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How Not to Fight Terrorism

The "war on terror" launched by the United States of America has undermined the rule of law, and poses significant challenges to the protection of human rights worldwide. Ignoring all of this, following the November 2008 terrorist attack on Mumbai, the government of India has rushed through the problematic Unlawful Activities (Prevention) Amendment Bill 2008, and there are calls for tougher measures on the lines of those implemented by the US. It is time to take stock of the key elements of Washington's "war on terror" with a brief review of the type of human rights violations committed in the pursuit of counter-terrorism measures by the US regime.

 Since the 11 September 2001 attacks on the United States of America (US) and in other countries in the time after, a wide range of counter-terrorism laws, policies and practices have come into being. While counter-terrorism policies in numerous countries had led to human rights viola-tions well before 2001, the “war on terror” launched by theUS has had worldwide repercussions. It has undermined the rule of law, and poses significant challenges to the protection of rights worldwide in numerous countries of the world today. TheUS has taken on the role of the global leader, and in the name of fighting terror-ism, theUS government has subjected people who have not been charged with, or convicted of, any crime to torture, abductions; illegal and indefinite deten-tions in Guantanamo, other US facilities and secret CIA sites; and denial of basic legal rights, including habeas corpus. Addi-tionally, the US government has employed private companies that are implicated in cases of killings, torture and rape. The war on terror in Iraq, Afghanistan and Pakistan and other parts of the world continues, with disastrous consequences. After the November 2008 multiple attacks on Mumbai city, comparisons have variously been made between Sep-tember 2001 and November 2008. Sug-gestions have been made, directly and indirectly, that India should learn posi-tively from the US ways of fighting terror-ism, and take measures accordingly within and outside the country. Even Israel is being suggested as a model to fight terrorism. Many Indians, under-standably angry and seeking some man-ner of revenge after the vicious attacks of November, have fallen prey to the propo-sition that new draconian laws, tit-for-tat approach, counter-terror against terror-ists and their supporters, and excessive physical pressures are necessary to root out terrorists and terrorism.The government has rushed through the problematic Unlawful Activities (Pre-vention) Amendment Bill 2008, and there are calls for tougher measures on the lines of those implemented by the US. Passing anti-terrorist laws is nothing new. Long-standing experiences, for example, in Northern Ireland, Israel and Malaysia show that they invariably trigger off more violence and violations. Thus, this is the time for us to take stock of the key ele-ments of the US’ war on terror. In this essay, I conduct a brief review of the type of human rights violations committed in the pursuit of counter-terrorism measures by theUS regime, citing a range of less-reported issues. As this experience shows, using the climate of fear created by terrorism to enhance powers that suppress legitimate political dissent, torture detainees, subject them to enforced disappearances, or launch-ing war or attacks against a country, will certainly be a failure. International law and practice of counter-terrorism under the US dictates have been distorted or misapplied in ways that undermine its legitimacy. The perpetrators are virtually never brought to justice, nor do the victims receive justice and truth.Habeas CorpusFormer president George Bush tried to suspend habeas corpus when he issued a military order in 2001 entitled, “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism”. He declared the right to indefinitely detain individuals who, he claimed, were suspected of hav-ing links to terrorism, designating them as“unlawful enemy combatants”. He asserted that these detainees could be held forever without legal counsel, with-out knowing what they were accused of doing, and without ever seeing the inside of a courtroom. Habeas corpus, also known as “The Great Writ” refers to a centuries-old legal concept, fundamental in any democracy. This Latin term, literally meaning, “hold-ing the body”, refers to a legal action that a person can bring in order to seek relief against arbitrary and unlawful detention.
