Document - USA: From ill-treatment to unfair trial. The case of Mohammed Jawad, child ‘enemy combatant’
UNITED STATES OF AMERICA
From ill-treatment to unfair trial
The case of Mohammed Jawad, child ‘enemy combatant’
1. Introduction – International law sidelined
What kind of statement do you want? Do you want me to make a statement about my jail time and how it has been an injustice? Do you want a statement about my torture? Do you want me to make a statement about my time here?
Mohammed Jawad, Administrative Review Board hearing, Guantánamo, 6 December 2005
Mohammed Jawad was taken into custody in Afghanistan minutes after an incident on 17 December 2002 in which two US soldiers and an Afghan interpreter were injured when a grenade was thrown through the window of their vehicle in a crowded bazaar in Kabul. Jawad has said that he was 16 or 17 years old at the time (he has no birth certificate), and the US government has confirmed that he was indeed under 18. He was held for over six hours in Afghan government custody, during which time he alleges that he was beaten, threatened and intimidated into confessing to having thrown the grenade. The US authorities have said he “made a written confession to this attack, signed it and marked it with his fingerprint”.1According to his US military lawyer, this “confession” was written out by an Afghan police officer, is in Farsi, and bears Jawad’s thumbprint. Mohammed Jawad’s language is Pashto, and it is said that at the time he could barely read or write.
The teenager was handed over to US Special Forces on the evening of 17 December 2002 and held in US military custody overnight in Kabul. After about four hours of interrogation in the Kabul base the following day, he was transported to the US air base in Bagram where he was detained for the next seven weeks. In Bagram, he was interrogated without access to counsel, during a period when ill-treatment of detainees at the base is believed to have been at a peak. Two Afghan detainees had died under torture in Bagram in the two weeks before Jawad was brought there. The teenager was allegedly subjected to isolation, sleep deprivation, cruel use of restraints, hooding, forced standing, stress positions, and physical assaults as part of the interrogation process. Transferred to the US naval base in Guantánamo in Cuba in early February 2003, he was repeatedly interrogated without access to legal counsel. After his arrival he was put into isolation for 30 days, and this was repeated over a 30-day period in September and October 2003 on the reported recommendation of a psychologist with Guantánamo’s Behavioral Science Consultation Team (BSCT) who suggested that he was feigning homesickness and depression as a technique to resist interrogations.
Apparently driven to despair over his plight, Mohammed Jawad attempted suicide in December 2003. Despite his delicate mental well-being, in May 2004 he was subjected to sleep disruption and deprivation in the form of the euphemistically named “frequent flyer program” – moved from cell to cell every few hours, day and night, over a 14-day period. He was not interrogated during this time, or for several weeks after it, leaving unanswered the question of why he was targeted in this way. There were apparently two versions of the frequent flyer program, one aimed at coercing information from detainees, the other at coercing detainee compliance with the rules of detention. The program was supposedly ended in March 2004, but it was used against at least five detainees after that, including Jawad (see appendix 2).
This report traces the development, authorization and use of “counter-resistance” techniques in Guantánamo – the frequent flyer program appears to have evolved from the combination of “environmental manipulation”, “sleep disruption” and isolation – and how the conditions the USA attached to its ratification of human rights treaties prohibiting torture and other ill-treatment left loopholes that were exploited by the US administration in its resort to such techniques. In examining the question of Mohammed Jawad’s ill-treatment and the context in which it occurred, the report also notes how the US authorities deliberately blurred the detention and interrogation functions at Guantánamo, thereby undermining a fundamental safeguard against torture and other ill-treatment in this “strategic interrogation facility”.
Around the time of Mohammed Jawad’s subjection to the frequent flyer program and his subsequent transfer to the harsh and isolating conditions of Guantánamo’s then newly opened Camp 5, the authorities decided that he had little intelligence value, but that he was a prime candidate for trial by military commission under the Military Order signed by President George W. Bush in November 2001. This report recalls how, in 2004 the administration was looking to obtain confessions or guilty pleas from detainees to kick-start its beleaguered military commission trial scheme. Mohammed Jawad underwent a number of interrogations by Pentagon criminal investigators in 2004 and 2005. He had no access to legal counsel for any such interrogations, just as he had no lawyer present when he was subjected to intelligence interrogations. Indeed, Mohammed Jawad had no access to legal counsel at all for almost five years, until after he was charged in late 2007.
As shown in Appendix 1 to this report, the timing of interrogations with an apparent prosecutorial focus to which Jawad was subjected in 2004 and 2005 mirrored what was happening in the US federal courts relating to legal challenges to the military commission system. His interrogations stopped abruptly in November 2004 on the day when a District Court ruled the commissions unlawful. They resumed eight months later, on the day that a higher court reinstated the system. At this point, Jawad faced a spate of almost daily interrogations, raising suspicion that the authorities were attempting to obtain incriminating information from an unrepresented teenager to use at his future trial, possibly in the knowledge that his “confession” obtained two years earlier in Afghanistan had been given under severe duress, and in a bid to obtain a “clean” statement from him.
Eventually the commissions were ruled unlawful by the US Supreme Court in 2006, in Hamdan v. Rumsfeld. Mohammed Jawad, who was not charged under the Military Order, has since been charged under the Military Commissions Act (MCA), the legislative response to the Hamdan ruling. The MCA commissions are little better than their predecessors under the Military Order, in Amnesty International’s view.2
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Mohammed Jawad – in his sixth year of military detention 1985 – Mohammed Jawad born in Afghanistan. He spends much of his youth in Pakistan to where his family fled to a refugee camp 13 November 2001 – President Bush signs Military Order authorizing military commission trials of foreign nationals 7 February 2002 – President Bush signs memorandum that Article 3 common to the four Geneva Conventions will not apply to detainees captured in Afghanistan, and that humane treatment is a “matter of policy” rather than a legal requirement. In a public “fact sheet”, the White House says the Guantánamo detainees “will not be subjected to physical or mental abuse or cruel treatment” 17 December 2002 – Jawad, aged 16 or 17, arrested in Kabul by Afghan police after a grenade attack on a US military vehicle; transferred to US custody that night, and taken to Bagram airbase the next day. Allegedly subjected to hooding, isolation, sleep deprivation, stress positions, forced standing, physical assaults, and cruel use of restraints in Bagram 6 February 2003 – Mohammed Jawad transferred to US Naval Base in Guantánamo Bay, Cuba. He is put into 30-day isolation 7-20 May 2004 – Mohammed Jawad subjected to 14 days of the sleep disruption technique known as the “frequent flyer program”. Subsequently transferred to conditions of isolation in Camp 5. 28 June 2004 – Supreme Court rules, in Rasul v. Bush, that US courts have jurisdiction under federal law to consider habeas corpus petitions from foreign nationals detained in Guantánamo. 4 November 2004 – Combatant Status Review Tribunal affirms Mohammed Jawad’s status as an “enemy combatant” 29 June 2006 – Supreme Court rules in Hamdan v. Rumsfeld that military commission system under 2001 Military Order is unlawful 17 October 2006 – Military Commissions Act (MCA) passes into law, stripping US courts of jurisdiction to consider habeas corpus petitions from foreign “enemy combatants” and authorizing revised military commissions to try “alien unlawful enemy combatants” 9 October 2007 – Charges under MCA sworn against Jawad. He is given access to a lawyer for the first time in nearly five years 30 January 2008 – Charges approved by Convening Authority and referred on for trial by military commission 2 June 2008 – Guantánamo guards allegedly beat, kick, and pepper spray Mohammed Jawad, who is already shackled. He is then moved from Camp 5 to Camp 6 and subject to disciplinary regime 12 June 2008 – Supreme Court rules, in Boumediene v. Bush, that the Guantánamo detainees have the right to challenge the lawfulness of their detention in habeas corpus petitions |
The government has compounded this lack of accountability and the absence of remedy by seeking to rely in prosecution briefs in Jawad’s case on “understandings” and “reservations” the USA lodged upon ratifying the UN Convention Against Torture and the International Covenant on Civil and Political Rights (ICCPR) to assert that Mohammed Jawad was never subjected to anything that amounted to torture or cruel, inhuman or degrading treatment, despite the undisputed fact that he was subjected to the frequent flyer program. In any event, the government says, he has no enforceable rights under international law. This has been the government’s position towards its “war on terror” detainees from the outset.
Instead of his status as a minor being recognized and instead of the teenager being treated accordingly as required under international law, Mohammed Jawad was designated – along with hundreds of other detainees, including other children – as an “enemy combatant”. This status, at least with the legal consequences ascribed to it by the USA, is unrecognized in international law. Like other detainees, Mohammed Jawad was denied access to an independent and impartial court to challenge the lawfulness of his detention, and his “enemy combatant” status was instead reviewed, some two years after he was captured, by the improvised and wholly inadequate executive review scheme known as the Combatant Status Review Tribunal. In 2005 and 2006 his case was reviewed by the equally inadequate annual Administrative Review Board (ARB), which determined that he should remain in detention.
