2004 Response of the Government of the United States of America to Inter-American Commission on Human Rights
Detainees in Guantanamo Bay, Cuba
Precautionary Measures No 259
The Government of the United States appreciates the opportunity to respond to the above-mentioned Commission communication dated July 29, 2004, relating to individuals detained at the U.S. Naval Station in Guantanamo Bay, Cuba ("Guantanamo") (hereinafter “communication”). The communication and the attached petition express numerous concerns and also reference legal developments in the United States, notably ongoing court challenges to the U.S. Government’s detention of enemy combatants at Guantanamo. The Commission also suggests that information has come to light that appears to be at odds with certain factual statements made in the U.S. Government’s previous submissions. Commission letter dated July 29, 2004, page 2.
The United States’ policy has not changed. It is the United States’ policy to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with the commitments made by the United States in ratifying the Convention Against Torture to prevent torture and other cruel, inhuman or degrading treatment or punishment. Further, the United States remains committed to ensuring that all statements made in any of its submissions are fully accurate and complete. In this context, in preparing this submission, the U.S. Department of State has worked intensively with relevant U.S. Government agencies to provide accurate and updated information.
Inadmissibility. The U.S. Government respectfully submits that the matter addressed by the petition and by the Commission is not admissible because it fails to meet established criteria for consideration, in particular the requirement for exhaustion of domestic remedies. There are numerous federal court and other proceedings that are ongoing in the United States and at Guantanamo that are providing the petitioners a hearing and the potential for appropriate relief if warranted.
Dismissing this petition would quintessentially advance the rationale underlying the exhaustion doctrine – to permit domestic proceedings to run their course, thereby affording the State the opportunity to fashion any appropriate remedy under its domestic law. Domestic habeas corpus proceedings for Guantanamo detainees are available and are not unduly delayed. Thus, the customary international law doctrine of exhaustion of domestic remedies, which is incorporated into the rules of the Commission, compels the finding that the petition is not admissible and should be dismissed.
Moreover, the availability of timely domestic proceedings, including the Combatant Status Review Tribunals operated by the U.S. Department of Defense at Guantanamo and federal habeas corpus litigation for each detainee who files a habeas petition, demonstrates that procedures under U.S. domestic law are available that address the concerns raised by the Commission in its request for precautionary measures.
The U.S. Government further respectfully submits that the Commission does not have jurisdiction over the matter raised in the petition and in its communication because it raises claims under the Geneva Conventions of 1949 and the law of armed conflict, which is the law that governs the status and treatment of persons during armed conflict, matters that are not within the purview of the Commission. Indeed, in this case the Commission recognized that international humanitarian law is the lex specialis that may govern the issues surrounding Guantanamo detention. As the Commission stated:
“In certain circumstances, however, the test for evaluating the observance of a particular right, such as the right to liberty, in a situation of armed conflict may be distinct from that applicable in time of peace. In such situations, international law, including the jurisprudence of the Commission, dictates that it may be necessary to deduce the applicable standard by reference to international humanitarian law as the applicable lex specialis.”
IACHR Request to the United States for Precautionary Measures, in Detainees in Guantanamo Bay, Cuba, dated March 12, 2002, at page 3.
The Commission’s jurisdiction and competence do not extend to the laws and customs of war. This is a second and independent basis for dismissal of the petition.
Additionally, for reasons elaborated at length in our earlier filings in this matter, the U.S. Government reaffirms its position that the Commission lacks the competence to issue precautionary measures in this case.
Failure to Exhaust Domestic Remedies. Supreme Court Rulings. Under article 31 of the Commission’s Rules of Procedure, the petition is inadmissible on the basis that remedies under domestic law have not been previously exhausted. For example, as the Commission is aware, on June 28, 2004, the U.S. Supreme Court, the highest judicial body in the United States, issued its decisions in Rasul v. Bush, No. 03-334 (U.S. S.Ct. June 28, 2004), Hamdi v. Rumsfeld, No. 03-6696 (U.S. S.Ct. June 28, 2004) and Rumsfeld v. Padilla, No. 03-1027 (U.S. S.Ct. June 28, 2004). Among other issues, the Supreme Court reviewed whether the appropriate federal district court would have jurisdiction to consider a habeas corpus petition filed on behalf of enemy combatants held at Guantanamo and challenging the legality of their detention. Rasul and its companion case Al Odah, cases brought on behalf of two Australians and twelve Kuwaitis, presented “the narrow but important question whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.” (Rasul Slip Opinion at 1). The same issue is squarely raised in the IACHR communication.
The Supreme Court held in Hamdi that our nation is entitled to detain enemy combatants, even American citizens, until the end of hostilities, in order to prevent the enemy combatants from returning to the field of battle and again taking up arms. The Court stated the detention of such individuals “is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate’ force Congress has authorized the President to use” against “nations, organizations, or persons” associated with the September 11, 2001 terrorist attacks. (Slip Op. at 10, 11).
The Supreme Court ruled in Rasul that the District Court for the District of Columbia had jurisdiction to consider habeas challenges to the legality of the detention of foreign nationals at Guantanamo. (Slip Op. at 15-16).
