SPECIAL PROCEDURES OF THE CONSEIL DES DROITS DE L HOMME

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1 NATIONS UNIES HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L HOMME UNITED NATIONS OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS PROCEDURES SPECIALES DU SPECIAL PROCEDURES OF THE CONSEIL DES DROITS DE L HOMME HUMAN RIGHTS COUNCIL Mandates of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment REFERENCE: UA G/SO 214 (53-24) USA 21/2011 Excellency, 29 November 2011 I have the honour to address you in my capacity as Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment pursuant to General Assembly resolution 60/251 and to Human Rights Council resolution 16/23. In this connection, I would like to draw the attention of your Excellency s Government to information received regarding the use of prolonged solitary confinement, including during pre-trial detention, on Messrs. Syed Fahad Hashmi and Zaid Safarini, and other individuals suspected or convicted of terrorism-related offences in the United States of America. On 16 September 2011, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment sent a communication to your Excellency s Government regarding the widespread practice of solitary confinement, including its prolonged and indefinite use and the imposition of solitary confinement on individuals with mental disabilities in the prison system in the United States. No response has yet been received regarding this communication from your Excellency s Government. According to the information received: Mr. Syed Fahad Hashmi, born in 1980, is a citizen of the United States of America. In June 2006, Mr. Hashmi was charged with providing material support to Al- Qaeda and arrested by the British police in London. In May 2007, Mr. Hashmi was extradited to the United States of America. In October 2007, Mr. Hashmi was placed in pre-trial solitary confinement under Special Administrative Measures (SAMs) by then Acting Attorney General, Mr. Peter Keisler, at the Metropolitan Correctional Center (MCC) in lower Manhattan, New York City. It is reported that the imposition of SAMs was due

2 to his purported lack of cooperation with investigations into terrorism-related offences. Allegedly, during his detention at the MCC, Mr. Hashmi had no access to fresh air and was forced to take his one-hour daily recreation, when it was given, inside a cage. He was not allowed to have a radio or television. Reportedly, Mr. Hashmi was allowed to receive a visit by one family member every other week for one and a half hours. However, his family was often turned away for purported bureaucratic reasons. On 27 April 2010, Mr. Hashmi was to be tried, but the day before he pleaded guilty to one charge as part of a plea bargain. In June 2010, he was sentenced to 15 years of imprisonment on a terrorism related charge. According to the source, in August 2010, after spending almost three years in pre-trial solitary confinement, Mr. Hashmi was transferred to the federal highsecurity prison in Florence, Colorado. His family was not informed of this transfer and only learned of his whereabouts in December In March 2011, Mr. Hashmi was transferred to the Administrative Maximum Prison (ADX) in Florence, Colorado and held in solitary confinement under SAMs. Reportedly, Mr. Hashmi s SAMs were renewed annually by the Attorney General. While Mr. Hashmi was able to make social phone calls to immediate family members, and have visits with them, under his SAMs, he was allegedly restricted from communicating in any form, either directly or through his family or attorneys, with the media about his health and confinement conditions. Mr. Hashmi was under 24-hour electronic monitoring inside and outside his cell. Allegedly, individuals under SAMs cannot communicate with anyone inside the prison other than prison officials. All calls by individuals under SAMs are allegedly monitored and recorded, and must take place in English, unless a fluent Federal Bureau of Investigation/Bureau of Prisonsapproved interpreter is available to monitor the call. According to the information received, compared to the cells for the general population, cells for individuals under SAMs are smaller and do not contain a shower. Reportedly, Mr. Hashmi s SAMs were not renewed when they expired in November On 1 November 2011, he was allegedly transferred to the special housing unit of the prison where he is currently held in solitary confinement and not allowed outdoor recreation. According to the source, at least ten individuals suspected or convicted of terrorism-related offences have been held in prolonged solitary confinement, including during pre-trial detention, under SAMs in the United States of America. Allegedly, it is difficult for individuals to challenge their SAMs because they are usually provided with vague arguments to justify the imposition of their SAMs. Even when individuals are provided with reasons for 2

