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Amnesty International Report 2007 - United States of America

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UNITED STATES OF AMERICA

Head of state and government: George W Bush
Death penalty: retentionist
International Criminal Court: signed but declared intention not to ratify

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Thousands of detainees continued to be held in US custody without charge or trial in Iraq, Afghanistan and the US naval base in Guantánamo Bay, Cuba. In June, the US Supreme Court struck down the military commissions established by President Bush and reversed the presidential decision not to apply Article 3 common to the four Geneva Conventions to detainees suspected of links with the Taleban or al-Qa'ida. Congress passed the Military Commissions Act stripping the US federal courts of the jurisdiction to hear habeas corpus appeals from such detainees, providing for trials by military commission, and amending the US War Crimes Act. In September, President Bush confirmed the existence of a programme of secret detentions run by the Central Intelligence Agency (CIA). There were reports of possible extrajudicial executions by US soldiers in Iraq, with a number of soldiers facing prosecution. There was a continued failure to hold senior government officials accountable for torture and other ill-treatment of "war on terror" detainees despite evidence that abuses had been systematic. There were reports of police brutality and ill-treatment in detention facilities in the USA. More than 70 people died after being struck by police tasers. Fifty-three people were executed in 14 states.

Military Commissions Act

In June, in Hamdan v. Rumsfeld, the US Supreme Court ruled that the military commissions established under a November 2001 Military Order to try foreign nationals held as "enemy combatants" in the "war on terror" were unlawful. Ten foreign nationals had been charged to stand trial before the commissions prior to the ruling. The ruling also reversed the presidential decision not to apply to detainees suspected of links with the Taleban or al-Qa'ida Article 3 common to the four Geneva Conventions of 1949 which requires fair trials and humane treatment for detainees in armed conflict. In September, President Bush confirmed that the CIA had been operating a secret detention programme in which some detainees in the "war on terror" had been held incommunicado and subjected to "alternative" interrogation techniques. He asserted that the Supreme Court ruling had put the secret programme in jeopardy.

In late September, Congress passed the Military Commissions Act (MCA). If found to be constitutional, the MCA would strip US courts of the jurisdiction to consider habeas corpus appeals challenging the lawfulness or conditions of detention of any non-US citizen held as an "enemy combatant" in US custody, regardless of location. On 13 December, a federal judge dismissed the habeas corpus petition of Guantánamo detainee Salim Ahmed Hamdan, who by then had been in US custody for more than five years without trial. The judge found that the MCA applied retroactively, blocking Salim Ahmed Hamdan's statutory access to habeas corpus, and that as a foreign national held outside US sovereign territory, he had no constitutional right to habeas corpus.

The MCA also provides for the President to establish new military commissions to try "alien unlawful enemy combatants" – broadly defined to include civilians captured far from any battlefield. The new commissions would have the power to hand down death sentences, under procedures which appeared highly unlikely to guarantee fair trials.

The MCA barred detainees from invoking the Geneva Conventions in any court action. It also narrowed the scope of the US War Crimes Act (and backdated this to 1997) by not expressly criminalizing acts violating common Article 3's prohibition of unfair trials or "outrages on personal dignity", particularly humiliating and degrading treatment. At a Senate hearing in July, six former and current military lawyers agreed that some of the interrogation techniques used by the USA in the "war on terror" had violated common Article 3.

Renditions and secret detention

In September President Bush announced that 14 "high-value" detainees held incommunicado for up to four and a half years as part of the secret CIA programme had been transferred to Guantánamo. AI considered that at least some of them had been victims of enforced disappearance. The fate and whereabouts of individuals other than the 14 who had been held in the CIA programme remained unknown at the end of the year.

In litigation in federal court, the government sought to ensure that whatever details the 14 recently transferred detainees knew about the secret CIA programme – such as the location of secret detention facilities or what interrogation techniques had been used – remained secret.

In June, the Council of Europe's Committee on Legal Affairs and Human Rights released a report of its inquiry into secret detention and renditions (the secret and unlawful transfer of detainees between countries) in Europe. The report concluded that the USA – an observer state of the Council of Europe – had been the "chief architect" of a "reprehensible" system of secret detentions and renditions. It confirmed AI's findings that several cases of rendition occurred with the involvement or co-operation of Council of Europe member states. The Committee urged the USA and European states to put an end to renditions and to conduct independent investigations into the practice.

Guantánamo

At the end of 2006, approximately 395 detainees of around 30 nationalities continued to be held without charge or trial at the US naval base in Guantánamo. Some had been held there for nearly five years.