Further Court Proceedings. The Supreme Court in Rasul decided only the question of jurisdiction. The Court accordingly remanded the proceedings to the federal district (trial) court to address the claims that the detentions at issue in those cases are unlawful. “Whether and what further proceedings may become necessary after [the United States Government] make their response to the merits of petitioners’ claims are matters that we need not address now.” (Slip Op. at 17). Thus, the Supreme Court ruling has resulted in further proceedings at the federal trial and appellate court levels.
As of December 2, 2004, there are nineteen (19) habeas corpus cases involving 69 Guantanamo detainees pending before ten district court judges. These include 2 Australians, 12 Kuwaitis, 29 Yemenis, 4 British, 1 Libyan, 1 Sudanese, 1 Pakistani, 1 Qatari, 6 Bahrainis, 1 Turk, 1 Canadian, 1 French, and 7 Algerians. Other detainees may have since filed a habeas corpus petition or may file suit in the near future.
The various habeas corpus petitions seek the detainees’ release, claiming that the detentions violate the Fifth, Sixth, Eighth and Fourteenth Amendments and the War Powers and Article 1 Suspension clauses of the Constitution. Different petitions have also alleged claims under the Administrative Procedure Act, the Alien Tort Statute, Army Regulation 190-8, customary international law, and international treaties including the International Covenant on Civil and Political Rights and the Geneva Conventions of 1949.
During the course of these habeas corpus proceedings, the federal courts are reviewing numerous motions and other requests including motions to dismiss the petition, motions for a restraining order, requests for discovery, and motions relating to procedures regulating access of attorneys to individuals. For example, in August 2004, the federal district court in the cases of Gherebi, Boumediene and El Banna separately denied requests by petitioners for relief enjoining ongoing Combatant Status Review Tribunal (CSRT) proceedings. The judges ruled that any defect in the CSRT proceedings could be addressed in determining whether petitioners were ultimately entitled to any relief with regard to their detention.
Further, pursuant to briefing orders issued by Senior Judge Green, who is coordinating the numerous detainee cases, the government has filed factual returns in most of the cases indicating both the classified and unclassified factual bases for the enemy combatant status of each petitioner-detainee based on the record of CSRT proceedings.
Additionally, in the Al Odah case, the federal district court issued a decision on October 20, 2004, denying the Government’s proposed monitoring of attorney-client communications between three detainees and their counsel. The court also imposed a number of conditions on detainees’ counsel, including that any disclosure by counsel of communications with a detainee be subjected to a pre-disclosure classification review by the government.
Further, on November 8, 2004, in the case of Hamdan v. Rumsfeld, Civil Action No. 04-1519 (JR), the U.S. District Court for the District of Columbia ruled that the petitioner may not be tried by military commission unless and until an appropriately constituted tribunal determines that he is not entitled to Prisoner of War status under the Third Geneva Convention and until a procedural rule is altered regarding closure of the hearing to the detainee. On November 12, 2004, the U.S. Government appealed the ruling to the U.S. Court of Appeals for the District of Columbia Circuit. The U.S. Court of Appeals ordered an expedited case schedule that requires briefing by the parties to be completed by January 10, 2005. Oral argument in that case will be held in early March 2005.
In short, domestic judicial proceedings are available, ongoing, and timely. Under the customary international law doctrine of exhaustion and under principles of sovereignty, timely and available domestic proceedings must be respected and allowed to run their course prior to international adjudication.
It is beyond peradventure, therefore, that under the Commission’s exhaustion requirement, this petition must be deemed inadmissible. The United States has an independent and impartial judicial system, based firmly on the rule of law, which is addressing questions raised in the petition. Under the Commission’s own procedures, the matter must be dismissed so that available domestic remedies -- judicial and otherwise -- may be pursued.
Moreover, the availability and timeliness of judicial proceedings in the United States, which afford the detainees review of the lawfulness of their detention, fulfill the objective of the precautionary measures requested by the Commission. In its letter of March 12, 2002, the Commission requested that the United States “take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal . . . in order to ensure that the legal status of each of the detainees is clarified and that they are afforded the legal protections commensurate with the status that they are found to possess . . . .” The actions of the CSRTs and federal courts of the United States, operating under U.S. law, are addressing concerns raised by the Commission in its precautionary measures request. It is wholly unnecessary and improper for the Commission to retain jurisdiction over this proceeding.
IACHR Principles on an Independent Judiciary. The Inter-American Commission on Human Rights regularly affirms the critical importance of the principles of independence, impartiality, and integrity of the judiciary. For the Commission to act on this petition would signal a rejection of the principle of international respect for independent judicial processes of a sovereign State embraced by the Commission. It would also contradict the Commission’s very own procedures and rules for the admissibility of petitions.
Principles Underlying Exhaustion. This matter quintessentially exemplifies the rationale behind the exhaustion requirement. Expressly contained in Commission procedures, the requirement of exhaustion of local remedies stems from customary international law, as a means of respecting State sovereignty. It ensures that the State where a human rights violation has allegedly occurred should have the opportunity to redress the allegation by its own means within the framework of its own domestic legal system. See Interhandel Case (Switzerland v. United States)  I.C.J. 6, 26-27; Velasquez Rodriguez case, Judgment of July 29, 1988 (Inter-American Court). It is a sovereign right of a State conducting judicial proceedings to have its national system be given the first opportunity to determine the merits of a claim and decide the appropriate remedy.
