Preventing Torture within the Fight against Terrorism 17

NEWSLETTER

Framing the Issue

Preventing Torture within the fight against terrorism February 2010 — Volume 4, Issue 1

The role of the Media in Preventing Torture within the Fight against Terrorism regulations relating to terrorism. However, this legislation has faced serious criticism because it threatens civil liberties.2

From the Indonesian Journalists Workshop, held on 5-6 December, 2009 in Bogor-Indonesia.

By Eva Danayanti, Program Manager of the Alliance of Independent Journalists (AJI) Indonesia.

S

ince the first terrorist attack in Indonesia in 2000, the country has suffered 23 bombings over the last decade. These attacks, especially the 12 October 2002 bombings in Bali, have placed Indonesia on the frontline of the war against terrorism.

According to C.S. Kuppuswamy in his article Terrorism

in Indonesia: the role of the religious organizations 1, the Indonesian police can be credited with several achievements, however limited, in their counter terrorism operations until now. Since the 2002 Bali bombings, more than 200 suspects have been brought to justice for undertaking terrorist activities.

The global fight against terrorism has seen a familiar deba-

te re-emerge. Does the state have the right to torture terrorism suspects to save the lives of many innocent people? Is, and under what conditions, the use of torture to interrogate suspected terrorists compatible with the law?

Violence at the normative and practical level The Indonesian government justifies the ferocity of its fight against terrorism by recalling the impact of terrorist attacks, which have resulted in large scale loss of human life, widespread public fear and loss of liberty and property. Terrorism networks, due to their extensive nature, pose a threat to national and international peace. To eradicate terrorism, the Indonesian government has established legislation based on international conventions, laws and

At the normative and practical level, the ongoing response to acts of terrorism in Indonesia has repeatedly violated the principles of protection of human rights. The most blatant violation is the government’s bypassing of the Universal Declaration of Human Rights, notably the provisions of Article 8: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." This is a non-derogable right, i.e. it cannot be restricted under any circumstances.

Indonesia’s anti-terrorism law is contrary to several human rights, including the right to a fair trial. Article 25 states that “For the purpose of investigation and prosecution, the investigator is given authority to detain the accused for a maximum of 6 (six) months”.

In the criminal code, the investigator (i.e. the police) can detain a suspect for 20 days, with a possible extension up to 40 days. For deliberate crimes with punishment of more than nine years, detention can be extended for another 30 days plus another 30 days, a total of 120 days. The anti-terrorism law also enforces the death penalty, which violates the right to life.

Inside this issue: The role of the Media ...

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Guantanamo conditions 'deteriorate'

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US continues to look the other way on 'war on terror' abuse

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One of the practical consequences of the Indonesian anti-terrorist legislation is the increase in arbitrary arrests.

Investigations can be launched based on “intelligence reports” which enable intelligence agencies to arrest suspected terrorists on the basis of preliminary evidence and to detain them without filing formal charges against them, outside the judicial process. Terrorism suspects are usually detained incommunicado, i.e. they cannot communicate with their families and have no access to legal aid. In several cases, the family is not informed that one of their relatives has been arrested.

These limitations and the absence of judicial oversight open the door to torture or other cruel, inhuman or degrading treatment by the investigator. The risk is strongly aggravated by a general lack of accountability, as complaints filed against the authorities for acts of torture are rarely investigated and even less often followed up in court.

Counter-terrorism laws, policies and practices have strong impact on freedom of expression and the individual’s right

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The role of the Media... (cont.) to liberty and security. The excessive power of judicial institutions and intelligence agencies in addition to lack of adequate guarantees of a fair trial and safeguards against wrongful arrest have created an oppressive atmosphere in the country. The only challenge mechanism, the so-called pre-trial procedure (pra-peradilan) gives insufficient protection from the authorities’ abuses.

