V. Human rights and counter-terrorism or Human rights vs. counter-terrorism?

5.2.1 The First revelations

The first revelation that the gloves have indeed come off was a Washington Post article³⁵⁸ in late December 2002, right in time to be delivered as a Christmas present to the Bush administration. The title alone was a proper eye-catcher but its alarming contents, consisting of information gathered mainly from interviews with former intelligence officials and the then national security officials, were the real eye-openers. The article discussed the treatment that the inhabitants of the detention centres in the Bagram air base in Afghanistan, Guantánamo and other facilities³⁵⁹ used for the ‘storing’ of these detainees. The ‘stress and duress’ techniques described herein include sleep deprivation, being held in awkward and painful positions for extended period of time and being exposed to bright lights for as long as 24 hours at a time.³⁶⁰ The fact that sleep deprivation may be regarded as torture has been stated by the UN High Commissioner for Human Rights and has been endorsed by the US itself in the State Department’s annual human rights report.³⁶¹ It also stated that there is a division between the most senior captives otherwise known as ‘high level detainees’, who are being interrogated under US officials’ supervision in Guantánamo and Bagram and are subject to harsh interrogation techniques. The second group are the ‘low-level captives’, who are often subject to extraordinary renditions. This is to say that they are being handed over by the CIA to places like Egypt, Morocco, Jordan and Syria, countries which the US itself had identified as having dense records of human rights violations and are known to use torturous techniques during interrogations.³⁶² These practices are defended on the grounds that those countries have ‘cultural affinity with the captives’ and as such it is thus denied that these destinations are not chosen on the basis of their infamously coercive interrogation techniques. ³⁶³ The fact that legal counsel, reports and human rights groups may have access, albeit very limited, to Guantánamo, they have no such access to other known and unknown CIA facilities³⁶⁴ is also worth mentioning here and should be seen as signal which should trigger utmost concern of the techniques used in those far away places. When this article was going to the press, the authors themselves asserted that no direct evidence existed which would prove that prisoners were being abused at the hands of US officers while in US custody³⁶⁵ but this all changed in 2004 when the leaked Abu Ghraib photographs showed exactly that.

Hajjar contends that the increasing frustration of the lack of intelligence which would lead the way to the whereabouts of bin Laden was the chief reason behind the stepping up of interrogation methods as well as ludicrous justifications for these methods.³⁶⁶ This argument is backed up by the infamous August 1 2002 memorandum which contained the answer to a heated question: how far were the CIA agents allowed to go during interrogation?³⁶⁷ The legal opinion expressed by John Yoo from the Justice Department’s Office of Legal Counsel consisted of maintaining that anything that does not cause ‘pain comparable to organ failure or death’ is not torture.³⁶⁸ The absurd reasoning of this opinion resulted in the renouncement and subsequent replacement of the memo in June 2004, nevertheless such reasoning was out there and it was made public. It should also be noted that in this memo and elsewhere, Yoo advocated the ‘unitary executive thesis’³⁶⁹, which was grounded on the fact that as commander-in-chief the President had virtually unlimited powers, which could surpass the Congress as well as courts. This view was also supported by high ranking army officials.³⁷⁰ Once the war in Iraq started, an Iraqi Guantánamo was in the making, alongside the one already in operation in Afghanistan. Despite the fact that Bush claimed that the Geneva Conventions did apply to Abu Ghraib, the decision to transpose Guantánamo tactics to Iraq or in other words ‘Gitmotize’³⁷¹ it, was taken in August 2003 again as a result of the frustration at the lack of obtained intelligence as well as intensified fighting in those months. The head of Guantánamo, Major General Geoffrey Miller was summoned to Abu Ghraib to advise on more effective interrogation tactics, basically resulting in the use of unlawful tactics at least under the Geneva Conventions.³⁷²

5.2.2 Supreme Court interventions

A glimpse of hope appeared to materialise in the June 2004Hamdi v.Rumsfeld ³⁷³ and Rasul v.Rumsfeld rulings³⁷⁴ of the Supreme Court, in which it stipulated that those who had been labelled ‘enemy combatants’, including those detainees in Guantánamo, who significantly and hardly by chance were all non US citizens, had the right to a fair trial in order to challenge this status that they were labelled with in absence of any justification.³⁷⁵ An important part of the ruling was also the recognition of jurisdiction of those courts to also hear the habeas corpus submissions made by those who challenged their combatant status.³⁷⁶ The Bush administration however retaliated almost immediately by setting up several Combat Status Review Tribunals, where the status of the detainees would be determined by military officers. Simultaneously, catalysed by the public outcry at the Abu Ghraib abuse photos, the Senate was preparing an amendment, sponsored by John McCain, to the Department of Defence appropriations bill which would give clear instructions as to the interrogations methods that were approved and within legal scope, to be used on detainees.³⁷⁷ Furthermore, it reiterated that the prohibition of torture was not restricted to territory and that it was applicable anywhere, any time, under any and all circumstances. This, as expected, did not go down well the administration, which immediately requested the amendments to be changed to its suit and for more clauses to be added, or else it would veto the entire bill.³⁷⁸ Three additional clauses were included, addressing the legal defence that military staff could rely on in case of being accused of abuse, a review mechanism for the detainees’ status and training for detainee treatment for Iraqi forces.³⁷⁹ The result was the Detainee Treatment Act of 2005, which admittedly does deal with the limits of interrogation methods but it also serves to strip off the courts of the jurisdiction of habeas corpus applications, ultimately delegating the opposite of the abovementioned rulings of the Supreme Court. With regards to the determination or possible review of detainee status, the military would have monopoly of the decision, which could not be appealed by any court.³⁸⁰ Further yet, the whole Act is subject to the superseding power of the President as Commander in Chief, meaning that even those provisions which are favourable to detainees, such as limits to coercive interrogation techniques can be taken away or interpreted completely differently, dependent on the President’s discretion,³⁸¹thus making the protective or limiting measures almost futile.

