Congress presses for torture accountability and rule of law …. in Russia
Moscow is reacting angrily to legislation moving through the U.S. Congress that would impose travel bans and other punitive measures on Russian officials deemed responsible for the death of Sergei Magnitsky, a lawyer who died in a Russian prison in November 2009.
Russian Deputy Foreign Minister Sergei Ryabkov said on Friday that Moscow will introduce a number of tough retaliatory measures if Congress passes the so-called Magnitsky List bill, potentially blacklisting several dozen Russian officials from entering the United States.
“If this outrageous move takes place, Moscow’s reaction will be complex, multidimensional and really tough,” Ryabkov said, adding that Moscow hoped “the worst thing [the adoption of the Magnitsky list] will not happen.”
The legislation seeks to promote rule of law in Russia by punishing those responsible for the death of Magnitsky, a Russian lawyer who had exposed officially sanctioned tax fraud and was imprisoned at the Butyrka prison in Moscow in November 2008. He was held for 358 days without trial, and a week before he would have had to have been released if he were not brought to trial, Magnitsky died for reasons attributed first by prison officials as a “rupture to the abdominal membrane” and later to heart attack.
However, a report released in late 2009 by the Public Oversight Commission, a Moscow-based nongovernmental organization, found that after complaining of worsening stomach pain for five days, Magnitsky had been denied treatment in part because investigators were pressing him to testify in a high-profile tax evasion case against Hermitage Capital Management, an investment company that had fallen out of favor with Russian officials.
His death led President Dmitri Medvedev to order a criminal investigation and dismiss as many as 20 top prison officials. The case has become an international cause célèbre, and the U.S. Congress took up the cause with the Magnitsky Rule of Law Accountability Act, which seeks to impose visa bans and asset freezes on the Russian officials involved in Magnitsky’s death, as well as for other human rights abuses in Russia.
The House passed its version of the bill on June 7, and the Senate Committee on Foreign Relations is scheduled to vote on its version of the bill on June 19.
Besides the outrage the legislation is causing in Moscow and the likely repercussions it will have on bilateral U.S.-Russian relations, Congress’s aggressiveness on this issue is also a reminder of its lack of any comparable action seeking accountability for U.S. officials who have sanctioned torture or indefinite detention in the United States or American prisons abroad.
The bill, for example, deplores the fact that Magnitsky was held for “nearly 12 full months … without trial in detention,” which indeed would be a cause for concern, were it not so laughable coming from a body – the U.S. Congress – that has just authorized the indefinite detention of even U.S. citizens with its adoption of the 2012 National Defense Authorization Act.
Section 1021 of the NDAA “affirms” that the authority of the president includes the power to detain, via the United States military, any person “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners”, and anyone who commits a “belligerent act” against the U.S. or its coalition allies in aid of such enemy forces, under the law of war, “without trial, until the end of the hostilities.”
So, Congress in one breath authorizes indefinite detention without trial in the United States, and then deplores it when it takes place in Russia.
The Magnitsky bill further reminds Russia of its obligations as a member of the United Nations, the Organization for Security and Co-operation in Europe, and as a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights.
The United States, of course, is also a party to these conventions and has been routinely flouting them for years through its policies of torture and indefinite detention. The U.S. has held thousands of detainees without charge or trial for years on end, in Iraq, Afghanistan, secret prisons in Europe and at Guantanamo Bay. Non-citizens and citizens alike have been held without the benefit of a day in court, in conditions often amounting to torture, according to legal experts and UN officials.
Jose Padilla, for example, is a U.S. citizen who was held for nearly four years at a naval brig in South Carolina without charge as an “enemy combatant.” According to his attorneys, Padilla was routinely mistreated and abused in ways designed to cause pain, anguish, depression and ultimately the loss of will to live.
“The extended torture visited upon Mr. Padilla has left him damaged, both mentally and physically,” said a court filing by Orlando do Campo, one of Padilla’s lawyers. The filing says that Padilla was subjected to sleep deprivation and extremes of heat and cold, and forced to stand for extended periods in painful “stress positions.”
His lawyers have also claimed that Padilla was forced to take LSD and PCP to act as truth serums during his interrogations.
Forensic psychiatrist Dr. Angela Hegarty, who interviewed Jose Padilla for 22 hours to determine the state of his mental health, said in 2007, “What happened at the brig was essentially the destruction of a human being’s mind. That’s what happened at the brig. His personality was deconstructed and reformed.”
After four years of this abuse, Padilla was finally charged and brought to court – on charges that were unrelated to the original accusations made against him.
Another American citizen being denied his rights under U.S. and international law is accused whistleblower Bradley Manning, now being held at Ft. Leavenworth, Kansas. He’s been in custody for nearly 800 days in pre-trial confinement.
More than 50 members of the European Parliament wrote an open letter to President Obama, members of Congress and top officials at the Pentagon last November, expressing concern “Manning has been subjected to prolonged solitary confinement and other abusive treatment tantamount to torture.” They noted “that the US government has denied the request of the United Nations special rapporteur on torture to meet privately with Mr Manning in order to conduct an investigation of his treatment by US military authorities.”