In sum, Indonesia’s antiterrorism policy is a cause for grave concern: its vagueness increases the risk of and indeed results in violations and is not counterbalanced by any efficient human rights mechanisms. The country’s intelligence agencies have expanded outside the constitutional framework. These agencies grossly abuse their power and continually violate constitutional and human rights. Granting military and intelligence agencies the power to interrogate

“public enlightenment is the forerunner of justice”, as defined by the Society of Professional Journalists’ Code of Ethics. The SPJ’s Code of Ethics further defines the role of the media as follows: “the duty of the journalist is to further those ends by seeking truth and providing a fair and comprehensive account of events and issues.

Conscientious journalists from all media and specialties strive to serve the public with thoroughness and honesty. Professional integrity is the cornerstone of a journalist's credibility”.3 Since the first terrorist attacks in Indonesia, journalists have contributed to inform the public about terrorism. However, lack of objectivity in the Indonesian media is worrying: fair and comprehensive reporting on terrorism is scarce, as the majority of the Indonesian media rely on police reports as their main source of information.

The fight against terrorism and human rights protection are not incompatible. The necessity of combating terrorism is beyond dispute, but should not be carried out at the expense of human rights. suspects outside the safeguards of the law greatly increases the risks of human rights violations. Despite some positive steps forward, enforcing human rights in the context of counter-terrorism policies has proven difficult.

Improving the government’s policies and handling of complaints of human rights violations can only be achieved by empowering civil society.

Journalists, Preventing Torture, and Reporting Terrorism The media have an important role to play in informing the general public if indeed

“In the context of reporting on terrorism, the media has no critical power. Journalists have become a `public relation` tool for the police.” (Mulyani Hasan, Journalist and member of AJI) In several cases, media reports have solely focused on the ambushing, arresting and killing of terrorists by the police, while erasing any critical scrutiny. When reporting on terrorism, the Indonesian media resorts more and more to sensationalism by focusing on stories with shock-value to attract a larger audience.

Investigations are in some cases solely based on

throughout the country and reaching a broader audience with the ultimate aim of raising awareness and increasing support for the issue among the general public.

obtaining the defendant’s confession with no presumption of innocence, which significantly increases the chances of torture. And there are no mechanisms to hold law enforcement agents accountable for torturing suspects to obtain evidence. Therefore, and for the reasons mentioned above, there is a strong need for media and

Based on substantial discussions among experts on the issue, this workshop aimed at raising journalists’ awareness on the relationship

From the Indonesian Journalists Workshop

journalists to report on terrorism-related issues from another perspective, and notably from a human rights angle. This would encourage journalists to provide the general public with fair and comprehensive news.

In recognition of this need, the Alliance of Independent Journalist (AJI) Indonesia held a two-day workshop entitled “Preventing Torture within the Fights against Terrorism” for journalists and activists on 5 and 6 December 2009.

AJI invited 28 people from all over Indonesia to join this workshop. A combination of participants from the media as well as human rights activists participated. Through a series of broad discussions, the workshop addressed the possibility of developing a more comprehensive media strategy to promote respect for human rights within the fight against terrorism

between torture and terrorism, and on their own role as human rights promoters.

The workshop provided journalists with a training on how to cover torture in relation to the war against terrorism. We believe this activity will play an important part in improving media reporting on torture and similar human rights abuses in Indonesia in the context of counter-terrorism measures.

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www.southasiaanalysis.org/% 5Cpapers16%5Cpaper1596.html 2 Usman Hamid, Coordinator of KontraS/ The Commission for the Disappeared and Victims of Violence Jakarta 3 Society of Professional Journalists Code of Ethics www.spj.org/mission.asp

This article was written based on workshop material and discussions presented at the Indonesian Journalists Workshop, held on 5 -6 December, 2009 in Bogor-Indonesia, with the support of the European Commission.

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Photo credits: http://www.flickr.com/photos/crispyfried / CC BY-NC-SA 2.0

Guantanamo conditions 'deteriorate'

By Andrew Wander in Al Jazeera English

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n the night that Barack Obama won the 2008 presidential election, 21year-old Mohammed el Gharani was sitting in a segregation cell in Guantanamo Bay's high security Echo Block.

