Broad Use of Harsh Tactics Is Described at Cuba Base
- Many detainees at Guantanamo Bay were regularly subjected to harsh and coercive treatment, several people who worked in the prison said in recent interviews, despite longstanding assertions by military officials that such treatment had not occurred except in some isolated cases. The people, military guards, intelligence agents and others, described in interviews with The New York Times a range of procedures that included treatment they said was highly abusive occurring over a long period of time, as well as rewards for prisoners who cooperated with interrogators. One regular procedure that was described by people who worked at Camp Delta, the main prison facility at the naval base in Cuba, was making uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot to a bolt in the floor, and forcing them to endure strobe lights and screamingly loud rock and rap music played through two close loudspeakers, while the air-conditioning was turned up to maximum levels, said one military official who witnessed the procedure. The official said that was intended to make the detainees uncomfortable, as they were accustomed to high temperatures both in their native countries and their cells. Such sessions could last up to 14 hours with breaks, said the official, who described the treatment after being contacted by The Times. "It fried them,'' the official said, who said that anger over the treatment the prisoners endured was the reason for speaking with a reporter. Another person familiar with the procedure who was contacted by The Times said: "They were very wobbly. They came back to their cells and were just completely out of it.''...
David Sheffer, a senior State Department human rights official in the Clinton administration who teaches law at George Washington University, said the procedure of shackling prisoners to the floor in a state of undress while playing loud music - the Guant�namo sources said it included the bands Limp Bizkit and Rage Against the Machine, and the rapper Eminem - and lights clearly constituted torture. "I don't think there's any question that treatment of that character satisfies the severe pain and suffering requirement, be it physical or mental, that is provided for in the Convention Against Torture,'' Mr. Sheffer said.
It appears that these prisoners by and large were the run of the mill "prisoners of war". The Administration misrepresented who theye were, created a catagory of "unlawful combatant" based on a dubious premise that they were engaging in unlawful war practice. They were held and mistreated to gather information perhaps more than to contain the "danger" that most don't represent.
Complete Articles: NY Times | Findlaw's "Unlawful Combatants"
Broad Use of Harsh Tactics Is Described at Cuba Base
October 17, 2004
By NEIL A. LEWIS
WASHINGTON, Oct. 16 - Many detainees at Guantanamo Bay were
regularly subjected to harsh and coercive treatment,
several people who worked in the prison said in recent
interviews, despite longstanding assertions by military
officials that such treatment had not occurred except in
some isolated cases.
The people, military guards, intelligence agents and
others, described in interviews with The New York Times a
range of procedures that included treatment they said was
highly abusive occurring over a long period of time, as
well as rewards for prisoners who cooperated with
interrogators.
One regular procedure that was described by people who
worked at Camp Delta, the main prison facility at the naval
base in Cuba, was making uncooperative prisoners strip to
their underwear, having them sit in a chair while shackled
hand and foot to a bolt in the floor, and forcing them to
endure strobe lights and screamingly loud rock and rap
music played through two close loudspeakers, while the
air-conditioning was turned up to maximum levels, said one
military official who witnessed the procedure. The official
said that was intended to make the detainees uncomfortable,
as they were accustomed to high temperatures both in their
native countries and their cells.
Such sessions could last up to 14 hours with breaks, said
the official, who described the treatment after being
contacted by The Times.
"It fried them,'' the official said, who said that anger
over the treatment the prisoners endured was the reason for
speaking with a reporter. Another person familiar with the
procedure who was contacted by The Times said: "They were
very wobbly. They came back to their cells and were just
completely out of it.''
The new information comes from a number of people, some of
whom witnessed or participated in the techniques and others
who were in a position to know the details of the operation
and corroborate their accounts.
Those who spoke of the interrogation practices at the naval
base did so under the condition that their identities not
be revealed. While some said it was because they remained
on active duty, they all said that being publicly
identified would endanger their futures. Although some
former prisoners have said they saw and experienced
mistreatment at Guantanamo, this is the first time that
people who worked there have provided detailed accounts of
some interrogation procedures.
