Impunity Watch: North America

Former Gitmo Prosecutor To Testify For Hamdan

By Andrew Benfield
Senior Desk Officer, North America

GUANTANAMO BAY, Cuba – Former chief military prosecutor of Guantanamo Bay, Colonel Morris Davis has agreed to testify as a defense witness at the military commission trial of Salim Ahmed Hamdan.  Col. Davis relinquished his prosecutorial position in October 2007 due to his growing concern over the process by which detainees are being tried. 

Salim Ahmed Hamdan has admitted to being Osama Bin Laden’s personal driver and bodyguard.  However, Hamdan denies any role in the September 11th attack.  Hamdan has been charged with conspiracy and providing support for terrorism.  Hamdan has been held at Guantanamo Bay since his capture during the invasion of Afghanistan and Hamdan has been charged under the Military Commissions Act of 2006. 

At Hamdan’s trial, Col. Davis would testify to the “political interference” that permeates the United States’ military tribunals.  Specifically, Davis recalls conversations he had with the former Pentagon general counsel William Haynes and the Deputy Defense Secretary Gordon England.  Davis alleges that Haynes insisted that there be “no acquittals” in the military tribunal process.  Also, Davis says that England intentionally sought tribunal convictions in the months leading up to the 2006 midterm elections. 

Davis insists that his testimony for Hamdan has nothing to do with his “guilt or innocence.”  In fact, Davis believes that the government has a strong case against Hamdan.  His purpose for testifying is to ensure the fairness of the process.  Davis asserts that Guantanamo prisoners deserve “justice at a proceeding that is consistent with our [United States’] values.” 

Davis continues to believe in the Military Commission Act of 2006 but he insists that it is “important [for] these trials to be open and transparent.”  Davis’ testimony is his way of ensuring his ideals. 

Whether the Pentagon will allow Col. Davis to testify at Hamdan’s trial is a matter that is still unclear.  In December 2007, the Defense Department barred Col. Davis from appearing before a Senate Judiciary subcommittee. 

For more information, please see:

ABC News – Twist of Fate: Gitmo Prosecutor Could Be Defense Witness – 27 February 2008

Opinio Juris – Colonel Morris Davis to Testify, For Hamdan! – 27 February 2008

JURIST – Guantanamo Bay ex-prosecutor to testify for Hamdan defense – 27 February 2008

New Guidelines to Adjust Unfair Crack Cocaine Sentencing

By Gabrielle Meury
Impunity Watch Reporter, North America

WASHINGTON, United States - The United States Sentencing Commission recently ruled that defendants convicted of crack cocaine offenses will be sentenced under new guidelines with lesser penalties beginning March 3. The Commission issued its plan immediately after the Supreme Court ruled in December that federal judges may hand down lighter sentences for crack defendants than those recommended by federal sentencing guidelines.

One of the immediate results of the new guidelines is that disproportionately long sentences will be reduced. Because of the reduced sentences, 1,500 crack cocaine offenders are immediately eligible to petition courts to be released from federal prisons.

The lesser penalties have been instituted in response to wide-spread criticism regarding the sentencing disparity in crack cocaine offenses. Harsh penalties were first mandated by Congress under the 1986 Anti-Drug Abuse Act. Federal crack cocaine offenders face criminal sentences that are uniquely severe compared to those imposed on other federal drug offenders. The current sentencing structure for cocaine offenses imposes five and ten year mandatory minimum sentences for threshold quantities of cocaine. Under what is commonly referred to as the “100-to-1” cocaine sentencing disparity, it takes one hundred times as much powder cocaine as crack cocaine to trigger the federal mandatory minimums. Because of the 100-to-1 differential, sentences for crack offenders are far higher than those for powder cocaine offenders who engage in equivalent conduct.

