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Letter to President General Pervez Musharraf: Urge Bush to respect the rights of non-citizens

June 20, 003

His Excellency General Pervez Musharraf President Islamic Republic of Pakistan Aiwan-e-Sadr, Constitution Avenue Islamabad, Pakistan

Dear President Musharraf:

In your forthcoming meetings with President Bush and other United States officials, Human Rights Watch urges you to raise two sets of human rights concerns affecting Pakistani citizens: the treatment of detainees at the U.S. military base at Guantanamo Bay; and, U.S. laws and policies introduced after September 11 that infringe on the rights of non-U.S. citizens in the United States. As Pakistan is a critical U.S. ally in the campaign against terror, your personal and public intervention may be of benefit to those adversely affected.

Guantanamo Bay and Military Commissions

Since late 2001, the United States has transferred about 650 men captured in connection with the Afghan war or who are suspected of links to al-Qaeda to the U.S. military base at Guantanamo Bay, Cuba. As many as 100 Pakistanis are currently believed to be detained there. Under the 1949 Geneva Conventions, combatants captured in an international armed conflict must be treated as prisoners of war unless and until a "competent tribunal" specifically determines that a prisoner is not entitled to that status. The U.S. government chose not to convene such tribunals for the Afghanistan war captives even though it has routinely convened them in past hostilities. It has also refused to abide by principles of international human rights law with regard to these detainees, asserting, in effect, that no legal regime applies to them and that in the war against terrorism, the United States may hold such combatants for as long as it chooses.

Human Rights Watch has called on the Bush administration to release detainees who were Taliban soldiers or who have no connection to Al Qaeda, and who are not being prosecuted for war crimes or other serious international offenses. Among the prisoners unlawfully detained at Guantanamo are civilians who-according to news reports quoting U.S. intelligence officials-were mistakenly sent to Guantanamo. These include Isa Khan, a homeopathic doctor from Bannu District in the North West Frontier Province of Pakistan who, American and Pakistani officials have privately admitted to Human Rights Watch, has no connection to the Taliban or Al-Qaeda. His case has also been documented in the Pakistani media. Further, recently released Pakistani detainees Mohammad Sagheer and Shah Mohammad have alleged mistreatment in the form of sleep deprivation, limited access to toilet facilities, prevention of the opportunity to perform religious observances and verbal abuse. Both detainees assert that such treatment is commonplace at the facility.

The Guantanamo detainees remain without a legal forum in which they can challenge their detention; a federal judge ruled in July 2002 that U.S. federal courts do not have jurisdiction to hear constitutional claims brought by aliens held by the United States outside U.S. sovereign territory. In addition, the United States denied the request made by the Inter-American Commission on Human Rights to provide for a lawful tribunal or court to determine the status of these detainees. The United States did not even respond to letters from the U.N. Working Group on Arbitrary Detention seeking information on the treatment and legal status of the Guantanamo detainees.

The U.S. government is rapidly moving towards setting up military commissions to try suspected foreign terrorists for war crimes and other offenses. Human Rights Watch has consistently voiced fundamental concerns with the military commissions under international humanitarian and human rights law since the commissions were first proposed in November 2001. We remain concerned that military commissions set up under the rules issued by the U.S. Department of Defense will not meet international fair trial standards.

Of particular concern is the right to counsel and to present a defense. The rules governing military commissions place significant and wholly unwarranted limitations on the right to counsel. The rules impose restrictions that are far broader than necessary to protect classified or sensitive national security information. The rules impede fair trials by preventing defendants from being represented only by counsel of their choice and by frustrating the ability of defense counsel to mount a vigorous defense, including through the production of witnesses and evidence on their clients' behalf.

President Bush has repeatedly said that the war against terrorism is a war of values. At Guantanamo, that war is being lost. At risk are not only the rights of the individuals who are unlawfully detained today, but by ignoring the clear mandates of international law, the United States invites every other country to do the same. Human Rights Watch urges you to raise with President Bush these serious concerns about the detentions at Guantanamo Bay and the upcoming military commissions.

Human Rights Concerns of Non-Citizens

In your meeting with President Bush, you should impress upon him the need to take immediate action to remedy the human rights violations documented by the U.S. Department of Justice's internal investigation of its treatment of non-citizens detained after September 11, 2001. The United States detained some twelve hundred non-citizens, mostly from the Middle East and South Asia, among whom the single largest number were from Pakistan (250). At least 752 were held on immigration charges; some of the others were held on criminal charges or as material witnesses. Four have been indicted for terrorism-related crimes. Although those held were of interest to the Department of Justice because of possible links to terrorism, they were detained under immigration laws. This enabled the government to circumvent the greater safeguards in the criminal law, including the requirement of probable cause for arrest, the right to a court-appointed attorney and the right to be brought before a judge within forty-eight hours of arrest. The Department of Justice has maintained in secrecy the names of "special interest" detainees held on immigration charges, their place of incarceration, and the names of their attorneys, and has closed their deportation proceedings to the public, arguing that this was necessary to protect national security interests.

Human Rights Watch has documented the mistreatment of non-citizens detained in the September 11 investigation, including: custodial interrogations without access to counsel, prolonged detention without charge, executive decisions overriding judicial orders to release detainees on bond during immigration proceedings, and excessively harsh conditions of detention-including solitary confinement. The Office of the Inspector General, an internal agency watchdog, confirmed many of these findings of abuse in a hard-hitting 198-page report issued earlier this month.

The special registration program for men from specified countries has led to the deportation of thousands for irregularities in their immigration status. Because 25 of the 26 countries for which registration is necessary are predominantly Muslim (the exception being North Korea), the government action has cast a pall of suspicion over Muslim communities throughout the United States. While the registration of temporary residents is not in itself unlawful, should persons be detained or improperly treated solely on grounds of their ethnicity, religion or gender, the U.S. actions would be in violation of international standards prohibiting discrimination.

Human Rights Watch urges you to raise with President Bush the need for the United States to respect the rights of non-citizens, particularly in light of the Inspector General's report, and to ensure that regulations applied to non-citizens are administered in conformity with international law.

Yours sincerely,

Brad Adams Executive Director Asia Division