One intelligence official said most of the intense
interrogation was focused on a group of detainees known as
the "Dirty 30'' and believed to be the best potential
sources of information.
In August, a report commissioned by Defense Secretary
Donald H. Rumsfeld found that tough techniques approved by
the government were rarely used, but the sources described
a broader pattern that went beyond even the aggressive
techniques that were permissible.
The issue of what were permissible interrogation techniques
has produced a vigorous debate within the government that
burst into the open with reports of abuses at Abu Ghraib
prison in Baghdad and is now the subject of several
investigations.
Since the Sept. 11 attacks and the war in Afghanistan, the
administration has wrestled with the issue of what
techniques are permissible, with many arguing that the
campaign against terrorism should entitle them to greater
leeway. Alberto R. Gonzales, the White House counsel said,
for example, in one memorandum that the Geneva Conventions
were "quaint" and not suitable for the war against
terrorism.
David Sheffer, a senior State Department human rights
official in the Clinton administration who teaches law at
George Washington University, said the procedure of
shackling prisoners to the floor in a state of undress
while playing loud music - the Guantanamo sources said it
included the bands Limp Bizkit and Rage Against the
Machine, and the rapper Eminem - and lights clearly
constituted torture. "I don't think there's any question
that treatment of that character satisfies the severe pain
and suffering requirement, be it physical or mental, that
is provided for in the Convention Against Torture,'' Mr.
Sheffer said.
Pentagon officials would not comment on the details of the
allegations. Lt. Cmdr. Alvin Plexico issued a Defense
Department statement in response to questions, saying that
the military was providing a "safe, humane and professional
detention operation at Guantanamo that is providing
valuable information in the war on terrorism.''
The statement said: "Guantanamo guards provide an
environment that is stable, secure, safe and humane. And it
is that environment that sets the conditions for
interrogators to work successfully and to gain valuable
information from detainees because they have built a
relationship of trust, not fear.''
The sources portrayed a system of punishment and reward,
with prisoners who were favored for their cooperation with
interrogators given the privilege of spending time in a
large room nicknamed "the love shack'' by the guards. In
that room, they were free to relax and had access to
magazines, books, a television and a video player and some
R-rated movies, along with the use of a water pipe to smoke
aromatic tobaccos. They were also occasionally given
milkshakes and hamburgers from the McDonald's on the base.
The Pentagon said the information gathered from the
detainees "has undoubtedly saved the lives of our soldiers
in the field,'' adding: "And that information also saves
the lives of innocent civilians at home and abroad. At
Guantanamo we are holding and interrogating people that are
a clear danger to the U.S. and our allies and they are
providing valuable information in the war on terrorism.''
Although many critics of the detentions at Guantanamo have
said that the majority of the roughly 590 inmates are
low-level fighters who have little intelligence to impart,
Pentagon and intelligence officials have insisted that the
facility houses many dangerous veteran terrorists and
officials of Al Qaeda.
The intelligence official said that many of those
imprisoned at Guantanamo had valuable information but that
it was not always clear what their standing in Al Qaeda
was. The official said the first four detainees now facing
war crimes charges before a military tribunal at the base
were specifically chosen because they had not been harshly
treated and therefore would be less likely to make any
embarrassing allegations.
The people who worked at the prison also described as
common another procedure in which an inmate was awakened,
subjected to an interrogation in a facility known as the
Gold Building, then returned to a different cell. As soon
as the guards determined the inmate had fallen into a deep
sleep, he was awakened again for interrogation after which
he would be returned to yet a different cell. This could
happen five or six times during a night, they said.
Much of the harsh treatment described by the sources was
said to have occurred as recently as the early months of
this year. After the scandal about mistreatment of
prisoners at the Abu Ghraib prison in Iraq became public in
April, all harsh techniques were abruptly suspended, they
said.
