From - Amnesty International

Amnesty International Australia - Human Rights And Security

March 22, 2005

Hundreds of detainees from around 40 countries remain in legal limbo in the US naval base at Guantanamo Bay, Cuba, including Australian David Hicks. Fellow Australian Mamdouh Habib was released without charge and returned to Australia in January 2005. The vast majority of detainees held by the US have not been charged, tried or given access to lawyers, relatives or the courts.

Denied their rights under international law and held in conditions which may amount to cruel, inhuman or degrading treatment, the detainees face severe psychological distress. There have been numerous sucide attempts.

The rules of war and the treatment of 'prisoners of war' are outlined in the Geneva Conventions, adopted internationally in the aftermath of the horrors of the Second World War.

The US has deliberately chosen to ignore the protections it should afford detainees under these conventions, placing detainees into a legal 'black hole' where their human rights have been gravely compromised. Several detainees are challenging their detention through the US civil courts following a landmark ruling by the Supreme Court in June 2004.

It is a fundamental right that any one who is detained by a government is informed of the reasons for their detention and quickly brought a fair trial.

In Guantanamo Bay, hundreds of non-US nationals, mostly taken from Afghanistan in 2001, have been largely held in incommunicado detention for more than three years.
They have been given the status of 'enemy combatants' which effectively denies them the protection of the Geneva Conventions which apply to prisoners of war.

This includes the right to the protection of the Conventions until a competent tribunal is able to determine whether or not they are prisoners of war. Other rights include the right to humane treatment at all times, to communicate with the outside warod, to limit answers under interrogation to name, date of birth, rank and serial number and be released at the cessation of hostilities.

Despite the 'cessation of hostilities' with Afghanistan, the ongoing 'war on terror' is being used to justify their prolonged and idenfinite detention, contrary to international law.
International human rights law applies to all detainees in Guantanamo Bay -- this mean that each of them has a right to a full judicial review of his detention and to be released if that detention is unlawful. This is a bisic protection against arbitrary arrest, 'disappearances' and torture.

Allegations of torture in Guantanamo Bay at the hands of US personnel continue to be documented -- sources include not only current and former detainees, but the US Federal Bureau of Investigation (FBI). Both David Hicks and Mamdouh Habib have made statements that they were tortured.

Methods of torture used include shackling, sensory and sleep deprivation, beatings, threat of execution and being subjected to loud noise during interrogations. This is in spite of assurances by the US administration -- and acceptance by the Australian Government -- that all those in Guantanamo Bay have been treated humanely, and that all allegations of abuse have been investigated.

The right to a fair trial is a cornerstone of democratic societies and there are a number of fundamental principles that a fair trial must adhere to.

First the judiciary must be independent and the accused must have the right to be presumed innocent until proven guilty. Second, those appearing before a court must be able to choose who advises and represents then in court. Third, the integrity of evidence presented to a court must be of a high standard -- evidence that may have been given under torture must not be admissible. Finally, there must be a right to appeal the decision to an independent court.

None of these basic fair trial requirements are being met by the US in relation to the detaniees at Guantanamo Bay.

A number of detainees at Guantanamo Bay, including Australian David Hicks, have been scheduled to appear before special military commissions, established under President Bush's Military Order of November 2001. David Hicks's scheduled trial before the commissions has been suspended by a US court hearing application to challenge the legitimacy of detantions at Guantanamo Bay.

The military commissions were established to hear the serious charges laid against detainees -- such as the charges against Australian David Hicks which include conspiracy, attempted murder by an 'unprivileged belligerent' and aiding the enemy.

The fundamental flaw of the military commissions is that they are not independdent from the US executive government. The US administration appoints and removes members of the commission and has the final say in the outcome of trials.

Those charged are appointed a military lawyer for their defence, although they are also entitled to a civilian lawyer at their own cost. Detainees who wish to challenge their detention through the US civil courts retain a civilian lawyer for this purpose.

The commissions employ a lower standard of evidence including statements elicited under duress while in detantion and hearsay, or second-hand evidence. The right to be presumed innocent has been seriously undermined by public statements by US officials, where detainees have been described as "terrorists", "very dangerous people" and "vicious killers".

Finally, there is no right of appeal to an independent and impartial court, only to review panel selected by the Securetary of Defense and with the President making the final decision on any appeal.

Even if a detainee is acquitted, he may not necessarily be released by may be returned to indefinite detention.

Amnesty International maintains that these military commissions do not meet international standards for fair trials and that the Military Order establishing them should be revoked.

It is a basic human right that all people who are detained can challenge their detention before a court. Yet, this right was denied to the Guantanamo Bay detainees until June 2004, when the United States Supreme Court ruled that US courts do have jurisdiction to consider challenges to the lawfulness of detentions at Guantanamo Bay.

In response, the Bush administration announced the formation of the Combatant Status Review Tribunal scheme, which enables Guantanamo detainees to challenge their co-called 'enemy combatant' status. They are not provided with a lawyer.

Instead of doing all it can to facilitate the full judicial review of the lawfullness of the detentions at Guantanamo bay, the US government appears to be trying to narrow the scope of this review. At the same time, the US is trying to proceed with its plans to hold trials by military commission that flout basic international standards.

A number of detainees have sought to challenge the lawfulness of their ongoing detention through habeas corpus applications to US District Courts. These applications were made possible by the ruling of the US Supreme Court in June 2004. While some decisions of single Judges in the US district Courts have been issued, they are subject to the appeals process. Until those appeals have been finalised, the lawfulness of the Guantanamo Bay detentions and the military commission process has not been finally decided.

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