The Pentagon announced the release from the US naval base in Guantánamo Bay, Cuba, of 22 non-US nationals held there, bringing the number held in the base at the end of the year to approximately 250. One detainee was transferred from secret CIA custody to Guantánamo in March. In June, the Supreme Court ruled that the Guantánamo detainees had the constitutional right to challenge the lawfulness of their detention in US federal courts. By the end of the year there had been rulings in the cases of only eight detainees contesting their detention as “enemy combatants” in habeas corpus petitions. The first two trials by military commission were held at Guantánamo and several others, some of which could potentially result in death sentences, remained pending at the end of the year.
There were continued reports of police brutality and ill-treatment in prisons, jails and immigration detention facilities. Dozens of people died after police used Tasers (electro-shock weapons) against them. The first successful prosecution in a US court for torture committed outside the USA took place in October. There were 37 executions during the year, the lowest annual total for 15 years.
Counter-terror and justice
Indefinite military detention without charge at Guantánamo of foreign nationals designated by the US administration as “enemy combatants” entered its seventh year.
In June, in Boumediene v. Bush, the Supreme Court rejected the government’s arguments that the Guantánamo detainees, as non-US nationals held outside the sovereign territory of the USA, were beyond the reach of habeas corpus. The Court declared attempts to strip the detainees of their right to habeas corpus through the 2006 Military Commissions Act (MCA) unconstitutional. It dismissed as deficient the substitute scheme established by the administration and Congress to replace habeas corpus proceedings. That scheme consisted of Combatant Status Review Tribunals (CSRTs), panels of three military officers empowered to review the detainee’s “enemy combatant” status, with limited judicial review of final CSRT decisions.
In November, following post-Boumediene habeas corpus proceedings, a federal judge ruled that five detainees were unlawfully held and ordered that they be released “forthwith”. He concluded that a sixth man was lawfully detained as an “enemy combatant”. The six men had been taken into US custody in Bosnia and Herzegovina in January 2002 and transferred to Guantánamo. Three of the five whose releases were ordered were returned to Bosnia and Herzegovina in December. In two more rulings in December, the same federal judge found that two other Guantánamo detainees were lawfully held as “enemy combatants”.
In October, a federal judge ordered the release into the USA of 17 Uighur men held without charge at Guantánamo since 2002. The government no longer considered them “enemy combatants”, but the men could not be returned to China because of the serious risk that they would face torture and execution there. The government appealed against the release order, arguing that the government should be allowed to detain the Uighurs at Guantánamo while it sought the third country solution that had eluded it for years. Oral arguments were held in the Court of Appeals on 25 November. A decision was pending at the end of the year and the Uighurs remained in indefinite detention at Guantánamo.
Confirmation that the Central Intelligence Agency (CIA) was continuing to operate its secret detention programme came on 14 March when the Pentagon announced that Muhammad Rahim al-Afghani, an Afghan national, was being transferred from CIA custody to Guantánamo. The announcement did not reveal where or when Muhammad Rahim was taken into detention, where he had been held prior to the transfer, or if any other people were being held in the secret programme.
"Fifty-nine people died after being shocked with Tasers..."
On 15 July, the Court of Appeals for the Fourth Circuit handed down its ruling in the case of Ali al-Marri, a Qatari national held in military custody in South Carolina since he was designated an “enemy combatant” in 2003 by President Bush. The Court held that Congress had authorized the President to detain Ali al-Marri as an “enemy combatant”. This referred to the Authorization for Use of Military Force (AUMF), a resolution passed by Congress, in the immediate wake of the 9/11 attacks. Amnesty International reiterated its call for the AUMF to be revoked, citing the numerous ways in which the administration had abused this over-broad resolution. On a second question, the Court concluded that Ali al-Marri had not had been afforded sufficient process to challenge his designation as an “enemy combatant” and returned the case to the District Court for further proceedings. Ali al-Marri appealed to the US Supreme Court, which in December announced that it would hear his case. Oral argument in the case was pending at the end of the year.
Hundreds of people remained in US custody in Afghanistan and Iraq (see Afghanistan and Iraq entries).
The first two trials by military commission under the MCA were conducted. On 6 August, Yemeni national Salim Hamdan was convicted of “providing material support for terrorism”, but was acquitted of “conspiracy”. The following day, he was sentenced to five and a half years in prison; he had already spent more than five years in Guantánamo since he was first made eligible for trial in 2003. Salim Hamdan was transferred to Yemen on 25 November, a month before the end of his sentence, under an arrangement with the Yemeni authorities that he would serve the remainder in Yemeni custody.
On 3 November, Yemeni national Ali Hamza al-Bahlul was found guilty of “conspiracy”, “solicitation” to commit various crimes under the MCA and “providing material support for terrorism” and sentenced to life imprisonment. Two detainees who were children when first taken into custody – Afghan national Mohammed Jawad and Canadian national Omar Khadr – were facing trial by military commission at the end of the year. Further evidence emerged during pre-trial hearings that they had been subjected to torture or other cruel, inhuman or degrading treatment in US custody.