When Congress enacted the Anti-Drug Abuse Act, little was known about crack cocaine and Congress adopted uniquely severe penalties for crack offenders. Today, data reveals that the dangers of crack do not differ significantly from powder cocaine. The harsh sentencing has also had little deterrent effect on the demand or availability of the drug. As a result of the Anti-Drug Abuse Act, thousands of low-level offenders have been incarcerated, putting a strain on the already overflowing federal prison population. Data from the United States Sentencing Commission reveals that in 2000, over 84 percent of federal crack defendants were African American.

For more information, please see:
New York Times- Mukasey Warns of Drug Case Releases– 8 February 2008

Washington Post- Crack Offenders Set for Release Mostly Nonviolent, Study Says- 22 February 2008

Human Rights Watch- Cracked Justice: Addressing the Unfairness in Cocaine Sentencing - 27 February 2008

Families Against Mandatory Minimums- General Mukasey: Where is your evidence on crack? - 26 February 2008

BRIEF: Castro’s Retirement Does Not Signal Relief for Political Prisoners

HAVANA, Cuba- There are an estimated 230 people imprisoned in Cuba for expressing their political beliefs. While this number is down from 283 at the end of 2006, human rights activists do not equate this decrease with political transformation. 

"Even if Castro no longer calls the shots, the repressive machinery he constructed over almost half a century remains fully intact," said Jose Miguel Vivanco, a director at Human Rights Watch, a New York based non-governmental organization.

Amnesty International declared 58 of the prisoners to be “prisoners of conscience”-teachers, journalists and human rights defenders- imprisoned for peaceful expressions of their beliefs. Amnesty also contends that the trials convicting these prisoners failed to conform to international standards of justice.

While Cuba signed the U.N. International Covenant on Civil and Political Rights, Amnesty declared that reform must start with the release of all prisoners of conscience and judicial review of unfair trials and the abolition of the death penalty.

For more information, please see:

Washington Post - No end to repression after Castro, activist says - 20 February 2008

Amnesty International - Cuba: reforms to human rights much needed - 19 February 2008

Nations Convene to Discuss Ban of Cluster Munitions

By Andrew Benfield
Senior Desk Officer, North America

WASHINGTON, United States – From February 18-22, 2008, more than 100 nations gathered for the Wellington Conference on Cluster Munitions in Wellington, New Zealand.  The Conference convened in an effort to draft a treaty that prohibits the “use, production, stockpiling, and trade of cluster munitions.”  Also, the treaty included provisions requiring “clearance of contaminated areas and assistance to victims.” 

Cluster munitions are weapons made up of “multiple explosive submunitions which are dispensed from a container.”  Submunitions are designed to dispense “multiple quantities from a container and detonate prior to, on, or after impact.” 

Nearly fourteen countries have used cluster munitions in at least thirty countries and areas.  In addition, thirty four countries have produced 210 different types of air-dropped and surface-launched cluster munitions while at least “thirteen countries have transferred more than 50 types of cluster munitions to at least 60 countries.”

Many of the “main users” of cluster munitions (Israel, United States and Russia) did not attend the conference.  However, over 75 percent of the present and past producers and users of cluster munitions attended the conference. 

The Wellington Conference produced a draft of a treaty on cluster munitions that 82 nations endorsed.  The treaty moved the world “closer to a ban on weapons that cause horrific civilian casualties.”  These cluster munitions casualties primarily occur in the nations of Cambodia, Laos, Lebanon and Indonesia.   

Two major humanitarian concerns arise from the use of cluster munitions: first, their explosion virtually guarantees civilian casualties when released in populated areas; second, many of the munitions fail to explode on impact and remain on the ground affective landmines. 

At the conference, there were three major attempts to weaken the treaty’s reach.  First, there was an effort to “exempt certain types of cluster munitions or technologies” from  the ban completely.  Second, there was an attempt to instate a “transition period” during which these band weapons could still be used.  Finally, there was an attempt to eliminate provisions of the treaty that prohibited nations from “assisting” other nations, not party to the treaty, with the use of cluster munitions. 