However the pulling tug of war between the administration and the Supreme Court was not over, in fact far from it. In June 2006, in the Hamdan v. Rumsfeld case, the majority of the Supreme Court ruled that the individuals detained within the framework of the ‘war on terror’ are entitled to the protection granted under the Geneva Conventions, which thus refuted the administrations claims that those detainees did not have the status to which these protections applied.³⁸² Notably it also ruled that the stripping of the jurisdictions as delegated by the Detainee Treatment Act was not retrospective³⁸³ and ruled that the rules which governed the military commissions were invalid due to, inter alia, the inconsistency of these rules with the Uniform Code of Military Justice (in which the Geneva Conventions are enshrined) thus making the military commissions invalid.³⁸⁴ The ruling also alluded that those, by severe treatment of detainees, violated the Geneva Conventions and could be held accountable and prosecuted by the federal War Crimes Act of 1996.³⁸⁵ Guantánamo

As could be expected, the administration retaliated and did not hesitate in drafting new legislation which would surpass the ruling. Bush introduced the Military Commission Act (MCA), characterising it as representing the US ‘commitment to the rule of law’.³⁸⁶ The Act, which was passed with some amendments in September 2006, provides for provisions of convening military commissions to try alien unlawful combatants.³⁸⁷ The discrimination between citizens and aliens thus persisted as it was only aliens who were subject to military commissions’ trials, while citizens suspected of terrorism (again remember that they were not held in Guantánamo) would be subject to trials by ordinary courts in accordance with US criminal law.³⁸⁸ Evidence such as statements obtained by torture would not be admissible, unless this evidence was obtained prior to the Detainee Treatment Act and had ‘probative value’.³⁸⁹ By passing the MCA, Bush reiterated his earlier decision of stripping courts of jurisdiction in making habeas corpus orders as well as it denied all Guantánamo detainees to challenge the basis of their detention.³⁹⁰ In addition any rulings made by the military commissions would be final and not subject to an appeal. Bush urged the Congress to authorize the use of ‘his’ infamous military commissions after this was explicitly requested by the ruling. To mitigate the threat that military personnel could be held accountable, Bush requested that the Congress pass legislation which would provide specific rules which would fall within the legal framework.³⁹¹ It should be noted however that the MCA basically provided immunity to those responsible for torture and other treatment.³⁹² In response to the argument that, minimally Common Article 3 was applicable to the detainees held in Guantánamo, Afghanistan or anywhere else, Bush defended his up-until-then refusal to apply Common Article 3 on the grounds that the provisions therein were ‘vague and undefined’ and thus open to a wide scope of interpretation by domestic and foreign judges.³⁹³ In light of this, the MCA prohibited the invocation of the Geneva Conventions as a defence or source of rights in any US court.³⁹⁴

Amnesty International criticized the passing of the MCA identifying it as ‘turning bad executive policy into bad law’.³⁹⁵

The final blow to the Bush draconian detainee policy was dealt by the 2008 Supreme Court’s Boumediene v. Bush ruling, where it repeated the stipulation made in the Hamdan ruling with regards to the rights of detainees to filing habeas corpus claims in US federal courts in order to challenge the basis of their detention.³⁹⁶ Furthermore, it refuted the administrations long-running claims that the US Constitution did not extend to Guantánamo and its forced-to-stay inhabitants and instead argued that the kind of supreme authority and control the US government exerted there should reflect the extent of the applicability of the constitution, thus in this sense to the full extent.³⁹⁷ Simply said, it ruled that the US government, considering the degree of authority it wields in Guantánamo, ‘cannot switch the Constitution on and off’ as it pleases.³⁹⁸ This was also a reiteration of Judge Sandra Day O’Connor’s statement in the Hamdi ruling, where she asserted that the administration’s constant pursuance and justification for detention without trial ‘serves only to condense power in a single branch of government. We have long since made clear that a state of war is not a blank check for the President’.³⁹⁹ This further confirms the argument that the contents of the policies which the Bush administration took in the aftermath of 9/11 were subject to wide censure from the outset. But other than content, criticisms were also expressed with regards to the ‘broad, unchecked and largely discretionary executive power’, which although was advocated by some top officials in the White House, is in fact a violation of the principle of the separation of powers.⁴⁰⁰