are seven times more likely than their white counterparts to be in prison or jail. More than six hundred thousand people annually leave prison, most of them to return to distressed minority neighborhoods, facing formidable barriers to successful reentry, including laws that limit their access to education, housing, and jobs.
Prison overcrowding coupled with budget cuts leave prisoners without the programs and services they need and without adequate correctional staff to maintain safety and security. Adult and juvenile inmates confront sexual assaults and violence—by each other as well as by staff. With poor supervision and discipline, staff in many facilities can engage in excessive or malicious use of force with near impunity.
According to a report by the federal Bureau of Justice Statistics, prison officials reported they had received 8,210 allegations of staff or inmate sexual violence in 2004; one-third of those allegations were substantiated following investigations. The number of reported incidents is smaller than the actual number, because distrust of staff, fear of reprisal from perpetrators, personal embarrassment, and a sense of futility keep many prisoners from reporting abuse to correctional authorities. The National Prison Rape Elimination Commission established by Congress held three hearings in 2005, receiving testimony of inmate and staff sexual violence from victims, officials, and advocates.
Across the country, medical and mental health care in prisons ranges from mediocre to terrible. Correctional systems lack adequate funds to hire and retain qualified personnel and fail to institute procedures to ensure proper treatment of inmates. In California, a federal judge placed the entire state prison healthcare system under a receivership after determining that the state killed one inmate per week through medical incompetence or neglect. Poor mental health care can also be fatal. For example, a paranoid schizophrenic jail inmate hanged himself in May 2005 after not having received any anti-psychotic or antidepressant medication for seven days.
The Death Penalty and Other Cruel Sentences
As of November 4, forty-eight people had been executed in 2005. Evidence of the arbitrariness and procedural flaws in the imposition of the sentence continue to grow. Since 1973, 121 people have been released from death row with evidence of their innocence, including one in 2005.
In February, the Bush administration said it would comply with the 2004 ruling of the International Court of Justice (ICJ) that the United States should review and reconsider the cases of fifty-one Mexican citizens on death row because it had failed to give the Mexicans access to diplomatic officials after they were arrested. This victory was a Pyrrhic one. In March, Secretary of State Condeleeza Rice sent a letter to the United Nations formally withdrawing from the Optional Protocol to the Vienna Convention that the United States had violated—a protocol under which the ICJ could hear disputes about consular rights in the Convention that the United States itself proposed in 1963 and ratified in 1969.
In March, the U.S. Supreme Court ruled that the execution of child offenders, i.e., those who were under age eighteen when they committed their crimes, constituted unconstitutionally cruel and unusual punishment. According to the Court, the immaturity and irresponsibility of children, their susceptibility to negative influences and peer pressure, and their greater capacity for change make them categorically less culpable than adults. The Court acknowledged that its ruling was influenced by the overwhelming international consensus against the sentence and the fact that it violates international human rights law.
While U.S. child offenders no longer face the death penalty, they do face the possibility of life without parole sentences. There are at least 2,225 child offenders sentenced to spend the rest of their lives in prison in the United States, an estimated 59 percent of whom received the sentence for their first criminal conviction. The United States is one of fourteen countries in the world known to permit such sentences and research suggests that there may be no more than twelve child offenders outside the United States serving life sentences without possibility of release. The Convention on the Rights of the Child, ratified by every country in the world except the United States and Somalia, forbids sentencing child offenders to life without parole.
The California legislature introduced a bill permitting condom distribution in state prisons, which passed the Assembly but died in the Senate. Prisons in Mississippi and Vermont, and jails in New York, Philadelphia, Washington, D.C., San Francisco, and Los Angeles have taken measures to ensure the health and human rights of inmates by permitting condom distribution. California also made some progress on the provision of needle-exchange services to injection drug users at risk of HIV infection from the sharing of syringes. Los Angeles re-issued a directive ordering police officers not to interfere with the activity of sanctioned needle-exchange programs, and the California Assembly passed legislation that would make it easier for counties to legalize these programs.
The Gulf Coast suffered the nation's worst natural disaster in August, when Hurricane Katrina killed over one thousand people, displaced millions, and shut down public services for more than a month. When the mayor of New Orleans called on residents to evacuate in anticipation of the storm, those with automobiles or financial resources left. Those who were too poor to leave stayed behind, most of them African American. Media coverage of the hurricane tore away national blinders on the enormous class and racial divide in the country: no one could ignore the significance of poor people of color trapped on rooftops asking for help in the days following the storm.
The thousands of people incarcerated in local jails were among those most at risk when the storm hit. Inmates locked in the New Orleans jail spent several days in flooded buildings without light, food, water, or sanitation facilities before they were evacuated. Four hundred of those inmates were taken to a former prison facility in Jena, Louisiana that was hastily reopened to receive them. Inmates at Jena allege they were kicked, beaten, and taunted with racial and sexual slurs. Hurricane Katrina also caused the collapse of the legal system, including the courts, in the affected areas. One consequence was that an unknown number of inmates, who should have been released in the days and weeks after the hurricane because their sentences had ended, remained incarcerated. Other inmates, who had been arrested before the storm for minor offenses, e.g., public intoxication, remained incarcerated because there were no courts to hear the charges against them and to sentence or release them.
A law passed this year amends U.S. asylum policy in ways that violate international legal standards. Asylum seekers in the United States must now prove their persecutor's reasons for harming them, i.e. they must show what their persecutor was or would be thinking. Judges may now require asylum seekers to obtain corroborating evidence (which is often difficult to obtain) for their claims. Any inconsistency between asylum seekers’ statements is now a valid reason to withhold protection, even if the inaccuracy is not relevant to the claim. The legislation also severely restricts opportunities for non-citizens ordered removed to have their cases reviewed by a federal judge.
Anti-immigrant hostility, and especially hostility to undocumented immigrants, prompted two states, Virginia and Arizona, to require state and local officials to verify an individual's immigration status before providing certain non-emergency public benefits. In several southwestern states, vigilante groups are “patrolling” the borders for undocumented immigrants. Immigrants' rights groups believe vigilantes may be responsible for four unsolved murders in the border region.
In late October, Congressional leaders announced their intentions to forge compromise guest-worker legislation in early 2006. It remained unclear whether the compromise would address the widespread human rights violations suffered by low-wage immigrant workers across the country. For example, immigrants in the meatpacking industry work in hazardous conditions without basic protections for their rights to a safe workplace, to medical care for workplace injuries, to organize labor unions, or to protection from exploitation and discrimination based on their vulnerable status as immigrants.
International Treaty Obligations
The United States submitted two human rights reports this year, one to the Committee against Torture (CAT) on its compliance with the Convention against Torture and one (eight years overdue) to the Human Rights Committee on its compliance with the International Covenant on Civil and Political Rights. Unfortunately, the reports are little more than a compendium of laws and selected federal legal proceedings. The Bush administration says little in either report about its counter-terrorism detention and interrogation policies or about other U.S. actions—whether by federal, state, or local authorities—inconsistent with U.S. treaty obligations.