In February, five UN experts, including the Special Rapporteur on torture, issued a report of their investigation into conditions at Guantánamo, calling for the facility to be closed. They found that some of the alleged treatment of detainees, including the use of solitary confinement, excessive force and the brutal manner of force-feeding during a hunger strike, amounted to torture.

In May the UN Committee against Torture also called for the closure of Guantánamo, noting that holding people indefinitely without charge constituted a violation of the UN Convention against Torture. In July, the UN Human Rights Committee urged the USA to ensure that all those held in Guantánamo were able "without delay" to challenge the lawfulness of their detention before a court.

In June, three detainees died in Guantánamo, apparently as a result of suicide. They included Abdullah Yahia al-Zahrani who was reportedly aged 17 when he was taken into custody. The deaths heightened concerns about the severe psychological impact of the indefinite detention regime.

Detentions in Afghanistan and Iraq

Hundreds of detainees were held without charge or trial at the US air base in Bagram, Afghanistan, with no provision for judicial review. Some had been detained for more than two years without access to lawyers, their families or the courts. In November, the US authorities said that a "significant percentage" of the Afghan detainees at Bagram might be transferred to the custody of the Afghan government within a year. It also said that some Afghans and other nationals would be kept at Bagram or transferred to Guantánamo.

Thousands of people were held by the US forces in Iraq, including several hundred "security internees" detained since before the handover of power to the interim Iraqi government in June 2004. There were no formal review procedures applying in such cases. Detainees arrested after that date had their detentions reviewed initially by a magistrate (often without the presence of the detainee) and thereafter by a non-judicial body at six-monthly intervals.

Unlawful killings by US forces outside the USA

There were a number of incidents of alleged extrajudicial executions or unlawful killings of civilians by US soldiers in Iraq.

• In November, a soldier pleaded guilty before a military court to charges of raping a 14-year-old Iraqi girl and murdering her and three members of her family in Mahmudiya in March. He was sentenced to life imprisonment. Three other soldiers faced charges of rape and murder in the same case, and arson for burning the girl's body to conceal the evidence. A fifth soldier, who had already been discharged from the army on mental health grounds when the charges arose, pleaded not guilty in a civilian federal court.
• Eight soldiers were charged with the kidnap and murder of 52-year-old Hashim Ibrahim Awad in the town of Hamdania in April. They were accused of dragging him from his home and shooting him while he was restrained. Four soldiers pleaded guilty to charges relating to the murder and were sentenced to between five and 10 years' imprisonment. However, in line with pre-trial agreements, their sentences were reduced to between 12 and 21 months' confinement. Other trials were pending at the end of the year.

In Pakistan, between 13 and 18 people, including five children, were killed when Hellfire missiles were fired into three houses in the village of Damadola Burkanday in northwestern Pakistan on 13 January. Reports suggested that US aircraft fired the missiles and that their intended target was Ayman al-Zawahiri, a high-ranking al-Qa'ida operative.

Detention of 'enemy combatants' in the USA

Ali Saleh Kahlah al-Marri, a Qatari national, continued to be held without charge or trial in military custody in South Carolina. He remained in isolation and had been denied family visits or phone calls for more than three years. In November, the US government filed a court motion seeking to have Ali al-Marri's appeals challenging the lawfulness of his detention dismissed on the grounds that under the MCA the federal courts no longer had jurisdiction in the case. The issue had not been decided by the end of the year.

In October, lawyers for José Padilla, a US citizen formerly detained as an "enemy combatant", sought to have criminal charges against him dismissed on the grounds that he had been tortured during more than three years of incommunicado detention in US military custody. A decision on the petition was pending at the end of the year.

Torture and other ill-treatment

A general lack of accountability for torture and other ill-treatment by US personnel in the "war on terror", including under interrogation techniques authorized by senior administration officials, continued. Although some generally low-ranking soldiers were court-martialled, by the end of the year no US personnel had been charged with torture under the USA's extraterritorial anti-torture statute or with war crimes under its War Crimes Act. Both the UN Committee against Torture and the UN Human Rights Committee expressed concern at the apparent leniency and impunity being enjoyed by US personnel.

By the end of the year, only one CIA employee had been brought to trial for abuses committed in the "war on terror". In August, David Passaro, a CIA contractor, was convicted of assault in connection with the beating of Afghan detainee Abdul Wali, who died in a US military base in Afghanistan in 2003. By the end of the year no other charges had been brought in relation to 19 cases of alleged abuse involving civilian or CIA personnel referred to the US Department of Justice.

A revised Army Field Manual was published in September, reiterating the ban on cruel, inhuman or degrading treatment of any detainee, a position the government had previously held not to apply to "unlawful enemy combatants". The Manual also expressly banned certain techniques during interrogation, including sexual humiliation, use of dogs, hooding, "water-boarding" (simulated drowning), mock executions and deprivation of food and water. The Army Field Manual did not apply to CIA interrogations conducted outside a military-run facility.

