II. Background

Many of the practices developed by the United States since September 11, 2001 in relation to detainees captured in the “global war on terror” appear designed to evade judicial or other scrutiny of the detentions and of the interrogation of these detainees. These include the creation of offshore prisons, the most well known of which is at Guantánamo Bay, Cuba. The administration deliberately chose Guantánamo as a detention center in an attempt to put the detainees beyond the jurisdiction of the U.S. courts—and thus of any courts, anywhere.² On June 28, 2004, the United States Supreme Court rejected the administration’s position and ruled that the U.S. courts have jurisdiction to hear the detainees’ habeas corpus challenges to the legality of their detention.³ However, the United States is also believed to be holding detainees at some 39 other overseas prisons in Afghanistan, Iraq, and elsewhere.⁴

Another practice the United States has used to avoid scrutiny has been the transfer of detainees to countries in the Middle East known to practice torture routinely. The Washington Post in December 2002 described the rendition of captured al-Qaeda suspects from U.S. custody to other countries, such as Syria, Uzbekistan, Pakistan, Egypt, Jordan, Saudi Arabia, and Morocco, where they were tortured or otherwise mistreated. One official was quoted as saying, “We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.”⁵ In one case, Maher Arar, a Syrian-born Canadian in transit from a family vacation through John F. Kennedy airport in New York, was detained by U.S. authorities. After holding him for nearly two weeks, U.S. authorities flew him to Jordan, where he was driven across the border and handed over to Syrian authorities, despite his statements to U.S. officials that he would be tortured in Syria and his repeated requests to be sent home to Canada. Mr. Arar, whom the United States asserts has links to al-Qaeda, was released without charge from Syrian custody ten months later and has described repeated torture, often with cables and electrical cords, during his confinement in a Syrian prison.⁶

Among the most disturbing cases, perhaps unprecedented in U.S. history, are the detainees who have simply “disappeared” in U.S. custody.

[2]Patrick F. Philbin and John C. Yoo, Memorandum for William J. Haynes II, General Counsel, Department of Defense, “Possible Habeas Jurisdiction over Aliens Held in Guantánamo Bay, Cuba,” December 28, 2001, accessible at http://www.msnbc.msn.com/id/5022681/site/newsweek. Indeed, in response to a legal challenge by several detainees, the U.S. government later argued that U.S. courts would not have jurisdiction over these detainees even if they were being tortured or summarily executed. See Gherebi v. Bush, 9th Circuit, December 18, 2003. (The United States asserts the power “to do with [them] as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting [them] to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. … Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or that it was summarily executing the detainees. To our knowledge, prior to the current detention of prisoners at Guantánamo, the U.S. government has never before asserted such a grave and startling proposition. …a position so extreme that it raises the gravest concerns under both American and international law.”)

[3] Rasul et al. v. Bush, President of the United States, et al., Nos. 03-334 and 03-343; p. 17. In a related decision, the Supreme Court held that “Due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker” (Hamdi et al. v. Rumsfeld, Secretary of Defense, et al., No. 03-6696; p. 1).

[4] See Human Rights First, “Ending Secret Detentions,” June 2004; See also Human Rights Watch, “‘Enduring Freedom’: Abuses by U.S. Forces in Afghanistan,” March 2004 [online], http://www.hrw.org/reports/2004/afghanistan0304/; and Human Rights Watch, “Iraq: Background on U.S. Detention Facilities in Iraq,” May 7, 2004 [online], http://www.hrw.org/english/docs/2004/05/07/iraq8560.htm.

[5] Dana Priest and Barton Gellman, “U.S. Decries Abuse but Defends Interrogations,” Washington Post, December 26, 2002.

[6] The United States has refused to cooperate with an official Canadian inquiry into the Arar rendition. For other rendition cases, see Human Rights Watch, “Empty Promises: Diplomatic Assurances No Safeguard against Torture,” April 2004 [online], http://hrw.org/reports/2004/un0404/.; Human Rights Watch, “The Road to Abu Ghraib,” June 2004 [online], http://www.hrw.org/reports/2004/usa0604/.

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October 2004