3 the imposition of their SAMs, due process allegedly cannot be provided since the BOP does not have the authority to remove or modify an individual s SAMs. Consequently, the Administrative Remedy Programme reportedly cannot provide an adequate remedy procedure for individuals challenging the imposition or continuation of their SAMs. In addition, although individuals can challenge the application and conditions of their SAMs before a court after having exhausted the administrative remedy procedure, examination of the decisions in which SAMs have been challenged allegedly demonstrates that the process does not result in substantive opportunities for review. Reportedly, once the words terrorism or national security are invoked, there is near-complete deference to the Executive branch. Individuals who have had SAMs imposed pre-trial generally have not been subject to the exhaustion requirement, and instead have sought to challenge them through motions filed in their criminal cases. In Mr. Hashmi s case, none of the pre-trial motions brought by his defence challenging his SAMs was supported by the judge. Because he is now serving a sentence, Mr. Hashmi is reportedly unable to challenge his condition of detention through the criminal justice process. Mr. Zaid Safarini, a citizen of Jordan, was sentenced for terrorism-related charges in Washington D.C. on 14 March Reportedly, the judge specifically directed him to serve his sentence at ADX, in Florence, Colorado. On 19 July 2004, Mr. Safarini was transferred to ADX in Florence, Colorado and placed in the Z unit upon his arrival. According to the source, in the Z unit, individuals are only permitted to leave their eight square meter cells five hours per week for exercise. On 24 November 2004, Mr. Safarini was moved to the G unit (for the general population ) where he was held in solitary confinement for six years and denied access to the Step-Down Programme which allows individuals detained at ADX to be transferred to lower security facilities when they meet certain behavioral requirements. Allegedly, in a letter written by an ADX warden dated 1 August 2006, Mr. Safarini was denied placement in the Step-Down Programme regardless of his good institutional behavior. According to the source, the justification of his original and continued indefinite placement in solitary confinement was due to the nature of his criminal conviction. According to the information received, individuals held in the G unit spend at least 23 hours each day in cells that measure 5.9 square meters. Each cell contains a bunk for sleeping, a desk, a stool, a shelf, and a single narrow window which does not open and provides no direct sunlight or fresh air. Cells are illuminated with fluorescent light and barred by two doors which prevent individuals from speaking to each other or to prison guards in the hallways. Reportedly, individuals have to take a full strip search before leaving and returning to their cells and are shackled for the period they are outside their 3

4 cells. When individuals are allowed to go outside for recreation, they are placed alone in three by three meter metal cages. On 31 August 2010, Mr. Safarini entered the Step-Down Programme and was moved to the K unit. Reportedly, the social regime of the K unit is less severe and individuals are permitted, for example, to eat in the common area with other individuals and socialize three hours each day. According to the source, the Step-Down Programme is complex and permits prison officials to arbitrarily deny access to, and remove individuals from, the programme at any time and for any reason. Reportedly, individuals convicted of terrorism-related offences have been arbitrarily denied access to the Step-Down Programme at ADX in Florence. Individuals under SAMs are not eligible for consideration for the Step-Down Programme. According to the information received, within hours of the events of 11 September 2001, many Arab and Muslim individuals who were convicted of, charged with, associated with, or in any way linked to terrorist activities were summarily transferred to ADX by the Bureau of Prisons (BOP). Reportedly, transfers of these individuals were justified both as being necessary for national security and as a way to isolate those individuals who might have had information about the events of 11 September According to the source, some of the individuals transferred to ADX had never been considered as a serious security threat prior to the events of 11 September In November 2007, the referral procedures regarding placement at ADX were allegedly amended to allow the BOP to place an individual who is convicted of, charged with, associated with, or in any way linked to terrorist activities at ADX based on national security management concerns. Reportedly, the language referring to terrorist activities is vague and without adequate definition. Moreover, there is no mechanism for individuals to challenge their designation as terrorism related inmates. According to the source, there are approximately 30 individuals held in solitary confinement at ADX Florence, Colorado, on the grounds of their terrorismrelated convictions. Serious concern is expressed about the mental and physical integrity of Messrs. Syed Fahad Hashmi and Zaid Safarini. In addition, concern is expressed about allegations received indicating that individuals suspected or convicted of terrorism-related offences are subjected to prolonged solitary confinement, including during pre-trial detention. Without in any way implying any conclusion as to the allegations mentioned, I should like to appeal to your Excellency s Government to seek clarification of the circumstances regarding the use of prolonged solitary confinement, including during pretrial detention, on Messrs. Syed Fahad Hashmi and Zaid Safarini, as well as other 4

