On the advent of Obama's first 100 days as President of the USA, Amnesty International has released a report outlining the mixed messages which the administration has been sending in relation to countering terrorsim whilst protecting human rights. Read the full report.

The report is in, and the result is mixed. The Obama Administration has had to deal with the legacy of breaches of international law including, torture, enforced disappearance and unlawful imprisonment. Upon taking office, Amnesty International issued Obama a checklist which would assess the progress made including 17 steps in the first 100 days of his presidency. These steps included:

  1. Closing Guantanamo
  2. Eradicating torture and ill-treatment; and
  3. Ending impunity

Whilst significant steps have been made, including the announcement of the closure of Guantanamo Bay, ending some forms of 'enhanced interrogation', and some of the detention policies of the former Administration, Amnesty International is concerned that other changes have been more 'symbolic rather than substantial'. There is also widespread concern over the lack of action taken by the present Administration to hold the perpetrators to account for their crimes.

Some of the major points outlined in the report include;

Guantanamo Bay

Although the Presidential Order states that Guantanamo will no longer be operating past January 22, 2010, the Order leaves open the possibility that detainees will be held without charge or fair trial for another year. The report also raises concerns regarding the fate of the remaining 240 detainees as the review of their cases continue. Only one detainee has been released since the beginning of the review process; Binyam Mohamed. The review process in itself has raised questions about transparency and ongoing delays. In effect, there has been no real change to the situation of the men unlawfully held at Guantanamo Bay.

Release of Detainees

In June of 2008, the US Supreme court held that detainees at Guantanamo Bay had the right to challenge the lawfulness of their detentions in US courts1. In response to this, the Bush Administration was responsible for further delays to these hearings. The Bush Administration's policy priority was to ensure that no detainee would be released onto US soil. The Uighurs are one such example of this. Read more about the Uighurs here. Even in the case of detainees that have been cleared for release, the current Administration is continuing to hold them. So far, France and Ireland have agreed to take some detainees and a number of other European states have agreed if it is a part of a 'European Union-wide agreement'.

Military Commissions

The President's Executive Order called for a suspension of all military commission proceedings for 120 days. Although this has been a major step in the right direction, no 'substantive commitment' for an existing US civilian federal court system has been announced. The order does not rule out another military commission or court martial. The new Administration has recently called for the petitions of detainees challenging their detention to be dismissed on the grounds that charges under the military commission system are pending, despite the 120 day suspension. The trying of detainees in federal court systems remains problematic to the Administration as much of the evidence against those charged has been collected through 'coercion'. However, this cannot be justification for further human rights violations. Amnesty International calls for the immediate resolution for all detainee cases consistent with US's international legal obligations. Read more about Amnesty International's response to the Military Commissions here.

Interrogations, Torture and Transfers

The Rendition programme was stepped up in late 2001. It is still not fully known how many people have been subjected to the mainly CIA programme. We are yet to find out comprehensive information about where these people were held, and the treatment they endured. President Obama signed an Executive Order "ensuring Lawful Interrogation" on the 22nd January, 2009. This has been a positive step. However, the Executive Order has loopholes which include the possibility of the CIA to still detain people, but in a "short-term, transitory basis". The definition of "short-term" is open to interpretation. The Executive Order also does not prevent the CIA from travelling to offshore detention facilities to interrogate detainees. The continued reliance on diplomatic assurances in relation to transferring detainees to third countries for interrogations is still of concern. There is also concern around the reliance on the Army Field Manual (AFM) as a guide to intelligence collection. The AFM does not cover the 'conditions of detention unrelated to interrogation', so this leaves open the possibility of further abuse. 'Appendix M' is of significant concern as it allows for isolation and sleep deprivation as well as other techniques which may contravene the Convention Against Torture and other international law provisions. Read more about the Army Field Manual here.

Shift of Language

The Obama Administration has moved away from several invented or 'popularised' terms used by the Bush administration such as "unlawful enemy combatant", "war on terror", "extraordinary rendition" and "enhanced interrogation techniques". Amnesty International Believes that the whole 'global war framework' needs to be changed, not just the terminology which goes with it. The Obama administration still refers to America being part of a global 'war' which is what the former administration used as justification for denying the rights and protections afforded under human rights law as well as US law. Amnesty International believes that invoking "the laws of war in situations which do not constitute armed conflict gravely undermines the framework of human rights and the ordinary criminal justice system, and distorts the application of the rule of law itself."

Reliance on Authorisation for Use of Military Force (AUMF)

The AUMF authorised the President to use "all necessary and appropriate force" against anyone involved in the 9/11 attacks "in order to prevent future acts of terrorism against the United States." President Obama is continuing to use the AUMF as justification for holding people outside of an international armed conflict as designated under international humanitarian law. This is inconsistent with the US's obligations under international human rights law. Amnesty International calls for the clarification that the Obama administration will not interpret the AUMF as authorising any violations of human rights or humanitarian law.

Transparency and Secrecy

President Obama has committed to "creating an unprecedented level of openness in government". Since taking office, a number of previously classified documents outlining the authorisation of prisoner abuse have been released. Most recently, four legal opinions were released giving clearance for the CIA to use interrogation techniques such as water boarding, slapping, stress positions, cramped confinement, exploitation of phobias, dousing with cold water, forced nudity and sleep deprivation2. On 21 April, the US Department of Defense declassified an expanded version of the Senate Armed Services Committee report into the Treatment of Detainees in US Custody (although still with redactions)3. Although these have been positive steps, there are also areas which remain shrouded in secrecy. The Obama administration has continued the Bush reliance on invoking the "state secrets privilege" to prevent key documentation from being released such as in the recent Mohamed v. Jeppeseon Dataplan Inc. case4. Another area of concern in relation to secrecy is Bagram Airbase, Afghanistan.

Bagram Airbase Detention Facility

In January, a Federal Court Judge asked for the number of detainees being held in Afghanistan's Bagram detention facility to be disclosed. In response to this, the Obama administration responded by classifying key details such as the number being held, how many had been taken into custody to date outside of Afghanistan and how many are Afghan nationals. Given the long history of ill treatment and secret detention, Amnesty International considers the ongoing secrecy of serious concern. Read more about Bagram here.

Prosecution, Inquiry, Remedy: Impunity Entrenched

There is now no denying that war crimes have been committed under international human rights and humanitarian law. Sadly, there have been no steps taken by the US to independently investigate and prosecute those who have been complicit in the torture and ill treatment of the people detained by the US military or CIA. When memo's were released in April, 2009, outlining methods amounting to torture or cruel inhuman and degrading treatment the Obama administration confirmed that it would protect those who have relied 'in good faith' upon the legal advice offered in the legal memos. Obama did indicate however, that the possibility of prosecuting those who drafted the memos would be in the hands of Attorney General, Eric Holder. Past investigations of treatment and abuse of detainees have been conducted in the political realm leaving open the possibility of a lack of transparency and no legal remedy. Amnesty International is calling for an independent commission of inquiry.

References

  1. See Boumediene V. Bush Supreme Court Ruling http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf

  2. See ACLU website http://www.aclu.org/safefree/general/olc_memos.html

  3. Read the full report (263 pages) here

  4. Mohamed v. Jeppesen Dataplan, Inc. For case summary, see: http://www.brennancenter.org/content/resource/mohamed_v_jeppesen_dataplan_inc_ninth_circuit_court_of_appeals/