He remembers the excitement among his fellow prisoners at the prospect of an Obama presidency. “Everyone was very hopeful; people were saying he was going to change things, that he would close the prison," Gharani, who was released in June, says.

"Even the guards were telling us that if he won, things would improve for us."

They were to be disappointed. A year after Obama's election win, Al

Jazeera has learnt that despite the new president's pledge to close the prison and improve the conditions of detainees held by the US military, prisoners believe that their treatment has deteriorated on his watch.

Authorities at the prison deny mistreating the inmates, but interviews with former detainees, letters from current prisoners and sworn testimony from independent medical experts who have visited the prison have painted a disturbing picture of psychological and physical abuse very much at odds with White House rhetoric on prisoner treatment.

While no-one is alleging a return to the early days of the prison, when detainees were subjected to "enhanced interrogation" techniques that are today widely regarded as torture, prisoners say day-to-

day life at Guantanamo has become harder under the Obama administration.

Within days of Obama's inauguration and subsequent announcement that he would close Guantanamo, prisoners say authorities introduced new regulations and revoked previous privileges at the prison.

"They took away group recreation for prisoners in segregation, which was the only time we saw anyone," Gharani remembers. "They took away the books we had from the library. They even sprayed pepper spray into my cell while I was sleeping, so I'd wake up unable to breathe."

Gharani says he was beaten so badly by guards that he is still suffering pain today.

'Humiliating rules' Al Jazeera has obtained letters written by those currently being held in Guantanamo that tell a similar story. In one, written in March, a prisoner, who has asked that he remains anonymous for fear of repercussions, says he is writing to "depict to what degree our conditions inside Guantanamo detention have deteriorated" since Obama took office.

"I am in the very same cell, wearing the same uniform, eating the same food, yet treated much worse compared to mid-2008," the prisoner writes. "We are unable to understand the goals of the policy of more restrictions and inflexibility."

According to the letter, prison authorities inflict "humiliating punishments" on inmates and prisoners

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face "intentional mental and physical harm".

"The situation is worsening with the advent of the new management," the prisoner writes, noting, like Gharani, that the new rules were imposed in January this year.

Conditions, he says, "do not fit the lowest standard of human living".

Separately, two prisoners have complained to their lawyer that their belongings, including their bedding, were removed from their cells on several occasions for no reason. Each time, they were

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level abuse can have on the well-being of prisoners in general.

"In some cases, a single act may amount to torture," ICRC spokesman Simon Schorno says. "In others, ill treatment may be the result of a number of methods used over time, which, taken individually and out of context, may seem harmless."

Hunger strikes For the Guantanamo prisoners, avenues of protest against their treatment are limited and many have

"[He] has, among other things, been overfed to the point of vomiting, had tubes inserted and removed repeatedly until his nose bled, choked until he passed out and been blasted by pepper spray more times than he can remember," told that the removal was a "mistake," and the belongings were returned, only to be confiscated again. More disturbingly, the same two prisoners say that during the Islamic holy month of Ramadan, their recreation time was moved to prevent them from taking part in traditional group prayer.

Using religion to punish prisoners is illegal under international law. Authorities at Guantanamo deny the prisoners are kept from practising their religion, although they concede that recreation times are sometimes moved "due to operational needs".

resorted to hunger strikes.

Now there is concern that the force-feeding regime to which hunger strikers are subjected is having a detrimental effect on their mental and physical health.

Abdul Rahman Shalabi has been on hunger strike since August 2005. He has been force-fed twice a day by Guantanamo personnel, who insert a feeding tube through his nose in order to administer a liquid diet aimed at keeping him alive.

They say that personal belongings are not removed from cells "unless detainees misuse the items"; the prisoners categorically deny that they did so.

But independent doctors who have evaluated him say that the insertion of the tube has done permanent damage to his nose and throat, making inserting new feeding tubes difficult and stopping him from receiving the calories he needs.