The new accounts of mistreatment at Guantanamo provide
fresh evidence about how practices there may have
contributed to the abuses at Abu Ghraib. One independent
military panel said in a report that the approach used at
Guantanamo had "migrated to Abu Ghraib.
The vigorous debate within the administration about what
techniques were permissible in interrogations was set off
when the Justice Department provided a series of
memorandums to the White House and Defense Department
providing narrow definitions of torture. In February 2002,
Mr. Bush ordered that the prisoners at Guantanamo be
treated "humanely and, to the extent appropriate with
military necessity, in a manner consistent with'' the
Geneva Conventions.
In March 2002, a team of administration lawyers accepted
the Justice Department's view, concluding in a memorandum
that President Bush was not bound by either the Convention
Against Torture or a federal antitorture statute because he
had the authority to protect the nation from terrorism.
When some of the memorandums were disclosed, the
administration tried to distance itself from the rationale
for the harsher treatment.
At the request of military intelligence officials who
complained of tenacious resistance by some subjects, Mr.
Rumsfeld approved a list of 16 techniques for use at
Guantanamo in addition to the 17 methods in the Army Field
Manual in December 2002. But he suspended those approvals
in January 2003 after some military lawyers complained they
were excessive and possibly unlawful.
In April 2003, after a review, Mr. Rumsfeld issued a final
policy approving of 24 techniques, some of which needed his
permission to be used.
But the approved techniques did not explicitly cover some
that were used, according to the new accounts. The only
time that using loud music and lights seems to appear in
the documents, for example, is as a proposal that seems
never to have been adopted. The April 16 memorandum allows
interrogators to place a detainee "in a setting that may be
less comfortable'' but should not "constitute a substantial
change in environmental quality.''
Officials said the guards' patience was often stretched,
especially when inmates threw human waste at the military
police officers, a frequent occurrence. The guards, for
their part, had their own tricks, including replacing the
prayer oil in little bottles given to the inmates with a
caustic pine-smelling floor cleaner.
An August 2004 report by a panel headed by James R.
Schlesinger, the former defense secretary, said the harsher
approved techniques on Mr. Rumsfeld's list were used on
only two occasions. In addition, the report said, there
were about eight abuses by guards at Guantanamo that
occurred and were investigated.
In guided tours of Guantanamo provided to the news media
and members of Congress, the military authorities contended
that the system of rewards and punishments affected only
issues like whether the inmates could be deprived of books,
blankets and toilet articles. The interrogation sessions
themselves, the officials consistently said, did not employ
any harsh treatment but were devised only to build a
trusting relationship between the interrogator and the
detainee.
http://www.nytimes.com/2004/10/17/politics/17gitmo.html?ex=1099038557&ei=1&en=4b7a429771fad893
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http://writ.findlaw.com/dorf/20020123.html
----
WHAT IS AN "UNLAWFUL COMBATANT," AND WHY IT MATTERS:
The Status Of Detained Al Qaeda And Taliban Fighters
By MICHAEL C. DORF
----
Wednesday, Jan. 23, 2002
According to Defense Secretary Rumsfeld, the Taliban and Al Qaeda fighters currently being held captive at the United States Naval Base at Guantanamo Bay, Cuba, are not prisoners of war, but "unlawful combatants." What's the difference?
The short answer is that a prisoner of war is entitled to the protections set forth in the 1949 Geneva Convention. In contrast, an unlawful combatant is a fighter who does not play by the accepted rules of war, and therefore does not qualify for the Convention's protections.
Buried within that short answer, however, are a host of complexities and troubling implications.
Are Al Qaeda Fighters Prisoners of War?
First, what does it take to qualify as a prisoner of war? Article IV of the Geneva Convention states that members of irregular militias like Al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.
The criteria are: "(a) that
of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war."
