Court rubberstamps indefinite imprisonment in Guantanamo and the use of torture against an American citizen

The Supreme Court today declined to hear arguments on behalf of Guantanamo Bay detainees seeking release under the habeas corpus doctrine, and on behalf of an American citizen seeking nominal damages for torture he suffered at the hands of the U.S. government. The Court’s denial of cert means that the U.S. government can indefinitely hold detainees even when there have been no formal charges brought against them.

Another of today’s cert denials impedes an American citizen from bringing suit against high-profile Pentagon officials for authorizing years of torture committed on American soil.

Four years ago tomorrow, in Boumediene v. Bush, the Supreme Court held that detainees can challenge their confinement in Guantanamo Bay as a violation of habeas corpus if the government has not identified the charges against them. Yet today, the Court refused to entertain the detainees’ claims that the consistent denial of habeas corpus petitions by the conservative D.C. Circuit Court of Appeals defies the Supreme Court's precedent in Boumediene.

The D.C. Circuit has never ruled in a detainee’s favor and has explicitly criticized the Boumediene majority, seeming to pay greater heed to the dissents by Chief Justice John Roberts and Justice Antonin Scalia. Bush II appointee Judge Janice Rogers Brown wrote in Latif v. Obama, one of the cases at issue in today’s order, that “Boumediene’s airy suppositions have caused great difficulty for the executive and the courts,” and that the decision has “fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained — even from high-value detainees — is outweighed by the systemic cost of defending detention decisions.” Brown’s opinion places murky and unsubstantiated government accusations above fundamental habeas corpus rights.

One of the most notable appeals denied today arises from Brown’s infuriating decision in Latif. In that case, the district court granted the habeas corpus petition of Yemeni citizen Adnan Latif, who has been held in Guantanamo since 2002. The circuit court reversed the district court’s decision, because government reports stated that Latif was seeking military training from Al-Qaeda, even though Latif had documented proof that he was seeking medical treatment and religious training in Pakistan and Afghanistan. The circuit court’s decision makes it almost impossible for a detainee to be released, by holding that the burden of proof rests upon the detainee to prove that the government’s intelligence is flawed.

In a vigorous dissent, Judge David S. Tatel contended that relying on the government’s unsupported accounts overwhelmingly tips the balance of justice in the government’s favor and allows appeals courts to reject the factual findings of a district court too easily.

Another notable appeal rejected today comes from American citizen Jose Padilla. Padilla sued for nominal damages of $1 against former Defense Secretary Donald Rumsfeld and other government officials, after being tortured for years in a military prison near Charleston, South Carolina. Padilla, born in Brooklyn, claims that he was shackled in stress positions, was injected with “truth serums,” was subjected to sleep deprivation, and was threatened with death. The Supreme Court declined to hear Padilla’s appeal of the lower court’s dismissal of his claims.

That none of the nine justices dissented to the denial of cert for any of the seven Guantanamo cases signals that the notoriously conservative D.C. Circuit Court is now the court of last resort for Guantanamo detainees. Leaving the detainees’ fate in the D.C. Circuit’s hands is tantamount to allowing the government to detain foreign nationals indefinitely without ever formally charging them or bringing them before a court.

Just as distressingly, by declining to hear the appeals, the Supreme Court is also allowing a rogue lower court to flagrantly ignore its precedent when it finds it to be too “airy.”

By allowing the Padilla decision to stand, the Court is helping to shield government officials from disturbing accusations of torture and rubberstamping its continued use. It is especially troubling that an American citizen can be tortured by Americans, on American soil, and have no recourse in American courts.

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Supreme Court Rejects Organizational Liability for Torture

Today the Supreme Court issued its decision (.pdf download) in Mohamad v. Palestinian Authority, holding that the Torture Victim Protection Act of 1991 (“TVPA”) provides for liability only of natural persons, not organizations or corporations.

In this case, the family of a U.S. citizen, who was tortured and killed by intelligence officers of the Palestinian Authority and the Palestine Liberation Organization, sued under the 1991 Torture Victim Protection Act (“TVPA”). The TVPA provides a cause of action against “[a]n individual” for torture or extrajudicial killing committed under authority or “color of law” of any foreign state. The D.C. Circuit affirmed the district court’s dismissal of plaintiffs’ claims on the grounds that the TVPA applies only to natural persons, not to organizations.

Today the Supreme Court unanimously affirmed the D.C. Circuit. In an opinion by Justice Sotomayor, the Court considered the statutory language and legislative history of the TVPA, concluding that the everyday meaning of the word “individual” applies in this case and only includes natural persons. Petitioners had tried to convince the Court that, because Congress normally provides for organizational liability in tort statutes, its use of the word “individual” here was unusual and could only be parsed with consideration of the legislative history.

The legislative history, petitioners argued, reveals that Congress used the word “individual” to make clear that state entities could not be sued, but not to exclude corporate or organizational liability.

