On November 2, 2005, the Inter-American Commission on Human Rights extended precautionary measures for the men being held indefinitely at Guantánamo Bay by the U.S. government. Attorneys from the Center for Constitutional Rights (CCR) and the International Human Rights Clinic at American University’s Washington College of Law had a hearing before the Commission on October 20th. The principal function of the Inter-American Commission on Human Rights is to promote the observance and protection of human rights in and by member states of the Organization of American States, including the United States.

The Commission’s measures included requests:

• that the U.S. government ensure the detainees at Guantánamo are not transferred to countries where there are substantial grounds for believing they would be in danger of being subjected to torture or other mistreatment;

• that the U.S., in accordance with international law, not permit any statement obtained under torture to be used in a legal proceeding;

• that the government investigate and prosecute instances of abuse and torture, which does not mean letting the Department of Defense continue to investigate itself; and

• to have the legal status of the Guantánamo detainees determined by a competent tribunal, which has not been adequately addressed by the military tribunals or the habeas corpus proceedings to date.

Maria LaHood, staff attorney at the Center for Constitutional Rights, said, “As a member of the Organization of American States, the United States must heed the Inter-American Commission’s urgent requests to prevent more irreparable harm to the Guantánamo detainees. Instead, the Government has refused further participation in the proceedings, demonstrating its lack of respect for the rule of law, human rights, and the international community.”

Professor Rick Wilson of American University Washington College of Law stated, “The detailed analysis and recommendations convey the Commission’s growing sense of urgent concern for the safety of detainees at Guantánamo. It is the most significant step taken by the Commission to protect the detainees since its initial request to the U.S. government in March of 2002, nearly four years ago. To date, the U.S. government has blatantly ignored the urgent recommendations by this international body of experts in human rights.”

FURTHER DETAILS ON INTER-AMERICAN COMMISSION MEASURES

Rendition to torture: The Inter-American Commission requested that the U.S. "take the measures necessary to ensure that any detainees who may face a risk of torture or other cruel, inhuman or degrading treatment if transferred, removed or expelled from Guantánamo Bay are provided an adequate, individualized examination of their circumstances through a fair and transparent process before a competent, independent and impartial decision-maker. Where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other mistreatment, the State should ensure that the detainee is not transferred or removed and that diplomatic assurances are not used to circumvent the State's non-refoulement obligation." The Commission found that "at least some of the detainees at Guantánamo face real risks of torture and other mistreatment if removed or transferred to other governments. Further, the information presented indicates that although the United States government may request assurances from the receiving state, it has no method of enforcing or monitoring compliance with these assurances once the detainee is removed...."

Statements under torture: The Commission also requested that the Government ensure respect for the prohibition against the use in any legal proceeding of statements obtained through torture, except against a person accused of torture as evidence that the statement was made.

Proper investigation of torture and abuse: The Commission reiterated its request that the Government investigate and prosecute instances of torture and other mistreatment of Guantánamo detainees, expressing its concern that instances of abuse and other inhumane treatment may be continuing at Guantánamo and that these instances may include the denial of proper medical treatment to detainees who have participated in hunger strikes as well as methods of interrogation directed at the religious affiliations of certain detainees. The Commission expressed its concern that all of the investigations of abuse at Guantánamo have been undertaken internally by the Department of Defense, the very institution alleged to be responsible for the abuse, which may call into question the impartiality of the measures taken.

Fair hearings and access to counsel: The Commission found that the Government has not complied with its request to have the legal status of the Guantánamo detainees determined by a competent tribunal, so reiterated that request. The Commission further found that “Notwithstanding the Supreme Court’s pronouncement [in Rasul v. Bush], the information before the Commission indicates that over one year since the decision, nearly half of the detainees at Guantánamo Bay have not been given effective access to counsel or otherwise provided with a fair opportunity to pursue a habeas corpus proceeding in accordance with the Supreme Court’s ruling, despite the fact the purpose of habeas is intended to be a timely remedy aimed at guaranteeing personal liberty and humane treatment.” The Commission also found that its concerns have similarly not been adequately addressed by the Combatant Status Review Tribunals and the Administrative Review Boards.

Jurisdiction: The Commission rejected the Government's argument that non-exhaustion of domestic remedies per se deprives the Commission of jurisdiction to grant or maintain precautionary measures, and expressed its hope that the Government would reconsider its decision to defer further formal participation until domestic remedies have been exhausted.

Juveniles: The Commission also reiterated its request that the Government provide information regarding allegations that juveniles who arrived at Guantanamo before the age of 18 continue to be held there.