“As has been seen from … the Interhandel judgment, the International Court of Justice qualifies the local remedies rule as a well established rule of international customary law. This represents a precedential recognition on the part of the ICJ of the local remedies rule as a custom covered by article 38(i)(b) of the Court’s statute and is, in fact, the unanimous view of all writers and of many judgments and opinions given in the past four hundred years. So often has this statement been repeated over and over again that it has rightly been said about the duty to exhaust local remedies, ‘This requirement is both ancient and commonplace. It is so fundamental ... .’”
Haesler, The Exhaustion of Local Remedies in the Case Law of International Courts and Tribunals, pp. 18-19 (1968), quoting McNair, International Law Opinions, Vol. II, p. 312.
The author proceeded to quote from the most venerated ancient scholar of the law of nations, Grotius in “De Iure Belli ac Pacis” (1625) (cited in the Interhandel judgment, ICJ Rep. 1959, p. 27), to demonstrate the time-honored respect for the exhaustion rule. See Haesler, supra at 20-21.
Further, as the Inter-American Court explained in Velasquez Rodgriguez, “The rule of prior exhaustion of domestic remedies allows the State to resolve the problem under its internal law before being confronted with an international proceeding. This is particularly true in the international jurisdiction of human rights, because the latter reinforces or complements the domestic jurisdiction.” Id. To paraphrase the Inter-American Court, international law looks to national law and national tribunals in the first instance. International tribunals were not intended to replace national adjudication.
The exhaustion requirement essentially requires that the claimant present his or her claim to an appropriate domestic court, support the claim with all relevant evidence and legal arguments, and take advantage of all procedures for appeal. Restatement of Foreign Relations Law (Third) section 713, reporter’s note 5, and citations contained therein. Here, through the judicial process in the Rasul case, the U.S. Supreme Court has affirmed the availability of federal court jurisdiction to entertain habeas corpus claims brought on behalf of detainees at Guantanamo to challenge the legality of their detention. A habeas corpus action in the appropriate federal court in the United States is an avenue available to each detainee at Guantanamo.
Whether any detainee among the approximately 550 at Guantanamo will be able to present a meritorious claim, and, if so, the precise relief to be allowed, has yet to be determined by the courts of the United States. In accordance with the procedures applied to petitions to the IACHR, domestic processes must be afforded the opportunity to follow through the course of any such proceeding and decide the merits of the claims and any appropriate and specific remedy.
In sum, where, as here, avenues of potential domestic relief remain available and timely, this communication before the Inter-American Commission is inadmissible for failure to exhaust available domestic remedies.
U.S. Department of Defense (DoD) Combatant Status Review Tribunals. On July 7, 2004, the Department of Defense announced the formation of Combatant Status Review Tribunals for Guantanamo detainees. See www.defenselink.mil/transcripts/2004/tr200440707-0981.html; (DOD Briefing on Combatant Status Review Tribunal, dated July 7, 2004); www.defenselink.mil/releases/2004/nr20040707-0992.html (DOD July 7 Press Release). These tribunals serve as forums of first resort for detainees to contest their status as enemy combatants and supplement the prior screening procedures. The Tribunals draw upon the guidance contained in the U.S. Supreme Court decisions in Rasul and Hamdi. In the Hamdi case, the U.S. Supreme Court held that a citizen-detainee held in the United States must receive notice of the factual basis for his classification as an enemy combatant and a fair opportunity to rebut the government’s assertion before a neutral decision maker. This decision only applied to the detention of U.S. citizens, but the Department of Defense is providing all non-citizen detainees under its control at Guantanamo with the opportunity to contest their status through a Combatant Status Review Tribunal. As detailed below, this is an unprecedented level of process being provided to enemy combatants in time of war.
The Deputy Secretary of Defense issued an order establishing the tribunals. See www.defenselink.mil/news/Jul2004/d20040707review.pdf (hereinafter DOD Order). A fact sheet was also published regarding the tribunal process and procedures. See www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf
Since the July 7, 2004, order, the Secretary of the Navy has given several press conferences regarding the procedures. See www.defenselink.mil/transcripts/2004/tr20040709-0986.html (Secretary of the Navy England’s Briefing dated July 9, 2004); www.defenselink.mil/transcripts/2004/tr20040716-1006.html (Secretary of the Navy England’s Briefing dated July 16, 2004). Furthermore, on July 29, 2004, Secretary England issued the implementation directive for the Combatant Status Review Tribunals, giving specific procedural and substantive guidance on the implementation of the DOD Order (hereinafter DOD Implementing Directive). See www.dod.mil/releases/2004/nr20040730-1072.html (July 30, 2004); www.defenselink.mil/news/Jul2004/d20040730comb.pdf.
All detainees held at Guantanamo were notified on July 12, 13 or 14, 2004, of their opportunity to contest their enemy combatant status under this process. (Enclosure 4 of DOD Implementing Directive.) The first tribunal commenced in Guantanamo on July 30, 2004. All detainees have also been notified of the fact that a federal court has jurisdiction to entertain a petition for habeas corpus brought on their behalf. They will also be informed of how to challenge their detention in federal court by filing a habeas corpus petition.