He is now facing a “war crimes” trial in front of a military commission the procedures of which do not comply with international fair trial standards and contain no juvenile justice provisions. According to the US government’s stance, the “enemy combatant” label is synonymous with “terrorist”, and any foreign national so labeled does not deserve the same trial standards as “lawful combatants”, ordinary criminal offenders, or US citizens. In seeking congressional approval for the MCA, President Bush said: “today, I’m sending Congress legislation to specifically authorize the creation of military commissions to try terrorists for war crimes.”3Yet whether someone is guilty of “terrorism” is a matter to be decided at a fair trial, applying international standards including respect for the presumption of innocence. Here, the US government effectively labels the defendant as guilty, makes that label a prerequisite for military commission jurisdiction, and subjects the individual to trial before a tribunal that is not structurally independent from the branch of government applying the label to the detainee in the first place. In 2007, the UN Special Rapporteur on the independence of judges and lawyers expressed his “serious concern” about the MCA, “which deprives Guantánamo detainees of the right to be tried by an independent tribunal that affords the fundamental fair trial guarantees required under United States and international law.”4
The former Chief Prosecutor of the military commissions, who resigned in October 2007 after concluding that the system “had become deeply politicized”, alleged that the Legal Advisor to the military commission’s Convening Authority (the legal advisor is a position created and appointed by the Secretary of Defense) had pushed for charges in cases that were “sexy” enough to attract public interest or ones involving “blood”. He is alleged to have specifically favoured the case against Mohammed Jawad. His legal advice to the Convening Authority on Jawad’s case made no reference to the fact that Jawad was under 18 years old at the time of his alleged crime and his arrest. In a two-line note two days later, on 30 January 2008, the Convening Authority approved “all recommendations” of her legal advisor.
Mohammed Jawad faces the possibility of a life prison sentence if convicted. The presumption of “guilt” can continue even after an acquittal, however. Even if Jawad were to be tried and acquitted by military commission, he could be returned to indefinite detention as an “enemy combatant”.5The US Government confirmed this to the UN Committee on the Rights of the Child when it appeared before this treaty monitoring body in Geneva in June 2008. Regardless of age, the government said, “an individual who is not successfully prosecuted by military commission may still warrant detention under the law of armed conflict in order to mitigate the threat posed by the detainee”. On 5 August 2008, the day before Yemeni detainee Salim Hamdan was convicted in the first full trial by military commission, the Pentagon reiterated that regardless of the verdict, the defendant could remain in indefinite military custody as an “enemy combatant” subject to the annual ARB process.6Clearly, in such a case, the international legal right to a trial within a reasonable time – already a fiction in Guantánamo – would have little meaning to the individual in question.
Mohammed Jawad’s trial – or any of the other military commission trials at Guantánamo – cannot be divorced from the backdrop against which such proceedings are occurring. This backdrop is one of practices pursued in the absence of independent judicial oversight that have systematically violated international law. At any such trials, the defendants will be individuals who have been subjected to years of indefinite detention, whose right to the presumption of innocence has been systematically undermined by a pattern of official commentary on their presumed guilt. Among the defendants already charged are victims of enforced disappearance, secret detention, secret transfer, prolonged incommunicado detention, torture and other cruel, inhuman or degrading treatment. Their treatment has not only been unlawful, it has been highly and deliberately coercive in terms of the interrogation methods and detention conditions employed against them. Now a selection of detainees are facing trial proceedings before military commissions tailored to be able to tolerate government abuses and to admit information obtained under such abusive conduct, including ill-treatment.
International human rights law – which includes an array of juvenile justice provisions – applies at all times. However, the US administration maintains that its activities outside the USA in the “war on terror” are exclusively regulated by the law of war (international humanitarian law, IHL), as it defines and interprets it, and that human rights law is generally inapplicable in this global armed conflict. This is misconceived, as numerous international bodies and UN experts have found. Even where IHL does apply, such as in Afghanistan when Mohammed Jawad was arrested, it does not displace international human rights law. Rather, the two bodies of law complement each other. The International Court of Justice (ICJ) has stated, for example, that the protection of the ICCPR and other human rights conventions “does not cease in times of armed conflict, except through the effect of provisions for derogation”. The USA has made no such derogation. In any event, there can be no derogation from the prohibition against torture or other ill-treatment and, as a UN Special Rapporteur said on 30 June 2008, “the fundamental principles of a fair trial may never be derogated from”. He had concluded that trials under the MCA would “utterly fail to meet the basic due process standards required for a fair trial under international humanitarian and human rights law”, and called on the USA to discontinue all such proceedings, and ensure fair trials for those charged.7
Mohammed Jawad has been charged under the MCA, in relation to the grenade incident in Kabul on 17 December 2002, with “attempted murder in violation of the law of war” and “intentionally causing serious bodily injury”, also “in violation of the law of war”. Despite having been accused of throwing the grenade from the time of his arrest, he was not charged until five years after he was taken into custody. The right to be promptly charged and brought to trial within a reasonable time – a right the importance of which the UN Committee on the Rights of the Child has emphasized is heightened in the case of a child – has been violated by the USA’s detention policy. Moreover, the charges themselves have been framed as violations of the law of war. Yet it is not a war crime to kill or attempt to kill a soldier in an armed conflict, unless that soldier is hors de combat, that is, is not engaged in military action as a result of illness, injury, capture or surrender, or unless the method used to carry out the attempted killing violates the law of war. Throwing a grenade is not such a method. A member of an armed group or a civilian who takes direct part in hostilities, who kills or attempts to kill a combatant, can be charged with murder or attempted murder under common or domestic law.
In June 2008, the USA sought to justify bringing even those detained as children before military commissions with the assertion to the UN Committee on the Rights of the Child that “it is not unprecedented for juveniles to face the possibility of a war crimes trial”. What the USA conveniently ignores is the fact that no existing international tribunal has ever prosecuted a child for war crimes, reflecting the wide recognition that the recruitment and use of children in armed conflict is a serious abuse in itself. This does not mean that a child above the age of criminal responsibility cannot be held accountable for crimes committed in the context of armed conflict, as in any other context. Appropriate recognition must be given to the age of the child at the time of the alleged crime and the rehabilitative priority, however. Mohammed Jawad’s subjection to military commission, as with other detainees, adds the injustice of unfair trial to the injury of unremedied ill-treatment.
The USA has ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (Optional Protocol) which among other things prohibits the recruitment or use in hostilities by non-state armed groups of under-18-year-olds, and requires states to provide any such child who comes within their jurisdiction “all appropriate assistance for their physical and psychological recovery and their social reintegration”. The US authorities do not allege that Mohammed Jawad is a member of al-Qa’ida or the Taleban, but affiliated with Hezb-e-Islami Gulbuddin (HIG), an Islamist anti-Taleban group founded by Gulbuddin Hekmatyar, former Prime Minister of Afghanistan. There is evidence that Mohammed Jawad may have been manipulated (or even drugged) into cooperating with HIG, whose founder the USA designated as a Specially Designated Global Terrorist in February 2003, two months after the allegedly HIG-inspired grenade attack for which Jawad is now facing trial. If so, as a child recruited or used by an armed group, Mohammed Jawad’s case would fall within the scope of the Optional Protocol.
The USA ratified the Optional Protocol less than a week after it took Mohammed Jawad into its custody. States ratifying the Protocol reaffirm (as articulated in its preamble) that this international instrument “will contribute effectively to the implementation of the principle that the best interests of the child are to be a primary consideration in all actions concerning children”. However, the USA’s treatment of child “enemy combatants” has been conducted through the prism of its own perceived national security interests rather than the best interests of the child.
Five and a half years later, Mohammed Jawad, now a young adult, has recently been held in Guantánamo’s Camp 6, a facility which opened in December 2006, and where detainees are confined for a minimum of 22 hours a day in individual steel cells with no windows to the outside. The detainees are completely cut off from human contact while inside their cells, and have no access to natural light or fresh air. No activities are provided, and detainees are subjected to 24-hour lighting and constant observation by guards through the narrow windows in the cell doors. Detainees exercise alone in a high-walled yard where little sunlight filters through; they are often only offered exercise at night and may not see daylight for days at a time.
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Glossary of acronyms |
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ARB |
Administrative Review Board |
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BSCT |
Behavioral Science Consultation Team |
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CAT |
UN Convention Against Torture |
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CIA |
Central Intelligence Agency |
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CITF |
Criminal Investigative Task Force |
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CSRT |
Combatant Status Review Tribunal |
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DIMS |
Detainee Information Management System |
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DoD |
US Department of Defense |
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DTA |
Detainee Treatment Act |
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FBI |
Federal Bureau of Investigation |
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GTMO |
Guantánamo |
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HIG |
Hezb-e-Islami Gulbuddin |
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ICCPR |
International Covenant on Civil and Political Rights |
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ICRC |
International Committee of the Red Cross |
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JIG ICE |
Joint Intelligence Group Interrogation Control Element |
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JPRA |
Joint Personnel Recovery Agency |
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JTF |
Joint Task Force |
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LEA |
Law Enforcement Agencies |
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MCA |
Military Commissions Act |
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MSU |
Maximum Security Unit |
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SECDEF |
US Secretary of Defense |
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SERE |
Survival Evasion Resistance Escape |
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SOP |
Standard Operating Procedure |
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SOUTHCOM |
US Southern Command |
According to his military lawyer, the Guantánamo authorities have confirmed that there was a use of force incident, during which Jawad was shackled at the ankles and wrists and pepper spray was used against him. When he saw Jawad 15 days later, his military lawyer has told Amnesty International that the detainee had visible bruises and marks on his arms, shoulder, knees, ribs and forehead. A report of the investigation is said to have determined that the use of force was excessive, but provided no remedy other than improved training for guards. The investigation consisted of interviews with Mohammed Jawad and with guards. The authorities did not interview the numerous other detainees who had witnessed the incident, and have refused Jawad’s military counsel access to the witnesses.