The Court’s opinion referenced Mohamad’s companion case, Kiobel v. Royal Dutch Petroleum. The Court initially granted cert in Kiobel on the question of corporate liability under the 1789 Alien Tort Statute, but after oral argument, ordered the parties to brief the issue of extraterritoriality -- that is, whether the ATS covers violations of international law committed overseas -- and put the case to the Court’s next term. Justice Sotomayor’s reference to Kiobel shed little light on the Court’s thinking in that case, although the Court is widely expected to restrict the reach of the ATS when it ultimately rules.

By restricting the reach of the TVPA to natural persons, who may be difficult to identify and are often judgment-proof, the Court has significantly reduced the likelihood that torture victims or victims’ families will be able to hold their torturers accountable.

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A Decade of Guantanamo: Where Do We Stand Today?

Ten years ago this week, the United States opened a detention facility at its naval base in Guantanamo Bay, Cuba.

Since that time, the name “Guantanamo” has come to be associated both in the United States and around the world with torture, lawlessness, indefinite detention, violations of civil rights, violations of international law, and abuse of power. The facility has been open for ten years now, but unfortunately, as Dahlia Lithwick noted this week in Slate, “It’s hard to say anything new about 10 full years of Guantanamo, beyond the fact that most of what we wrote two, four, and seven years ago still holds mostly true.”

As David Cole recognized in the New York Times:

'The existence of Guantanamo likely created more terrorists around the world than it ever detained.’ So said President Barack Obama in 2009, defending his promise to close the prison camp there. He is hardly the only one to hold the view that Guantánamo undermines our security and should be shuttered. Former President George W. Bush, former Secretary of Defense Robert Gates, former secretaries of state Colin Powell and Condoleezza Rice, and Senator John McCain, all agreed that the United States would be better off without Guantánamo. Few images do more to serve Al Qaeda’s interests.

There were hopes that the United States could remove this stain on its national character.  Unfortunately, Congress has imposed restrictions on detainee transfers that have made it much more difficult to turn the page on this sad chapter in American history.

The United States was founded on a set of principles, and those principles are challenged every day by the continued operation of Guantanamo Bay and by everything Guantanamo Bay has come to represent.  Serious accusations have been made that torture was commonplace at Guantanamo, and Alliance for Justice has long advocated for greater accountability for those who legitimized torture at such facilities. We have called on Attorney General Eric Holder to conduct a full investigation of those who authorized torture.

This facility has been allowed to remain open for an entire decade.  It must not remain open any more.

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Ten Years Too Many

Wednesday, January 11th marks the 10th anniversary of the arrival of the first prisoners at Guantanamo Bay. It will also be three years since President Obama pledged to close the detention facility.

Next Wednesday, the National Religious Campaign Against Torture (NRCAT) and broad a coalition of religious and human rights organizations will join together in Washington, DC to raise a voice of faith and conscience to mark this anniversary and send a message to the president and Congress that this is “10 Years Too Many."

You can learn more and register to participate in the rally here.

Noon - Rally at Lafayette Square (across from the White House)
1:00pm - Public Witness: a human chain of more than 2000 people, stretching from the White House to the Capitol
2:00pm - Interfaith Reception at NY Ave Presbyterian Church will follow the public witness
3:00pm - Interfaith Prayer Service at NY Ave Presbyterian Church led by Rev. J. Herbert Nelson (Director of the Washington Office of the Presbyterian Church USA), Rabbi Rachel Kahn-Troster (Rabbis for Human Rights-North America), and other religious leaders.

Ahead of this tragic anniversary, a new report by Human Rights USA and the International Human Rights Law Clinic at American University Washington College of Law was released detailing the Bush administration's torture policies. The report presents detailed evidence that high-ranking Bush administration officials planned and authorized the illegal interrogation techniques which were used against detainee terror suspects. You can read more about the report here.

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Report Outlines Bush Administration Torture Policy, Calls for Investigations and Prosecutions

Human Rights USA, a non-profit human rights organization, released a report today entitled “Indefensible: A Reference for Prosecuting Torture and Other Felonies Committee by U.S. Officials Following September 11th.” The report presents detailed evidence that torture was the official policy of the Bush administration and that high-ranking Bush administration officials planned and authorized the illegal interrogation techniques which were used against detainee terror suspects in the aftermath of September 11th. The report calls for repudiation of torture by the U.S. government and accountability for government officials who authorized the torture. It also serves as a how-to guide for prosecutions of these officials should be conducted going forward.

From 2002 to 2007, the United States Department of Justice sanctioned acts of torture committed by members of the U.S. Central Intelligence Agency against detained suspected terrorists.  These acts of torture were outlined and authorized in a series of secret "torture memos" drafted by John Yoo, Jay Bybee, and Steven Bradbury, senior lawyers in the DOJ's Office of Legal Counsel. In the decade since the beginning of the Bush administration’s illegal anti-terrorism policies, not one torture survivor has been able to bring to justice the government officials who authorized the acts of torture. The Human Rights USA report lays the groundwork for litigation against government officials responsible for approving and using illegal interrogation techniques that were the official policy of the Bush administration.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law,  and advocates for full accountability for those officials in the U.S. government who legitimized torture. AFJ applauds and supports the Human Rights USA’s efforts to bring further light to the torture policies and achieve accountability for torture.