Seven detainees who had been held for up to four years in the USA’s secret detention programme before being transferred to Guantánamo in 2006 were charged under the MCA, with the government seeking the death penalty against all seven. In all but one case, the convening authority approved the charges as capital when referring them on for military commission trial. By the end of the year, no trial dates had been set for any of the seven.
Former ‘enemy combatant’ sentenced
In January, US national José Padilla was sentenced to more than 17 years in prison, following his conviction in 2007 of involvement in a broad terrorism-related conspiracy. He had been held for three and a half years without charge or trial in military custody as an “enemy combatant” and subjected to extreme isolation and other ill-treatment possibly amounting to torture. Troubling questions surrounding the fairness of his trial remained in relation to the presumption of innocence, right to a speedy trial and José Padilla’s effective ability to assist in his defence.
Torture and other cruel, inhuman or degrading treatment
At a hearing in front of a Senate committee on 5 February, General Michael Hayden, Director of the CIA, confirmed that among other “enhanced” interrogation techniques, the CIA had used “waterboarding” – simulated drowning – against three detainees held in secret custody in 2002 and 2003. Amnesty International considers that this technique constitutes torture. The three detainees – Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Nashiri – remained at Guantánamo at the end of the year, in the classified conditions of Camp 7 with 13 other detainees previously held in the secret detention programme. The government continued to resist calls to release information about other techniques or conditions used in the secret programme, or the location of CIA detention facilities.
Conditions of detention, particularly the degree of isolation, in Guantánamo’s Camp 5, 6 and 7, and their potential impact on the physical and psychological health of detainees already distressed by the indefinite nature of their detention, continued to cause serious concern.
In December, the Senate Armed Services Committee published a summary of its findings and conclusions on abuses against detainees in US custody in the “war on terror”; the rest of the report remained classified. The Committee found that in relation to the authorization of interrogation techniques, senior US government officials had “redefined the law to create the appearance of their legality”, and had relied upon “deeply flawed interpretations of US and international law”.
Torture and other ill-treatment
There were reports of ill-treatment by police and prison officers on the US mainland, often involving cruel use of restraints, or electro-shock weapons.
In October, former police officer John Burge was arrested and charged with perjury in a civil case in which he had denied knowledge of the abuse and torture of suspects. John Burge had been in charge of the Area 2 police station in Chicago where scores of black suspects had allegedly been tortured in the 1970s and 1980s. Although indisputable evidence of torture came to light through a subsequent inquiry, no officer had been prosecuted and John Burge was the first person to be charged indirectly in connection with the abuse.
Thousands of prisoners continued to be confined in long-term isolation in high security units where conditions sometimes amounted to cruel, inhuman or degrading treatment.
Réne González and Gerardo Hernández, two Cuban nationals serving prison sentences in the USA, continued to be refused visits with their wives who were denied temporary visas to enter the USA.
Fifty-nine people died after being shocked with Tasers, bringing to 346 the number of such deaths since 2001. Although these deaths were commonly attributed to factors such as drug intoxication, medical examiners concluded that Taser shocks caused or contributed to at least 50 deaths.
Many of those who died were subjected to multiple or prolonged shocks, were under the influence of drugs and/or had health or other problems which could have made them more susceptible to the adverse effects of such devices. Tasers were also frequently used against people who did not pose a serious threat. Amnesty International called on the US authorities to suspend the use of Conducted Energy Devices (CEDs) pending further studies or limit their use to situations where officers would otherwise be justified in using deadly force.
- Seventeen-year-old Darryl Turner died in March when he was shocked after an argument in the store where he worked in North Carolina. A video-tape showed a police officer firing Taser darts into Darryl Turner’s chest as the unarmed teenager stood with his arms by his side. The officer held the trigger down for 37 seconds and shocked him again after he had collapsed on the floor. Darryl Turner died at the scene. The coroner ruled the cause of death to be a fatal disturbance of the heart rhythm due to stress and the Taser shocks. The officer received a five-day suspension from duty.
In June the Justice Department published an interim report of its study of deaths following the use of CEDs such as Tasers. The report stated that, while there was no “conclusive medical evidence” of a high risk of direct adverse effects from such devices, “[m]any aspects of the safety of CED technology are not well-known”. It noted that the risk of death or injury could be higher in certain populations, including children, the elderly, pregnant women and people with heart problems.
In October, Chuckie Taylor, son of former Liberian President Charles Taylor, was found guilty by a US court of torture and related crimes committed while he was head of the Liberian Anti-Terrorist Unit. This was the first conviction under the 1994 Torture Victim Protection Act.
In its concluding observations on the USA, published in May, the UN Committee on the Elimination of Racial Discrimination outlined a number of concerns, including in relation to law enforcement and to the persistent racial disparities in the criminal justice system. It called for an end to life imprisonment without the possibility of parole for children, which disproportionately impacted on racial and ethnic minorities.
The Committee expressed deep concern that racial, ethnic and national minorities, especially Latino and African American people, were “disproportionately concentrated in poor residential areas characterized by sub-standard housing conditions, limited employment opportunities, inadequate access to health care facilities, under-resourced schools and high exposure to crime and violence”. It expressed regret that wide racial disparities continued to exist in the field of sexual and reproductive health and noted the high maternal and infant mortality rates among women and children belonging to racial, ethnic and national minorities, especially African Americans.