Each detainee is assigned a military officer to serve as a personal representative and to assist the detainee in preparing for the Combatant Status Review Tribunal. (Enclosure 1 to DOD Implementing Directive at paragraph C.) The detainee has the opportunity to review unclassified information on the basis for his detention. Within 30 days after the detainee’s personal representative has been afforded the opportunity to review the reasonably available information (including classified information) in the possession of the U.S. Government and has consulted with the detainee, a Tribunal shall be scheduled to review the detainee’s status as an enemy combatant. An individual Combatant Status Review Tribunal is comprised of three neutral officers of the U.S. Armed Forces. These officers cannot have been involved in the apprehension, detention, interrogation, or previous status determinations of the detainee.
The Combatant Status Review Tribunal provides each detainee the opportunity to present information as to why he should not be considered an enemy combatant, including personal testimony, witness statements or other documentary evidence. Detainees have the opportunity to testify before the Tribunal or otherwise address the Tribunal in oral or written form and to introduce relevant and reasonably available witnesses and documentary evidence. (DOD Order, paragraph 10.) The detainee may not be compelled to testify or to participate in the Tribunal. (DOD Order, paragraph 11; Enclosure 1 to DOD Implementing Directive at paragraph F.)
Following the hearing of testimony and other evidence, the Tribunal deliberates in closed session and determines by a majority vote whether the preponderance of the evidence supports the conclusion that the detainee is properly classified as an enemy combatant. There is a rebuttable presumption in favor of the accuracy of the Government’s evidence. (DOD Order, paragraph 12.) The record of the Tribunal is reviewed for legal sufficiency prior to its decision being made final. Any detainee who is determined not to be an enemy combatant is transferred to the detainee’s country of citizenship or other disposition consistent with domestic and international obligations and U.S. foreign policy. (DOD July 7 Press Release; Enclosure 1 to DOD Implementing Directive at paragraph H.)
As of December 6, 2004, 466 detainees had gone before a Combatant Status Review Tribunal, and 194 of those detainees have had final decisions rendered in their respective cases. In 193 of those 194 final decisions, the Tribunal found the detainee in question correctly identified as an enemy combatant. See http://www.defenselink.mil/transcripts/2004/tr20041001-1344.html (Secretary of Navy England’s Briefing dated October 1, 2004). In the case of the detainee found not to be an enemy combatant, provisions were made to return him to his home country, Pakistan, on September 18, 2004. Id. The remainder of the Tribunals are scheduled to be completed by the end of December 2004.
The Combatant Status Review Tribunals do not foreclose the filing of a habeas corpus petition in federal court, nor do they supplant the annualized review procedure for Guantanamo detainees announced earlier this year (Administrative Review Board (ARB) discussed below). Instead, CSRTs are fact-based proceedings to review whether individuals detained at Guantanamo are enemy combatants and to permit each detainee the opportunity to contest such designation.
It is important to note that the U.S. Armed Forces has conducted these tribunals with transparency, offering the media and the International Committee of the Red Cross (“ICRC”) an opportunity to observe tribunal proceedings. Members of the media have accepted the invitation and attended tribunal proceedings. See http://www.defenselink.mil/news/Aug2004/n08132004_2004081304.html (August 13, 2004); http://www.defenselink.mil/news/Aug2004/n08292004_2004082902.html (August 29, 2004).
In sum, there are several ongoing and available review processes provided under domestic law and procedure for detainees at Guantanamo seeking to challenge their detention. These review procedures amply demonstrate that domestic remedies are available to, and have not been exhausted by, Guantanamo detainees, thereby requiring a finding that the petition is inadmissible.
Furthermore, counsel representing the detainees in habeas corpus cases have been visiting them at Guantanamo since late August 2004. As of December 12, 2004, counsel in 11 cases had personally met with the 38 detainees they represent. By the end of January 2005, counsel in 2 additional cases will meet with the 26 detainees that they represent. Repeat visits are also being arranged, when requested by counsel. Additionally, the detainees and their counsel are permitted to correspond in writing in a confidential manner.
Without prejudice to or waiver of our position that the petition is inadmissible and that the Commission lacks jurisdiction over this matter, we provide the Commission with the following information as a matter of courtesy and in a spirit of cooperation.
Law of War. It is important to recall the context of the Guantanamo detentions. The war against al Qaida and its affiliates is a real (not a rhetorical) war, and the United States must fight it that way. On September 11, 2001, the United States was the victim of massive and brutal terrorist attacks carried out by 19 al Qaida suicide attackers who hijacked and crashed four U.S. commercial jets, two into the World Trade Center towers in New York City, one into the Pentagon near Washington, D.C., and a fourth into a field in Shanksville, Pennsylvania, leaving approximately 3000 innocent individuals dead or missing.
The United Nations Security Council condemned the terrorist attacks of September 11, 2001 as a “threat to international peace and security” and recognized the “inherent right of individual and collective self-defence in accordance with the Charter.” See U.N. Security Council Resolution 1368, U.N. Doc. No. S/RES/1368 (September 12, 2001); see also U.N. Security Council Resolution 1373, U.N. Doc. No. S/RES/1373 (September 28, 2002). The North Atlantic Treaty Organization (NATO), the Organization of American States (OAS) under the 1947 Inter-American Treaty of Reciprocal Assistance (Rio Treaty), and Australia under the ANZUS Treaty, similarly considered the terrorist attacks on the United States as an armed attack, justifying action in self-defense. See Statement of Australian Prime Minister on September 14, 2001 (Article IV of ANZUS applies to the 9/11 attacks); Statement of October 2, 2001 by NATO Secretary General Lord Robertson (9/11 attacks regarded as an action covered by Article 5 of the Washington treaty)); OAS publication, United Against Terrorism, www.oas.org/assembly/GAAssembly2000/Gaterrorism.htm.