Participants in the Conference have urged voting members to “hold fast to the Wellington text” when the drafted treaty comes up for formal negotiations in Dublin, Ireland in May. 

For more information, please see:

Human Rights Watch – 82 Countries Endorse Strong Ban on Cluster Munitions – 22 February 2008

RTT News – US Rejects Accusation Of Trying To Stall Cluster Bomb Pact – 21 February 2008

Stop Cluster Munitions – Cluster Munition Coalition – October 2007

BRIEF: Guantanamo Bay Detainee Cases Face Controversy

GUANTANAMO BAY, Cuba- Criticism greeted the Feb. 11 announcement that Military prosecutors filed capital charges for six Guantanamo Bay detainees. Among those charged are Khalid Shaikh Mohammed, the former Al Qaeda operations chief who has said he was responsible for the Sept. 11 attacks, and five other men who are said to be “logistical coordinators” of the attacks. The charges include conspiracy, murder in violation of the law of war, attacking civilians, terrorism and providing material support for terrorism. These men will be tried in military commissions that were initially declared illegal by the Supreme Court in 2006. Congress has since set up a new version of the trials, but logistical questions still plague the proceedings. It is contested whether evidence obtained through coercive interrogations, such as waterboarding, will be admitted into the trials. Credibility of the entire process is being called into question. Three prosecutors requested to be transferred out of the Office of Military Commissions in 2004, claiming that they had been told that the process had been rigged and that they had been told by the chief prosecutor at the time that they did not need evidence to get convictions.

For more information, please see:

New York Times - Hurdles Seen as Capital Charges Are Filed in 9/11 Case - 12 February 2008

Boston Globe - Trial could put focus on interrogation - 12 February 2008

The Nation - Gitmo Trials Rigged - 20 February 2008

Department of Justice Opinions Should Not Be A Veil For Impunity

By Andrew Benfield
Senior Desk Officer, North America

WASHINGTON, United States – Early in February, CIA Director Michael Hayden released a statement that questioned the legality of the waterboarding torture method.  These torture questions were released a day after Attorney General Michael Mukasey announced that the Justice Department would not investigate waterboarding techniques used by United States interrogators following 11 September 2008. 

Jordan Paust of University of Houston Law Center and contributing editor of JURIST, has questioned Mukasey’s decision not to investigate waterboard interrogation.  Paust argues that the United States Department of Justice Office of Legal Counsel’s opinions are “inconsistent with or violative of” the laws of war.  These opinions should not provide any “legal cover” for members of the executive branch who seek “impunity for alleged war crimes.” 

Specifically, Paust takes issue with the Attorney General’s waterboarding justification.  Mukasey stated, a CIA program was the subject of a “Department of Justice opinion” and was found to be “permissible.”  Paust argues that a Department of Justice opinion may never authorize the executive branch to circumvent international law. 

Citing judicial precedent dating back to the early 1800s, Paust demonstrates that the Office of Legal Counsel’s (OLC) opinions “simply cannot authorize conduct that, on its face, is criminal under international law.” 

Paust urges an investigation into the United States’ involvement in “war crimes liability” and executive branch accountability without the “veil” of the Office of Legal Counsel opinions. 

In the last seven years, no person of any nationality or status has been prosecuted for a war crime related activity. 

For more information, please see:

JURIST – Just Following Orders? DOJ Opinions and War Crimes Liability – February 2008

Associated Press – CIA Boss: Waterboarding May Be Illegal – 7 February 2008

Think Progress – Hayden: waterboarding may be illegal – 7 February 2008    

BRIEF: Human Rights Watch Criticizes Mexico's Human Rights Commission

MEXICO CITY, Mexico - Mexico's human rights record has been criticized before and now international human rights organization, Human Rights Watch, says Mexico's National Human Rights Commission ("CNDH") has not effectively used its resources to help end violations.