COMMENTARYEconomic & Political Weekly EPW January 31, 200911Habeas corpus represents the idea that the king or the president may not, at his whim, detain whomever he wants without allow-ing the detainee the opportunity to stand before a fair court to hear the charges against him or her and to have an oppor-tunity to answer the charges. Filing a peti-tion for a writ of habeas corpus is a legal challenge to the government’s ability to detain an individual. It is brought against the person(s) responsible for holding a detainee and requires that s/he produce the detainee along with the reasons that this person is being held. As a legal con-cept, habeas corpus is centuries-old. Habeas rights are typically traced back to the Magna Carta of 1215 and have since become a cornerstone of democratic gov-ernance. In theUS, the Constitution requires that habeas rights can only be suspended under very limited circum-stances: “the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it”. However, contrary to all this, under the military order, a Combatant Status Review Tribunal (CSRT), an executive body, is established, to determine whether the detainees held in the base were “properly detained” as “enemy combatants”. The CSRT consists of panels of three military officers who can consider any informa-tion, including information that is hear-say, classified, or that has been obtained under torture in making their determina-tions. Under the Detainee Treatment Act (DTA), enacted in December 2005, judicial review is limited to a single court, the US Court of Appeals for the District of Colum-bia (DC) Circuit, and to review the CSRT’s “propriety of detention” decisions. The decision of a CSRT represents a potential life sentence for a detainee. TheCSRTs lack independence from the executive, the branch that entirely con-trols the detentions and applied the “enemy combatant” label to the detainees in the first place. Some detainees initially found not to be “enemy combatants” had that determination reversed after Penta-gon authorities sent their cases back to the CSRT for reconsideration; the CSRTs are not a competent tribunal as they lack the power of remedy, including release. Indeed, detainees have been held for as long as 20 months after a CSRT finding of “no longer enemy combatant”; there is no meaningful way for the detainee to chal-lenge the government’s information. He has little or no access to witnesses, no access to classified information used against him, and little way of challenging hearsay information; the detainee is denied access to a lawyer for the CSRT process. He is merely assigned a “personal representative”, aUS military officer; the CSRT considers the status of “enemy com-batant” as synonymous with “lawfully held”, and the detainee has no meaningful opportunity to challenge this; the CSRT is a procedure that is applied only to foreign nationals, in violation of the prohibition against discrimination; the CSRTs were conducted following an unreasonable delay of more than two years after the detentions began. Once started, they were conducted with undue haste.Over the course of years, theUS admin-istration held hundreds of such designated “unlawful enemy combatants” on a US detention camp in Guantanamo Bay, Cuba. All the while, in American court rooms, a vigorous legal battle over the legality of the detentions had ensued. Finally in June 2008, the US Supreme Court inBoumediene vs Bush held that those imprisoned at Guantanamo Bay have the right of habeas corpus and can bring such claims in a US federal court. The Court also ruled that the system the Bush administration and Congress have put in place to review clas-sification of the detainees as “unlawful enemy combatants” is inadequate. The Court resoundingly rejected the argu-ments put forth by the US administration that non-US nationals, held outside the sovereign territory of the US, are beyond the reach of this fundamental legal pro-tection. The Court concluded that “The laws and Constitution are designed to sur-vive, and remain in force, in extraordinary times. Liberty and security can be recon-ciled; and in our system they are recon-ciled within the framework of the law. The (Constitution’s) framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of thatlaw.”Instead, President Bush’s response to the judgment was to side with the four Justices who dissented from the majority opinion. The president stated that the dis-senters had been concerned about national security, and that the administration would “study this opinion, and we’ll do so with this in mind, to determine whether or not additional legislation might be appropriate, so that we can safely say, or truly say to the American people: ‘we’re doing everything we can to protect you’.” The US justice department has also expressed its disappointment with the Boumediene decision. Extraordinary RenditionThe United States has implemented a glo-bal system of unlawful rendition with the collaboration, complicity, and acquies-cence of other governments. Rendition is the process of transferring an individual from one country to another by means that bypass all judicial and administrative due process. In the “war on terror”, the US has also used “extraordinary rendition”, a practice whereby prisoners captured or detained by the US government are trans-ferred for interrogation or detention to countries known to use torture. The aim is to use whatever means necessary to gather intelligence, and to keep detainees away from any judicial oversight. This system puts the victim beyond the protection of the law and sets the perpetrator above the law. TheUS administration has acknow-ledged it uses “rendition”, maintaining that the practice is aimed at transferring “war on terror” detainees from the coun-try where they were captured to their home country or to other countries where they can be questioned, held or brought to justice. It has contended that these trans-fers are carried out in accordance withUS law and treaty obligations.This system of covert prisons was referred to in classified documents as “black sites”, a term first revealed by the Washington Post in November 2005. These “black sites” or secret detention centres are in Afghanistan, Guantánamo Bay in Cuba, Iraq, Jordan, Pakistan, Thailand, Uzbekistan, and other unknown locations in Europe and elsewhere, including on the British Indian Ocean territory of Diego Garcia. Based on the available evidence, the number of people held in “black sites” is likely to be in thousands. However, given the secrecy surrounding the transfer