The new report is a collaborative effort between Human Rights USA and the International Human Rights Law Clinic at American University Washington College of Law. The report is available online.

To learn more about accountability for torture, visit our webpage.

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Corporate Court Grants Cert. in Human Rights Cases

The United States Supreme Court today granted cert. in two cases that affect the rights of individuals seeking to hold corporations and other organizations responsible for human rights violations.

In Kiobel v. Royal Dutch Petroleum, twelve Nigerian nationals sued Royal Dutch Petroleum and two other oil companies for aiding and abetting human rights abuses committed in the Ogoni Region of Nigeria in the early 1990s. To protest the environmental damage caused by the defendants' oil exploration and production in the Ogoni region, Nigerian residents organized the “Movement for Survival of Ogoni People.” Plaintiffs allege that defendants then enlisted the Nigerian government to suppress the Ogoni activists.

In 1993 and 1994, the Nigerian military was involved in a variety of human rights abuses – shooting, killing, beating, raping, and arresting residents, as well as destroying and looting property – allegedly with the assistance of defendants.

To obtain compensation, and to deter future corporate wrongdoing, plaintiffs brought their claims under the Alien Tort Statute (ATS), alleging that defendants had aided and abetted the Nigerian government in violating the law of nations, including extrajudicial killing, crimes against humanity, torture or cruel, inhuman, and degrading treatment, arbitrary arrest and detention, forced exile, property destruction, and violation of the rights to life, liberty, security, and association.

The District Court dismissed some of the plaintiffs’ claims, finding that they were not established clearly enough under customary international law, while permitting the remainder to proceed. Both parties appealed the court’s ruling. Rather than decide the issues that had been certified for appeal, in a 2-1 decision, a panel of the Second Circuit Court of Appeals dismissed all claims by finding that corporations are not liable under the ATS.

The Alien Tort Statute, which was enacted by the first Congress in 1789, establishes jurisdiction for torts “committed in violation of the law of nations or a treaty of the United States.” Considering the limited jurisdiction of the ATS, the Second Circuit majority concluded that, while states and individual men and women have been held liable for human rights violations, corporations have not. The majority acknowledged that corporations are generally considered by U.S. courts to be “persons,” with corresponding rights and liabilities. However, it insisted that liability under domestic law – including under the laws of “most or even all ‘civilized nations’” – does not create a norm of customary international law.

As Judge Pierre Leval, who concurred only in the judgment, stated in a separate opinion, the majority “deal[t] a substantial blow to international law and its undertaking to protect fundamental human rights” by creating a rule “[w]ithout any support in either the precedents or the scholarship of international law. In Judge Leval's view, the majority was wrong to derive a lack of precedent for the civil compensatory liability of corporations based on the lack of jurisdiction for international criminal tribunals.

Furthermore, the court deemed the matter a jurisdictional question, which the court may address on its own at any point, rather a question of the merits of the case, which is waived if not raised by the defendants. The Second Circuit’s holding created a split among the circuits, as the Eleventh Circuit has held that corporations can be held liable under ATS just like any private party. The issue of corporate liability under the ATS is also pending in the D.C., Seventh, and Ninth Circuits.

The Supreme Court will also hear argument in the related case of Mohamad v. Rajoun. In that case, the family of a U.S. citizen, who allegedly died of injuries sustained during torture by officers of the Palestinian Authority and the Palestine Liberation Organization, sued under the 1991 Torture Victim Protection Act (TVPA). The D.C. Circuit affirmed the district court’s dismissal of plaintiffs’ claims on the grounds that the TVPA – which establishes the civil liability of “individuals” – applies only to natural persons, not to organizations. If the Supreme Court affirms the lower courts’ decisions in favor of the defendants in each of these cases, it will allow corporations and other organizations to act with impunity to perpetrate crimes against humanity.

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Former Judges Speak Out on Overmilitarizing Counterterrorism Efforts

In an op-ed last Friday, three former federal judges criticized Congressional attempts to “overmilitarize” America’s counterterrorism efforts.

Former D.C. Circuit Court of Appeals Judge and AFJ Champion of Justice Honoree Abner Mikva, former District Court Judge for the Western District of Texas William Sessions, and former Third Circuit Court of Appeals Judge John Gibbons argue that legislation pending in Congress undermines the fundamental role of our nation’s courts by giving the power of “judge, jury and jailer” to the U.S. military.

The National Defense Authorization Act of 2012, which has passed the House and is awaiting a vote in the Senate, includes provisions that would codify the practice of indefinitely detaining terrorist suspects without charges. The bill would be applicable to anyone – even U.S. citizens – detained in anti-terrorist efforts anywhere in the world, including on U.S. soil.

The group of judges emphasized the fact that the criminal justice system, rather than military commissions, is best equipped to handle terrorism cases, and has the most experience doing so. While civilian courts have the benefit of hundreds of terrorism-related trials, military commissions, such as the one at Guantanamo Bay, have handled few such trials and are plagued by constitutional problems. The judges concluded by calling on President Obama and Congress “to support a policy for detention and trial of suspected terrorists that is consistent with our Constitution and maintains the use of our traditional criminal justice system to combat terrorism.”