Jose Miguel Vivanco, the Americas Director for Human Rights Watch, says that "while the CNDH does a decent job documenting abuses and identifying problems, it doesn't take crucial steps needed to bring about change."  Some of the crucial steps Vivanco is referring to include; pressuring state institutions to hold individuals responsible for human rights abuses, promoting legal reforms to prevent future violations, challenging laws and policies that contradict with international human rights laws, sharing information it has collected on human rights problems so they are clearly known, and meeting with state officials and other human rights advocates in order to make a collective and constructive effort to promote human rights in Mexico.

Human Rights Watch gives numerous examples of human rights violations that have occurred in Mexico.  Among these violations is the abuses by soldiers involved in the new law enforcement plan to find and capture drug lords.  Impunity Watch has reported on this issue as well as other abuses Human Rights Watch refers to such as extreme action by police against demonstrators.

For more information, please see:

Human Rights Watch - Mexico:  Effective Action Needed by Human Rights Body - 13 February 2008

Human Rights Watch - Mexico's National Human Rights Commission:  A Critical Assessment

Impunity Watch - Human Rights Groups in Mexico Claim their Soldiers Have Tortured and Raped - 25 January 2008

Bush’s Africa Trip to Focus on Health, Education and Violence

By Jacob Leon Beier
Impunity Watch Editor-in-Chief

WASHINGTON, United States – Today, President Bush departed on a six-day, five country diplomatic trip to Africa.  Bush makes stops in Benin, Tanzania, Rwanda, Ghana and Liberia and will meet with each country’s head of state.  This is President Bush’s second presidential tour during his tenure in office. 

President Bush is expected to draw attention to the United States’ efforts to combat widespread HIV/AIDS and malaria epidemics and improve the quality of education on the continent.

Prior to his departure, President Bush defended his decision to not send troops to the Darfur region of Sudan to prevent further acts of genocide in an interview with the BBC.  Bush argued that he did not want to mobilize US troops in another Muslim country and that China “can do more to relieve the suffering of Darfur.”  The US noted that China is currently involved in trade deals worth billions in Africa and does not inquire about the lack of democratic institutions and human rights.

President Bush will also likely have to answer questions concerning what some consider to be unfair trade practices with Africa on the part of the United States.  Critics contend that certain US trade policies “undermine struggling Africa economies.”  For example, Benin’s economy relies on its cotton exports.  But, due to the high level of government subsidies given to the US cotton industry, Benin cannot compete with US farmers.  "If George Bush comes here without something concrete to say about our everyday livelihood, he needn’t bother,” said Beninese cotton grower Ali Assi Mabdou.

President Bush called on Kenya to return to democratic rule prior to leaving on his African trip.  He made known that he would send Secretary of State Condoleezza Rice to “deliver a message directly to Kenya’s leaders.”

President Bush told the BBC that he has maintained a “firm, heartfelt commitment to the continent of Africa.”  Aid to Africa has increased dramatically during Bush’s time in office.  The Bush Administration announced the development of its Millennium Challenge Account at the president’s January 28, 2008 State of the Union Address.  Bush stated. “[t]his program strengthens democracy, transparency, and the rule of law in developing nations.”  Though, critics have argued that the US Aids program is ineffective and based on moral agendas rather than policies of efficient and equitable distribution.

For more information, please see:

BBC – Bush Set for Second African Tour – 15 February 2008

Reuters – Bush’s African Visit Seen More About Strategy than Compassion – 15 February 2008

Bloomberg Press – Bush Africa Trip Touts Successes, Bypasses Places He Can’t Help – 15 February 2008

AllAfrica.com – Africa:  Bush Visit to Focus on Health, Education – 15 February 2008

The New York Times – Turmoil in Africa Alters Focus of Bush’s 5-Nation Tour – 15 February 2008

The White House – Africa Policy

Senate Votes to Ban Waterboarding

By:  Lindsey Brady
Impunity Watch Reporter, North America Desk

WASHINGTON D.C., United States - Yesterday the United States Senate passed a bill that would ban the use of waterboarding.  The House of Representatives had included similar language that prohibited waterboarding and other harsh interrogation techniques.  This intelligence bill comes a week after Michael Hayden, Director for the Central Intelligence Agency, acknowledged that waterboarding had been used against three suspected terrorists.  One terrorist was Khalid Sheikh Mohammed who is believed to have been the mastermind behind the 2001 attacks on the World Trade Center.  Hayden later added, however, that it was unclear whether waterboarding was legal.