On 6 December, US citizen Roy Belfast Jr (also known as Charles Taylor Jr), son of former Liberian President Charles Taylor, became the first person to be charged with torture under the USA's extraterritorial anti-torture statute. He was charged in relation to the torture of an individual in Monrovia, Liberia, in July 2002.

Ill-treatment in jails and police custody

There were reports of ill-treatment of suspects in jails and police custody, involving abusive use of restraints and electro-shock weapons. More than 70 people died after being shocked with tasers (dart-firing electro-shock weapons), bringing to more than 230 the number of such deaths since 2001.

In June the Justice Department announced that a two-year study of taser deaths would be undertaken by the National Institute of Justice. Meanwhile many police departments continued to use tasers in situations that fell far below any threat of deadly force. The UN Committee against Torture called on the USA to deploy tasers only as a non-lethal alternative to using firearms.

• In August, Raul Gallegos-Reyes died in Arapahoe County Jail, Colorado, after being repeatedly tasered and strapped into a restraint chair for screaming and banging on his cell door. The coroner concluded he had died from "positional asphyxia" due to restraint and ruled the death a homicide.
• A lawsuit filed against Garfield County Jail, Colorado, in July, alleged that prisoners were frequently strapped into restraint chairs and left for hours in painful positions after being tasered or drenched with pepper spray. Guards were also alleged to have taunted and threatened to shock prisoners wearing remote-controlled electro-shock belts while being transported to court. The jail reportedly had no clear policies governing use of restraints.

There were reports of police ill-treatment of lesbian, gay, bisexual and transgender people, and of a failure to respond adequately to identity-based crimes against them.

• Mariah López, a transgender woman, was allegedly subjected to verbal and physical abuse by New York Police Department officers and city jail employees after she was arrested. She reportedly sustained a broken cartilage in her nose, a broken tooth and numerous abrasions after being beaten by officers. She was also subjected to humiliating strip searches.
• Christina Sforza, a transgender woman, was reportedly assaulted in a New York restaurant. Police responding to the scene arrested her and refused to accept her complaint against her assailant. Assault charges filed against her were eventually dropped.

'Supermax' prisons

Thousands of prisoners continued to be held in long-term isolation in "supermaximum" security facilities in conditions that sometimes amounted to cruel, inhuman or degrading treatment.

In November a federal appeals court condemned as unconstitutional alleged conditions in a "Behavioral Modification Program" in a Wisconsin "supermax" prison. A lawsuit brought on behalf of an inmate confined under the programme in 2002 claimed he was stripped of clothes and bedding, confined to a small bare cell and fed only ground-up food formed into a "loaf". The conditions were alleged to have had a severe adverse effect on his mental health. The case was referred to a lower court for a ruling on the facts, some of which were in dispute.

Women in prison

In May, Vermont became the last of the 50 states to pass a law protecting women in prison from sexual abuse by guards, by criminalizing all sexual contact between inmates and correctional staff. However, many women prisoners in the USA remained at risk of abuse through policies allowing male staff to conduct "pat-down" searches of women prisoners and observe women washing or dressing in their cells. Most US states allowed male guards unsupervised access to women's prisons, contrary to international standards.

Twenty-three states and the Federal Bureau of Prisons allowed women prisoners to be shackled during labour, a practice AI considers to be inhuman and degrading as well as potentially dangerous for the health of the mother or her baby.

Prisoners of conscience

Army National Guard Specialist Katherine Jashinski served one month in jail after being sentenced to 120 days' imprisonment in May for refusing to serve in Afghanistan on conscientious grounds.

Kevin Benderman, a US Army sergeant, was released from prison in August after serving 12 months of a 15-month sentence for refusing to deploy to Iraq on grounds of his conscientious objection to the war.

Several other soldiers refusing to deploy to Iraq because of their opposition to the war faced possible prosecution at the end of the year.

Death penalty

In 2006, 53 people were executed in 14 states, bringing to 1,057 the total number of prisoners put to death since executions resumed in 1977. The number of executions in 2006 was the lowest for a decade and the number of people sentenced to death continued to decline from its peak in the mid-1990s. There were ongoing legal challenges to the constitutionality of the lethal injection process, and in December executions were suspended in California and Florida pending resolution of problems with execution procedures. People with serious mental illness continued to be subjected to the death penalty.