After the incident, according to his lawyer, Mohammed Jawad was moved from Camp 5 to Camp 6, and had his “comfort items” removed. Under this disciplinary regime, his blanket and mattress were removed from him in the morning and not returned until night. Jawad was still in Camp 6 on 19 June 2008 when his military lawyer was in Guantánamo for a pre-trial military commission hearing in his case. At the time of writing it was not known in which facility Jawad was being held, Camp 5 or 6. The authorities apparently do not notify a detainee’s lawyer when his or her client is moved.
On 12 March 2008, Mohammed Jawad had appeared at another pre-trial commission hearing in Guantánamo. At the hearing, attended by an Amnesty International observer, Jawad was visibly agitated throughout the proceedings. Handcuffed and shackled, he frequently rubbed his forehead and put his head in his hands.8 At times he rocked forward and exhaled audibly. He said that he was innocent, that he had been taken into custody when he was a teenager, interrogated and tortured. He said that all he wanted was fairness and justice, and that this trial was illegal. He then removed his headphones (for interpretation) and put his head on the desk. The military judge asked him to put them back on, but he said he could not – that he was suffering from a severe headache and that years of being under bright florescent lights had made him permanently ill. At one point he put his fingers in his ears, but eventually just put his head down on the table and did not raise it again for the rest of the proceedings.9Mohammed Jawad’s military lawyer has raised the question of whether his client is competent to stand trial as a result of the mental health effects of “the extended and severe conditions of detention to which he has been subjected”.10This matter was before the military commission judge at the time of writing.
In June 2008, the UN Committee on the Rights of the Child expressed its concern about the USA’s treatment of children detained as “enemy combatants”, and their subjection to trial by military commission.11It called upon the USA to investigate allegations of their ill-treatment and to avoid criminal proceedings against them in military tribunals. Amnesty International urges the USA to fully comply with this recommendation. It should either bring Mohammed Jawad to trial in an ordinary civilian court, with all appropriate recognition of his age at the time of his alleged crime and refusing to admit any information obtained under torture or other cruel, inhuman or degrading treatment or punishment, or else release him, with full protections against further abuse. There should be no impunity for human rights violations, and no denial of access to redress for those who have been subjected to such violations.
2. Torture alleged, accountability absent
In June 2008 in Geneva, the US government offered the following assurance in response to the UN Committee on the Rights of the Child’s concerns about children detained by the USA in the “war on terror”:
“The Department of Defense recognizes the special needs of young detainees and the often difficult or unfortunate circumstances surrounding their situation. We have procedures in place to evaluate detainees medically, determine their ages, and provide for detention facilities and treatment appropriate for their ages. Every effort is made to provide them with a secure environment, separate from the older detainee population, as well as to attend to the special physical and psychological care they may need.”
Nevertheless, the Committee responded with serious concern about reports that children have been ill-treated in US custody in Afghanistan, Iraq and Guantánamo.12As the “war on terror” has shown, torture and other cruel, inhuman or degrading treatment flourish when principled human rights leadership is absent. Without such leadership, especially at a time of perceived or actual crisis or conflict, the human rights of any detainee depicted as “the other” or “the enemy” will be at risk. Even children.
On 7 February 2002, President Bush issued a memorandum stating that “the war against terrorism ushers in a new paradigm” requiring “new thinking in the law of war”.13 The memorandum stated that common Article 3 to the four Geneva Conventions – a baseline standard of customary international law, applicable in armed conflict, which prohibits torture, cruelty, “outrages upon personal dignity, in particular, humiliating and degrading treatment”, and unfair trials – would not apply to any “al Qaeda or Taliban detainees”. The detainees would be treated in a manner “consistent” with the principles of the Geneva Conventions, but only “to the extent appropriate and consistent with military necessity”, a dangerous concept in the hands of a government which, in the words of a former senior US Justice Department official, “chose to push its legal discretion to its limit and rejected any binding legal constraints on detainee treatment” in the “war on terror”.14 Humane treatment, according to the presidential memorandum, was “a matter of policy”, not a legal requirement. Meanwhile, administration officials had begun a public commentary labelling the Guantánamo detainees as “the worst of the worst”, “killers”, “terrorists”, and “bad people”, and, it would transpire, had also initiated private discussions about how to bypass the prohibition on torture or other ill-treatment and facilitate impunity for US personnel.15
2.1. Detention and interrogation in Afghanistan
Mohammed Jawad was arrested at gunpoint by Afghan police on the afternoon of 17 December 2002 within minutes of the grenade incident in a crowded Kabul bazaar that injured two US soldiers, Sgt. Michael Lyons and Sgt. Christopher Martin, and their interpreter, Afghan national Assadullah Khan Omerk. At his Administrative Review Board (ARB)16hearing in Guantánamo three years later, Jawad alleged that he was tortured during interrogation in Afghan custody and that he had confessed to carrying out the attack: “They beat me. They beat me a lot. One person told me, ‘If you don’t confess, they are going to kill you.’ So, I told them anything they wanted to hear. I told them anything they wanted me to say. By forcing me, beating me, and scaring me, I confessed”.17 He was held first at the local police station and then at the Ministry of the Interior. Senior Afghan officials, including the Interior Minister and the Kabul chief of police, are reported to have been personally involved in the interrogation of the teenager. The ARB alleged that Jawad had “told a senior Afghani police officer that he was proud of what he had done, and if he were let go, he would do it again”. Mohammed Jawad denied ever having said that.18 The ARB also alleged that “a senior Afghani official stated he heard the detainee admit to throwing the grenade at the two United States soldiers”. Jawad stated that he was “afraid of being terrorized by the police. I was afraid of being beaten and tortured. It is possible that when [the police] were beating me and forcing me to confess, someone may have overheard me”. In its prosecutorial briefs filed with the military commission in 2008, the US government has continued to rely on the claim that in “interviews by Afghan and Coalition forces, Jawad admitted that he threw the grenade and boasted that, if given the chance, he would do so again”.19
While failing to address allegations that Jawad was ill-treated in Afghan custody, the government has asserted in recent pre-trial briefs that “the [US] Special Forces unit appointed its battalion chaplain as a ‘human rights observer’ to ensure that US service members respected Jawad’s rights at all times during his subsequent interviews by US forces, during which Jawad again confessed to having thrown the grenade”.20It seems that, at most, the chaplain was appointed to this role for Jawad’s first night in detention only. Mohammed Jawad had been transferred to the custody of US Special Forces after about six and a half hours in Afghan police detention, on the evening of 17 December 2002. That night he was held and interrogated briefly in US Forward Operating Base 195 at the Kabul Military Training Center. The following day he was interrogated for some four hours by US military interrogators in the Kabul base.
Later on 18 December 2002, Mohammed Jawad was taken to the US air base at Bagram.21This was at a time when detainees in US custody in Afghanistan were being subjected to stripping, prolonged isolation, “stress positions”, sleep and light deprivation, and the use of dogs to instil fear, as the US military has itself acknowledged.22Agents of the Federal Bureau of Investigation (FBI) in Afghanistan reported personally observing military interrogators employing stripping of detainees, sleep deprivation, threats of death or pain, threats against the detainee’s family members, prolonged use of shackles, stress positions, hooding and blindfolding other than for transportation, use of loud music, use of strobe lights or darkness, extended isolation, forced cell extractions, use of and threats of use of dogs to induce fear, forcible shaving for the purposes of humiliating detainees, holding unregistered detainees, sending detainees to other countries for “more aggressive” interrogation and threatening to do this.23Documents made public in June 2008 by the Chairman of the US Senate Armed Services Committee reveal that at a meeting of US military personnel on 2 October 2002 to discuss interrogation techniques for use in Guantánamo, one of the participants noted that “we have had many reports from Bagram about sleep deprivation being used”, to which another participant replied “true, but officially it is not happening”.24Two Afghan nationals died under torture or other ill-treatment at Bagram in the two weeks before Mohammed Jawad was transferred to the base.
Mohammed Jawad was interrogated on at least 11 occasions in Bagram in December 2002 and January 2003, without access to a lawyer or other adult representative (see appendix 1). According to the transcript of his ARB hearing conducted in Guantánamo in December 2005, Mohammed Jawad said that he had “never seen or endured any torture in Bagram or here in Cuba by Americans”. Amnesty International does not consider the ARB hearings to be a forum conducive to detainees fully relating their treatment at the hands of their US captors, however. The ARBs are conducted by uniformed military officers of the detaining forces, and the ARB has the authority to recommend the detainee’s release from the base. A detainee – held in indefinite detention without access to legal counsel – may fear that making allegations of ill-treatment against US personnel will hinder this outcome. It is now known – and the government does not dispute – that Mohammed Jawad was subjected to a 14-day program of sleep “disruption” in Guantánamo about a year and a half before he told his ARB hearing that he had not been ill-treated in the US prison camp in Cuba.
At a military commission pre-trial hearing in Guantánamo on 19 June 2008, according to Amnesty International’s observer there, Mohammed Jawad was anxious to talk about what happened to him at Bagram. Through an interpreter, he indicated that sleep deprivation was not limited to Guantánamo: “When I was confronted with the sleeplessness program, it was not only at Guantánamo. This was done in Bagram by Americans… I want to start the story from Bagram.” However, the proceedings moved immediately on to focus on his treatment at Guantánamo.
