Post by Anja Nieser on Oct 1, 2006 6:35:20 GMT -5
UNITED STATES OF AMERICA Rubber stamping violations in the "war on
terror": Congress fails human rights
By passing the Military Commissions Act, the United States Congress has,
in effect, given its stamp of approval to human rights violations
committed by the USA in the "war on terror". This legislation leaves the
USA squarely on the wrong side of international law, and has turned bad
executive policy into bad domestic law.
On 27 September, the House of Representatives passed the Military
Commissions Act by 253 votes to 168. On 28 September, the Senate passed
the Act by 65 votes to 34. After any discrepancies between the Senate and
House bills are reconciled, the legislation will go to President Bush for
signing into law. If President Bush signs the bill, as expected, Amnesty
International will campaign for repeal of the Act. The constitutionality
of the legislation is also likely to be challenged in the courts.
In the "war on terror", the US administration has resorted to secret
detention, enforced disappearance, prolonged incommunicado detention,
indefinite detention without charge, arbitrary detention, and torture or
other cruel, inhuman or degrading treatment. Thousands of detainees remain
in indefinite military detention in US custody in Iraq, Afghanistan and
Guantnamo Bay. Congress has failed these detainees and their families.
President Bush has defended the CIAs use of secret detention and in the
debates over the Military Commissions Act, members of Congress have done
the same. Yet this is a policy in clear violation of international law.
Accountability among higher officials for human rights violations
authorized or committed by US personnel in the "war on terror" has been
absent, as has been reparation for such abuses. Investigations into
alleged war crimes and human rights violations have lacked independence
and have not gone up the chain of command. Not a single US agent has been
charged with war crimes under the USAs War Crimes Act or torture under the
extraterritorial anti-torture statute, despite compelling evidence that
such offences have occurred.
Meanwhile, the Military Commissions Act provides for trials of the "enemy"
in front of military commissions using lower standards of evidence than
apply to US personnel, and with the power to hand down death sentences.
Whether charged for trial or not, those detained by the USA as "enemy
combatants" will not be able to challenge the lawfulness or conditions of
their detention in habeas corpus appeals. Habeas corpus is a fundamental
safeguard against enforced disappearance, arbitrary detention and torture
or other cruel, inhuman or degrading treatment.
The legislation will lead to violations of international law and
standards. Among other things, the Military Commissions Act will:
Strip the US courts of jurisdiction to hear or consider habeas corpus
appeals challenging the lawfulness or conditions of detention of anyone
held in US custody as an "enemy combatant". Judicial review of cases would
be severely limited. The law would apply retroactively, and thus could
result in more than 200 pending appeals filed on behalf of Guantnamo
detainees being thrown out of court.
Prohibit any person from invoking the Geneva Conventions or their
protocols as a source of rights in any action in any US court.
Permit the executive to convene military commissions to try "alien
unlawful enemy combatants", as determined by the executive under a
dangerously broad definition, in trials that would provide foreign
nationals so labeled with a lower standard of justice than US citizens
accused of the same crimes. This would violate the prohibition on the
discriminatory application of fair trial rights.
Permit civilians captured far from any battlefield to be tried by military
commission rather than civilian courts, contradicting international
standards and case law.
Establish military commissions whose impartiality, independence and
competence would be in doubt, due to the overarching role that the
executive, primarily the Secretary of Defense, would play in their
procedures and in the appointments of military judges and military
officers to sit on the commissions.
Permit, in violation of international law, the use of evidence extracted
under cruel, inhuman or degrading treatment or punishment, or as a result
of "outrages upon personal dignity, particularly humiliating or degrading
treatment", as defined under international law.
Permit the use of classified evidence against a defendant, without the
defendant necessarily being able effectively to challenge the "sources,
methods or activities" by which the government acquired the evidence. This
is of particular concern in light of the high level of secrecy and resort
to national security arguments employed by the administration in the "war
on terror", which have been widely criticized, including by the UN
Committee against Torture and the Human Rights Committee. Amnesty
International is concerned that the administration appears on occasion to
have resorted to classification to prevent independent scrutiny of human
rights violations.
Give the military commissions the power to hand down death sentences, in
contravention of international standards which only permit capital
punishment after trials affording "all possible safeguards to ensure a
fair trial". The clemency authority would be the President. President Bush
has led a pattern of official public commentary on the presumed guilt of
the detainees, and has overseen a system that has systematically denied
the rights of detainees.
