Monday 3 December 2007, by Scheinin Martin
The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, visited the United States of America from 16 to 25 May 2007, during which he met with senior officials of the Government, members of Congress and their staff, academics and non-governmental organizations, as well as with the Inter-American Commission on Human Rights. The objective of the visit was to undertake a fact-finding exercise and a legal assessment of United States law and practice in the fight against terrorism, measured against international law. His visit also aimed at identifying and disseminating best practice in the countering of terrorism.
Chapter I of this report considers the role of the United States in countering terrorism, concluding that it has a special responsibility in the protection of human rights while countering terrorism. The Special Rapporteur identifies his visit to the United States as one step in the process of restoring its role as a positive example for respecting human rights, even in the context of the fight against terrorism. He also strongly encourages the United States to take a strong role in and give support for the United Nations led effort in countering terrorism and implementing the United Nations Global Counter-Terrorism Strategy. The Special Rapporteur concludes that the international fight against terrorism is not a «war» in the true sense of the word, and reminds the United States that even during an armed conflict triggering the application of international humanitarian law, international human rights law continues to apply. He reiterates that international human rights law is also binding upon a State in respect of any person subject to its jurisdiction, even when it acts outside its territory.
Military detention facilities are considered in Chapter II. In the context of detainees at Guantánamo Bay, the Special Rapporteur concludes that the categorization of detainees as «unlawful enemy combatants» is a term of convenience without legal effect. He expresses grave concern about the inability of detainees to seek full judicial review of determinations as to their combatant status, which amounts to non-compliance with the International Covenant on Civil and Political Rights’ prohibitions against
arbitrary detention, the right to judicial review capable of ordering release, and the right to a fair trial within a reasonable time. Noted also is the purported exclusion of habeas corpus rights under the Military Commissions Act of 2006. He urges continued and determined action towards the expressed wish of the United States to move towards closure of Guantánamo Bay. The Special Rapporteur also reminds the United States and other States responsible for the detention of persons in Afghanistan and Iraq that these detainees also have the right to a fair trial within a reasonable time if suspected of a crime or, failing this, to release.
The Special Rapporteur considers, in chapter III, the use of military commissions to try terrorist suspects. He identifies jurisdictional problems regarding certain offences (terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, and conspiracy) which do not form part of the laws of war and, to the extent that applicable offence provisions were not in force at the time of the commission of conduct in respect of which detainees might be charged, involve the retrospective application of criminal law. He further notes that the Government’s justification for military commissions is incorrect as a matter of fact because ordinary courts martial have had the jurisdiction to try violations of the laws of armed conflict since 1916 under the Uniform Code of Military Justice, and that the nexus between the events of 11 September and United States citizens would allow ordinary courts to try other offences such as conspiracy and terrorism. As to the composition and operation of military commissions, the Special Rapporteur next considers issues surrounding the independence of the commissions, their potential use to try civilians, and their lack of appearance of impartiality. He also addresses various matters concerning the use and availability of evidence in proceedings before military commissions, their ability to impose the death penalty, and the consequences of acquittal or completion of sentence following conviction.
Chapter IV first turns to the question of the interrogation of terrorist suspects, considering both the Central Intelligence Agency programme of «enhanced interrogation techniques» and interrogation methods outlined in the revised United States Army Field Manual. The Special Rapporteur addresses the «extraordinary rendition» of terrorist suspects, and their detention in «classified locations», and the accountability of those responsible for conducting interrogation by techniques amounting to torture or cruel, inhuman or degrading treatment.
The Special Rapporteur considers, in chapters V and VI, issues relating to the definitions of terrorism under United States law, the alleged targeted killings of terrorist suspects by United States agents, the provision of compensation to victims of terrorism, profiling, community outreach, and immigration and refugee status. Privacy and surveillance are matters examined in chapter VII, including consideration of a programme of secret surveillance by the National Security Agency, authorized by an Executive Order of the President of the United States, and the use by the Federal Bureau of Investigation and other intelligence services of National Security Letters to expedite access to private records.
Finally, the Special Rapporteur reiterates his conclusions and formulates recommendations for consideration by the Government.
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