On October 7, 2001, President Bush invoked the United States' inherent right of self-defense and, as Commander in Chief of the U.S. Armed Forces, ordered the U.S. Armed Forces to initiate action in self-defense against the terrorists and the Taliban regime that harbored them in Afghanistan. The United States was joined in the operation by the United Kingdom and coalition forces, comprising (as of December 2003) 5,935 international military personnel from 32 countries.
It is clear from the foregoing that the U.S. Government, and indeed the international community, have concluded that al Qaida and related terrorist networks are in a state of armed conflict with the United States. Al Qaida attacks have deliberately targeted civilians and protected sites and objects (see the United States submission in this case dated December 24, 2003, at pages 5-6, for a detailed discussion of al Qaida attacks and operations), and the fight is ongoing. Recent examples include the bombing on November 8, 2003, of a Riyadh housing compound, and the bombings in Istanbul in 2003 that killed the British Consul.
The law of war applies to the conduct of war, and allows the United States –- and any other country -- to hold enemy combatants without charges or access to counsel for the duration of hostilities. Detention is not an act of punishment but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States. These are the long-standing, applicable rules of the law of war, a fact recognized by the U.S. Supreme Court in its recent decisions.
Myriad Review Processes. As described above, the U.S. Supreme Court has determined that, under the federal habeas corpus statute, the appropriate district court has jurisdiction to hear habeas corpus petitions brought on behalf of detainees challenging their detention at Guantanamo, and the Department of Defense has instituted Combatant Status Review Tribunals to allow each Guantanamo detainee an opportunity to contest his or her detention as an enemy combatant. Additionally, as described in detail below, the Department of Defense has established an individualized annual review procedure to determine whether persons classified as enemy combatants no longer pose a danger to the United States, and may therefore be released. Moreover, when a detainee at Guantanamo is charged with a criminal offense, the detainee has the right to counsel and numerous procedural due process safeguards (which are currently under review by the federal court).
Over the past three years, the U.S. Armed Forces have employed a multi-layered screening process to verify an individual’s enemy combatant status and to assess the threat the detainee may pose. In Afghanistan, approximately 10,000 individuals have been captured, screened by the United States, and released. Fewer than ten percent of those screened have been transferred to Guantanamo, and 202 Guantanamo detainees have been released or transferred. The detainees at Guantanamo, who as of December 14 number approximately 550, see also http://www.dod.mil/releases/2004/nr20040922-1310.html, include jihadists who took up arms against the United States and also senior al Qaida and Taliban operatives who would pose a serious threat of violence to the international community if released. Some of those detained in Guantanamo are among the worst jihadists, posing a significant threat to U.S. security. Generally, the detention population represents a broad number of countries from almost every continent and region.
Critics of the U.S. Government have charged that the detainees held in custody do not pose a threat to U.S. security. This assertion is incorrect. The individuals held in United States Government control at Guantanamo and in Afghanistan were prior to their apprehension active participants in perpetrating terror and/or attacking the United States and its allies. Department of Defense detention operations serve the purpose of removing these dangerous individuals from the battlefield.
Examples of detainees held under U.S. Government custody during Operation Enduring Freedom include:
Representative examples of specific Guantanamo detainees include:
Still, as a supplement to the extensive screening processes already in place, through the Combatant Status Review Tribunal discussed supra and the annualized individual review discussed infra, the United States has established a process for reviewing and assessing detainees’ status as enemy combatants and whether their continued detention is necessary in light of the threat they pose to the United States and the international community.
The United States has no interest in detaining enemy combatants longer than necessary. On an ongoing basis, it is constantly reviewing the continued detention of each enemy combatant, based on security, war crime involvement, and intelligence concerns. As a result of this process, as of December 14, 2004, two hundred two (202) detainees have departed Guantanamo, with 145 transferred for release, and 57 transferred to the control of other governments for further investigation and prosecution, as appropriate. Of those 57 detainees who have been transferred to the control of other governments, 29 were transferred to Pakistan, seven to Russia, five to Morocco, five to Great Britain, four to France, four to Saudi Arabia, one to Denmark, one to Spain, and one to Sweden. Id. September 22, 2004 marks the most recent announcement of transfers, which saw the release of 11 detainees from Guantanamo Bay.
Juveniles. There are no juveniles currently detained in Guantanamo. As we stated in our letter to the Commission dated February 11, 2004, three juveniles under the age of sixteen detained at Guantanamo were transferred to Afghanistan under conditions intended to provide for their safety and rehabilitation. As with all detainees, these juveniles were originally detained on the basis that they were enemy combatants who posed a threat to U.S. security; their subsequent transfer for release was based on the determination that they no longer posed a significant threat. With the assistance of non-governmental organizations, the juveniles were resettled in their home country. The goal of the United States was to return the juveniles to an environment where they have an opportunity to reintegrate into civil society. DOD News Release “Transfer of Juvenile Detainees Completed” (January 29, 2004) at www.dod.mil. However one juvenile (who is no longer a juvenile) returned to the fight and was re-captured.
