2003 Report by the Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Theo van Boven

United States of America

1880. By letter dated 2 September 2002, the Special Rapporteur advised the Government that he had received information regarding acts of ill-treatment allegedly perpetrated by US soldiers during the conduction of military operations in Afghanistan. In particular, the Special Rapporteur transmitted information on the following individual cases.

1881. A compound near Kandahar was reportedly raided by US soldiers on 17 March 2002. It was reported that at least 31 people had been detained and later released after it had been established that they were members of neither the Taleban nor al-Qa'ida. It was reported that the detainees had their feet bound, their hands tied behind their backs and black hoods placed over their heads while US soldiers allegedly punched and kicked them. They were said to have been driven to the Kandahar base, where they were allegedly made to lie on their stomachs on rocky ground and kicked in the back. As a result, many of them are allegedly sustained variety of cuts and bruises. They were allegedly held in 10 by five metre cages, each holding between 10 and 18 people, with buckets as toilets for four days. It was also alleged that the detainees had their beards and heads shaved by the military.

1882. The Uruzgan province was reportedly raided by US Special Forces on 23 and 24 January 2002. It was alleged that in the course of the operation 27 villagers, among which Akhtar Mohammed, aged 17, Allah Noor and Abdul Rauf, aged between 60 and 65, had been taken into custody. All of them were reportedly released on 6 February 2002. It was alleged that at the scene of the raid they had their hands and feet tied, were blindfolded and hooded, and flown to the US base at Kandahar. Upon arrival at the base, the prisoners were reportedly beaten, kicked and punched by soldiers, made to lie on their stomachs with their hands tied behind their backs and their legs chained, whereupon soldiers walked across their backs. Two men were said to have lost consciousness during the beatings, and others to have suffered broken ribs and loosened teeth. Akhtar Mohammed was allegedly kept in solitary confinement in a shipping container for eight days. An investigation on the facts was reported to have been carried out.

1883. By letter dated 2 September 2002 sent jointly by the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur advised the Government that he had received information on the following individual cases.

1884. Charles Agster, a 33-year-old mentally-handicapped man reportedly died after being placed in a restraint chair on 6 August 2001, in Madison Street Jail, Maricopa County, Arizona. Four Phoenix police officers were reported to have forcibly removed him from a store, handcuffed him, thrown him to the ground and placed him in a “rip-restraint” - in which his arms were handcuffed behind his back, his legs bound together at the ankle with a leather strap, and a strap tied between the handcuffs and leg strap. It was alleged that he had been taken to Madison Street Jail where, despite still being hogtied, at least three police officers and a sheriff's deputy allegedly jumped on him, punched and kneed him in the side. An officer was reported to have placed his hand over Charles Agster's face and applied upward pressure under his chin. He was then allegedly dragged face-down into the Intake area and strapped into a restraint chair with a spit hood over his head. The rip-restraint was believed not to have been removed until he was placed on the chair. It was reported that within minutes he had not been breathing and a nurse unsuccessfully attempted resuscitation. A subsequent autopsy report was alleged to have given cause of death as “positional asphyxia due to restraint”.

1885. Kevin Coleman reportedly died in the Wade Correctional Center, Louisiana, on 6 July 2001 allegedly after three days in a four-point restraint chair. It was reported that both pepper spray and an electro-shock shield were applied to him before he was allegedly strapped into the restrain chair.

1886. Albert Cothran was reportedly arrested on 25 June 2001 and taken to Columbia County Detention Center, Florida, where he was allegedly placed in a restraint chair due to sustained combative behaviour. He was alleged to have been found unresponsive in the restraint chair by detention officers approximately 45 minutes after having been placed there. It was alleged that according to a Medical Examiner's subsequent report, the detainee suffered a heart attack while restrained in the chair.

1887. Hazel Virginia Beyer (f) was reportedly arrested on 23 February 2000 and placed in a restraint chair in Johnson City Jail, Tennessee. She was believed to have been found unconscious one and a half hours later, by which time she had allegedly slipped down in the restraint chair so that the restraining straps had tightened around her throat, choking her. She was reportedly taken to hospital where she remained comatose until she died on 7 March 2000. The autopsy allegedly determined her cause of death to be brain damage resulting from a failure to get oxygen supply to the brain. Placement in the restraint cha ir was reportedly deemed a proximate cause of death.

1888. By letter dated 18 September 2002 sent jointly with the Special Rapporteur on the human rights of migrants and the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur advised the Government that he had received information regarding the detention of non-US nationals in custody of the Immigration and Naturalization Service (INS) since 11 September 2001. The conditions under which these individuals, many of whom are migrants, are held have worsened with the broadening of powers yielded to the INS since 11 September 2001.

1889. Despite being held in custody by the INS, many post 11 September detainees are reportedly being investigated by the Federal Bureau of Investigation (FBI) for the commission of criminal offences. However, INS detainees appear to have fewer guarantees in their proceedings than people detained in the context of criminal procedures. While according to the anti-terrorist legislation (namely, the Patriot Act passed by Congress in October 2001), the Attorney General is allowed to hold certified terrorist suspects for up to seven days without charge, the INS has now the authority to detain people without charge for up to 48 hours or for further undefined period in case of “emergency” or “other extraordinary circumstances”. However, many have reportedly been detained longer than the 48 hour period and several INS detainees have allegedly been held in detention for more than 50 days before being charged. It was also reported that a new regulation allows the INS to override Immigration Judges’ decisions to grant bail in certain cases.

1890. The Special Rapporteur noted with concern the level of secrecy surrounding these detentions. After 11 September, the Department of Justice, through a Memorandum from Chief Immigration Judge Michael J. Creppy, reportedly implemented security procedures according to which hearings in immigration courts would be closed to the public in “special cases”.

1891. It was reported that before 27 November 2001 the Attorney General released no official data on post 11 September detainees. The government provided further information on them on 11 January 2002 pursuant a request submitted by human rights organizations under the Freedom of Information Act. However, the Justice Department allegedly stated it was unable to provide information on a number of cases, namely on persons detained under material witness warrants, since the US Districts Courts before which these detainees had appeared had issued sealing orders prohibiting release of any information about the proceedings. It is reported that in early August 2002, a US District Judge ordered the government to disclose the names of people detained in relation with the 11 September attacks. According to the information received, this order allegedly does not apply for detainees in material witness to a terror investigation and does not request to reveal the dates and locations of arrests and detentions.

1892. It was reported that many of those detained have not had access to legal counsel and have not been informed in a language that they understand about their rights, particularly their right to have the assistance of counsel and in some circumstances have been denied that assistance. It was also reported that many detainees had been kept without access to lawyers for prolonged periods while they were allegedly questioned by the FBI. Concerns had also been expressed that detainees being investigated for criminal offences had not been informed of their right to court appointed counsel. In circumstances where individuals have had legal representation, it was reported that families and lawyers had great difficulty in locating the whereabouts of the INS detainees. It was reported that lawyers and families have not been notified that the detainee has been transferred, and in some circumstances not been informed where the detainee has been transferred to. Further, lawyers were alleged to have had difficulties in obtaining information necessary for the performance of their professional duties, for example, information about the date of detention, location of the detainee, the basis of detention, whether and when the detainee has been charged with an offence and whether or not the detainee has been subject to interrogation for the commission of criminal offences. It was reported that detainees have had serious difficulties in contacting with individuals or organizations external to their place of detention. Requests from NGOs to visit detention facilities and assist those detained who might need legal assistance were said to have been refused in many cases.

1893. It was also reported that many post 11 September detainees have been kept in prolonged detention for minor immigration infractions, which would previously not result in deprivation of liberty. A number of them have reportedly been held in punitive conditions in jails, alongside charged or convicted criminals. Some INS detainees are believed to have been held in prolonged solitary confinement and to have been heavily shackled and tightly handcuffed, mainly during visits or court appearances.

1894. In particular, the Special Rapporteur had received information on the conditions of detention in the Security Housing Unit (SHU) of the federal Metropolitan Detention Centre (MDC) in New York City, where it was reported that detainees charged with minor visa violations and with no record of violence have been held in conditions designed for dangerous and disruptive captives. It was further reported that in the MDC SHU unit, the 24- hour lighting cells prevent the inmates from sleeping and the cells are too cold. Detainees were reported to be only allowed to maximum one hour a day outdoor exercise. It was alleged that some of the inmates have been denied any exercise. It was also thought that inmates have found difficulties in receiving treatment for the medical needs.

1895. Allegations of physical and verbal abuse committed against detainees during their initial period in police custody or when taken to jails were also reported. These allegations of abuses include insults, intimidations, excessive use of restraints and being handcuffed to a chair for several hours. Concerns were also expressed that those non-US citizens detained in relation to the post 11 September investigations have been threatened or attacked by other inmates.

1896. Regarding the deportation procedures, it was reported that it has become harder for asylum seekers from a number of countries to have their claims acted after 11 September. Some detainees were reportedly at risk of human rights violations if they were returned to their country in connection with the post 11 September investigations. It was reported that at least two detainees had been deported without their families being informed by the authorities about their immediate expulsion and that two others have been deported by plane without any of their belongings. Finally, it was reported that a number of migrants detained after 11 September and who had final orders of deportation were kept detained, pending checks by the Justice Department regarding their involvement in the terrorist attacks.

1897. By the same letter, the Special Rapporteur advised the Government that he had received information on the following individual cases.

1898. Hasnain Javed, a Pakistani student who was allegedly held for three days in September 2001 for overstaying his visa, was reportedly beaten and had a tooth chipped by inmates while he was detained in jail in Wiggins, Mississippi. It was alleged that he had tried to call for assistance through an intercom but that guards failed to respond. It was reported that later on that night he had been stripped naked and beaten again by inmates. In both cases he allegedly tried to call for help but the guards are believed to have failed to respond to his cries.

1899. Rabid Haddad, a Lebanese Muslim pastor and community leader who had been living in Ann Arbor, Michigan, was allegedly charged with overstaying his tourist visa. He was reported to have been arrested on 14 December 2001 and to have been denied bail. He was reportedly held in solitary confinement for at least two and a half months in the Metropolitan Correctional Centre, Chicago. It was alleged that his cell windows were whited out so he had no view hand that he was handcuffed each time he was taken to secure showers. It was also alleged that he was allowed only one 15-minute call to his family every 30 days and that all proceedings, including bail hearings, had been closed to the public.

1900. Shakir Baloch, a Canadian citizen of Pakistani origin, was reportedly arrested in New York on 22 September 2001. He was believed to have waited over 100 days for a deportation order to be processed. He reportedly admitted having illegally entered the US after being denied entry on a previous occasion. He was allegedly ordered deported, refused bail and placed in isolation in the High Security Unit of MDC. His lawyer reportedly filed a petition for habeas corpus, after the 90 day period had passed, to which the Government responded by filing a criminal charge against him, namely entering the US after being excluded.

1901. Dr Mazen Al-Najjar, a Muslim cleric and academic, was reportedly arrested in November 2001 after being issued with a final order of deportation. It was reported that despite having no violent or criminal record, he had been held in solitary confinement in a high security federal prison in Florida where he was believed to have been locked in a cell 23 hours a day. It was reported that he was denied any visits at all with his family for the first 30 days of his confinement. As a stateless Palestinian with no country to return to, fears were expressed that he could remain indefinitely in such conditions.

1902. Ayub Ali Khan, an Indian citizen, was reportedly arrested on 12 September 2001 in possession of box cutters, hair dye and $5,500 cash. Reportedly, law enforcement agents informed the press at the time of his arrest that he was a suspect in the investigation into the events that occurred on 11 September 2001. It was alleged that despite this, he had been held in the Special Housing Unit of the Metropolitan Detention Center for overstaying his visa, and he had not been brought before an immigration judge until 8 November 2001. It was further alleged that during his detention he was subjected to interrogation without an attorne y present, and a public defender was only assigned to him after he had been held in detention for 57 days.

1903. Bah Isselou, Sidi Mohammed Ould Bah, Sidi mohammed Ould Abdou, Cheikh Melainine Ould Belal, all Mauritanian citizens, were reportedly arrested on 12 September 2001, in Louisville, Kentucky, on immigration violations. It was reported that they had been held in custody for four days and interrogated by the FBI about the terrorist attacks on 11 September 2001, before they were informed of their right to legal representation.