In monitoring our government’s counterterrorism programs, AFJ has sought to ensure that our most cherished constitutional freedoms are not sacrificed, and that those who made the decision to condone torture are held to account. Click here to learn more about our work for torture accountability.

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Indictment Requested Against Bush for Torture in Canada

The Center for Constitutional Rights (CCR) and the Canadian Centre for International Justice (CCIJ) have submitted a 64-page letter to the Attorney General of Canada making the factual and legal case for indicting President George W. Bush for torture under the Canadian Criminal Code and the Convention Against Torture (CAT).  The move comes in advance of Bush’s scheduled October 20 speech at the Surrey Regional Economic Summit in Surrey, British Columbia.

CCR and CCIJ are calling on Canada’s Attorney General to begin a criminal investigation of Bush for his administration’s creation and use of a systematized torture program -- a program, they note, that Bush himself has admitted to authorizing and which is supported by ample publicly available evidence.  The organizations assert that Bush must be held accountable for actions he ordered and oversaw, including “enforced disappearance and secret detention, exposure to extreme temperatures, sleep deprivation, punching, kicking, isolation in ‘coffin’ cells for prolonged periods, threats of bad treatment, solitary confinement, and forced nudity” of detainees.”

Announcing this action, CCR Senior Staff Attorney Katherine Gallagher stated:

“George Bush has openly admitted that he approved the use of torture against men held in U.S. custody. . . . Despite this admission, no country has been willing to investigate and prosecute Bush’s criminal acts, leaving the victims of his torture policies without any justice or accountability. Canada is a signatory to the Convention Against Torture, and has an obligation to investigate Bush for his leadership role in the U.S. torture program. Torturers – even if they are former presidents of the United States – must be held to account and prosecuted. We urge Canada to put an end to impunity for Bush.”

CCIJ Legal Director Matt Eisenbrandt said:

“Canada has a strong legal framework and there is absolutely no ambiguity in our criminal code when it comes to committing or allowing torture. . . . There is grave evidence that former President Bush sanctioned and authorized acts of torture, not only in violation of Canadian laws, but also of international treaties that Canada has ratified. It is therefore clear that our government has both the jurisdiction and the obligation to prosecute Bush should he set foot again on Canadian territory.”

Noting that the United States has refused, so far, to live up to its obligation to hold torturers accountable for their actions under the CAT, CCR and CCIJ requested that Canada abide by its commitments as a signatory to the Convention and hold President Bush liable for his actions.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law,  and continues to advocate for full accountability for those officials in the U.S. government who legitimized torture.  AFJ applauds and supports these groups’ efforts to achieve accountability for torture.

The document, along with over 4,000 pages of supporting materials, is available online.  To learn more about accountability for torture, visit our webpage [http://www.afj.org/connect-with-the-issues/accountability-for-torture/]

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Cheney on Torture: "Safe, Legal, and Effective"

Former Vice President Dick Cheney this week released a new memoir, In My Time. Dahlia Lithwick writes compellingly that this memoir is yet another feeble attempt to reignite the debate over whether torture is wise policy, and in so doing, to try to legitimize a patently illegal practice.

This week Dick Cheney invites us all to join him again in a game he likes to play against the rest of us called Tedious Torture Standoff. He continues to assert—this time in his memoir, In My Time—that he has “no regrets” about developing the U.S. torture program, and he continues to argue—as he did this morning on the Today Show—that torturing prisoners is “safe, legal, and effective.” He continues to assert that he would “strongly support” water-boarding if actionable information could be elicited from a prisoner. He even says that different standards apply to torturing Americans and foreigners. Cheney is trying, in short, to draw us back into the same tiresome debate over the efficacy of torture, which is about as compelling as a debate about the efficacy of slavery or Jim Crow laws. Only fools debate whether patently illegal programs “work”—only fools or those who have been legally implicated in designing the programs in the first place.

Ltihwick goes on to observe that by not holding Cheney and the other architects of the torture regime accountable, President Obama has legitimized their behavior and elevated the torture debate.  Because he has not been held accountable, Cheney is able to claim that his actions were legal. Addressing the fundamental role accountability plays in the rule of law, Lithwick writes that:

Torture really did become legal after 9/11, and even after it was repudiated—again and again—it will always be legal with regard to Dick Cheney and the others who perpetrated it without consequence. The law wasn't a hollow symbol after 9/11. It was the only fixed system we had. We can go on pretending that torture is no longer permissible in this country or under international law, but until there are legal consequences for those who order or engage in torture, we will only be pretending. Cheney is the beneficiary of that artifice.

To read the full article, click here.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law, and continues to advocate for full accountability for those officials in the U.S. government who legitimized torture.

