A look at ourselves as others see us

In April 2006, Prof. Martin Scheinin gave a public lecture on the topic “Human rights in the fight against terrorism” at the University of Pretoria is South Africa.

Martin Scheinin, a Finnish professor of international law, holds the cumbersome title of "Special Rapporteur on the promotion and protection of human rights while countering terrorism" of the United Nations High Commission for Human Rights. From May 16-25, he visited the United States to "undertake a fact-finding exercise, and a legal assessment of United States law and practice in the fight against terrorism, measured against international law."

On May 29, he issued some preliminary findings. I haven't seen much of anything on the progressive blogs about his report, so I am going to quote extensively here. We need to know how we look to the rest of the world.

Scheinin tries to reassure that he is not hostile to legitimate U.S. concerns.

The Special Rapporteur is deeply mindful of the tragic events of 11 September 2001, as well as preceding acts of international terrorism against the United States, including the bombing of its Embassies in Kenya and Tanzania. He is also mindful of domestic acts of terrorism, including the Oklahoma City bombing....

In a world community which has adopted global measures to counter terrorism, the United States is a leader. This position carries with it a special responsibility also to take leadership in the protection of human rights while countering terrorism. The example of the United States will have its followers, in good and in bad.

But he finds many areas of concern.

Guantanamo
The persons detained at the United States military facility at Guantanamo Bay have been categorized by the United States as alien unlawful enemy combatants. It must be made clear that this is a description of convenience only, without legal effect, since there is no such third category of persons under international law. Those that participate in hostilities are either "combatants", or "civilians" who have participated in hostilities and are thus subject to detention and prosecution.

In the case of those who have been captured during armed hostilities in an international or non-international armed conflict, but in respect of which there is no allegation of offending against the laws of war, such individuals should be released, or tried by civilian courts for their suspected other crimes. The Special Rapporteur considers that the detention of this group of persons for a period of several years without charge undermines the right of fair trial...

Military commissions
...the Special Rapporteur has serious concerns about the independence and impartiality of the commissions, their potential use to try civilians, and the lack of appearance of impartiality. Whereas military judges in courts martial are appointed from a panel of judges by lottery, judges in a military commission are selected for each trial by the convening authority of military commissions. Although the current convening authority is a civilian and former judge, she is employed by the Department of Defense....The ability of the convening authority to intervene in the conduct of trials before a military commission is also troubling. The plea agreement in the trial of David Hicks, for example, was negotiated between the convening authority and counsel for David Hicks, without any reference to the prosecuting trial counsel. The involvement of the executive in such matters is troubling.

The Special Rapporteur is concerned that, although evidence which has been obtained by torture is inadmissible, evidence obtained by other forms of coercion may, by determination of the military judge, be admitted into evidence.... The next problem is that the definition of torture for the purpose of proceedings before a military commission is restricted so that it does not catch all forms of coercion that amount to torture or cruel, inhuman or degrading treatment, equally prohibited in non-derogable terms by Article 7 of the International Covenant on Civil and Political Rights (ICCPR).

Interrogation of suspects
As a result of an apparent internal leak from the Central Intelligence Agency (CIA), the media in the United States learnt and published information about "enhanced interrogation techniques" used by the CIA in its interrogation of terrorist suspects and possibly other persons held because of their links with such suspects. Various sources have spoken of such techniques involving physical and psychological means of coercion, including stress positions, extreme temperature changes, sleep deprivation, and "waterboarding" (means by which an interrogated person is made to feel as if they are drowning). With reference to the well-established practice of bodies such as the Human Rights Committee and the Committee Against Torture, the Special Rapporteur concludes that these techniques involve conduct that amounts to a breach of the non-derogable right to be free from torture and any form of cruel, inhuman or degrading treatment. In a meeting with the Special Rapporteur, the Acting General Counsel for the CIA refused to engage in any meaningful interaction aimed at clarifying the means of compliance with international standards of methods of interrogation and accountability in respect of possible abuses.

Rendition
The Special Rapporteur refers to various sources pointing to the rendition by the CIA of terrorist suspects or other persons to "classified locations" (also known as places of secret detention) and/or to a territory in which the detained person may be subjected to indefinite detention and/or interrogation techniques that amount to a violation of the prohibition against torture, or cruel, inhuman or degrading treatment.... Rendition in the latter circumstances runs the risk of the detained person being made subject to torture, or cruel, inhuman or degrading treatment. ... due to the refusal of the Acting General Counsel for the CIA to engage in any meaningful interaction, and in light of corroborating evidence, the Special Rapporteur concludes that his visit supports the suspicion that the CIA has been involved in the extraordinary rendition of terrorism suspects and possibly other persons....

This isn't all. He also looks at the threat to the very principle of the rule of law implicit in claims by the executive to a right to circumvent statutory limits, as for example by warrantless wiretapping in possible violation of the F.I.S.A. act.

It's not a pretty picture.

Hat tip to the European site Madrid11 for pointing me to this report.