Pressure mounts against U.S. torture impunity

The longstanding Obama administration policy of providing officially sanctioned impunity to the architects and practitioners of the U.S. torture regime implemented by the previous administration is coming under increasing pressure, with the United Nations last week reviewing the United States’ compliance with the Convention against Torture and a growing number of voices calling for the U.S. to finally reckon with its troubling background on the use of cruel, degrading and inhuman treatment of prisoners.

Ahead of the U.S.’s review at the UN Committee against Torture, a group of law professors associated with the International Human Rights Clinic at Harvard Law School co-authored a shadow report to the UN, entitled “Failure to Prosecute Senior U.S. Government Officials for Torture Violates International Law.” The report documented how the Obama administration is in flagrant violation of the law by shielding from criminal liability the senior government officials responsible for the post-9/11 U.S. torture program.

The report takes the United States to task for why it has not prosecuted President George Bush (who admitted in his memoir to authorizing the waterboarding of Khalid Sheikh Mohammed); former Justice Department lawyer John Yoo (author of an opinion that offered legal justifications for torture); and former CIA contractor Dr. James Mitchell (reported to have personally waterboarded the prisoner known as Abu Zubaydah).

The report also urges the UN Committee to renew its calls for criminal investigations and prosecution of officials at the highest levels of the chain of command.

Also ahead of the UN review, Human Rights Watch and the ACLU wrote a letter to President Obama urging him to reverse the position articulated by the Bush administration that certain obligations under the Convention against Torture only applied within U.S. territory.

“Within days of taking office in 2009, you took important steps to reverse the previous administration’s harmful record and legacy on torture, including by issuing an executive order reinforcing the ban on torture,” reads the letter. “However, to ensure that such practices are not adopted by future administrations, it is critical that the United States also abandon the distorted interpretations of international law through which the George W. Bush administration sought to justify torture and ill-treatment and transfers to similar abuse.”

In the context of an ongoing dispute over the long-delayed release of a Senate report detailing the defunct U.S. torture regime, a group of Nobel Peace Prize laureates issued an open letter on Oct. 27 to the Obama administration, calling, inter alia, for the United States to fully disclose to the American people “the extent and use of torture and rendition by American soldiers, operatives, and contractors, as well as the authorization of torture and rendition by American officials.”

The laureates also called for the adoption of “firm policy and oversight restating and upholding international law relating to conflict, including the Geneva Convention and the UN Convention against Torture,” noting that Obama’s open admission that the U.S. engaged in torture is “a first step in the US coming to terms with a grim chapter in its history.”

The letter continued:

The subsequent release of the Senate Select Committee on Intelligence summary report will be an opportunity for the country and the world to see, in at least some detail, the extent to which their government and its representatives authorized, ordered and inflicted torture on their fellow human beings. …

When a nation’s leaders condone and even order torture, that nation has lost its way. One need only look to the regimes where torture became a systematic practice – from Imperial Japan and Nazi Germany to the French in Algeria, South Vietnam, the Khmer Rouge and others – to see the ultimate fate of a regime so divorced from their own humanity.

The practices of torture, rendition and imprisonment without due process by the United States have even greater ramifications. The United States, born of the concept of the inherent equality of all before the law, has been since its inception a hallmark that would be emulated by countries and entire regions of the world. For more than two centuries, it has been the enlightened ideals of America’s founders that changed civilization on Earth for the better, and made the US a giant among nations. …

In recent decades, by accepting the flagrant use of torture and other violations of international law in the name of combating terrorism, American leaders have eroded the very freedoms and rights that generations of their young gave their lives to defend. They have again set an example that will be followed by others; only now, it is one that will be used to justify the use of torture by regimes around the world, including against American soldiers in foreign lands. In losing their way, they have made us all vulnerable.

The letter noted that the world will be watching in the coming weeks as the release of the Senate findings on the U.S. torture program brings the country to a crossroads.

“It remains to be seen whether the United States will turn a blind eye to the effects of its actions on its own people and on the rest of the world, or if it will take the necessary steps to recover the standards on which the country was founded, and to once again adhere to the international conventions it helped to bring into being,” wrote the laureates, which included Archbishop Desmond Tutu and F.W. De Klerk  of South Africa, Mohammad ElBaradei of Egypt, and Jody Williams of the United States.