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New York Times applauds Seventh Circuit ruling allowing torture suit to proceed

On Sunday, an editorial in the New York Times applauded a recent Seventh Circuit Court of Appeals ruling which allows two Americans to sue former Secretary of Defense Donald Rumsfeld and others for violating their rights. Alliance for Justice also wrote about the case, focusing on the fact it was a 2-1 decision written by President Obama’s first circuit court nominee, Judge David Hamilton of the Seventh Circuit. In its strongly-worded editorial, the Times explained:

The case is important because it makes clear – for the first time – that government officials can be held accountable for the intentional mistreatment of American citizens, even if that conduct happens in a war zone. (Sadly, there remains no accountability for the abuse, and torture, of foreigners by American jailers and interrogators, which Mr. Rumsfeld and President George W. Bush personally sanctioned.)

In allowing the suit to go forward, the court said the plaintiffs had alleged facts showing “that it is plausible, and not merely speculative, that Secretary Rumsfeld was personally responsible for creating the policies that caused the alleged unconstitutional torture,” and that he “acted with deliberate indifference by not ensuring that the detainees were treated in a humane manner despite his knowledge of widespread detainee mistreatment.”

The court rejected what it called the “unprecedented breadth” of the argument put forward by Mr. Rumsfeld and other defendants — that no government or military employee could ever be sued by American civilians for torture or even murder in a war zone. The court made plain that the wrongdoing alleged “violates the most basic terms of the constitutional compact between our government and the citizens of this country.”

Alliance for Justice applauds the New York Times editorial, as we continue to demand accountability for torture. To learn more about the issue and our efforts, click here.

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Obama Appointee Writes Majority Decision Allowing Torture Suit to Proceed Against Rumsfeld

Judge David Hamilton, an Obama appointee to the 7th Circuit Court of Appeals who was filibustered by Republicans, cast the deciding vote yesterday in a decision with important implications for torture accountability. The Court ruled 2-1 that a lawsuit against former U.S. Defense Secretary Donald Rumsfeld by American citizens who claim to have been tortured could proceed. Judge Hamilton’s ruling in Vance v. Rumsfeld makes clear, President Obama’s judges are already having an impact on our country’s jurisprudence.

In the first 30 months of his presidency, Obama has seen 95 judges confirmed – far fewer than the number confirmed by Presidents Clinton and Bush at similar points in their presidencies.

Judge Hamilton filled a seat left vacant when Judge Kenneth Ripple, a Reagan appointee, retired. Prior to joining the Seventh Circuit, Judge Hamilton was a district court judge in the Southern District of Indiana. His stellar record on the bench, in addition to his commitment to ensuring equal justice for all, made him a strong appellate court nominee. Nonetheless, his nomination stalled in the Senate for over eight months, and his confirmation required the Senate’s first judicial filibuster. Hamilton won that vote by a margin of 70-29, and his confirmation by a vote of 59-39 on November 19, 2009. Senator Lugar was the only Republican to vote to confirm him.

Judge Hamilton’s ruling in Vance v. Rumsfeld is a powerful disavowal of the policy that lead to the plaintiffs in Vance being tortured: “The wrongdoing alleged here violates the most basic terms of the constitutional compact between our government and the citizens of this country. ... There can be no doubt that the deliberate infliction of such treatment on U.S. citizens, even in a war zone, is unconstitutional.”  The Department of Justice had argued that even if everything plaintiffs alleged were true, Rumsfeld was entitled to qualified immunity and could not be sued.  Luckily, Judge Hamilton rejected the Obama Administration’s position.

The plaintiffs in Vance are U.S. citizens who were in Iraq to work for Shield Group Security, an Iraqi company providing security services for infrastructure projects. According to reporting by the New York Times, one of the plaintiffs was a whistleblower who reported the company’s suspicious conduct to the FBI, but when the US military raided the company the informant and another employee were mistakenly detained, held for three months, and tortured.  They were eventually released without being charged with a crime.

Dahlia Lithwick wrote about the ruling on Slate:

This case isn't about the rights of an enemy soldier detained on a battlefield with a weapon in his hand. It's about the rights of brave whistle-blowers who were tortured by bureaucratic mistake.

If you don't believe the war on terror is migrating into your backyard, this case is confirmation. If you don't think the state-secrets doctrine will be trotted out to protect the government's abuse of innocent Americans as well as foreign prisoners, this case proves it. If you worry that "turning the page" means always finding more of the same, this case makes that plain. A country in which nobody is ever really responsible is a country in which nobody is ever truly safe.

The 7th Circuit decision comes on the heels of a district court decision last week also allowing a separate but similar torture claim against former Defense Secretary Rumsfeld to go forward. The plaintiff in that case is a civilian employee of an American defense contracting company in Iraq who alleges he was abducted by the American military in 2005, held, and tortured for nine months in a military jail without ever being charged with a crime. In allowing the claim against Rumsfeld to move forward, Judge Gwin of the U.S. District Court for the District of Columbia held that the Constitution protects Americans at home and abroad and that “the court finds no convincing reason that United States citizens in Iraq should or must lose previously-declared substantive due process protections during prolonged detention in a conflict zone abroad.”[1]

Alliance for Justice praises these decisions and continues to demand accountability for torture. These recent court decisions are a step in the right direction to ensuring that our leaders are held accountable for their actions. Learn more about accountability for torture here.