It was widely known among the detainees at Bagram at the time of Jawad’s detention that other detainees had died at the base, and guards and interrogators would allegedly refer to the fate of these detainees. Mohammed Jawad has said that he felt great fear on account of this, according to his military lawyer. Information has now come to light about Mohammed Jawad’s treatment in Bagram. For about an hour on 25 June 2004 in Guantánamo, Jawad had been interviewed as part of a military investigation into abuse of detainees in Bagram, including the deaths in custody there 18 months earlier. The military investigator’s report of the interview reveals that Mohammed Jawad has alleged that he was subjected to isolation, hooding, cruel use of restraints, forced standing, stress positions, sleep deprivation and physical assaults while held in the Bagram detention facility (known as Bagram Collection Point, BCP):25
“While at the BCP, he was held for a period of time within the isolation cells. He described the isolation cell as a small room on the second floor made of wood. There was a door in one of the walls and he did not pay attention to the ceiling. [Jawad] stated he was made to wear a black bag over his head and he was unable to make observations. [He] stated while he was held in the isolation cells, they kept him restrained in handcuffs and a hood over his head, also making him drink lots of water. He said the guards made him stand up and if he sat down, he would be beaten. [He] said he could not identify anyone who struck him, as he wore a black bag over his head and could not see to identify anyone. [He] said the detainees were chained 24 hours, day and night. He said at one point, he became sick from his treatment in the isolation cells and was taken to the hospital where the doctors treated him for pain in his chest and problems with urination, after which he was returned to the BCP. [Jawad] was unable to identify any other detainees within the isolation cells as they were not permitted to speak and the black sacks they wore over their heads prevented them from observing anything.26[He] stated he was made to stand to keep him from sleeping and said when he sat down the guards would open the cell door, grab him by the throat and stand him up. He said they would also kick him and make him fall over, as he was wearing leg shackles and was unable to take large steps. He said the guards sometimes would fasten his handcuffs to the isolation cell door so he would be unable to sit down.
[Jawad] denied having witnessed other detainees being struck, but said he could hear a lot of crying and noise including cries of, ‘for God’s sake, do not beat me up’, and detainees crying for their mothers.27[He] related he was kicked and hit, as well as being pushed down stairs at the BCP, but was unable to identify anyone who may have kicked or punched him. He said when the guards were escorting him with the BCP (mostly to the bathroom and between trips to his interrogation rooms), they would push he [sic] and other detainees down the stairs. [He] stated the interrogators never struck him, but they told the MP’s [guards] to beat him after the interrogations were completed. He said the interrogators often placed him in a position along the wall where he was sitting without a chair with his arms outstretched. [He] said due to being kicked and beaten at the BCP, he experienced chest pains and difficulty with urination. He said he could not tell if it was from the beatings, but his physical condition did not improve.”28
Mohammed Jawad was asked by the military investigator how he knew that the interrogators were instructing the guards to assault him. According to the investigation report, Jawad replied that the interrogators had “told him they were going to have the MPs beat me and the beatings always followed an interrogation session”. The investigator also reported that Jawad had said that after he was moved out of the isolation cell “to the large holding cell with other detainees, the beatings stopped”. According to a US army report in 2003, in Afghanistan US detention authorities had adopted a “template whereby military police actively set the favourable conditions for subsequent interviews”.29
The military report states that Mohammed Jawad was shown a number of photographs of interrogators and guards who were working at the Bagram facility during the time he was there.30 Jawad was apparently unable to identify any of the interrogators, but the photographs apparently prompted his identification of a number of the guards as individuals he said had been responsible for some of the abuse, including forced standing and physical assaults. At the time of writing, Amnesty International did not know if any of the guards named in this report had been subjected to investigation or any disciplinary or court martial proceedings.
2.2. Transfer to the coercive environment of Guantánamo
On 6 February 2003, after some 50 days in Bagram, Mohammed Jawad, thought still to be only 17 years old, was transferred to the US naval base in Guantánamo, Cuba, like others, in conditions of sensory deprivation and degradation.31Article 3 of the UN Convention on the Rights of the Child – which the USA has signed, thereby binding itself under international law to refrain from acts that would defeat the object and purpose of the treaty32– requires that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. The transfer of Jawad and other teenagers to the detention facility at Guantánamo contravened this and other specific international standards relating to children.33The International Committee of the Red Cross (ICRC), the only independent organization that had access to the detainees, stated that it “does not consider Guantánamo an appropriate place to detain juveniles… It worries about the possible psychological impact this experience could have at such an important stage in their development.”34 The UN Committee on the Rights of the Child has said that the “detention of children at Guantánamo Bay should be prevented”.35In May 2006, the UN Committee Against Torture called on the US government to end the Guantánamo detentions. The treaty monitoring body said, among other things, that indefinite detention without charge per se violated the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).
At the time of Mohammed Jawad’s transfer to Guantánamo (and subsequently), the authorities were employing deliberately coercive detention conditions – in addition to the inherently coercive nature of being held in indefinite and virtually incommunicado detention in a remote location thousands of miles from home. The use of isolation as a coercive technique was particularly prevalent. A government email dated 4 October 2002, entitled Camp Delta Update, said that the next “Air Flow” – referring to detainees transferred by plane from Afghanistan to Guantánamo – was set for to take place between 2 and 10 November 2002. The email continued: “There will be between 20 and 34 new detainees on the flight. We strongly suggested total isolation for as long as possible for these individuals… until all available information is obtained from them.”36 FBI agents reported that prolonged isolation was used at the base “as part of an interrogation strategy to wear down a detainee’s resistance” as well as for “disciplinary or security purposes”.37Two FBI personnel deployed to Guantánamo in early 2003 reported that the use of isolation was common at the detention facility, and was “not considered abusive”.38Isolation was nevertheless described in a 2005 military report on Guantánamo as an “aggressive” technique.39The UN Human Rights Committee, the expert body established by the International Covenant on Civil and Political Rights to monitor implementation of that treaty, has stated that “prolonged solitary confinement of the detained or imprisoned person may amount to [torture or other cruel, inhuman or degrading treatment or punishment]”.40
In December 2002, Secretary of Defense Donald Rumsfeld authorized interrogators at Guantánamo to subject detainees to “the isolation facility” for up to 30 days (extendable with approval) as a “counter-resistance” technique. This was based on advice that isolation was “legally permissible” as long as “no severe physical pain is inflicted and prolonged mental harm intended, and because there is a legitimate governmental objective in obtaining the information necessary…for the protection of the national security of the United States, its citizens and allies”.41 In a meeting on 2 October 2002 attended by the military lawyer who wrote that advice, psychologists from the military’s Behavioral Science Consultation Team (BSCT) had stated that “psychological stressors are extremely effective (i.e. sleep deprivation, withholding food, isolation, loss of time)”.42BSCT psychologists and psychiatrists have served as consultants to interrogators at Guantánamo, and “provide recommendations to enhance the effectiveness of interrogation operations”.43
The Standard Operating Procedures (SOPs) for the BSCT at Guantánamo (at least the 2005 version) recognize the vulnerabilities of child detainees, but define children as under the age of 16, rather than 18 as international standards require. The SOPs state that:
“JTF-GTMO does not normally detain Juvenile Enemy Combatants, however, in order to deal with this possibility, special procedures must be established. Juveniles are defined as any person below the age of 16. Gathering intelligence from juveniles will require special precautions and extra care because juveniles are often more vulnerable with less developed coping skills than adults.”
It adds that “many juvenile detainees have come from deprived environments” and so “special effort will be made to ensure their protection, to provide necessary emotional support, and to provide education as available.”44No such protections were ever provided to Mohammed Jawad, either in Bagram or Guantánamo.