Some might draw a distinction between these cases and that of Sergei Magnitsky by pointing out that while Manning and Padilla may have been denied due process rights including the right to a speedy trial, at least they have not been killed in custody. Of course, this argument would ignore the fact that many people have indeed died in U.S. custody, in some cases likely tortured to death.
According to government data provided to the Associated Press, at least 108 people have died in American custody in Iraq and Afghanistan, most of them violently. However, only a quarter of those deaths have been investigated as possible abuse by U.S. personnel.
As the AP reported in Feb. 2009:
The figure, far higher than any previously disclosed, includes cases investigated by the Army, Navy, CIA and Justice Department. Some 65,000 prisoners have been taken during the U.S.-led wars in Iraq and Afghanistan, although most have been freed.
The Pentagon has never provided comprehensive information on how many prisoners taken during the U.S. wars in Iraq and Afghanistan have died, and the 108 figure is based on information supplied by Army, Navy and other government officials.
“Despite the military’s own reports of deaths and abuses of detainees in U.S. custody, it is astonishing that our government can still pretend that what is happening is the work of a few rogue soldiers,” said ACLU Executive Director Anthony Romero in response to the revelation. “No one at the highest levels of our government has yet been held accountable for the torture and abuse, and that is unacceptable.”
Constitutional lawyer and Salon.com blogger Glenn Greenwald noted that the revelation proved that “the unstated premise of every torture debate — that it was safely applied to a handful of detainees — is false.”
Over the course of the nearly 11 years of the war on terror, disclosures have steadily emerged of official lawlessness at the highest levels of the U.S. government, with high-ranking officials authorizing torture, indefinite detention, and assassinations. Human rights organizations have made numerous appeals to various institutions of the U.S. government, including the White House, Department of Justice and Congress to rein in these abuses.
One of the more comprehensive efforts was a 107-page report issued by Human Rights Watch a year ago, entitled “Getting Away with Torture: The Bush Administration and Mistreatment of Detainees.” The report documented some of the most clear-cut examples of egregious human rights violations sanctioned by the administration of George W. Bush and the corresponding evisceration of international law by U.S. officials.
HRW criticized policy decisions that “essentially reinterpreted the Geneva Conventions to suit the administration’s purposes.” The Bush administration “downgraded existing international law, which must be followed, to the level of ‘principles,’ which only should be followed.”
The rights group reminded U.S. officials that “all persons detained in connection with an armed conflict … are still legally entitled to basic protections under international law.”
“Consistent with its obligations under the Convention against Torture,” HRW said, “the US government should ensure that victims of torture obtain redress, which may include providing victims with compensation where warranted outside of the judicial context.”
The group specifically recommended that Congress “create an independent, nonpartisan commission to investigate the mistreatment of detainees in US custody since September 11, 2001, including torture, enforced disappearance, and rendition to torture.”
Such a commission should have full subpoena power and compel the production of evidence, as well as be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses.
Needless to say, Congress has not taken up this cause as recommended by HRW and other human rights organizations. Now, however, the human rights crusaders in Congress are doing everything within their power to hold accountable those who may have violated the rights of Sergei Magnitsky in Russia.
The Magnitsky bill moving through Congress includes some controversial measures that would seem to bypass the existing legal framework for prosecuting individuals accused of a crime, and would empower the U.S. Secretary of State to essentially serve as judge, jury and prosecutor.
The legislation empowers “the Secretary of State, in consultation with the Secretary of the Treasury, [to] publish a list of each person the Secretary of State has reason to believe … is responsible for the detention, abuse, or death of Sergei Magnitsky.”
Anyone identified by the Secretary of State would have travel restrictions imposed and assets frozen in the United States. Similar Magnitsky-related legislation is pending in the parliaments of U.S. allies Canada, Netherlands, Poland and Britain.
Whether the U.S. Congress is actually genuine in its concern over Magnitsky’s death or more generally the rule of law in Russia, or whether it is just using the opportunity to poke its adversary Russia in the eye, it might want to remember that these measures being proposed by the Magnitsky bill could just as easily be used against the United States.
Already, Russia has responded by barring 11 serving and former U.S. administration officials for human rights abuses at facilities including Guantanamo Bay and the Abu Ghraib prison in Iraq. President Vladimir Putin’s top foreign policy adviser, Yuri Ushakov, said in an e-mailed statement: “These people are linked to high-profile human rights abuses, including torture and abuse of detainees in special prisons set up by the Pentagon and the Central Intelligence Agency in Guantanamo, Bagram in Afghanistan and Abu Ghraib in Iraq.”
Someday, perhaps, if Congress continues failing to live to its responsibilities to promote the rule of law at home, a broader alliance of nations could get together to impose sanctions on U.S. officials responsible for the abuse of Bradley Manning, Jose Padilla, or any of the 100-plus individuals who have been tortured to death during the war on terror.