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District Judge Allows Army Veteran to Sue Rumsfeld for Torture

United States District Judge James Gwin has permitted an Army veteran to go forward with a federal suit in the District of Columbia against former Secretary of Defense Donald Rumsfeld for torture, the Seattle Times reports.

The veteran, whose name is undisclosed, was an employee of an American contracting company and translator for the U.S. Marine Corp in the Iraqi province of Anbar.  As he was preparing to return home, the military suddenly arrested and imprisoned him for nine months, denying him representation by a lawyer, by the Marines, or by his employer, and without informing his family, who was expecting him home for annual leave.  While in prison, he suffered abuse, including being kicked, threatened, and blindfolded during questioning.  The Department of Justice accused him of helping give the enemy confidential information and helping the enemy to enter Iraq.  However, after months of incarceration and interrogation, the government never formally charged him.

The man’s attorney, Mike Kanovitz, suspects the military of detaining his client to keep him from revealing an important connection he made with a sheik while gathering information in Iraq.

The lawsuit alleges that Secretary Rumsfeld himself made decisions about torture techniques on a case-by-case basis, including the decision to hold this veteran without access to the legal system.  This case is one of the few in which a federal judge has allowed a suit against Rumsfeld personally to go forward.  Last year, District Judge Wayne Andersen of the Northern District of Illinois held that torture victims Donald Vance and Nathan Ertel could personally sue Rumsfeld for approving the methods used on them.  Suing a high-ranking government official has become difficult under the Supreme Court’s decision in Ashcroft v. Al-Kidd, which held that a suit against a high-ranking official may only proceed if that official was directly connected with a constitutional rights violation and fully knew that the action was such a violation.

In allowing the suit to proceed, Judge Gwin held that “[t]he court finds no convincing reason that United States citizens in Iraq should or must lose previously declared substantive due process protections during prolonged detention in a conflict zone abroad.”

Thus far, no high-ranking officials have been held accountable for torture. Click here to learn more about accountability for torture.

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Human Rights Watch to the Obama Administration: Don’t Let Torturers Get a Free Pass

- Peter Laumann

In a powerful Washington Post op-ed today, Human Rights Watch Executive Director Kenneth Roth reminds us that we cannot truly move forward as a country without holding accountable those officials who authorized and justified torture.

Republicans have continued to engage in “self-serving propaganda” by claiming that torture led us to Osama bin Laden (it didn’t), or that we can’t prosecute terror suspects in civilian courts because (inherently unreliable) evidence seized through torture is inadmissible. In his op-ed today, Roth gives two decisive reasons to reject President Obama’s equivocal “look forward, not backward” approach to torture: without accountability, there is nothing to stop torture from happening again; and not investigating and prosecuting tortures is a violation of our binding obligations under the Geneva Conventions and U.N. Convention against Torture.

Roth’s piece coincides with the release of Getting Away with Torture, a methodical Human Rights Watch Report cataloging, in painful detail, the harsh realities of the torture regime, the legal case for accountability, and what remains to be done. Unfortunately, the Obama Administration has failed to enforce the law and prosecute those who now gloat over their authorization of torture. While the investigation assigned to Assistant U.S. Attorney John Durham once carried promise, its scope was limited only to personnel on the ground who exceeded authorized interrogation techniques, rather than to those at the top who fabricated new legal doctrines to justify a clearly illegal regime of torture. Even in this severely circumscribed class of roughly one hundred cases, only two will receive a full criminal investigation from the Department of Justice.

The Convention against Torture authorizes universal jurisdiction for punishing war crimes. After waiting for the United States to follow its legal obligations, Spain initiated investigations into Bush Administration officials’ complicity in the torture regime, after its criminal case against Spanish Guantánamo Bay detainees fell apart due to the systematic abuse of prisoners at the American prison facility.

Another lawsuit filed by victims of alleged torture in Switzerland forced former President Bush to cancel his trip to the country in February.

Human Rights Watch has urged the United States to comply with its obligations through a series of targeted recommendations. These include: full pursuit of Department of Justice criminal investigations into post-9/11 interrogation and detention practices; a nonpartisan Congressional commission to use a variety of tools – including the possible appointment of a special prosecutor – to investigate mistreatment of detainees; and ensuring that victims of torture are provided adequate redress as required by the Convention against Torture.

Other countries have gone through a period of soul-searching, during which former government officials were held accountable for serious crimes. Conservatives made a national spectacle with President Clinton’s impeachment for sexual misconduct. It is time that the far more serious offense of legitimizing torture – a clear crime against humanity under binding human rights treaties and domestic law – is brought to justice through the American legal system. Alliance for Justice documented the radical justifications for torture in Tortured Law, and continues to advocate for full accountability for those officials in the U.S. government who legitimized torture.

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Department of Justice Announces It Will Not Prosecute Nearly 100 Incidents Allegedly Involving Torture

In 2009, U.S. Attorney General Eric Holder directed special prosecutor John Durham to investigate the interrogations of certain detainees, alleged to have been tortured, and to determine whether federal law may have been broken. Durham has been actively investigating these cases – some of which were fatal. Attorney General Holder today announced that a full criminal investigation will be launched into two of those cases, both of which resulted in the death of the detainee. The remaining 99 instances of alleged abuse will be dropped from Durham’s ongoing investigation.