In a memorandum to the interrogation authorities at Guantánamo, dated 3 January 2003 and made public in June 2008, a specialist who had conducted training sessions with Guantánamo interrogators in late December 2002 (see below) wrote that the use of physical and psychological pressures around such themes as isolation, induced debilitation, threats and degradation “are most effective if used in concert with each other since they are all mutually supporting and build upon the effects of others. They are all designed to elicit compliance from [human intelligence] sources by setting up the ‘captive environment’. This is ideally accomplished by establishing control, instilling dependencies for basic existence, rewards and punishments, gaining compliance and in the end cooperation.”45
At the 2 October 2002 meeting mentioned above, the military lawyer who provided the initial legal advice on which Secretary Rumsfeld’s authorization of isolation and other techniques was based, said that “we may need to curb the harsher operations while ICRC is around. It is better not to expose [the ICRC] to any controversial techniques”, adding that the humanitarian organization had the potential to “draw a lot of negative attention” to any treatment of detainees that was of concern to it. A senior CIA lawyer present at the meeting said that “in the past when the ICRC has made a big deal about certain detainees, the DoD [Department of Defense] has ‘moved’ them away from the attention of the ICRC. Upon questioning from the ICRC about their whereabouts, the DoD’s response has repeatedly been that the detainee merited no status under the Geneva Convention”.46 A memorandum a month later from the US Department of the Navy said that “Navy staff concurs with developing a range of advance [sic] counter-resistance techniques to apply to foreign detainees”, but was concerned that the ICRC or foreign government delegations might learn of such techniques during their visits to Guantánamo, “which could lead to international scrutiny”. The Navy recommended that “the classification level of counter-resistance techniques be increased to Top Secret level”.47
The Standard Operating Procedures (SOPs) for Guantánamo detentions, dated March 2003 and leaked into the public domain in late 2007, emphasised that the purpose of the so-called “Behaviour Management Plan” for each newly arrived detainee was to “enhance and exploit” in the interrogation process their “disorientation and disorganization.” The Plan concentrated on “isolating the detainee and fostering dependence of the detainee on his interrogator”. For at least the first 30 days, but longer if so determined by interrogators, the detainee would have no contact with the ICRC or the Chaplain, and no Koran, prayer mat, books or mail.48The “interrogator decides when to move the detainee to general population”.49The areas used for isolation included Camp Echo, the Navy Brig, certain sections of Camp Delta, and Camp X-Ray.50
This was the environment into which Mohammed Jawad was dropped. The Standard Operating Procedures make no mention of different treatment for children, and 17-year-old Jawad was placed in isolation for 30 days after his arrival, from 7 February to 8 March 2003, with no access to the outside world. If this use of coercive isolation of detainees held in incommunicado detention, including denial of access to the ICRC, were to happen at the hands of other governments – against child or adult detainees – the US authorities would presumably condemn it. Every year since the USA began operating its Guantánamo detention facility, for example, the US State Department’s entries on Cuba in its annual human rights reports have – under the heading torture and other cruel, inhuman or degrading treatment or punishment – criticized the Cuban authorities for subjecting prisoners to prolonged isolation in punishment cells. Included in its criticisms was that the Cuban authorities had denied the ICRC and independent human rights groups access to prisons.51
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“During the investigative period, detainees typically were not allowed access to a lawyer or family members, especially in national security cases. During this period some detainees were strongly compelled to admit guilt in support of the government’s case against them. Investigators sometimes used physical isolation, excessively lengthy interrogation sessions, and sleep deprivation to compel detainees to admit guilt.” US State Department, entry on Vietnam, human rights country reports, issued on 11 March 2008. |
On 16 April 2003, in a memorandum classified as secret for 10 years, Secretary Rumsfeld re-authorized isolation as a “counter-resistance” technique on the basis of the recommendation of a Pentagon Working Group he had convened to provide advice on interrogations of “enemy combatants”. The authorization noted that the use of isolation required “detailed implementation instructions”, including “medical and psychological review”, and that “this technique is not known to have been generally used for interrogation purposes for longer than 30 days”. According to Secretary Rumsfeld’s memorandum, any interrogator intending to use isolation would have to “specifically determine that military necessity requires its use and notify me in advance”. General James T. Hill, Commander of Southern Command (SOUTHCOM, under which Guantánamo falls) at the time, issued “guidance” on the Defense Secretary’s authorization memorandum. Commander Hill’s “guidance” included that he did “not consider the use of maximum security units as isolation. A detainee placed in a maximum-security unit is segregated, but not truly isolated.”52
Secretary Rumsfeld’s authorization of isolation and other techniques noted, as had the Working Group report, that “techniques are usually used in combination”, and came with the “safeguard”, more accurately described as a glaring loophole, that “interrogators be provided reasonable latitude to vary techniques depending on the detainee’s culture, strengths, weaknesses, environment, extent of training in resistance techniques as well as the urgency of obtaining information that the detainee is known to have”. On the technique of isolation, it warned that, although the Geneva Conventions “are not applicable to the interrogation of unlawful combatants”, other countries might consider this technique as a violation of the Conventions.53The authorization was classified as secret for 10 years and marked as information that was “not releasable to foreign nationals”.
From early September 2003, after nearly a year in indefinite detention, Mohammed Jawad’s mental health reportedly deteriorated as he became increasingly distressed about his isolating conditions. During his interrogations in the spring and summer of 2003, he had reportedly expressed concern about his family. He asked to be moved to a cell block where he would be able to communicate with other Afghanis, as there was no one where he was being held with whom he could communicate in Pashto.
On 13 September 2003, a psychologist with the BSCT was consulted about Mohammed Jawad’s case. She reportedly concluded that he was faking homesickness, sadness and depression as a resistance technique, and recommended that Jawad be placed in physical and linguistic isolation to increase his discomfort as a way to induce his cooperation.54Mohammed Jawad, still only 17 or 18 years old, was segregated for another 30 days in the isolation facility, from 17 September 2003 to 16 October 2003. This was carried out under the order of the Joint Interrogation Group (JIG), in other words, for intelligence purposes.
It seems that Mohammed Jawad’s isolation fell under Chapter 9 of the Camp Delta SOPs. Under these procedures, placement of detainees in the Maximum Security Units (MSUs) could be for “their own protection or for security or safety reasons”, including in the case of those who had self-harmed, or for “INTEL [intelligence] purposes”.55If for the latter purpose, as in Jawad’s case, ICRC access was denied or restricted, and the placement “coordinated” with the interrogation authorities “to ensure there is a valid reason for detainee placement in MSU”.56 The food tray slot in the door (the only means through which the detainee can communicate or view outside the cell) had to remain closed when not being used for passing food through.57The temperature of the cells was set “within five degrees of the week’s average high temperature”, clearly a policy that would raise concern in relation to the climate in Cuba, where the average temperature in September and October is around 29-31 degrees Celsius.58The detainee’s “comfort items” were kept from them “until time served”.59
During this period in isolation, Mohammed Jawad was interrogated twice, once by JIG-ICE intelligence personnel (on 26 September 2003), and once by investigators with the Pentagon’s Criminal Investigation Task Force (CITF, on 1 October 2003).60This latter interrogation may have been the first with a specifically prosecutorial focus (see further below, §2.8). The teenager still had no access to legal counsel.
In a meeting on 9 October 2003, according to leaked Pentagon notes of it, the ICRC raised its concerns about the “excessive isolation” of detainees in punishment cells for refusing to provide information in interrogations, and the effect this interrogation regime was having on the mental health of the detainees. According to the official notes of the meeting, “the ICRC feels that interrogators have too much control over the basic needs of detainees. That the interrogators attempt to control the detainees through the use of isolation in which the detainees were kept; the level of comfort items detainees can receive; and also the access of basic needs to the detainees”. Major General Geoffrey Miller, then commander of detention operations at Guantánamo, responded that the detainees are “enemy combatants picked up on the field of battle in Afghanistan. There is no issue with interrogation methods. The focus of the ICRC should be the level of humane detention being upheld not the interrogation methods”.61
According to the records released to Mohammed Jawad’s lawyer, Jawad was interrogated four more times in 2003, at least three of which interrogations were conducted by CITF personnel. Then, on 21 December 2003, he was disciplined with removal of “comfort items” for attempting to talk to other detainees in his block. Four days later, on 25 December 2003, he reportedly attempted suicide. According to his military lawyer, the camp records indicate that Jawad had “attempted self harm” by “banging his head off metal structures inside his cell” and “by using the collar of his shirt to hang himself from the mesh inside his cell”. Asked about this at his pre-trial military commission hearing on 19 June 2008, Jawad confirmed that it had been a suicide attempt. He explained that although Islam does not permit suicide, he was driven to it because he was in “great trouble”, and “it was beyond my control”.
2.3. Subjection to the ‘frequent flyer program’
Despite his apparent detention-induced distress, Mohammed Jawad was within months of this suicide attempt subjected to a 14-day regime of sleep disruption and deprivation euphemistically dubbed by the military as the “frequent flyer program”. During this period, 7 to 20 May 2004, Jawad was moved between two different cells 112 times, on average every two hours and 50 minutes, day and night. Every time he was moved, he was shackled. At points during his subjection to this program, he was reportedly again disciplined with loss of comfort items for attempting to talk to other detainees.
In addition to his psychological problems, he appears also to have suffered from physical ailments at this time that may have been triggered or exacerbated by his subjection to the sleep disruption program. He lost about 10 per cent of his bodyweight during May 2004, and did not regain this weight for another five months. Eight days after he emerged from the frequent flyer program, according to his reported medical records, he complained that for the past week he had been experiencing painful urination, with blood present in his urine. Referring to the frequent flyer program at a pre-trial hearing in Guantánamo on 19 June 2008, he said that “after this punishment, no doctor came to see me”, despite his “major problem” of high blood pressure. He had told the military investigators who interviewed him about Bagram on 25 June 2004 (see §2.1), a month after he came out of the program, that he had “lost faith” in doctors. He “complained of painful urination and intestinal pain”, and told the investigators that “the interrogators always tell him they will provide him with a doctor and according to [Jawad] doctors never came.” After the interview, one of the investigators found out from guards that Jawad had been “on sick call several times for similar complaints”.62
Three days after his subjection to the frequent flyer program ended, Mohammed Jawad was again put in isolation, from 23 to 25 May 2004. Then, on 26 May 2004, he was put into the harsh and isolating conditions of Camp 5, a maximum security facility built as a long-term detention and interrogation centre which had opened earlier that month. Detainees have been held in Camp 5 for up to 24 hours a day in small, enclosed cells.63At his pre-trial military commission hearing on 19 June 2008, Mohammed Jawad characterized his move to Camp 5 as “another punishment” to follow the sleep deprivation he had endured. He said that “I was the first person to be moved to Camp 5. There they were treating me very badly”.