Al Qaeda does not satisfy these conditions. Perhaps Osama bin Laden could be considered "a person responsible for his subordinates," although the cell structure of Al Qaeda belies the notion of a chain of command. But in any event, Al Qaeda members openly flout the remaining three conditions.
Al Qaeda members deliberately attempt to blend into the civilian population - violating the requirement of having a "fixed distinctive sign" and "carrying arms openly." Moreover, they target civilians, which violates the "laws and customs of war."
Thus, Al Qaeda members need not be treated as prisoners of war.
Are Taliban Fighters Prisoners of War?
The question whether detained Taliban members qualify as prisoners of war under the Geneva Convention's test is more difficult - as one might instinctively think, given that the Taliban fighters resemble a traditional army to a greater extent than do the Al Qaeda fighters, who come from a variety of different nations and principally attack civilians.
The Taliban was never recognized as the legitimate government of Afghanistan by the United Nations or the United States, and only a handful of countries ever established formal diplomatic relations with the Taliban. Nevertheless, despite its lack of formal recognition, the Taliban would still be entitled to the protections of the Geneva Convention if it satisfied the four criteria listed above.
Did it? To begin, the Taliban has, or at least formerly had, a tighter command structure than Al Qaeda, suggesting it might satisfy the first criterion of "being commanded by a person responsible for his subordinates." However, Taliban members did not appear to satisfy the second and third criteria, for they did not wear uniforms that bore a "fixed distinctive sign recognizable at a distance," nor did they invariably "carry arms openly."
Should these facts disqualify them from prisoner-of-war status?
Until recently the Taliban was the actual (though not recognized) government of Afghanistan, and it was attacked as such by the United States, albeit in justifiable self-defense. If Taliban members did not wear distinctive uniforms before we attacked, one might think that they should not be faulted for failing to don such uniforms immediately once the shooting started.
But in the end, this argument is unpersuasive. The requirement of a distinctive sign is no mere technicality. Its object, like many of the laws of war, is to enable the enemy to distinguish combatants from civilians, and thus to minimize civilian casualties. Yet the Taliban made clear that it was not interested in complying with the letter or spirit of the law of war.
For example, when it still controlled Kabul, the Taliban hid military equipment among the civilian population. Furthermore, as the war unfolded, it became increasingly difficult to distinguish the Taliban from Al Qaeda - which, as we have seen, clearly does not qualify to have its members treated as prisoners of war.
A Consequence of POW Status: No Tribunal Trials
Even if not technically prisoners of war, Al Qaeda and Taliban captives still qualify for "humane treatment" under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988.
Moreover, one might wonder, what is the harm in affording the captives somewhat better treatment than they are entitled to under international law? After all, the Geneva Convention hardly requires that prisoners of war be housed in four-star hotels.
The Administration's objection to affording Al Qaeda and Taliban captives prisoner-of-war status probably has less to do with the conditions in which the captives are held than with what the Administration plans to do with them in the long term.
Under President Bush's military order of November 13, Al Qaeda members and those who harbored them can be tried by military tribunals. The Supreme Court approved the use of such tribunals for unlawful combatants in the 1942 case of Ex Parte Quirin.
Most of the public discussion of the President's order and the Quirin case has centered on the question of when a defendant can be subject to the jurisdiction of a military tribunal rather than a civilian court. But whatever the answer to that question, Quirin takes for granted that only unlawful combatants can be tried by the sort of irregular tribunals at issue in that case and contemplated by the President's order.
Lawful combatants - that is, prisoners of war - are entitled to substantive and procedural protections not contemplated by Bush's order. Accordingly, the question of whether Al Qaeda and Taliban fighters are prisoners of war or unlawful combatants turns out to matter a great deal, at least potentially.
Does the Guantanamo Detention Moot the Issue?
To be sure, American courts might not have occasion to decide the question whether Al Qaeda and Taliban captives are in fact unlawful combatants. That is because another Supreme Court decision - the 1950 ruling in Johnson v. Eisentrager - holds that enemy aliens who have not entered the United States are not entitled to access to our courts.