According to the Chicago Tribune, the Bush administration has insisted that waterboarding is a legal practice that can be used again "under certain circumstances" such as the presence of an imminent threat.  The Bush administration says it has not been used in the last five years and is not currently an approved interrogation technique for CIA agents.  Dana Perino, White House Press Secretary, said President Bush agrees with his advisers that the bill should be vetoed because "parts of the bill are inconsistent with the effective conduct of intelligence gathering."  The bill will limit the CIA to the 19 less aggressive interrogation techniques described in the U.S. Army's Field Manual.

The bill passed by a narrow 51-45 vote and did not meet the required 69 votes that would allow Senate to override Bush's veto.  Presidential candidate, Senator John McCain (R.-Ariz.) voted against the intelligence bill.  McCain issued a statement saying "the measure goes too far by applying military standards to intelligence agencies. He also said current laws already forbid waterboarding, and urges the administration to declare [waterboarding] illegal."  The law McCain refers to is the Detainee Treatment Act of 2006, which McCain co-sponsored, that bans military use of the interrogation technique.

Senator Joe Lieberman (I-Conn.) also voted against the bill because he believes some rare situations may call for its use and he wants the option for the President to approve its use.  Lieberman said, although waterboarding can be terrifying for the subject, there is no real danger and is only a psychological experience.  According to Newsday, Lieberman believes, "we have to allow the president to allow the toughest measures to be used when there is an imminent threat to our country."  Waterboarding has been prohibited by the Geneva Conventions and many countries label it torture.

For more information, please see:

Chicago Tribune - Senate OKs Bill Banning Waterboarding - 13 February 2008

Washington Post - Senate Passes Ban on Waterboarding, Other Techniques - 14 February 2008

Newsday - Lieberman Defends Vote Against Ban on CIA Waterboarding - 14 February 2008

The Guardian - US Official Admits Waterboarding Presently Illegal - 14 February 2008

Atlantic.com - McCain:  Against Torture, But - 14 February 2008

BRIEF: Senate Votes to Allow Warrantless Wiretapping to Continue with Protection for Phone Companies

WASHINGTON D.C., United States - Today the Senate voted against amendments that would have narrowed the government's surveillance power and denied immunity to phone carriers who aided in the government.  There has been a great deal of debate over the amount of power the Bush administration should have to conduct eavesdropping programs without first obtaining a warrant.  The House of Representatives previously voted against immunity for phone companies but some Congressional officials said the House will likely adopt some type of legal protection for phone companies after the Senate and House complete negotiations in the coming week.

Under the warrantless eavesdropping program, the National Security Agency can listen into international communications by Americans where a connection to suspected terrorists can be found.  Some have found that the program is an important part of national security after the terrorist attacks on September 11th, 2001. Democrats, as well as Republicans support the program.  John D. Rockefeller IV (D-W.V.) was quoted by the New York Times as saying, "This, I believe is the right way for the security of the nation." 

Democrats, however, lead the opposition of the warrantless wiretapping program.  Senator Russ Feingold (D-WI) and Christopher J. Dodd (D-Conn.) both lead the party opposition.  It is argued by those like Feingold and Dodd that the administration is protecting phone companies from legal action in exchange for their cooperation in eavesdropping on suspicious telephone calls.  Critics say, however, that the warrantless wiretapping violates the laws of the United States.

For more information, please see:

New York Times - Senate Moves to Shield Phone Companies on Eavesdropping   - 12 February 2008

Washington Post - Senate Panel Blocks Eavesdropping Probe - 12 February 2008