Other detainees were reportedly interrogated during the period of their subjection to the frequent flyer program. For example, Palestinian detainee Maher Rafat al-Quwari was allegedly moved between cells six times a day for 12 days in July 2003, with a four-hour interrogation in the middle of the program.64However, the authorities have released no records indicating that Mohammed Jawad was interrogated during his period in the frequent flyer program. According to the records that have been released, he was interrogated on 26 April 2004, 10 days before he went into the program, and then not again until 18 August 2004, nearly three months after he emerged from it. The question remains, then, as to why he was targeted with this ill-treatment. For example, was it punishment for a perceived disciplinary infraction, an attempt to coerce compliance with some measure, or to soften him up for an interrogation that never happened following a shift in focus to prosecution rather than intelligence gathering (see §2.8)? At Mohammed Jawad’s pre-trial hearing before a military judge on 19 June 2008, his military lawyer said that he had asked to speak to the guards who carried out the program, but that he had been denied. He said that “in the absence of information to the contrary, we are left to conclude that it was simply gratuitous cruelty”. Given the number of detainees who have been subjected to the frequent flyer program (see appendix 2), however, it appears to have been an integrated part of the coercive Guantánamo detention regime, not the rogue action of any personnel.
If severe physical or mental pain or suffering was the result of such treatment, it would constitute torture under article 1 of the UN Convention against Torture, whether the purpose was intelligence-gathering, punishment, intimidation, coercion, or for any reason based on discrimination of any kind.The UN Committee against Torture has said that “prolonged sleep deprivation” violates articles 1 and 16 (cruel, inhuman or degrading treatment) of the Convention against Torture.65In Amnesty International’s opinion, prolonged sleep deprivation, on its own or in combination with other techniques or conditions (e.g., isolation from other detainees, lack of access to the outside world, indefinite detention without charge), can constitute torture. If not torture, it would still amount to cruel, inhuman or degrading treatment or punishment, equally prohibited under international law.
After interviewing a number of released Guantánamo detainees, the UN Special Rapporteur on torture concluded in 2006 that some of the techniques used in the base, including exposure to extreme temperatures, sleep deprivation for several consecutive days and prolonged isolation were perceived as causing severe suffering.66Recent research involving survivors of torture is instructive in this regard, concluding that:
“[A]ggressive interrogation techniques or detention procedures involving deprivation of basic needs, exposure to aversive environmental conditions, forced stress positions, hooding or blindfolding, isolation, restriction of movement, forced nudity, threats, humiliating treatment, and other psychological manipulations conducive to anxiety, fear, and helplessness in the detainee do not seem to be substantially different from physical torture in terms of the extent of mental suffering they cause, the underlying mechanisms of traumatic stress, and their long-term traumatic effects. Such stressors satisfy the criterion of ‘severe mental suffering’, which is central to the definition of torture in international conventions”.67
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“The torture consisted of treatment which prevented him from sleeping for ten days. Sleep was forbidden during the day. At night, lying under a bright electric light in his cell, he was awakened every fifteen minutes. Fifteen minutes after ‘lights out’ he would be awakened by pounding on his cell door, fifteen minutes later there would be shrill whistling, and next the electric light would be connected to an automatic device alternating a dim red light with a fierce white light from a powerful bulb… This was repeated night after night for ten nights until [he] collapsed with shivering fits and hallucinations. After this softening-up process he was considered fit for interrogation…” 1956 news report of the treatment of a West Berlin journalist coerced into confessing in an East German prison |
There was some concern within the military with such an approach. A memorandum from the CITF’s chief legal advisor a month earlier, for example, had said that he could “not advocate any action, interrogation or otherwise, that is predicated upon the principal that all is well if the ends justify the means and others are not aware of how we conduct our business”.69Nevertheless, in the USA’s “war on terror”, any previous adherence to internationally recognized standards of humane treatment was eroded in the name of national security, coupled with the notion that “enemy combatants” were not “legally entitled” to humane treatment. Their treatment instead became a matter of executive discretion. Meanwhile, secrecy has been used to obscure from public view the full picture of the human rights violations that have ensued.
2.4. USA’s ‘humane treatment’ falls short of international law
In response to recent revelations that the frequent flyer program in Guantánamo was more widespread than the US government had previously admitted, a spokesperson for the detention authorities stated that: “There is no such program currently in place. JTF Guantánamo conducts the safe and humane care and custody of detained enemy combatants legally, ethically and transparently”.70Over the course of the “war on terror”, the USA’s assurances about its commitment to the “humane treatment” of detainees and the adequacy of its investigations into abuses have been shown to lack credibility.71 Moreover, it is clear that the USA’s interpretation of its absolute legal obligation not to subject anyone to torture or other cruel, inhuman or degrading treatment falls short of international law.72
The prosecutor in Mohammed Jawad’s military commission case has acknowledged that, at a pre-trial hearing on 6 May 2008, he had “derided” the claim that Jawad had been subjected to the frequent flyer program, in the “good faith but mistaken belief that the claims were unfounded”.73Today, the US government “does not deny that Mr Jawad was moved frequently from cell-to-cell during the period 7 May 2004 through 20 May 2004”.74Indeed, in a brief dated 4 June 2008, the military prosecutor acknowledged that “Mr Jawad’s treatment from 7 May 2004 through 20 May 2004 – for whatever reason, and however it proceeded – may be unjustifiable coercion that resulted in inadmissible statements or other adverse consequences”.75
However, the government withdrew this 4 June brief (although it remained publicly available more than two months later), and issued a new one on 13 June 2008. This revised version, the style and content of which suggests it was written or heavily influenced by US Justice Department lawyers, asserts that “the United States has never ‘tortured’ Jawad, and it has never used ‘coercion’ to collect a single statement from Jawad for use in these proceedings”.76It states that “there is no evidence – absolutely none – that Jawad was ever ‘tortured’, and there is no evidence – absolutely none – that he was ever subjected to cruel, inhuman, or degrading treatment”. To reach this conclusion, as Justice Department memorandums on interrogations have done throughout the “war on terror”, the revised brief relies upon “understandings” and “reservations” attached to the USA’s ratification of the Convention Against Torture (CAT), and adds that, in any event, Mohammed Jawad “has no enforceable rights under the CAT”.
The conditions that the USA attached to its ratification of the CAT in 1994 and the ICCPR in 1992 in relation to the prohibition on torture and other cruel, inhuman and degrading treatment have been among the loopholes systematically exploited by the US administration in its resort to such treatment in the “war on terror”.77At the 2 October 2002 meeting of Pentagon and other government personnel to discuss interrogation techniques (see above), a senior CIA lawyer said that “under the Torture Convention, torture has been prohibited by international law, but the language of the [US] statutes is written vaguely…Severe physical pain described as anything leading to permanent damage to major organs or body parts. Mental torture described as anything leading to permanent, profound damage to the senses of personality. It is basically subject to perception. If the detainee dies you’re doing it wrong.”78On the CAT’s prohibition of cruel, inhuman or degrading treatment, the CIA lawyer advised that “the US did not sign up to [this] second part”, which he said “gives us more license to use more controversial techniques”. In addition to explaining how “waterboarding” induces the feeling of drowning, he suggested that “it is very effective to identify phobias and use them (i.e., insects, snakes, claustrophobia).”79 The subsequent legal memorandum written by a military lawyer who attended the meeting culminated in Secretary Rumsfeld’s authorization of techniques such as isolation, stress positions, stripping, hooding, deprivation of light and auditory stimuli, and exploitation of individual phobias. The memorandum (which had also recommended approval of waterboarding) noted that the USA’s conditional ratification of the ICCPR and CAT meant in relation to the prohibition of cruel, inhuman or degrading treatment under those treaties that “we would only be bound by” the ban on “cruel and unusual punishments” under the Eighth Amendment of the US Constitution. The memorandum cited a federal court ruling that sleep deprivation resulting in “emotional distress, loss of memory, headaches and poor concentration, did not show either the extreme deprivation level, or the officials’ culpable state of mind” that would constitute a violation of the Eighth Amendment. Ultimately, the legal advice went, “an Eighth Amendment analysis is based primarily on whether the government had a good faith legitimate governmental interest, and did not act maliciously and sadistically for the very purpose of causing harm”.80
The USA’s reservations themselves are void, however as they are incompatible with the treaties.81The expert monitoring bodies for these treaties, the UN Committee against Torture and the UN Human Rights Committee, have called on the USA to withdraw these reservations and understandings. Nevertheless, citing these ratification conditions in its 13 June 2008 pre-trial brief on the torture issue in Mohammed Jawad’s case, a brief written four years after Jawad was subjected to the frequent flyer program, the government rejected the claim that his subjection to the frequent flyer program constituted torture on the grounds that it did not cause “prolonged” mental harm.82Here the government returns to its “understanding” of the meaning of torture, as set out at the time it ratified the CAT.83To constitute torture, according to the USA, the mental suffering caused must be “prolonged”. This “understanding” permeates the administration’s “torture memos” in the “war on terror”, including the Pentagon Working Group report of April 2003 which recommended use of sleep disruption and deprivation. Similarly, the legal advice that preceded Secretary Rumsfeld’s authorization of isolation and other “category 2” techniques in December 2002 emphasized that the mental suffering must be “prolonged” for the treatment to rise to the level of torture in US law: “Assuming that severe physical pain is not inflicted, absent any evidence that any of these strategies will in fact cause prolonged and lasting mental harm, the proposed methods will not violate the [anti-torture] statute.”84
The UN Committee Against Torture has rejected the USA’s “understanding” on torture. In May 2006, it called on the USA to “ensure that acts of psychological torture, prohibited by the Convention, are not limited to ‘prolonged mental harm’ as set out in the [US] understandings lodged at the time of ratification of the Convention, but constitute a wider category of acts, which cause severe mental suffering, irrespective of their prolongation or duration”.85Despite this, the US government maintains that “there is not a shred of evidence that Jawad suffered from one iota of ‘metal [sic] harm’, much less did he suffer (as the CAT requires) from ‘prolonged mental harm’.” For this reason, the government maintains, he was not tortured. The government has selected a number of entries from Jawad’s Guantánamo medical record to file with its brief which it says are “the cold, hard facts” that prove he suffered no harm, and that “at all relevant times, Jawad has enjoyed good health”.86Jawad’s military lawyer has filed other records which he says tell a different story.