According to Attorney General Holder’s statement:

Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.

While AFJ applauds the fact that two of the incidents will be criminally investigated, we continue to believe that accountability must go to the highest levels and include those who crafted the Bush Administration’s torture policy – including the lawyers who twisted the law to justify torture as an acceptable tactic in the so-called war on terror. AFJ has long believed that accountability for torture is necessary to ensure that these gross human rights abuses do not happen again and to restore our country’s reputation as a nation of laws. The AFJ film Tortured Law explores the role government lawyers played in authorizing torture, and calls for a full-scale investigation of those who ordered and justified torture.

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Senate Confirms Three DOJ Nominees

Today the Senate confirmed three top Justice Department attorneys after a lengthy delay. James Cole, who has been opposed by Republicans because he supported using civilian courts to try suspected terrorists, was confirmed 55-42 to be Deputy Attorney General. Cole was nominated on May 24, 2010, and was successfully filibustered by Republicans in May of this year. Virginia Seitz was confirmed on a voice vote to head the Office of Legal Counsel (“OLC”), and she is the first Senate-confirmed OLC head since 2004. Finally, Lisa Monaco was confirmed on a voice vote to lead the National Security Division.

Seitz’s nomination is notable because the OLC is known as the "constitutional conscience" of an administration, offering authoritative opinions on complex and important legal matters about which agencies within the executive branch might disagree, and exercising judgment independent of the political will of the president. However, during the Bush Administration between 2002 and 2007, OLC lawyers such as Jon Yoo and Jay Bybee authorized every interrogation practice proposed by the CIA, even those that many legal experts agree violate our federal laws prohibiting torture and conspiracy to commit torture and war crimes; our constitutional ban on cruel and inhuman treatment; and the Geneva Conventions' absolute prohibition of torture.

For more information on the OLC and issues related to torture, please visit AFJ’s Accountability for Torture webpage.

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Special Prosecutor Durham May Soon Issue Subpoenas in Torture Investigation

U.S. Attorney John Durham has begun to subpoena witnesses before a grand jury as part of an ongoing investigation into alleged acts of CIA Bush-era torture, according to TIME Magazine. In 2009, U.S. Attorney General Eric Holder instructed Durham to investigate approximately 12 instances of interrogation involving torture of suspected terrorists, some of which were fatal.

Although the name of the individual(s) who may be prosecuted remains unknown, TIME reports rumors that CIA interrogator Mark Swanner may be the subject of the prosecution. While pursuing the case marks a positive step towards justice for Bush-era war crimes, Alliance for Justice believes that accountability must extend to the orchestrators of the torture at the highest levels, including the authors of the torture memos, like John Yoo and Jay Bybee.

AFJ has long believed that accountability for torture is necessary to ensure that these gross human rights abuses do not happen again and to restore our country’s reputation as a nation of laws. The AFJ film Tortured Law explores the role government lawyers played in authorizing torture, and calls for a full-scale investigation of those who ordered and justified torture.

To read the full TIME article, click here.

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U.S. Government Sides with Private Contractors against Abu Ghraib Torture Victims

Saleh v. Titan, a class action lawsuit against two corporate government contractors filed on behalf of over 250 alleged Abu Ghraib torture victims, is currently awaiting Supreme Court review.

The named plaintiff, Haidar Saleh, was tortured by Saddam Hussein at the Abu Ghraib prison, fled to the United States, repatriated to Iraq at the encouragement of the U.S. government after Hussein’s downfall, and in a cruel twist of fate was subsequently detained and tortured by U.S. forces at Abu Ghraib. This lawsuit sought to hold Titan Corporation and CACI International Inc. liable for providing interrogation and translation services which contributed the plaintiff’s abuse.

In 2009, a panel of judges on the U.S. Court of Appeals for the D.C. Circuit dismissed all claims against both defendants, including causes of action under state tort law and the federal Alien Tort Statute. After the plaintiffs filed a writ of certiorari in 2010, the Supreme Court invited the government to weigh in with a brief expressing the federal government’s position.

Unfortunately, on May 27, the government’s brief urged the Supreme Court to decline to consider the appeal. While the brief detailed the abuses the plaintiffs suffered and characterized the Circuit Court’s holding as “unclear and imprecise and... potentially misguided,” the government nonetheless urged the Supreme Court to decline to hear the case until a split develops among circuit courts. Given the important question involved – whether private contractors who participate and contribute to abuse and torture are immune from liability – victims of torture and abuse should have their day before the Court.

The plaintiffs are represented by Katherine Gallagher of the Center for Constitutional Rights, Susan L. Burke and Katherine Hawkins of Burke LLC, and Shereef Akeel, of Akeel & Valentine, PLC.

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Panel Discusses U.S. Detention Policy

- Joshua Friedlander

Yesterday, the Constitution Project, a non-profit think tank focused on building bipartisan consensus on pressing constitutional questions, hosted an panel discussion on the detention of terrorism suspects. From the government’s misuse of the Material Witness Statute to holding Guantanamo Bay detainees on limited evidence, the United States’ detention policies have spurred political, constitutional, and judicial debates.