The International Committee of the Red Cross (ICRC), which monitors prisoner treatment at Guantanamo, declined to comment on specific allegations at the prison, but says that it recognises the cumulative effect low-

His lawyers say that persisting with the current treatment could be doing more harm than good. Shalabi was hospitalised in March, and his weight has dropped to just 107 pounds, 30 per cent below his ideal body weight

and at the threshold of major organ failure. Shalabi's lawyer, Jana Ramsey, is bringing a case aimed at forcing the government to allow medical specialists to work with Guantanamo personnel to prevent the further weight loss she says is inevitable if his current treatment persists.

"While participating in the strike, Abdul Rahman has, among other things, been overfed to the point of vomiting, had tubes inserted and removed repeatedly until his nose bled, choked until he passed out and been blasted by pepper spray more times than he can remember," she says.

"He is now dangerously underweight. We are deeply concerned that the medical staff at Guantanamo have no plan to keep Abdul Rahman from starving to death."

As part of the case, Ramsey arranged for independent medical experts to examine Shalabi at the prison over the summer. Dr Sondra Crosby, an ear, nose and throat specialist who examined him in August, said that without a change in treatment, the prisoner will die.

"Mr Shalabi has been on a hunger strike for four years, and only recently has his

"Mr. Shalabi exhibits symptoms and disorders consistent with his reports of coercive interrogations and other mistreatment," she said, adding that some of this trauma occurred this year.

"The medical records do indicate that Mr. Shalabi was subjected to Forced Cell Extraction in connection with his feeding multiple times per day through the months of January and February. Mr Shalabi's psychological symptoms are consistent with the distress he reported experiencing as a result of these extractions."

Shalabi himself attributes his weight loss to his treatment at the prison.

"My weight has dropped from sadness and provocations, daily humiliations and harassments and the sickness," he says in a letter written in September. "I am a human who is being treated like an animal."

Mistreatment denied Authorities at Guantanamo deny that hunger strikers are subject to different treatment to other prisoners and say that no-one is being mistreated.

"He is now dangerously underweight. We are deeply concerned that the medical staff at Guantanamo have no plan to keep Abdul Rahman from starving to death� condition severely deteriorated," her testimony notes.

His current treatment is also having a negative impact on his mental health, experts have found. Dr Emily Keram, a psychiatrist who evaluated him in July, told the court he was suffering from posttraumatic stress disorder and severe depression.

"All allegations of abuse are fully investigated and if warranted, further action taken," says Lieutenant Commander Brook DeWalt, a military spokesman for the prison. "As with any facility of this nature, we receive many allegations and we investigate any claim, no matter what the source, and take appropriate action

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when warranted." But lawyers say that efforts to raise these issues with the relevant authorities have been met with inertia.

Ahmed Ghappour, who represents Guantanamo prisoners, has lodged several requests to initiate investigations since Obama took office.

"I have requested four investigations regarding prisoner abuse just this past year," he says. "The military responded to my first request indicating that they would investigate, but have been radio silent since then."

Released after a federal court found him to be entirely innocent, Mohammed el Gharani is now adjusting to life outside prison. He says that the allegations made by current inmates match his experience of Guantanamo during the months leading up to his release.

"I recognise all of this," he says. "There are still more than 200 people in Guantanamo. Since Obama became president, less than 20 have been released. I don't know why, but he has broken his promises."

Andrew Wander is a Reprieve Media Fellow working on Al Jazeera's Public Liberties and Human Rights Desk.

This article first appeared on

Photo credits: http://www.flickr.com/photos/us_mission_canada / CC BY-ND 2.0

US continues to look the other way on 'war on terror' abuse

By Amnesty International 20 January 2010

"A commitment to human rights starts with universal standards and with holding everyone accountable to those standards, including ourselves… When injustice anywhere is ignored, justice everywhere is denied. Acknowledging and remedying mistakes does not make us weaker, it reaffirms the strengths of our principles and institutions."

Al Jazeera English.

Not Amnesty International's words, but those of US Secretary of State Hillary Clinton last month in an address on the Obama administration's "Human Rights Agenda for the 21stCentury". — Accountability, she said, was elemental to the

administration's approach, and it was under this principle that President Barack Obama had ordered an end to CIA torture and closure of the Guantánamo detention facility.

While Secretary Clinton's words are welcome, the fact is that a year into the new administration, almost 200 individuals remain detained without fair trial at the Guantánamo prison camp, and accountability and remedy for the human rights violations committed against these and other detainees in what the USA previously called the "war on terror" remain more myth than reality.

It is nearly eight years, for example, since Abu Zubaydah was arrested in Pakistan. He was hidden away in secret CIA custody for the first four and a half years, subjected to torture and enforced disappearance,

crimes under international law for which no-one has been brought to justice. For the past three years he has been in Guantánamo, still held without charge or access to remedy. The Obama administration continues to resist disclosure of what happened to him and others held in secret CIA custody.

“[Abu Zubaydah] was hidden away in secret CIA custody for the first four and a half years, subjected to torture and enforced disappearance, crimes under international law for which no-one has been brought to justice.”

Information which the administration had wanted to keep classified emerged in federal court earlier this month in the case of Ahmed

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Khalfan Ghailani, namely that he had been subjected to "enhanced interrogation techniques" for 14 hours over five days at some point in secret CIA custody.

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in military custody at Guantánamo. Despite this admission, a year later, with Mohamed al Qahtani still held without charge in

amounting to torture and other ill-treatment in a secret US facility in Kabul before his transfer to Guantánamo where he re-

the Obama administration has all too often adopted a stance that promotes impunity and blocks remedy. In its first year it has:

In its written briefing to the court, the Obama administration argued that its predecessor had "justifiably" treated Ghailani as an "intelligence asset" rather than a criminal defendant, despite a pre-existing indictment in US federal court against him at the time of his arrest in Pakistan in 2004.

It added that the Bush administration had made the "entirely reasonable" decision to continue to hold Ghailani without charge as an "enemy combatant". Ahmed Ghailani was held in secret CIA custody for two years, and in Guantánamo for nearly three more years, before being transferred to New York for trial in June 2009.

No one has been brought to account for the human rights violations perpetrated against him.

The impunity goes well beyond abuses in the CIA programme. Shortly before President Obama took office, for example, the Bush administration's Convening Authority for military commissions confirmed that Saudi Arabian national Mohamed al Qahtani had been tortured

Photo credits: http://www.flickr.com/photos/sfar / CC BY-NC-ND 2.0

Guantánamo, no criminal investigation is known to have been opened into the torture allegations.

Earlier this month, a US federal judge found "credible" the allegations that Yemeni national Musa'ab al Madhwani had been subjected to acts

“(…) almost 200 individuals remain detained without fair trial at the Guantánamo prison camp, and accountability and remedy for the human rights violations committed against these and other detainees in what the USA previously called the "war on terror" remain more myth than reality.”

mains detained without charge more than seven years later.

What accountability will there be for this abuse?

None, it would seem, unless the current administration has a rethink about whether accountability and adherence to the USA's international human rights obligations will truly be among its governing principles.

In litigation implicating the USA's international obligations to ensure accountability and remedy for past human rights violations,

»

Invoked the state secrets privilege to seek dismissal of a lawsuit brought by five detainees for the human rights violations, including crimes under international law, they say they were subjected to in the CIA "rendition" programme;

»

Opposed a lawsuit brought by four UK nationals for the torture and arbitrary detention to which they say they were subjected in Guantánamo, the administration

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arguing that it was "not clearly established" at the time of the men's detention that they had the rights they said were violated and that the officials concerned were therefore "shielded" from civil liability. In December, the US Supreme Court sided with the administration and declined to take the case; »

Intervened to petition a federal court to dismiss a lawsuit filed against John Yoo, a former Deputy Assistant Attorney General in the US Justice Department, for the role the lawsuit claims he played in unlawful detention conditions

and interrogation techniques. The Obama administration argued that the context of "the detention and treatment of those determined to be enemies during an armed conflict… implicating matters of national security and war powers" counselled against the "judicial creation of a money-damage remedy"; »

Maintained the Bush administration's denial of and opposition to access to lawyers and courts for those held at the US airbase in Bagram in Afghanistan, cementing the accountability gap for abuses committed there and the

detainees’ lack of effective remedy for them; »

Refused to release of photographs and other documentary material relating to detainee abuses.

When the USA assumed its seat on the UN Human Rights Council in 2009, the Obama administration said: "Make no mistake; the United States will not look the other way in the face of serious human rights abuses. The truth must be told, the facts brought to light and the consequences faced".

A year on, the administration continues to look the other way when it comes to full disclosure of and remedy for human rights violations perpetrated by

the USA in the name of "countering terrorism".

The change of tone the Obama administration has brought to the USA's pronouncements on human rights is welcome. It must now match these words with concrete action, including on accountability, remedy, and ending the Guantánamo detentions in line with its international human rights obligations.

© Amnesty International Publications 1 Easton Street, London WC1X 0DW, United Kingdom. http://www.amnesty.org

Recommended resources Readers of the ”Preventing Torture within the Fight against Terrorism” newsletter may be interested in the following recent reports which discuss in more depth issues related to human rights violations and the ”war on terror”. These resources are not meant to be an exhaustive list.

° “Broken Laws, broken lives” from Physicians for Human Rights contains medical proof of torture at Guantanamo http://brokenlives.info

° "UN Joint study on global practices in relation to secret detention in the context of countering terrorism" includes interviews with victims of secret detention, and in many cases victims of torture. www.ohchr.org/EN/ NewsEvents/Pages/ DisplayNews.aspx?

NewsID=9777&LangID=E

° Following the UN report, "Britain 'complicit in mis-

treatment and possible torture'" by Ian Cobain, 27/01/10, in The Guardian. www.guardian.co.uk/ world/2010/jan/27/ britain-complicitpossible-torture-un

° Human Rights Watch report on "Human Rights and Saudi Arabia's Counterterrorism Response", on the country's response to threats and acts of terrorism since 2003, including the indefinite detention of thousands of people, some of them peaceful political dissidents.

www.hrw.org/en/ reports/2009/08/10/ human-rights-and-saudiarabia-scounterterrorismresponse-0

° Recommendations by Amnesty International in an article on "European states must take concrete steps to help close Guantánamo". www.amnesty.org/en/ news-and-updates/ european-states-musttake-concrete-stepshelp-close-guant%C3% A1namo-20100111

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International Rehabilitation Council for Torture Victims (IRCT) Borgergade 13 · P.O. Box 9049 1022 Copenhagen K Denmark Phone: +45 33 76 06 00 Fax: +45 33 76 05 00 Email: irct@irct.org

FIDH 17, passage de la main d’or 75011 Paris France Phone: +33 1 43 55 25 18 Fax: +33 1 43 55 18 80 www.fidh.org

This newsletter is published with funding from the European Commission. The views contained herein are those of the authors’ and do not represent those of the EC.

For more information...

The “Preventing Torture within the Fight against Terrorism” newsletter is published bimonthly as part of a joint FIDH-IRCT project aimed at reinstating respect for the prohibition against torture in counterterrorism strategies both globally and in ten target countries: Bangladesh, Colombia, Egypt, Indonesia, Jordan, Kenya, Mauritania, Pakistan, the Philippines and Russia.

The newsletter editors welcome submissions of content for future issues, including articles (send query first), comments, letters to the editor (up to 250 words) and suggestions for recommended reading.

To submit content or make enquiries, email Sune Segal, Head of Communications, IRCT, at tortureandterrorNL@irct.org For more information about the “Preventing Torture within the Fight against Terrorism” project, please visit the IRCT web site (www.irct.org) or contact: Sune Segal, Head of Communications, IRCT, +45 20 34 69 14, sse@irct.org or Isabelle Brachet, Director of Operations, FIDH, +33 1 43 55 25 18, ibrachet@fidh.org

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