Right to health – maternal mortality
Marginalized and poor women were at higher risk of death and complications from pregnancy and childbirth, with the maternal mortality rate among African American women three times higher than that of white women. Although there was a lack of reliable national data, it was estimated that many deaths could have been prevented if the women had had better access to adequate health care. More than 46 million people in the USA had no health insurance, and it was common for people to delay or go without health care because of the cost.
Violence against women
Native American and Alaska Native women continued to experience disproportionately high levels of sexual violence and inadequate access to support and justice. There were some welcome measures to address this issue. For example, the US Senate passed the Indian Health Care Improvement Act in February, mandating the Indian Health Service to develop – in co-ordination with tribes, tribal organizations and the Office on Violence against Women in the Department of Justice – standardized policies and protocols for dealing with sexual assault. There were also hearings in Congress on the additional resources needed to tackle the problem. However, uniform protocols on dealing with sexual violence – as well as for comprehensive data collection about the incidence of sexual violence, responses by the authorities and the outcomes of cases referred for prosecution – were lacking.
Migrants’ rights – conditions in detention
In March the UN Special Rapporteur on the human rights of migrants issued a report on his 2007 visit to the USA. He expressed concern, among other things, about the lack of due process for non-US citizens in deportation proceedings; indefinite and mandatory detention policies; and the inhumane conditions under which many immigration detainees, including asylum-seekers, were held.
In September, US Immigration and Customs Enforcement issued revised “performance based” national standards for the treatment of detained migrants, many of whom were held in local jails or private facilities. Migrants’ rights organizations remained concerned about how effectively such standards, which were not binding, would be enforced.
- In July, Mexican national Juana Villegas, who was nine months’ pregnant, was arrested on minor charges and placed in immigration detention where she gave birth to a boy. She was shackled to a bed by her right ankle and wrist throughout her labour until shortly before delivery of the baby. She was shackled again about six hours after the birth.
Thirty-seven people were executed during the year, 18 of them in Texas. This brought to 1,136 the total number of prisoners executed since the US Supreme Court lifted a moratorium on the death penalty in 1976. The executions in 2008 represented the lowest annual judicial death toll in the USA since 1994; this was in part because executions were halted for seven months following the Supreme Court’s announcement in September 2007 that it would consider a legal challenge to lethal injection.
In April, the Supreme Court upheld the lethal injection procedures in question and executions resumed the following month.
Mexican national José Medellín was executed in Texas on 5 August, in violation of the USA’s treaty obligations and an order by the International Court of Justice (ICJ). José Medellín was never advised by local officials of his right as a detained foreign national to seek consular assistance, as required under the Vienna Convention on Consular Relations. In 2004, the ICJ ruled that the USA had violated its obligations under the Convention in the cases of José Medellín and 50 other Mexican nationals on death row in the USA. The ICJ ordered the USA to provide the necessary judicial “review and reconsideration” of the convictions and sentences. On 25 March 2008, the Supreme Court unanimously found that the ICJ’s decision constituted “an international law obligation” but ruled that it was “not automatically binding domestic law” and that the authority for implementing it rested with the US Congress.
Four prisoners facing execution – John Spirko in Ohio, Samuel Crowe in Georgia, Percy Walton in Virginia, and Kevin Young in Oklahoma – had their death sentences commuted by acts of executive clemency. The reasons cited included serious mental illness, doubt about guilt, and disproportionate punishment. Four other prisoners were exonerated of crimes for which they had been sentenced to death. Each had spent more than a decade on death row. There had been more than 120 such cases since 1976.
On 12 November, the Maryland Commission on Capital Punishment voted to recommend abolition of the state’s death penalty. The Commission’s final report and recommendations were pending before the state legislature at the end of the year.
In December, the USA voted against a UN General Assembly resolution calling for a worldwide moratorium on executions.
Amnesty International visitsAmnesty International delegates observed military commission proceedings in Guantánamo during the year.
Amnesty International reportsUSA: “Less than lethal”? The use of stun weapons in US law enforcement (16 December 2008)
USA: A case to answer. From Abu Ghraib to secret CIA custody: The case of Khaled al-Maqtari (14 March 2008)
USA: In whose best interests? Omar Khadr, child “enemy combatant” facing military commission (16 April 2008)
“The pointless and needless extinction of life”: USA should now look beyond lethal injection issue to wider death penalty questions (17 April 2008)
USA: Way of life, way of death: Capital charges referred against five former secret detainees (20 May 2008)
USA: Where is the accountability? Health concern as charges against Mohamed al-Qahtani dismissed (20 May 2008)
USA: Many words, no justice: Federal court divided on Ali al-Marri, mainland “enemy combatant” (4 August 2008)
USA: From ill-treatment to unfair trial. The case of Mohammed Jawad, child “enemy combatant” (13 August 2008)
USA: Indefinite detention by litigation: “Monstrous absurdity” continues as Uighurs remain in Guantánamo (12 November 2008)
USA: Investigation, prosecution, remedy: Accountability for human rights violations in the “war on terror” (4 December 2008)