• Clarence Allen, a Native American, was executed in California on 17 January, a day after his 76th birthday. He had been on death row for 23 years, was confined to a wheelchair and nearly blind; he had advanced heart disease and diabetes, and had suffered a major heart attack in 2005.
• Bobby Wilcher was executed in Mississippi on 18 October after more than two decades on a death row notorious for its bad conditions, including poor mental health care, profound isolation of inmates and low standards of hygiene. He suffered from bipolar disorder, a serious mental illness, and had a long history of psychological problems, including suicide attempts. On 24 May, he had filed a motion in court seeking to drop all his remaining appeals. In July he informed his lawyer that he had changed his mind, and subsequently signed two affidavits to that effect. However, the courts refused all attempts to have his appeals reinstated.
• Angel Nieves Diaz was executed by lethal injection in Florida on 13 December, proclaiming his innocence after two decades on death row. The execution went ahead despite the fact that a key prosecution witness from the trial had recanted his testimony. The execution required 34 minutes and two doses of the drugs to kill Angel Diaz. Witnesses described Angel Diaz grimacing in pain and gasping for air during the execution.

Other concerns

Daniel Strauss and Shanti Sellz, charged with transporting illegal aliens, had the charges against them dismissed by a federal judge in September. The charges arose because they had transported three undocumented Mexican migrants for urgent medical care after finding them injured and suffering from heat exhaustion in the Arizona desert.

Several bills to tighten immigration enforcement were pending before Congress at the end of the year. They included measures which would expand summary deportation procedures known as "expedited removal". In October Congress passed a law authorizing funding for the construction of fortified fencing along around a third of the US border with Mexico.

AI raised concern with the US government about its refusal to allow the Cuban wives of René Gonzáles and Gerardo Hernández, Cuban nationals serving long prison sentences in the USA, visas to travel to the USA to visit them in prison.

UN Committee against Torture and UN Human Rights Committee

The Committee against Torture and the Human Rights Committee issued recommendations to the US authorities in May and July. They included calls for an end to secret detention and enforced disappearances and for the closure of Guantánamo. The Committee against Torture also called for cruel interrogation techniques to be rescinded, and for thorough and impartial investigations into torture and other ill-treatment, including the role of senior government officials.

On domestic policy, both Committees called for strict limitations on the use of electro-shock devices; a review of cruel conditions in "supermaximum" security prisons; and measures to prevent sexual abuse of prisoners and the shackling of women prisoners during childbirth. The Human Rights Committee also called for a moratorium on executions and a ban on "life without parole" sentences for children. It expressed concern that poor people, and in particular African Americans, were disadvantaged by the rescue and evacuation plans in the aftermath of Hurricane Katrina in August 2005, and continued to be disadvantaged under the reconstruction plans. It urged the government to ensure their rights were fully taken into account with regard to access to housing, education and health care.

AI country reports/visits

Reports

• USA: Stonewalled – still demanding respect: Police abuses against lesbian, gay, bisexual and transgender people in the USA (AI Index: AMR 51/001/2006)
• USA: The execution of mentally ill offenders (AI Index: AMR 51/003/2006)
• USA: Guantánamo: Lives torn apart – The impact of indefinite detention on detainees and their families (AI Index: AMR 51/007/2006)
• USA: Amnesty International's continuing concerns about taser use (AI Index: AMR 51/030/2006)
• USA: Below the radar – Secret flights to torture and "disappearance" (AI Index: AMR 51/051/2006)
• USA: Amnesty International's supplementary briefing to the UN Committee against Torture (AI Index: AMR 51/061/2006)
• USA: Memorandum to the US Government on the report of the UN Committee against Torture and the question of closing Guantánamo (AI Index: AMR 51/093/2006)
• USA: More about politics than child protection – The death penalty for sex crimes against children (AI Index: AMR 51/094/2006)
• USA: Updated briefing to the Human Rights Committee on the implementation of the International Covenant on Civil and Political Rights (AI Index: AMR 51/111/2006)
• USA: Justice at last or more of the same? Detentions and trials after Hamdan v. Rumsfeld (AI Index: AMR 51/146/2006)
• USA: Rendition – torture – trial: The case of Guantánamo detainee Mohamedou Ould Slahi (AI Index: AMR 51/149/2006)
• USA: Military Commissions Act of 2006 – Turning bad policy into bad law (AI Index: AMR 51/154/2006)
• USA: Five years on 'the dark side' – A look back at 'war on terror' detentions (AI Index: AMR 51/195/2006)

Visits

AI delegates visited the USA in February and interviewed former Guantánamo detainees in France and Germany in November.

Topics: Security forces, Police, Immigrants, Aliens, Torture, Extrajudicial executions, Death penalty, Womens rights, Pre-trial detention, Military courts,