Wednesday, May 25, 2005

Guantánamo and beyond: The continuing pursuit of unchecked executive power
Amnesty International

Guantánamo and beyond: The continuing pursuit of unchecked executive power

I used to think that America had respect for human rights when it came to prison.
Mohammed Nechle, extrajudicially removed from Bosnia and Herzegovina by US agents(1)

My husband is a tall man with black hair and black eyes…He is now imprisoned in Guantánamo. We don’t know why.
Wife of Mohammed Nechle, Algerian national, 2004(2)

1. Summary: The pursuit of unfettered executive power

It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check.
US Supreme Court Justice Stephen Breyer, 20 April 2004(3)

In late December 2001, a memorandum was sent from the United States Justice Department to the Department of Defense.(4) It advised the Pentagon that no US District Court could "properly entertain" appeals from "enemy aliens" detained at the US Naval Base in Guantánamo Bay, Cuba. Because Cuba has "ultimate sovereignty" over Guantánamo, the memorandum asserted, US Supreme Court jurisprudence meant that a foreign national in custody in the naval base should not have access to the US courts. The first "war on terror" detainees were transferred to the base two weeks later. The memorandum remained secret until it was leaked to the media in mid-2004 in the wake of the Abu Ghraib torture scandal.

Not long after this leak, on 28 June 2004, the US Supreme Court ruled, in Rasul v. Bush, that the federal courts in fact do have jurisdiction to hear appeals from foreign nationals detained in Guantánamo Bay.(5) Yet almost a year later, none of the more than 500 detainees of some 35 nationalities still held in the base – believed to include at least three people, from Canada, Chad and Saudi Arabia, who were minors at the time of being taken into custody – has had the lawfulness of his detention judicially reviewed. The US administration continues to argue in the courts to block any judicial review of the detentions or to keep any such review as limited as possible and as far from a judicial process as possible. Its actions are ensuring that the detainees are kept in their legal limbo, denied a right that serves as a basic safeguard against arbitrary detention, "disappearance" and torture or other cruel, inhuman or degrading treatment. Amnesty International believes, as explained in Section 3, that all those currently held in Guantánamo are arbitrarily and unlawfully detained.

Read the full report here: