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By Erika Schlager

On June 21, 2007, the Helsinki Commission held a hearing on "Guantánamo: Implications for U.S. Human Rights Leadership."

Chairman Alcee L. Hastings presided over the hearing, joined by Co-Chairman Senator Benjamin L. Cardin, and Commissioner Rep. Mike McIntyre. House Majority Leader Steny H. Hoyer, a former Helsinki Commission Chairman, also participated. Prepared statements were also submitted by Commissioners Senator Christopher J. Dodd and Congresswoman Hilda L. Solis.

Testimony was received from John B. Bellinger III, Legal Advisor to the Department of State; Senator Anne-Marie Lizin, President of the Belgian Senate and OSCE Parliamentary Assembly (OSCE PA) Special Representative on Guantánamo; Tom Malinowski, Advocacy Director, Human Rights Watch; and Gabor Rona, International Legal Director, Human Rights First. In addition, written testimony was received from the International Helsinki Federation for Human Rights. (A transcript of the hearing, along with testimonies submitted for the record, is available on the Helsinki Commission's website. The Department of Defense was invited to send a witness, but declined.

Background: Guantanamo Raised at OSCE PA Meetings

Although the Helsinki Commission largely focuses its attention on issues relating to the other 55 OSCE participating States, the Commission has periodically examined domestic compliance issues. In recent years, no other issue has been raised as vocally with the United States at OSCE PA meetings as the status and treatment of detainees captured or arrested as part of U.S. counter-terrorism operations.

The issue came into particular focus at the OSCE PA’s 2003 Annual Session, held in Rotterdam, where a resolution [link] expressing concern over detainees at Guantánamo was debated and adopted. (The first detainees were transported to the detention facility in January 2002.) The vigorous debate in Rotterdam prompted then-Helsinki Commission Chairman Christopher H. Smith and then-Ranking Member Benjamin L. Cardin to lead a Congressional Delegation to the detention facility in late July 2003.

At the 2004 Annual Session, held in Edinburgh, convened shortly after the Abu Ghraib scandal broke, the Assembly adopted a resolution [link], introduced by then-Chairman Smith, condemning torture and urging respect for provisions of the Geneva Conventions. An amendment to that resolution was also adopted, expressing particular concern regarding indefinite detention without trial at Guantánamo.

In February 2005, Senator Anne-Marie Lizin, President of the Belgian Senate, was appointed by then-OSCE PA President Alcee L. Hastings as Special Representative on Guantánamo, with a mandate to report to the Assembly on the situation of detainees from OSCE participating States in the detention facility in Guantánamo. (Sen. Lizin continues to serve in that capacity at the request of the current OSCE Parliamentary Assembly President, Göran Lennmarker.) At the 2005 Annual Session, held in Washington, the Assembly adopted a resolution [link] on “terrorism and human rights,” reiterating concern regarding the Guantánamo detainees. Separately, Senator Lizin issued her first report on Guantánamo during the Washington meeting, calling for the detention facility at Guantánamo Bay to be closed. (Her report also touched on the positions of other OSCE participating States regarding the question of the detention of terror suspects.) During the Washington meeting, Department of Defense and Department of State officials also held a briefing for interested parliamentarians on Guantanamo and related issues.

In March 2006, Senator Lizin was able, under U.S. Department of Defense auspices, to make her first visit to the detention facility. She returned to the facility a second time on June 20, 2007, just prior to testifying at the Helsinki Commission's hearing. In addition, Senator Lizin presented additional reports on Guantánamo at the Assembly’s Annual Sessions in Brussels (2006) and in Kyiv (2007). She has continued to call for the closure of the detention facility. Her reports are available on the OSCE Parliamentary Assembly website [link].

Testimony

In opening the hearing, Chairman Hastings drew attention to the concerns that have been repeatedly raised about Guantánamo in the context of the Parliamentary Assembly. He also observed that "for all the 56 OSCE participating States, and not just the United States, the issue of how to safeguard human rights while effectively countering terrorism may be one of the most critical issues these countries will face for the foreseeable future."

The first witness to speak was Legal Adviser Bellinger. Since taking up that position in 2005, Mr. Bellinger has been actively engaged in discussions with U.S. allies and at international fora (particularly the United Nations in Geneva, where he presented U.S. reports under the Convention Against Torture and the International Covenant on Civil and Political Rights) regarding the status and treatment of detainees held by the United States as part of its counterterrorism operations. This was the first time, however, that he had testified before Congress on these matters.