1904. Osama Awadallah, a citizen of Jordan and permanent resident of the United States of America, was reportedly taken for questioning by FBI agents on 20 September 2001 from his home in San Diego. It was reported that he had been questioned for approximately six hours and informed by the FBI agents that they believed that he had information concerning the terrorist attacks on 11 September 2001. It was alleged that he had been denied access to a lawyer.

1905. Tiffany Hughes and Ali Al-Maqtari were reportedly arrested on 15 September 2001 at the Fort Campbell, Kentucky army base. It was also reported that they had subsequently been interrogated for several hours without being informed of their right to legal counsel. Ali Al-Maqtari was allegedly held in custody for 52 days, mostly in solitary confinement, charged with an immigration violation. It was also reported that he had testified about his interrogation before the Senate Judiciary Committee on 29 November 2001.

1906. By letter dated 21 October 2002, the Special Rapporteur reminded the Government of a number of cases transmitted in 2001 regarding which no reply had been received.

Urgent appeals

1907. On 16 January 2002, the Special Rapporteur sent an urgent appeal on behalf of Al Qaeda suspects and Talebans detained by the United States following military operations in Afghanistan who had been recently transferred to Guantanamo Bay military base. It was reported that they had been drugged, hooded and shackled during the 20 hour transportation flight. It was believed that they were detained in small cages with chain- link sides, concrete floors and metal roofs, despite the reported existence of temporary hard-walled holding facilities at the military base. Fears had been expressed regarding their restricted access to lawyers and medical doctors, as well as independent human rights monitoring mechanisms and regarding their conditions of detention and of interrogation.

1908. By letter dated 3 April 2002, the Government assured the Special Rapporteur that the detainees at Guantanamo Bay were being treated humanely. The detainees have been provided with new clothes and shoes, adequate shelter, sleeping pads and blankets, three meals a day that meet religious dietary considerations, washcloths and towels, showers, personal toiletries and the opportunity to worship. They are also receiving free medical care including dental care, medication, eye examinations and corrective eyewear, and if necessary, hospitalization and surgery. The Government noted that the detainees were not held incommunicado and that they were permitted to meet individually and privately with representatives of the International Committee of the Red Cross. Some have also been visited by government officials from their country and many are communicating by mail with their families. The Government noted that the detainees did not have access to lawyers since enemy combatants are generally not entitled to counsel while in detention in the course of ongoing hostilities. The Government also noted that certain security precautions were necessary in light of the serious threat of physical harm posed by the detainees to the military personnel transporting and guarding them.

1909. On 6 March 2002, the Special Rapporteur sent a joint urgent appeals with the Special Rapporteurs on the independence of judges and lawyers and on extrajudicial, summary or arbitrary executions on behalf of Tracy Lee Housel, a British national, who was scheduled to be executed in the State of Georgia on 12 March 2002 after having been sentenced in February 1996 for a murder committed in April 1985. His lawyer, who had never defended anyone facing capital charges before, reportedly failed to present evidence that his client was suffering from serious mental health problems and psychological impairment. Statements reportedly taken when he was being held in coercive conditions in pre-trial detention were used during his trial. He was allegedly held in solitary confinement and not allowed to take a shower in the first three months of his detention. On several occasions, he was allegedly given electric shocks from a stun-gun.

1910. On 30 May 2002, the Special Rapporteur sent a joint urgent appeal on behalf of Paul Trummel, a freelance journalist, who had reportedly been imprisoned for contempt of court by a Superior Court judge who claims that he is not a legitimate investigative reporter because he edits and publishes his own work. It is reported that Paul Trummel was imprisoned in February 2002 for breaching an injunction forbidding him to write about a residence about which he has complained in his own newsletter and web-site. These writings have led to a long-running legal battle with the residents and management of the residence. He had allegedly been placed in solitary confinement on Thursday 23 May 2002 to deny him access to the prison telephone.


1911. The Special Rapporteur notes with concern that the Government has not yet replied to a number of cases brought to its attention in the current and previous years.

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