By way of background, after medical tests determined that all three juveniles were under the age of 16, the juveniles were housed in a separate detention facility at Guantanamo which was modified to meet the special needs of juveniles. In these facilities they were not restricted in the same manner as adult detainees and underwent assessments by medical, behavioral, educational, intelligence and detention specialists to address their unique needs while detained at Guantanamo. While in detention, the juveniles were provided with the opportunity to learn mathematics, as well as reading and writing in their native language. They also participated in courses to improve their social skills and in daily physical exercise and sports games. Id.
Administrative Review Boards (ARB). In an action unprecedented under the law of war, on May 11, 2004, the Department of Defense established special administrative review procedures to provide an annual individualized review of the detention of each enemy combatant at Guantanamo. The May 11, 2004 order was effective immediately. See www.dod.mil/releases/2004/nr20040518-0806.html (May 18, 2004 announcing the May 11, order.) See www.defenselink.mil/news/May2004/d20040518gtmoreview.pdf (May 18, 2004). The process permits the enemy combatant to explain personally why he or she is no longer a threat to the United States and its allies in the ongoing armed conflict against al Qaida and its affiliates or supporters, or to explain why release would otherwise be appropriate. Such procedures are not required by the law of war, but the Department of Defense has elected to implement them in order to address some unique and unprecedented characteristics of the current conflict.
Under this order, each enemy combatant is provided with an unclassified written summary of the primary factors favoring continued detention and the primary factors favoring release or transfer from Guantanamo. The detainee has an opportunity to appear in person before a board of three military officers and to present information in his or her behalf. The detainee is provided a military officer to meet with him in advance of the hearing and to assist him or her in the detainee’s appearance before the board. In addition, the review board accepts written information from the family and national government of the detainee. Based on all of this information, as well as submissions by other U.S. Government agencies, the board, by majority vote, makes a written assessment of whether there is reason to believe that the enemy combatant poses a threat to the United States or its allies in the ongoing armed conflict and any other factors bearing on the need for continued detention. The board also provides a written recommendation on whether detention should be continued. Id.
On June 23, 2004, the Department of Defense announced that the Secretary of the Navy, Gordon R. England, had been named the Designated Civilian Official to oversee the annual administrative review process described above. Secretary England reviews the recommendation of the board and then decides whether the detainee should be released or continued in detention. Shortly after assuming the position of Designated Civilian Official, Secretary England assembled a joint civilian and military team that developed a detailed, comprehensive implementing directive to expedite the review of detainee records and establish review boards. See www.dod.mil/releases/2004/nr20040623-0932.html (June 23, 2004). After the Department of Defense circulated these procedures for public comment, see www.defenselink.mil/releases/2004/nr20040303-0403.html (March 3, 2004), Secretary England signed the implementing directive on September 14, 2004. See www.defenselink.mil/news/Sep2004/d20040914adminreview.pdf (September 14, 2004). On October 1, 2004, Secretary England announced preparations to schedule ARB hearings for the first 12 detainees, with requests being sent to the detainees’ respective host countries so that the countries may provide information (including information from the detainee’s relatives) for the hearings. See http://www.defenselink.mil/transcripts/2004/tr20041001-1344.html (Secretary of the Navy England’s Briefing dated October 1, 2004). The first administrative review boards will likely begin in late December.
As noted above, the grant of an annual individualized process to determine whether to release or transfer a detainee is, as far as we are aware, unprecedented in the history of warfare. Similarly, the release of enemy combatants prior to the end of a war is a significant departure from past wartime practices. Enemy combatants are detained for a very practical reason: to prevent them from returning to the fight. Indeed, the release of detainees has come with substantial risk. According to an Associated Press report, as of October 17, 2004, at least seven of the former detainees have returned to terrorism. See http://hosted.ap.org/dynamic/stories/G/GUANTANAMO_BACKSLIDERS?SITE=DCTMS&SECTION=HOME&TEMPLATE=DEFAULT (October 17, 2004). See also http://www.defenselink.mil/transcripts/2004/tr20041019-1461.html. Recidivists include the following:
The potential for enemy combatants to return to the fight is why the law of war permits their detention until the end of an armed conflict. Although military operations against al Qaida and its affiliates in Afghanistan and globally are ongoing, the Department of Defense has decided as a matter of policy to institute these review procedures, which will assist DOD in fulfilling its commitment to help ensure that no one is detained any longer than is necessary for the security of the United States or its allies. See www.defenselink.mil/releases/2004/nr20040303-0403.html (March 3, 2004).
Mistreatment of Detainees. Concerns have been raised about conditions of detention at Guantanamo. The Department of Defense is committed to treating all detainees it holds at Guantanamo humanely. The petition referred to the August 1, 2002 Department of Justice memorandum as potentially justifying abuse of detainees, and we take this opportunity to confirm that that memorandum was not so intended and has, in all events, been withdrawn. As quoted below, the President has made clear that the United States stands against and will not tolerate torture and that the United States remains committed to complying with its obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The United States is aware of previous allegations of mistreatment of detainees at Guantanamo as reflected in recently released Federal Bureau of Investigation documents and concerns about treatment reportedly expressed by officials of the International Committee of the Red Cross. The United States deeply regrets any instances of abuse of detainees anywhere. Allegations of abuse are investigated by appropriate U.S. officials, and steps are taken to hold accountable persons found responsible for such acts. Major independent investigations have documented eight instances of infractions at Guantanamo. Investigation revealed that each case had been thoroughly investigated, and that the military command had taken swift and appropriate action, ranging from admonishment to court-martial, to address the actions of those involved in wrongdoing.