COMMENTARYJanuary 31, 2009 EPW Economic & Political Weekly12and detention of victims of “rendition”, who are kept beyond the reach of the law, the scale and scope of the practice is extremely difficult to estimate. The New York Bar Association estimated in 2005 that about 150 people had been subjected to “rendition” to other countries since 2001. This estimate is likely to be conserv-ative, as the Egyptian prime minister noted in 2005 that the US has transferred some 60 to 70 detainees to Egypt alone, and a formerCIA agent with experience in the region believes that “hundreds” of detainees may have been sent by theUS to prisons in west Asian countries.Extraordinary rendition involves multi-ple human rights violations. Most victims were arrested and detained illegally, some were abducted, and all were denied access to any legal process, including the ability to challenge the decision to transfer them because of the risk of torture. There is also a close link between extraordinary rendi-tion and enforced disappearances. Dozens have “disappeared” inUS custody, some reappearing months or years later in the detention facilities at Guantánamo Bay. The detention regime and practices inUS-run places of detention are aimed at induc-ing maximum disorientation, dependence and stress in the detainees. Hooding, cuffing and shackling, isolation and “white noise” impair an individual’s sight, hearing and sense of smell, lead to dis-orientation and an increased sense of vulnerability, and cause mental and physical suffering. Prolonged isolation has been shown to cause depression, paranoia, aggression, hallucinations and suicide. Former “war on terror” detainees consist-ently underline the mental suffering caused by prolonged isolation and uncer-tainty about their fate, and many have said it was worse than the physical abuse they suffered.It has been reported that theCIA, often using covert aircraft leased by front com-panies, has flown individuals to countries including Egypt, Jordan, Morocco, Pakistan, Saudi Arabia and Syria. Most of the states to which the USA transfers these indivi-duals are known to use torture and other ill-treatment in interrogations. It is alleged that states which are known to practise torture have been specifically selected to receive detainees for interrogation. Concerns about European involvement and the use of European facilities in “rendition” have prompted the Council of Europe to launch inquiries into alleged CIA activities in Europe. The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE) is looking into the alleged existence of secret detention centres in Council of Europe member states and flights which may have transferred prison-ers without any judicial involvement. Dick Marty, Chairperson-Rapporteur of the Committee, said to the press that the information received so far had “reinforced the credibility of allegations concerning the transfer and temporary detention of individuals, without any judicial involve-ment, in European countries”.The Military Commissions ActIn October 2006, Congress passed and president signed the Military Commis-sions Act (MCA). TheMCA established a system of military commissions that would try “unlawful enemy combatants” or per-sons pending that designation. Aside from setting up the military commissions at Guantanamo, the MCA established many draconian provisions. It broadly defines “unlawful enemy combatant” to refer to anyone “engaged in hostilities or who has purposefully and materially supported hostilities” against theUS. The MCA gives retroactive and future immunity toUS perpetrators of certain war crimes. TheMCA is most infamous for setting up the fatally flawed military commissions system at Guantanamo. Notably, it strips the right to a speedy trial, permits the use of evidence obtained through compulsory self-incrimination, and restricts defence access to materials used to prosecute the defendant. There is no right to confront accusers, no exclusion of evidence based on the failure to obtain a warrant, and hearsay evidence is permissible. Military commissions violate standards for fair trials in a number of ways: The prosecution may use as evidencestatements obtainedthrough coercion and torture. The defendant can face secret evidence which the defence will be unable to rebut – this includes pre-venting the defendant from seeing some witnesses testify and from learning the content of their testimony. The defendant can be excluded from certain parts of his own trial. Hearsay is permissible. Under the act, the prosecution is permitted to withhold classified evidence which pre-vents the defence from seeing evidence that points to innocence. The prosecution can introduce verbal confessions by the defendant without any corroboration. The right to appeal to an independent and impartial tribunal is severely restricted.In this system, created to decimate a defendant’s right to a fair trial, a penalty of death can be imposed. Even if a defend-ant is found not guilty of all charges, he can still spend the rest of his life in deten-tion, based on the US’ assertion of the power to hold detainees for the duration of the “war on terrorism”. The MCA also sought to strip the federal courts of the jurisdiction to hear habeas corpus or other suits brought by or on behalf of the detainees. Military Outsourcing As the United States conducted the “global war on terror”, the US government out-sourced key security and military support functions, particularly in Iraq and Afghan-istan, to private companies. Their civilian employees carry out work ranging from logistical support, training military per-sonnel, operating and maintaining weap-ons systems, and rebuilding infrastruc-ture, to more sensitive roles, such as inter-rogation and translation during question-ing of detained persons and provision of static and mobile security. Allegations of US contractor involvement in hundreds of incidents of shootings and killings of Iraqi civilians have surfaced, as well as torture and abuse of detained persons, including at Abu Ghraib. Private military and secu-rity contractors (PMSCs), many with multi-million dollar government contracts, have been accused of engaging in sexual abuse and torture. The use of PMSCs is growing to an unprecedented extent. According to Brookings Institute scholar Peter Singer, the ratio of military personnel to contrac-tors was 50:1 in the 1991 Gulf War. Today, contractors working for the US govern-ment and military outnumberUS troops in Iraq. The Department of Defence (DOD) testified in front of the Senate in February that for the first quarter of fiscal year 2008,

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