Limit the right of charged detainees to be represented by counsel of their
choosing.
Fail to provide any guarantee that trials will be conducted within a
reasonable time.
Permit the executive to determine who is an "enemy combatant" under any
"competent tribunal" established by the executive, and endorse the
Combatant Status Review Tribunal (CSRT), the wholly inadequate
administrative procedure that has been employed in Guantnamo to review
individual detentions.
Narrow the scope of the War Crimes Act by not expressly criminalizing acts
that constitute "outrages upon personal dignity, particularly humiliating
and degrading treatment" banned under Article 3 common to the 4 Geneva
Conventions. Amnesty International believes that the USA has routinely
failed to respect the human dignity of detainees in the "war on terror".
Prohibit the US courts from using "foreign or international law" to inform
their decisions in relation to the War Crimes Act. The President has the
authority to "interpret the meaning and application of the Geneva
Conventions". Under President Bush, the USA has shown a selective
disregard for the Geneva Conventions and the absolute prohibition of
torture or other ill-treatment.
Endorse the administrations "war paradigm" under which the USA has
selectively applied the laws of war and rejected international human
rights law. The legislation would backdate the "war on terror" to before
the 11 September 2001 in order to be able to try individuals in front of
military commissions for "war crimes" committed before that date.
There appears to be little doubt that President Bush will sign the bill.
He had sent a version of it to Congress on 6 September at the same time
that he had announced the transfer of 14 "high value" detainees from years
in secret CIA custody to detention in Guantnamo. He said that these
detainees could be tried if Congress authorized military commissions
acceptable to the administration.
Amnesty International deeply regrets that Congress failed to resist this
executive pressure and instead has given a green light for violations of
the USAs international obligations.
See also:
USA: Military Commissions Act of 2006 Turning bad policy into bad law, 29
September 2006 web.amnesty.org/library/Index/ENGAMR511542006.
USA: Justice at last or more of the same- Detentions and trials after
Hamdan v. Rumsfeld, 18 September 2006
web.amnesty.org/library/Index/ENGAMR511462006.
USA: Rendition torture trial- The case of Guantnamo detainee Mohamedou
Ould Slahi, 20 September 2006,
web.amnesty.org/library/Index/ENGAMR511492006
(source: Amnesty International)
terror": Congress fails human rights
By passing the Military Commissions Act, the United States Congress has,
in effect, given its stamp of approval to human rights violations
committed by the USA in the "war on terror". This legislation leaves the
USA squarely on the wrong side of international law, and has turned bad
executive policy into bad domestic law.
On 27 September, the House of Representatives passed the Military
Commissions Act by 253 votes to 168. On 28 September, the Senate passed
the Act by 65 votes to 34. After any discrepancies between the Senate and
House bills are reconciled, the legislation will go to President Bush for
signing into law. If President Bush signs the bill, as expected, Amnesty
International will campaign for repeal of the Act. The constitutionality
of the legislation is also likely to be challenged in the courts.
In the "war on terror", the US administration has resorted to secret
detention, enforced disappearance, prolonged incommunicado detention,
indefinite detention without charge, arbitrary detention, and torture or
other cruel, inhuman or degrading treatment. Thousands of detainees remain
in indefinite military detention in US custody in Iraq, Afghanistan and
Guantnamo Bay. Congress has failed these detainees and their families.
President Bush has defended the CIAs use of secret detention and in the
debates over the Military Commissions Act, members of Congress have done
the same. Yet this is a policy in clear violation of international law.
Accountability among higher officials for human rights violations
authorized or committed by US personnel in the "war on terror" has been
absent, as has been reparation for such abuses. Investigations into
alleged war crimes and human rights violations have lacked independence
and have not gone up the chain of command. Not a single US agent has been
charged with war crimes under the USAs War Crimes Act or torture under the
extraterritorial anti-torture statute, despite compelling evidence that
such offences have occurred.
Meanwhile, the Military Commissions Act provides for trials of the "enemy"
in front of military commissions using lower standards of evidence than
apply to US personnel, and with the power to hand down death sentences.
Whether charged for trial or not, those detained by the USA as "enemy
combatants" will not be able to challenge the lawfulness or conditions of
their detention in habeas corpus appeals. Habeas corpus is a fundamental
safeguard against enforced disappearance, arbitrary detention and torture
or other cruel, inhuman or degrading treatment.