The Department of Defense denies any allegations of torture at Guantanamo. As recently as December 8, 2004, the Defense Department reaffirmed that it does not permit, tolerate, or condone torture under any circumstances. Whenever a credible allegation is raised to the attention of authorities, the Department of Defense makes every effort to investigate it fully. A spokesperson for Brigadier General Jay Hood, the commander of the detention and interrogation operation at Guantanamo, reaffirmed on December 6 that “[w]e investigate any such allegations and take appropriate action.” It remains the policy of the United States to comply with all of its legal obligations in the treatment of detainees and, in particular, with legal obligations prohibiting torture.
Indeed, on United Nations International Day in Support of Victims of Torture, June 26, 2004, the President stated that:
“The United States reaffirms its commitment to the worldwide elimination of torture. . . . To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction.
“The United States also remains steadfastly committed to upholding the Geneva Conventions….”
“The American people were horrified by the abuse of detainees at Abu Ghraib prison in Iraq. These acts were wrong. They were inconsistent with our policies and our values as a Nation. I have directed a full accounting for the abuse of the Abu Ghraib detainees, and investigations are underway to review detention operations in Iraq and elsewhere. . . .
“These times of increasing terror challenge the world. Terror organizations challenge our comfort and our principles. The United States will continue to take seriously the need to question terrorists who have information that can save lives. But we will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere.”
“The administration has made clear before, and I will reemphasize today that the President has not authorized, ordered or directed in any way any activity that would transgress the standards of the torture conventions or the torture statute, or other applicable laws. …[L]et me say that the U.S. will treat people in our custody in accordance with all U.S. obligations including federal statutes, the U.S. Constitution and our treaty obligations. The President has said we do not condone or commit torture. Anyone engaged in conduct that constitutes torture will be held accountable.” White House Press Release of June 22, 2004.
“Of course our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment [under the Geneva Conventions]. . . . As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva….”
To prevent instances of misconduct, it is U.S. policy that military personnel are trained, disciplined, and informed on the laws and customs of armed conflict. United States forces are subject to the Uniform Code of Military Justice, which provides for penalties for many military offenses that are more severe if committed during an armed conflict. A Department of Defense Directive requires that incidents involving violations of the law of war committed by U.S. persons be promptly reported, thoroughly investigated, and when factually substantiated, remedied by corrective action. Guantanamo personnel are trained on this requirement and are regularly briefed of their responsibility to report mistreatment.
Further, regarding training procedures, personnel assigned to Guantanamo go through an extensive professional and sensitivity training process to ensure they understand the procedures for protecting the rights and dignity of detainees at Guantanamo:
“Individuals who have abused the trust and confidence placed in them will be held accountable. There are a number of inquiries that are ongoing to look at specific allegations of abuse, and those investigations will run their course.” See id.
The facility at Guantanamo is continually open to members of the International Committee of the Red Cross, chaplain staff and legal staff, and foreign and domestic media. All allegations of illegal conduct by US personnel are reviewed, and when appropriate investigated and addressed in a timely manner.
Official reviews at Guantanamo include the following.
1. Naval Inspector General (IG) Review. The Naval Inspector General, Vice Admiral (VADM) Church, reviewed the intelligence and detainee operations at Guantanamo to ensure compliance with DOD orders and policies. VADM Church concluded that the detention facility was a professional organization staffed by personnel who clearly understood their roles and responsibilities. VADM Church documented eight minor infractions involving contact with detainees. Four of these involved guards, three involved interrogators, and one involved a barber. In each of those cases, the chain of command took swift and effective action. Administrative actions ranged from admonishment to reduction in rank. One service member was tried by court-martial and was acquitted.
2. Investigations into individual allegations of abuse. Individual allegations of abuse are promptly investigated. Most notable were the investigations conducted at the direction of the Secretary of Defense in response to a request by the Australian Government following claims of mistreatment of two Australian detainees at Guantanamo. After a comprehensive review of the claims, the investigation revealed no information to support the abuse allegations.
3. Further, the Naval Criminal Investigative Service is conducting an independent investigation into these allegations of abuse made by the Australian Government.
Non-refoulement. In its actions involving the possible repatriation of Guantanamo detainees to other countries, the United States takes seriously the principle of non-refoulement. It is U.S. policy not to “expel, return (‘refouler’) or extradite” individuals to other countries where the United States believes it is “more likely than not” that they will be tortured.
The President rejected a legislative proposal in September-October 2004 that would have had the effect of permitting the return of certain dangerous aliens even if they were more likely than not to be tortured. The text of a letter from the Counsel to the President Alberto R. Gonzales to the Washington Post, printed in the Washington Post on October 5, 2004, page A24, reads as follows:
“A September 30 front-page article inaccurately reported that the Bush administration supports a provision in the House intelligence reform bill that would permit the deportation of certain foreign nationals to countries where they are likely to be tortured.