A week after this letter was issued, the U.S. midterm elections, which failed to meet a number of important international standards, resulted in the defeat of one of the Senate’s few champions for human rights, Sen. Mark Udall (D-CO). Following his defeat, a chorus of voices has urged Udall to use his congressional immunity – provided by the Constitution’s Speech and Debate clause – to read the Senate’s still-classified 6,000-page CIA torture report into the Congressional record. Udall is reportedly giving serious consideration to taking up this challenge.

Then, of course, there was the UN’s review last week of U.S. compliance (or lack thereof) with the Convention against Torture (CAT), a legally binding treaty to which the United States has subscribed. Every several years signatories to the CAT are required to submit reports to the UN’s Committee against Torture, followed by a question period by the Committee to which the government is able to respond to the following day. It was the U.S.’s turn on Nov. 12 and 13.

As the hearing got underway in Geneva, Agence France-Presse reported:

The delegation faced a barrage of questions from committee members on how the country was dealing with rectifying and providing redress for acknowledged abuses during the “war on terror”.

The US delegation was asked to explain why the US military prison at Guantanamo Bay in Cuba remains open, why many detainees remain there without charge and when Washington plans to shut it down.

The committee members also questioned the treatment of prisoners there, and lack of redress for victims of the widely publicised abuses by US troops at the Abu Ghraib prison in Iraq in the early 2000s.

Beyond the “war on terror” legacy, the committee members raised issues of abuses in US prisons, rape in prisons, the broad use of drawn-out solitary confinement, and long years on death row.

And they asked how Washington could justify its widespread detention of non-violent, non-criminal illegal immigrants, including minors.

And they slammed police brutality that appears to disproportionately affect minorities, such as 18-year-old Michael Brown, who was shot and killed by white police officer Darren Wilson in Ferguson, Missouri last August.

To its credit, the U.S. delegation at the UN issued a high-profile reversal of the previous administration, indicating publicly that, unlike under President George W. Bush, the government has decided that the ban against torture applies not only within the borders of the United States, but also to areas outside of its territorial boundaries, for example at Guantanamo Bay, Cuba – the site of years of wanton human rights abuses including arbitrary detention, torture and murder.

Mary E. McLeod, acting legal adviser for the State Department, stated, “We understand that where the text of the Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations, including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or punishment, extend to certain areas beyond the sovereign territory of the State Party.”

“More specifically, to ‘all places that the State Party controls as a governmental authority,’ we have determined that the United States currently exercises such control at the US Naval Station at Guantanamo Bay, Cuba, and with respect to U.S. registered ships and aircraft.”

Human Rights Watch welcomed the U.S. statement, which improved on previous U.S. positions, but noted that the U.S. is still falling short of meeting its international obligations.

“While the Obama administration is distancing itself from discredited Bush-era interpretations of the Convention against Torture, it is still unwilling to accept its full obligations under the treaty,” said Laura Pitter, national security counsel at Human Rights Watch. “The U.S. should explicitly accept that the treaty applies anywhere the US exercises ‘effective control,’ including any detention centers overseas.”

During the question period of the UN review, the U.S. delegation was asked about its lack of prosecutions for torture, as well as its generally lackluster attempts to investigate these crimes. UN official Giorgi Tugushi from the former Soviet state of Georgia noted in particular that the Committee had received information that torture victims were not interviewed in the course of the investigation by Assistant U.S. Attorney John Durham into torture.

Attorney General Eric Holder had appointed Durham in 2009 to conduct a preliminary review into “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” Durham decided, however, that only the death of two individuals in US custody at overseas locations warranted the opening of “full criminal investigations,” which ultimately resulted in no prosecutions.

The Department of Justice declined to prosecute “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” according to Holder.

Tugushi expressed some concern over this result. “The investigation process looked into 101 cases and decided not to prosecute anyone,” Tugushi stated. “So, maybe, you can provide more information on this outcome.”

In response, the Justice Department’s David Bitkower explained:

Mr. Durham and his team reviewed the treatment of 101 such detainee cases. In so doing, he drew upon information provided by the CIA inspector general and report from the International Committee of the Red Cross regarding the treatment of high-value detainees formerly in CIA custody, the Department of Justice’s report on legal guidance related to enhanced interrogation techniques and other sources. After reviewing a substantial volume of information, Mr. Durham recommended the opening of two full criminal investigations and Attorney General Eric Holder accepted that recommendation.