This term’s Supreme Court case Ashcroft v. al-Kidd directly challenges the status quo of U.S. detention policy. Central to Mr. al-Kidd’s case is the Material Witness Statute, which allows the government to detain someone with material evidence to another case. The lower courts have ruled in favor of al-Kidd, however the Supreme Court will make the final judgment. In the wake of 9/11, the use of Material Witness warrants to detain terrorist suspects increased substantially. However, out of the 70 Material Witnesses detained, only half had been called to testify. According to Lee Gelernt, Deputy Director of the American Civil Liberties Union’s Immigration Rights Project and Mr. al-Kidd’s counsel, the Material Witness Statute is being used as a preventative detention tool.

In order to detain people the government lacked sufficient evidence to arrest, the Material Witness Statue has served as a preventative detention tool – allowing law enforcement to detain and investigate persons who they otherwise could not. Mr. al-Kidd, an American citizen, was detained while attempting to leave the country for Saudi Arabia on an academic scholarship. According to the government, al-Kidd was a terrorist suspect because of his association with an Idaho-based Muslim charity whose leader had also been detained by the FBI. However, concerns surrounding the affidavit the FBI used to detain al-Kidd reveal false statements about the plaintiff. Nonetheless, he was held in extremely restrictive conditions, subject to strip searches, shackling and 24-hour exposure to sunlight for over two weeks. He was released after 16 days and was never called as a witness.

The Supreme Court of the United States is now determining whether the Material Witness Statute can be employed to preventatively detain suspects. According to Gelernt, preventative detention is extremely dangerous given the implications it has for innocent people like al-Kidd. The Obama Administration has actively urged the Court to validate the manner in which the statute has been applied.

Click here to learn more about this case.

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Supreme Court Denies Cert Mohamed v. Jeppesen in a Blow to Torture Accountability

The Supreme Court today denied certiorari in Mohamed v. Jeppesen Dataplan, a Ninth Circuit Court of Appeals decision that kicked out of court a lawsuit claiming that the victim had been tortured. The Ninth Circuit en banc panel voted 6-5 to dismiss the case, upholding an assertion of the state secrets privilege, first raised by the Bush Administration and now by the Obama Administration, that the need to protect state secrets trumps the ability of former prisoners to sue over alleged torture.

The ruling is another blow to accountability for torture that took place under the Bush Administration. According to the New York Times,

“The lawsuit was brought in 2007 against a Boeing subsidiary, Jeppesen Dataplan,
that the plaintiffs said had arranged the rendition flights that took them to
Morocco, Egypt and Afghanistan to be tortured. One of the men, Binyam Mohamed,
had his bones broken in Morocco, where security agents also cut his skin with a
scalpel and poured a stinging liquid into his wounds.”

The 9th Circuit opinion, which will remain in effect now that the Supreme Court has denied cert, “reluctantly” concluded that state secrets trump the “fundamental principles of our liberty, including justice, transparency, and accountability” in this case. Notably, the 9th Circuit’s decision held that the claims could not proceed “even assuming plaintiffs could establish their case solely through nonprivileged evidence.”

Alliance for Justice joined a letter signed by 20 other groups calling on the Department of Justice to implement a policy, as it promised, to ensure that there is transparency and accountability in cases like this where credible assertions of government wrongdoing have been raised. The Attorney General announced a policy in 2009 whereby DOJ would make referrals to the inspectors general of the CIA, DOJ, Defense Department, or other appropriate agency, when a civil complaint dismissed on state secrets grounds raised credible allegations of wrongdoing. When the judicial system fails to provide accountability and transparency by allowing cases to be dismissed on state secrets grounds, requiring an inspector general to investigate the allegations would provide some modicum of accountability.

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The Torture Debate Continues. Here's Why.

William Yeomans offers some great insight and analysis into the renewed debate over torture in the wake of Osama bin Laden's death:

The unity and pride inspired by the killing of Osama Bin Laden has quickly deteriorated into a nasty debate over the effectiveness of torture.

The administration is reportedly upset by this diversion. But President Barack Obama has nobody to blame but himself.

While President George W. Bush took the nation down the dark path to torture, Obama ensured that it remained part of our national debate by failing to investigate and hold to account those who tortured.

His failure to do so means that we now debate publicly whether or not to torture based on assessments of whether or not torture is effective – a question relevant only if we accept that effective torture is justified. Torture, it seems, is no longer immoral or unlawful so long as it works.

The current debate offers occasion to consider the distance we have covered in legitimating torture. In 1984, President Ronald Reagan — no national security softy — signed the U.N. Convention Against Torture. In his signing statement, Reagan denounced torture as an “abhorrent” practice and emphasized the need for universal jurisdiction to prosecute individuals who engaged in torture or other cruel, inhuman or degrading practices.

The convention, later ratified by the Senate, obligates nations to prosecute treaty violators. At the time, it was unthinkable that the United States – the world’s beacon for human rights — would make use of torture and cruel practices official policy. Indeed, Congress passed legislation to make torture a criminal offense.

Read more here.

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