The president did not propose and does not support this provision.
He has made clear that the United States stands against and will not tolerate torture and that the United States remains committed to complying with its obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Consistent with that treaty, the United States does not expel, return or extradite individuals to countries where the United States believes it is likely that they will be tortured.”
The provision in question was deleted from the final text of the intelligence reorganization bill.
Should an individual be transferred to another country to be held on behalf of the United States, or should we otherwise deem it appropriate, the U.S. policy is to obtain specific assurances from the receiving country that it will not torture the individual being transferred to that country. The United States would take steps to investigate credible allegations of torture and take appropriate action if there were reason to believe that those assurances were not being honored. Further, if a case were to arise in which the assurances the United States has obtained from another government are not sufficient when balanced against an individual’s specific claim, the United States would not transfer a detainee to the control of that government unless those protection concerns were satisfactorily resolved.
As the President stated on June 26, 2004, “The American people were horrified by the abuse of detainees at Abu Ghraib in Iraq.” Importantly, the response to and investigation of these and other incidents revealed the military chain of command following procedures appropriately, military personnel bringing wrongdoing to light, and investigators and command authorities continuing their efforts to bring to justice those who committed misconduct.
The Department of Defense has taken several actions in an attempt to address allegations of any prisoner abuse by U.S. military personnel abroad. As one of eight major reviews or investigations, on May 7, 2004, Secretary Rumsfeld announced that four prominent and independent experts agreed to review DOD detention operations and provide independent, professional advice to the Secretary on issues related to the treatment of detainees. The Independent Panel issued its final report on August 24, 2004, which the United States Government would be pleased to provide to the Commission upon request. The report addressed issues such as force structure, training, organization, detention policy and procedures, interrogation policy and procures, command relationships and operational practices. The panelists, who included two former Secretaries of Defense, James Schlesinger and Harold Brown, had access to all relevant DOD investigative reports and other information to the maximum extent possible. While the report identifies lapses of responsibility at both the institutional and personal levels, the report noted the many significant steps the Department of Defense has taken to address past failures and remedy any underlying causes of these abuses.
Thus far, more than 50 individuals have been referred for court martial, some of whom have already been convicted and sentenced to serve up to eight years in prison. Additionally, others have been disciplined, removed from command, or separated from the U.S. Armed Forces.
Additionally, on June 10, 2004, the Secretary of Defense issued new guidance on procedures for investigations into deaths of any person held as a detainee in the custody of the U.S. Armed Forces. The guidance details very strict procedures to ensure that the U.S. Department of Defense can establish and record an official cause and manner of death in all cases involving persons in U.S. custody. The directive is part of a series of efforts to strengthen policies and eliminate procedural weaknesses that have come to light as a result of the events at Abu Ghraib prison. www.dod.mil/releases/2004/nr20040610-0892.html (June 10, 2004).
Medical Treatment and other Conditions at Guantanamo. The Department of Defense advises that it is providing detainees at Guantanamo with excellent medical care. In March 2003, a special mental health unit was opened in Guantanamo where detainees suffering from depression or other psychological difficulties or diseases receive individualized care and supervision. Although there have been suicide attempts by detainees, discovery and rapid intervention by military guards have prevented detainee deaths. These individuals were also seen by medical personnel. These attempts are taken seriously, and the United States makes every effort to prevent them.
The detainees receive three meals per day that meet cultural dietary requirements, and they also receive adequate shelter and clothing. Representatives of the International Committee of the Red Cross (”ICRC”) have access to DOD detention facilities and the opportunity to meet privately with detainees. Detainees are also permitted to receive and send mail to family and friends at home via petitions and postcards. They use either the U.S. military postal service, or the ICRC, which delivers mail via its offices in each country. The volume of communications is substantial and numbers well over 6,000 since detainees began arriving at Guantanamo in January 2002.
Subject to certain restrictions, the detainees can engage in exercise and recreation periods and can communicate with one another. Some have met and consulted with a U.S. chaplain of the Muslim faith. Some have met with government officials from their country of nationality. It is noted, however, that there is no requirement under international law for enemy combatants detained under the law of armed conflict to be permitted to meet with family members or consular representatives.
Summary. For the foregoing reasons, the United States respectfully requests that the petition be declared inadmissible, because it fails to establish the exhaustion of available domestic remedies, a core principle under customary international law and expressly incorporated in Inter-American Commission procedural requirements. The petition also raises issues under the Geneva Conventions and the law of war that are beyond the competence of the Commission, and it fails to establish the existence of violations of human rights. For all of the reasons stated in the submission above, the petition must be deemed inadmissible.
Without prejudice to this position, the United States underscores that there are several available and ongoing judicial and administrative procedures for Guantanamo detainees to seek review of their detention. These include a habeas corpus petition in U.S. federal court, a Combatant Status Review Tribunal, and an annual individualized review of continued detention (ARB).
Further, the President has reaffirmed the policy of the United States that all detainees held by the armed forces in connection with the war on terrorism be treated humanely. The United States has instituted additional measures to prevent any prisoner abuse and has reaffirmed that persons responsible for acts of torture against detainees in U.S. custody will be investigated and prosecuted.
In conclusion, the United States respectfully submits that the petition is inadmissible and that the Commission lacks jurisdiction over the matter.