The existence or absence of after-effects on Mohammed Jawad of his ill-treatment, whether or not it amounted to torture, cannot alter the fact that an international law-violating program of sleep disruption and deprivation was used against him, and that there has been a total lack of accountability for it.
As indicated above, on the question of cruel, inhuman or degrading treatment or punishment, the USA’s reservations to the CAT and the ICCPR mean that, even with the passage of the Detainee Treatment Act in 2005, it only considers itself bound by the prohibition on such treatment to the extent that it matches existing US law. Under US Supreme Court jurisprudence, conduct is banned that “shocks the conscience”, but conduct “that shocks in one environment may not be so patently egregious in another”, thereby requiring an “exact analysis of circumstances before any abuse of power is condemned as conscience-shocking”.87Thus, in contrast to the unequivocal and absolute international prohibition on torture and other ill-treatment, the door is opened to the government attempting to justify conduct in the name of national security that would otherwise be considered illegal under US law.
The government argues that “while conscience-shocking claims are tough to make under any circumstances, Jawad faces an even higher hurdle insofar as he must disprove the legitimate ‘government interest’ in his detention. Time and time again, the Supreme Court has recognized that the weightiest Government interest of them all may be the protection of national security.”88It is a sad reflection on how US authorities have turned to torture and other ill-treatment in the “war on terror”, that subjecting a teenager to isolation, incommunicado detention, denial of legal counsel, indefinite detention, and sleep deprivation in a remote island base is perceived as promoting national security. Amnesty International agrees with the former General Counsel to the US Navy when he said in June 2008, “the net effect of this policy of cruelty has been to weaken our defenses, not to strengthen them, and has been greatly contrary to our national interest… Many of the ‘counter-resistance techniques’ authorized for use at Guantánamo in December 2002 constitute ‘cruel, inhuman or degrading’ treatment that could, depending on their application, easily cross the threshold of torture”.89
The USA should apply to itself the standards it so often demands of others. Three months before Mohammed Jawad was subjected to two weeks of the frequent flyer program, the US State Department issued its annual report on human rights in other countries. In the entries on Iran, Jordan, Libya, Saudi Arabia, Tunisia, Pakistan and Turkey, for example, it reported that sleep deprivation was among the “torture” techniques allegedly used by the governments in those countries in 2003. Three months before the government’s military commission brief in Mohammed Jawad’s case rejecting the claim that his treatment amounted to torture, the State Department issued its report on human rights in 2007. It once again defined sleep deprivation as torture in other countries, including in Iran, Tunisia, Libya, Turkey, Vietnam and Pakistan.
Statements and actions by individuals who have had chain of command responsibility over the detainees have further illustrated how US notions of humane treatment fall short of international standards. General James Hill was Commander of SOUTHCOM from August 2002 to November 2004, the period during which Mohammed Jawad was subjected to the frequent flyer program. On 7 October 2005, General Hill was asked in an interview with an investigator from the Army Inspector General’s Office how he would define “humane treatment”. General Hill responded that his definition would be that “We should as a nation and as a military treat everybody with a degree of respect irrespective of who they are.”90 However, in a secret memorandum he signed three years earlier, General Hill said that so-called “category 2” interrogation techniques such as stress positions, use of isolation, deprivation of light and auditory stimuli, hooding, use of 20-hour interrogations, removal of all comfort items (including religious items), removal of clothing, and exploiting individual detainee’s phobias (such as fear of dogs) to induce “stress”, were “legal and humane”.91 The memorandum suggests that he also believed that “category 3” techniques, such as “exposure to cold weather or water”, waterboarding, and death threats, could be humane, as he only expressed doubt as to whether they were legal. He sought Pentagon and Justice Department legal advice on such techniques as “I desire to have as many options as possible at my disposal” for use against detainees at Guantánamo.92
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“Their sleeping conditions are probably better than anything they’ve had in Afghanistan. And they’re being treated well because they’re in the hands of the men and women of our military. And they’re being treated well, because that’s what Americans do… They will be treated in accordance with the principles of the Geneva Convention. There’s no question about that. And the core of the Geneva Convention is focusing on humane treatment, which is something the Americans have always done, and other nations around the world have not always done. We will do it because it’s the right thing to do and it’s the way our military treats people.” White House spokesperson on the Guantánamo detainees, 28 January 2002 |
On 12 November 2002, General Hill orally approved use of the category 2 techniques against a detainee held at Guantánamo, and the following day he approved an interrogation plan for that detainee which included the use of 20-hour interrogations, forced shaving of the detainee’s head and beard for “psychological” purposes, and authorized the subjection of the detainee to stress positions while blindfolded if he was uncooperative. He also authorized the use of dogs. If required, the plan could go into Phases 3 and 4. Phase 3 referred to “Level III techniques” (apparently referring to category 3 techniques, above), and under Phase 4 the detainee would be sent “off Island” temporarily or permanently to “either Jordan, Egypt or another country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite information”.94That detainee, still in Guantánamo, is reported to have attempted suicide in April 2008. So far, four detainees are reported to have killed themselves in Guantánamo. There have been numerous reported suicide attempts among the detainees, including by Mohammed Jawad not long before he was put into the frequent flyer program.
2.5. Blurring the lines between detention and interrogation
On 3 June 2004, about two weeks after Mohammed Jawad emerged from the frequent flyer program and a week after the teenager was put in isolation in Camp 5, General Hill spoke at a press briefing at which he said:
“JTF [Joint Task Force] Guantánamo is a professional, humane, detention and interrogation operation. It is bounded by law and guided by the American spirit. It has contributed and continues to contribute to winning the war on terror... Our leaders are continually checking and refining our procedures and balancing humane treatment of the detainees with the security requirements of our troops and our nation. All detainees are treated humanely… Guantánamo guards provide an environment that is stable, secure, safe and humane. And it is that environment that sets the conditions for interrogators to work successfully and to gain valuable information from detainees...”
On this issue of “setting conditions for interrogation”, General Hill said:
“When we use the term ‘set the conditions for interrogations,’ let me talk about that. The guards perform a detention function first. They maintain a safe, humane, disciplined detention facility. That helps set the conditions for the fair treatment in the interrogation facility. In addition to that, in setting the conditions, we have an extensive computer network between all of the cellblocks so the guards in a passive manner watch all the detainees. If they see you talking to so-and-so, they put that into the computer system and we know that you talked to this detainee. We know, in some cases, what they’ve talked about. We know if you’ve had your lunch that day. We know if you’ve been despondent. We know if you’ve been homesick. We know what you’ve done in terms of your presence in the detention facility. That is given to the interrogators and that helps the interrogators format and formulate their interrogation plan. That is what is meant by ‘setting the conditions for interrogation’.”95
When considering Mohammed Jawad’s subjection to isolation and the frequent flyer program and whether it was driven by disciplinary, prosecutorial or intelligence aims, it should be noted that the US authorities have blurred the lines of separation between detention and interrogation, undermining a basic safeguard against torture and other ill-treatment.96In Afghanistan, as noted above, “military police actively set the favourable conditions for subsequent interviews”. In August and September 2003, Major General Miller, commander of detention operations at Guantánamo, went to Iraq to advise on how to obtain better intelligence from US detentions there. His report stated that it was “essential that the guard force be actively engaged in setting the conditions for successful exploitation of the internees”. Of the Guantánamo detention regime, he said “we’re enormously proud… to be able to set that kind of environment where we were focussed on gaining the maximum amount of intelligence”.97
On the day that Mohammed Jawad’s subjection to the frequent flyer program began, 7 May 2004, Secretary of Defense Rumsfeld announced the formation of the “independent” Schlesinger Panel to review the Pentagon’s detention operations. In its report issued on 24 August 2004, the panel noted that at Guantánamo, the commander of SOUTHCOM had originally established two “joint task forces” (JTFs) at the base to carry out the detention operations (JTF-160) and the interrogation operations (JTF-170). In August 2002, General Hill took over command of SOUTHCOM and the two JTFs were reorganized under a single command as JTF Guantánamo. After Major General Miller was appointed as Commander of JTF Guantánamo on 4 November 2002, he called on the military guards and military intelligence personnel to collaborate. According to the Schlesinger Panel, “this collaboration helped set conditions for successful interrogation by providing the interrogator more information about the detainee – his mood, his communication with other detainees, his receptivity to particular incentives, etc.”98 General Hill himself reiterated in a 2005 interview with an investigator from the Army Inspector General’s office that the Guantánamo guards would watch the detainees, “knowing their moods. Recording their moods”, so that the interrogators would know “who, when to interrogate, how to interrogate”.99
Mohammed Jawad’s “mood” a few weeks before being placed in the frequent flyer program was apparently one of desperation which drove him to attempt suicide. Moreover, about 10 days after this suicide attempt, he was interrogated by intelligence personnel, on 6 January 2004. This is believed to have been the first JIG-ICE interrogation of the teenager for over three months. A few days after this interrogation, on 11 January 2004, he asked to see a “psych doctor”, according to prison records. A month after this, he was again questioned by JIG-ICE. This interrogation, on 10 February 2004, was the last time, according to the records so far released, that he was questioned by intelligence officials.100The question arises, therefore, whether such interrogators were engaged in a final effort to exploit his mental vulnerability to obtain information. If so, it would have been another clear breach of international standards.101
Sami al-Hajj, a Sudanese national released from Guantánamo in May 2008, has said that one use of the frequent flyer program was as a pre-interrogation tool. Detainees were subjected to the program prior to interrogations, with cell moves every two hours for up to a month. He said that he himself was subjected to the program on the orders of interrogators. He further alleged that another reason that detainees were subjected to the program was to destabilize them, and as a method to learn from what they said to other detainees after periods of isolation interspersed with moves back to cells situated next to other occupied cells.102Presumably such information could have intelligence or prosecutorial value, in the view of the US authorities.