The legislation will lead to violations of international law and
standards. Among other things, the Military Commissions Act will:
Strip the US courts of jurisdiction to hear or consider habeas corpus
appeals challenging the lawfulness or conditions of detention of anyone
held in US custody as an "enemy combatant". Judicial review of cases would
be severely limited. The law would apply retroactively, and thus could
result in more than 200 pending appeals filed on behalf of Guantnamo
detainees being thrown out of court.
Prohibit any person from invoking the Geneva Conventions or their
protocols as a source of rights in any action in any US court.
Permit the executive to convene military commissions to try "alien
unlawful enemy combatants", as determined by the executive under a
dangerously broad definition, in trials that would provide foreign
nationals so labeled with a lower standard of justice than US citizens
accused of the same crimes. This would violate the prohibition on the
discriminatory application of fair trial rights.
Permit civilians captured far from any battlefield to be tried by military
commission rather than civilian courts, contradicting international
standards and case law.
Establish military commissions whose impartiality, independence and
competence would be in doubt, due to the overarching role that the
executive, primarily the Secretary of Defense, would play in their
procedures and in the appointments of military judges and military
officers to sit on the commissions.
Permit, in violation of international law, the use of evidence extracted
under cruel, inhuman or degrading treatment or punishment, or as a result
of "outrages upon personal dignity, particularly humiliating or degrading
treatment", as defined under international law.
Permit the use of classified evidence against a defendant, without the
defendant necessarily being able effectively to challenge the "sources,
methods or activities" by which the government acquired the evidence. This
is of particular concern in light of the high level of secrecy and resort
to national security arguments employed by the administration in the "war
on terror", which have been widely criticized, including by the UN
Committee against Torture and the Human Rights Committee. Amnesty
International is concerned that the administration appears on occasion to
have resorted to classification to prevent independent scrutiny of human
rights violations.
Give the military commissions the power to hand down death sentences, in
contravention of international standards which only permit capital
punishment after trials affording "all possible safeguards to ensure a
fair trial". The clemency authority would be the President. President Bush
has led a pattern of official public commentary on the presumed guilt of
the detainees, and has overseen a system that has systematically denied
the rights of detainees.
Limit the right of charged detainees to be represented by counsel of their
choosing.
Fail to provide any guarantee that trials will be conducted within a
reasonable time.
Permit the executive to determine who is an "enemy combatant" under any
"competent tribunal" established by the executive, and endorse the
Combatant Status Review Tribunal (CSRT), the wholly inadequate
administrative procedure that has been employed in Guantnamo to review
individual detentions.
Narrow the scope of the War Crimes Act by not expressly criminalizing acts
that constitute "outrages upon personal dignity, particularly humiliating
and degrading treatment" banned under Article 3 common to the 4 Geneva
Conventions. Amnesty International believes that the USA has routinely
failed to respect the human dignity of detainees in the "war on terror".
Prohibit the US courts from using "foreign or international law" to inform
their decisions in relation to the War Crimes Act. The President has the
authority to "interpret the meaning and application of the Geneva
Conventions". Under President Bush, the USA has shown a selective
disregard for the Geneva Conventions and the absolute prohibition of
torture or other ill-treatment.
Endorse the administrations "war paradigm" under which the USA has
selectively applied the laws of war and rejected international human
rights law. The legislation would backdate the "war on terror" to before
the 11 September 2001 in order to be able to try individuals in front of
military commissions for "war crimes" committed before that date.
There appears to be little doubt that President Bush will sign the bill.
He had sent a version of it to Congress on 6 September at the same time
that he had announced the transfer of 14 "high value" detainees from years
in secret CIA custody to detention in Guantnamo. He said that these
detainees could be tried if Congress authorized military commissions
acceptable to the administration.
Amnesty International deeply regrets that Congress failed to resist this
executive pressure and instead has given a green light for violations of
the USAs international obligations.
See also:
USA: Military Commissions Act of 2006 Turning bad policy into bad law, 29
September 2006 web.amnesty.org/library/Index/ENGAMR511542006.
USA: Justice at last or more of the same- Detentions and trials after
Hamdan v. Rumsfeld, 18 September 2006
web.amnesty.org/library/Index/ENGAMR511462006.
USA: Rendition torture trial- The case of Guantnamo detainee Mohamedou
Ould Slahi, 20 September 2006,
web.amnesty.org/library/Index/ENGAMR511492006
(source: Amnesty International)