Legal Adviser Bellinger briefly discussed the legal basis, under the law of armed conflict, for detaining combatants, and noted that the 9/11 Commission had recommended that the United States should work with other countries to develop an appropriate framework for the detention and treatment of terror suspects. He also described the considerable efforts he has made to engage allies in discussions on these matters. Bellinger acknowledged that President Bush has said he would like to close Guantánamo, but Bellinger argued that "closing Guantánamo is easier said than done." In particular, he suggested more needs to be done to address the question, where will the detainees go?

In her remarks to the Commission, Senator Lizin observed that, since her 2006 visit to Guantánamo, the number of detainees there has significantly decreased. Nevertheless, "Guantánamo remains one of the bases for [an] anti-American fixation in the world and contributes to the [negative] image of the United States abroad, including [among] friendly countries.” She reiterated her recommendation that Guantánamo be closed and noted that Secretary of Defense Robert Gates has also called for the camp to be closed. Senator Lizin noted that 80 detainees are no longer considered enemy combatants and that OSCE participating States could do more to facilitate the transfer of these individuals to third countries.

Both Tom Malinowski and Gabor Rona stressed that many Guantánamo detainees were not captured on the battlefield in Afghanistan, but were individuals turned over to the United States by bounty hunters responding to U.S. offers to pay large sums of money for turning in foreigners. Mr. Rona noted that, “[t]his government's own statistics say that 55% of the detainees were not found to have committed hostile acts. Only 8% were characterized as Al Qaida fighters, and 60% are detained merely because of alleged association with terrorists or terrorist groups."

Mr. Malinowski discussed the dangerous example that U.S. interrogation and detention practices have set for other countries around the globe. (Similar views were echoed in the written testimony submitted by the International Helsinki Federation for Human Rights.) He also suggested that if the United States made a serious commitment to close Guantánamo, it would open the door for greater cooperation with other countries regarding the transfer of detainees.

Moreover, Malinowski observed that, since 9/11, “the Justice Department has successfully prosecuted dozens of international terror suspects in the civilian courts . . . since then, the system at Guantánamo has succeeded in prosecuting one Australian kangaroo trapper to a sentence of nine months, which is serving back home in Australia."

In his written and oral testimony, Mr. Rona took exception to the applicable legal framework advocated by the administration: "one need not choose between, on the one hand, affording terrorists the protections of prisoner-of-war status, to which only privileged belligerents are entitled, or, on the other hand, holding them in a law-free black hole. They can be targeted while directly participating in hostilities. And if captured, they can be interrogated, they can be detained, but in accordance with international and domestic law."

Members React

During the hearing, Chairman Hastings, Co-Chairman Cardin, and Majority Leader Hoyer all argued for closing the detention facility.

Chairman Hastings said he could not believe "that the American federal prison system cannot try 380 people." He argued that the United States "should take every prisoner out of Guantánamo, no matter his or her status, and move them to a federal prison in the United States of America [and then] either release persons who are not charged, or charge them, try them and confine them in an appropriate federal prison."

Regarding the notion that detainees were sent to Guantánamo because they were enemy combatants, Mr. Cardin remarked that there are “a lot of people who are combatants who are not at Guantánamo Bay," and that people were selected for transfer because of their perceived intelligence value. But in light of the many years that individuals have been held there, some for more than five years now, he argued that "the 380 people that are at Guantánamo Bay have no useful information that warrants a special facility for interrogation, which is what Guantánamo Bay was originally set up as . . . If Guantánamo Bay is needed today, it's needed as a penal facility. And as the Chairman pointed out, we have penal facilities. To keep a penal facility at such expense makes very little sense to the taxpayers of this country."

Finally, Majority Leader Hoyer, who had pressed for the convening of such a hearing in recent years, argued for the restoration of habeas corpus rights that had been terminated by be Military Commission Act of 2006. He argued, "when Saddam Hussein was taken out of a hole and captured, we afforded him his legal rights to hear the evidence against him, to contest that evidence and to be represented by counsel. When Slobodan Milosevic was brought to justice after murdering tens of thousands and sanctioning the ethnic cleansing of more than 2 million people, he was afforded his legal rights. And even the Butchers of Berlin who committed genocide, murdering millions of innocents, were afforded their legal rights at Nürnberg. This was not coddling those who committed atrocities. It was recognizing that if civilization is to be what we want to be, it will be because it follows the rule of law and not the rule of the jungle."