5 individuals suspected or convicted of terrorism-related offences. I would like to stress that each Government has the obligation to protect the right to physical and mental integrity of all persons under its jurisdiction. This right is set forth inter alia in the Universal Declaration of Human Rights (UDHR), the International Convenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT). In this connection, I would like to draw attention of your Excellency s Government to article 10, paragraph 1 of the ICCPR, which provides that All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Concerning the allegations according to which Messrs. Syed Fahad Hashmi and Zaid Safarini have been held in solitary confinement for four and six years respectively, I would like to emphasize that given its severe adverse health effects, the use of solitary confinement, especially when prolonged, can amount to acts prohibited by article 7 of the ICCPR, torture as defined in article 1 of the CAT, or cruel, inhuman or degrading punishment as defined in article 16 of the CAT. In this context, I would like to bring to the attention of your Excellency s Government paragraph 6 of General Comment No. 20 of the Human Rights Committee, which notes that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7 (of the ICCPR), and principle 7 of the Basic Principles for the Treatment of Prisoners, which states that Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged. With regard to the allegations that Mr. Zaid was only permitted to leave his cell five hours per week for exercise when he was held in the Z unit at ADX in Florence, and that Mr. Hashmi was not allowed access to fresh air during his detention at the MCC, I would like to refer your Excellency s Government to paragraph 21(1) of the United Nations Standard Minimum rules for the Treatment of Prisoners, which states that Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. Regarding the allegations that Mr. Syed Fahad Hashmi was held during almost three years in pre-trial solitary confinement, I would like to refer to your Excellency s Government to my report as Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the General Assembly at its 66th session (A/66/268). In paragraph 73 of his report, the Special Rapporteur states that While physical and social segregation may be necessary in some circumstances during criminal investigations, the practice of solitary confinement during pretrial detention creates a de facto situation of psychological pressure which can influence detainees to make confessions or statements against others and undermines the integrity of the investigation [ ]. The Special Rapporteur concludes in paragraph 81 that Considering the severe mental pain or suffering solitary confinement may cause [ ] during pretrial detention [ ], it can amount to torture or cruel, inhuman or degrading treatment or punishment. Moreover, it is my responsibility under the mandate provided to us by the Human Rights Council, to seek to clarify all cases brought to my attention. Since I am expected 5

6 to report on these cases to the Human Rights Council, I would be grateful for your cooperation and observations on the following matters: 1. Are the facts alleged accurate? 2. Please provide detailed information regarding the alleged use of prolonged solitary confinement, including during pre-trial detention, on individuals suspected or convicted of terrorism-related offences, in particular Messrs. Syed Fahad Hashmi and Zaid Safarini. Please provide information on the legal grounds and related guidelines or procedures related to such use of solitary confinement. Please also explain how such use of solitary confinement is compatible with international norms and standards as stated, inter alia, in the International Covenant on Civil and Political Rights and the Convention against Torture. 3. Please provide information on the Special Administrative Measures (SAMs). Are individuals under SAMs provided with an opportunity to challenge the nature of their SAMs? 4. Please indicate whether Mr. Syed Fahad Hashmi was subjected to SAMs, as alleged in this communication, and for what reason. 5. Please provide information on the Step-Down Programme at ADX in Florence, Colorado, and access to this programme by individuals convicted of terrorismrelated offences, and those subject to SAMs, respectively. I would appreciate a response within sixty days. I undertake to ensure that your Excellency s Government s response to each of these questions is accurately reflected in the reports I will submit to the Human Rights Council for its consideration. Please accept, Excellency, the assurances of my highest consideration. Juan E. Méndez Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment 6