In June 2005, US District Judge Henry Kennedy orders the Bush administration to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.” US District Judge Gladys Kessler issued a nearly identical order one month later. Later that year, the CIA will destroy videotapes of the interrogation and possible torture of high-ranking al-Qaeda detainees Abu Zubaida and Abd al-Rahim al-Nashiri (see November 2005). In 2005, Zubaida and al-Nashiri are not being held at the Guantanamo prison, but at secret CIA prisons overseas. But while evidence of torture of Zubaida and al-Nashiri is not directly covered by the orders, it may well be indirectly covered. David Remes, a lawyer for some of the Guantanamo detainees, will later claim, “It is still unlawful for the government to destroy evidence, and it had every reason to believe that these interrogation records would be relevant to pending litigation concerning our client.” In January 2005, Assistant Attorney General Peter Keisler assured Kennedy that government officials were “well aware of their obligation not to destroy evidence that may be relevant in pending litigation.” [Associated Press, 12/12/2007] In some court proceedings, prosecutors have used evidence gained from the interrogation of Zubaida to justify the continued detention of some Guantanamo detainees. Scott Horton writing for Harper’s magazine will later comment that “in these trials, a defendant can seek to exclude evidence if it was secured through torture. But the defendant has an obligation to prove this contention. The [destroyed videotapes] would have provided such proof.” [Harper’s, 12/15/2007]
July 12, 2006: Bush Administration Agrees to Follow Geneva Conventions with All Al-Qaeda Suspects in US Custody
Shortly after the Supreme Court rules that the Geneva Conventions apply to detainees suspected of terrorist affiliations (see June 30, 2006), the Bush administration publicly agrees to apply the Conventions to all terrorism suspects in US custody, and the Pentagon announces that it is now requiring all military officials to adhere to the Conventions in dealing with al-Qaeda detainees. The administration says that from now on, all prisoners in US custody will be treated humanely in accordance with the Conventions, a stipulation that would preclude torture and “harsh interrogation methods.” Until the ruling, the administration has held that prisoners suspected of terrorist affiliations did not have the right to be granted Geneva protections (see February 7, 2002). Lawyer David Remes, who represents 17 Guantanamo detainees, says, “At a symbolic level, it is a huge moral triumph that the administration has acknowledged that it must, under the Supreme Court ruling, adhere to the Geneva Conventions. The legal architecture of the war on terror was built on a foundation of unlimited and unaccountable presidential power, including the power to decide unilaterally whether, when and to whom to apply the Geneva Conventions.” But in the wake of the ruling the administration is pressuring Congress to introduce legislation that would strip detainees of some of the rights afforded them under the Conventions, including the right to free and open trials, even in a military setting. “The court-martial procedures are wholly inappropriate for the current circumstances and would be infeasible for the trial of these alien enemy combatants,” says Steven Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel. Bradbury and Daniel Dell’Orto, the Defense Department’s principal deputy attorney general, have repeatedly urged lawmakers to limit the rights of detainees captured in what the administration terms its war on terrorism. Dell’Orto says Congress should not require that enemy combatants be provided lawyers to challenge their imprisonment. Congressional Democrats have a different view. Senate Judiciary Chairman Patrick Leahy (D-VT) says, “I find it hard to fathom that this administration is so incompetent that it needs kangaroo-court procedures to convince a tribunal of United States military officers that the ‘worst of the worst’ imprisoned at Guantanamo Bay should be held accountable” for crimes. “We need to know why we’re being asked to deviate from rules for courts-martial.” [Washington Post, 7/12/2006]