Accordingly, so long as the Al Qaeda and Taliban fighters are held at Guantanamo Bay and thus not deemed to have entered the U.S., their only route of appeal would appear to be within the Executive Branch. Put more bluntly, they will have only the procedural recourse the Administration allows them.
However, the applicability of Eisentrager to the present circumstances is itself open to question, for two reasons. First, in that case, the Court relied on the existence of a formal declaration of war and the fact that the German petitioners were citizens of a hostile sovereign power.
In contrast, in the present conflict, whether Congress's joint resolution authorizing the use of force counts as a declaration of war, and whether Al Qaeda is sufficiently state-like to count as a foreign sovereign, are open questions.
Second, while Eisentrager holds that the Constitution permits the government to deny enemy aliens outside the U.S. access to our courts, federal statutes can be construed to afford such enemy aliens greater court access than the Constitution alone requires. Under that construction, the President's military order would be invalid. (Note that the President's order also purports to eliminate judicial review even for aliens within the United States, a position clearly at odds with statutory and constitutional law, but one that is not directly relevant to the fate of the Guantanamo Bay captives.)
For these two reasons, Eisentrager's application to the present circumstances is uncertain. Accordingly, it is understandable that the Administration would be eager to classify those captives it plans to try by military commission as unlawful combatants.
If the captives are unlawful combatants, they fall within the rule of Quirin. And if so, it does not matter whether they also fall within the rule of Eisentrager: If they do not, they are entitled to habeas corpus review, but a court entertaining their habeas corpus petitions would be obliged to uphold their convictions under Quirin.
Another Consequence of POW Status: Repatriation
There is a further reason why the Administration is eager to deny prisoner-of-war status to the Al Qaeda and Taliban fighters. Article 118 of the Geneva Convention requires that prisoners of war be "repatriated without delay after the cessation of active hostilities." Thus, if the captives are prisoners of war, they must eventually be returned to their home countries.
Tha
t prospect is troubling. At the end of a war between conventional foes, it is expected that repatriated fighters will resume their civilian lives. Individual veterans might continue to harbor ill will towards their former enemies, but for the most part, peace between nations tamps down such feelings.
But there is good reason to worry that Taliban and especially Al Qaeda fighters will not so readily have a change of heart. Members of Al Qaeda do not act out of patriotic duty to obey the commands of a military leader, but out of an ideology that instructs them to attack and kill American civilians as a means of entering the kingdom of heaven. It is doubtful that any formal cessation of hostilities would lead them to abandon what they regard as a jihad.
Moreover, unlike traditional soldiers, Al Qaeda members do not need an army in order to act. As we have learned, they can act in small groups or even individually. For this reason, too, repatriation seems far more dangerous for an Al Qaeda member than for a traditional soldier.
War Without End: Indefinite Detentions?
The truth is that whether we try them in civilian courts, courts martial, ad hoc military tribunals, or not at all, the Al Qaeda and at least some of the Taliban captives may be too dangerous ever to be released. Assuming that many or most of them will not be subject to the death penalty, that commits the United States to detaining them indefinitely.
The Administration's response to this problem is to deem the Taliban and Al Qaeda fighters unlawful combatants who are not entitled to anything better than indefinite detention.
As we have seen, the contention that these fighters are unlawful combatants is based upon a plausible reading of the Geneva Convention. Indeed, it would be difficult to come to any other conclusion when applying the Geneva Convention's four-part test to Al Qaeda fighters.
Nevertheless, treating the Al Qaeda and Taliban captives as prisoners of war, whether or not they are legally entitled to the status, would be less risky than it may at first appear. So long as Al Qaeda and its deadly ideology exists, we cannot say that there has been, in the words of the Geneva Convention, a "cessation of active hostilities," entitling the captives to be released. In that respect, as in others, this is a different type of war indeed.
--------------------------------------------------------------------------------
Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.
Copyright � 1994-2003 FindLaw
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