According to Amnesty International’s observer at the 19 June 2008 military commission hearing at Guantánamo, Mohammed Jawad recalled that during his subjection to the frequent flyer program, “day and night they were shifting me from one room to another room”. Asked by his military lawyer whether he had been told why this was happening to him, Jawad responded that he understood that it was being done “for interrogators”, but from “what I remember, no-one answered why they were giving me this punishment”. If his treatment was being conducted at the instigation of interrogators, the next question would be whether they were JIG ICE or CITF personnel, intelligence gatherers or criminal investigators (see §2.8).
2.6. Authorization and use of sleep disruption/deprivation
At Mohammed Jawad’s 19 June 2008 commission hearing, his US military lawyer stated of his client’s subjection to the frequent flyer program: “It is high time that someone in a position of authority be held accountable, and not just the guards who were just carrying out orders”. In a pre-trial brief to the military judge on the torture issue, he has written that “the government has categorically refused to provide the names of any of the guards who actually carried out the program on Mr Jawad, (who might be able to explain who ordered the program and why, and what effect it had on Mr Jawad) citing their right to privacy”.103The right to privacy cannot override the obligation on the state to promptly and impartially investigate all allegations of torture or other cruel, inhuman or degrading treatment or punishment,104and the right of victims of human rights violations to remedy (see §4 below). In this section, with the question of official accountability in mind, Amnesty International further traces the origins of the frequent flyer program, and its authorization and use.
The “new thinking in the law of war” called for by President Bush in his central “war on terror” detention memorandum of 7 February 2002, led to certain techniques used in US military training morphing into techniques used to “exploit” detainees held in indefinite US detention. Under the SERE (Survival, Evasion, Resistance, Escape) program, overseen by the US Department of Defence [DoD]’s Joint Personnel Recovery Agency (JPRA), members of the US armed forces are trained in how to resist interrogation in the event they fall into enemy hands. “Water-boarding”, the torture technique that simulates drowning, for example, used in this training, was approved in August 2002 by the Justice Department for use against detainees held in the CIA’s secret detention program. A December 2002 document, entitled Guantánamo’s “SERE Interrogation Standard Operating Procedure”, states that “the interrogation tactics used at US military SERE schools are appropriate for use in real-world interrogations. These tactics and techniques are used at SERE school to ‘break’ SERE detainees. The same tactics and techniques can be used to break real detainees during interrogation operations”.105 In a training situation, the “victim” knows that he or she is ultimately in the care of her colleagues, and can stop the “torture” at any point. Detainees have no such comfort zone. In the SERE training program, the psychological effects of being subjected to the techniques are “minimized” by “extensive debriefings”, to “mitigate the risk of turning a ‘dramatic’ experience into a ‘traumatic’ experience”.106Detainees have no such debriefing. Any trauma, like the interrogation, will be real.
A number of JPRA documents, including memorandums to the Office of the Secretary of Defense General Counsel, dated July 2002 but not made public until 2008, among other things state that “psychological stresses are inherent in detention situations”, but that “from an exploitation perspective”, rather than one in which resistance is being taught, “the goal would be to induce these [stresses] in detainees”. Among the “tactics to induce control, dependency, compliance, and cooperation” are “isolation/solitary confinement”; “induced physical weakness and exhaustion”, “degradation”; “sensory deprivation”, “sensory overload” and “disruption of sleep and biorhythms”. The latter is annotated with the following: “sleep patterns are purposefully disrupted to make it more difficult for the subject to think clearly, concentrate and make rational decisions”.
Sleep deprivation was authorized for use in Guantánamo by Secretary Rumsfeld in his memorandum issued on 2 December 2002. It came in the form of his authorization of “the use of 20-hour interrogations”. That this incorporated sleep deprivation is not only intuitive, but was clear in the legal advisory memorandum that preceded his decision. This advice stated that both sleep deprivation and the use of 20-hour interrogations were legally permissible “so long as there is an important governmental objective, and it is not done for the purpose of causing harm or with the intent to cause prolonged mental suffering”. The advice continued: “There is no legal requirement that detainees must receive four hours of sleep per night”, but “as a cautionary measure, they should receive some amount of sleep so that no severe physical or mental harm will result”. Towards the end of the meeting mentioned above that the author of this memorandum attended a week before writing her legal advice, “a discussion about ways to manipulate the environment ensued”, which included “Let detainee rest just long enough to fall asleep and wake him up about every thirty minutes and tell him it’s time to pray again”.107
Also in late December 2002, according to documents released at a Senate Armed Services Committee hearing on 17 June 2008, military trainers visited Guantánamo and ran “an in-depth class” for about 24 interrogators using a chart that depicted coercive methods of interrogation and conditions of confinement (under the title “coercive management techniques”). These methods included “isolation”; “threats” (such as “death threats”, “threats against family”); “degradation” (for example, “denial of privacy”, “insults and taunts”, “demeaning punishments”); and “induced debilitation” (including “prolonged constraint”, “prolonged interrogation” and “sleep deprivation”).108This chart of “Biderman’s Principles” was “copied verbatim from a 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners”.109 In addition to US interrogators resorting to techniques with disturbing historical connotations, an added twist to the human rights scandal of the USA’s Guantánamo detention regime has been the involvement of agents of other governments, including China, at the base (see box).
On 15 January 2003, Secretary Rumsfeld rescinded his 2 December 2002 authorization, and established a Working Group to advise him on interrogations of “enemy combatants” in the “war on terror”. The Working Group’s 4 April 2003 report, classified as secret by Secretary Rumsfeld for 10 years, differentiated between “sleep adjustment” and “sleep deprivation” (see below). Asserting that both had a potentially “high” utility value in contributing to intelligence collection, it recommended that both be adopted, but that sleep deprivation should be restricted to detainees believed to possess “critical intelligence”, who had been medically cleared for its use, and who were held at “strategic interrogation facilities” (such as Guantánamo). The report noted, “as a matter of policy, for consideration of other nations’ views”, that the UN Committee against Torture had found that prolonged sleep deprivation constituted torture and other cruel, inhuman or degrading treatment. The report warned that public knowledge that the government was resorting to sleep deprivation “may have a significant adverse effect on public opinion”. It nevertheless recommended its use.
In a memorandum dated 16 April 2003, Secretary Rumsfeld authorized “sleep adjustment” for use in Guantánamo. The technique was described as “adjusting the sleeping times of the detainee (e.g. reversing sleep cycles from night to day)”, and was accompanied by the note that “this technique is NOT sleep deprivation”.110On 2 June 2003, General Hill issued clarification on this reference to “sleep deprivation”. He defined sleep deprivation as “keeping a detainee awake for more than 16 hours, or allowing a detainee to rest briefly and then repeatedly awakening him, not to exceed four days in succession”. This echoed the Working Group report which defined this technique as “keeping the detainee awake for an extended period of time (allowing individual to rest briefly and then awakening him, repeatedly).”111The Working Group recommended that this should not exceed four days in succession. Mohammed Jawad’s subjection to the frequent flyer program lasted for more than three times this long.
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In May 2004, Amnesty International alleged that agents of the Chinese government had been in Guantánamo in 2002 and had directed the ill-treatment of Uighur detainees, including by sleep deprivation, threats and environmental manipulation. The following month, Commander Hill was asked about these allegations and would only state that government “delegations” from various countries “have come and they have talked to their detainees, but they do so, following our rules and under our direct supervision and never by themselves.” The May 2008 report of the Office of the Inspector General of the US Justice Department revealed that an FBI agent had reported that “several Uighur detainees were subjected to sleep deprivation or disruption while being interrogated at Camp X-Ray by Chinese officials prior to April 2002”. One of the detainees had alleged that “the night before his interrogation by Chinese officials, he was awakened at 15-minute intervals the entire night and into the next day”. The Inspector General’s report stated that “some Chinese officials visited GTMO and were granted access to these detainees for interrogation purposes”. |
An FBI agent who was deployed to Guantánamo in August 2003 has said that at weekly meetings with military interrogators, the military personnel “described what they were doing in detainee interrogations, including frequent movements of detainees and isolation”. The FBI agent said that he had received a list of Pentagon-approved “interrogation tactics that could be utilized and that programs were built around them, including ‘the frequent flyer program and isolation techniques…dietary disruption and sleep disruption’.”