After investigation the Department ultimately determined not to initiate prosecution of those cases. That decision was made based on the same principles that federal prosecutors apply in all determinations of whether to initiate a prosecution. Specifically, Mr. Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt…

Of course, no specific incidents that Durham may have examined were mentioned by Bitkower.

“Because the cases did not result in prosecutions, I cannot publicly describe with specificity the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed,” he declared.

In other words, torture impunity remains official U.S. policy.

U.S. midterms fall short of international standards for democratic elections

With the “truly staggering” role of money in campaigns “overshadowing the real issues at stake in the elections,” Tuesday’s midterm elections in the United States failed to meet a number of important international commitments, election observers from the Organization for Security and Cooperation in Europe said in a press release issued Wednesday.

“This country has once again demonstrated that its commitment to democracy is undiminished,” said Isabel Santos, leader of the OSCE observers. “However, the amount of money involved in campaigns has become truly staggering. With certain individuals and groups now spending millions on elections – amounts wildly beyond the capacity of average citizens – there is increasing inequality in the process.”

Although the two main parties’ campaigns were widely covered in the media (which of course completely ignored the campaigns of smaller parties), much of the focus was on campaign funding and polling data rather than substantive policy issues, the observers noted.

“The campaign was active and competitive, but often with negative advertising and mutual accusations lowering the quality of debate and turning voters off. Discussion of the real policy challenges facing the country suffered as a result,” said Santos.

The observers further raised concerns over the lack of transparency in campaign financing:

The ability of independent special interest groups to produce and air campaign-style advertisements without disclosing their sources of funding limited the ability of voters to judge the information that they were presented with. This lack of transparency undermined the ability of legally mandated bodies to provide accountability. Further, the purely legalistic interpretation of what constitutes co-ordination between campaigns and political action committees undermined the legal framework intended to bring transparency to campaign spending.

Another area highlighted by the OSCE pertained to the systematic disenfranchisement of felons and ex-felons in many states around the country, as well as the lack of congressional representation for residents of Washington, DC:

Voting rights of felons and ex-felons are determined by state law and the content of these laws varies broadly. The United States, as all OSCE countries, has committed itself to guaranteeing universal and equal suffrage to all adult citizens. The lack of voting rights for felons, including permanent disenfranchisement in some states, is at odds with this commitment, as is the lack of a voting representative in Congress for citizens in the District of Columbia.

More generally, the OSCE was concerned by the “highly decentralized” legal framework governing elections in the U.S. “While the laws are well understood and the elections are professionally administered, the decentralized system results in varied access for both contestants and voters to the electoral system,” according to the statement.

Judicial rulings and legislative changes in recent years have significantly impacted the framework governing elections, including in the politically sensitive fields of campaign finance, redistricting and identification requirements. The observers expressed concern regarding requirements in some states that voters present photo identification in cases where the authorities do not freely and readily provide such identification.

“Governments have a responsibility to facilitate voting for their population, and I hope that efforts will continue to make access as simple as possible for all American citizens. The requirement in some states that voters must first acquire photo identification can potentially inhibit voting by some, particularly those at lower socio-economic levels,” said Santos.

According to a preliminary analysis by Wendy Weiser of the Brennan Center for Justice, these new practices have likely impacted the results of the elections in several key states. In the North Carolina Senate race, for example, state house speaker Thom Tillis beat Senator Kay Hagen by a margin of 1.7 percent, or about 48,000 votes.

At the same time, Weiser explains,

North Carolina’s voters were, for the first time, voting under one of the harshest new election laws in the country — a law that Tillis helped to craft. Among other changes, the law slashed seven early voting days, eliminated same-day registration, and prohibited voting outside a voter’s home precinct — all forms of voting especially popular among African Americans. While it is too early to assess the impact of the law this year, the Election Protection hotline and other voter protection volunteers reported what appeared to be widespread problems both with voter registrations and with voters being told they were in the wrong precinct yesterday.

Some numbers from recent elections suggest that the magnitude of the problem may not be far from the margin of victory: In the last midterms in 2010, 200,000 voters cast ballots during the early voting days now cut, according to a recent court decision. In 2012, 700,000 voted during those days, including more than a quarter of all African-Americans who voted that year. In 2012, 100,000 North Carolinians, almost one-third of whom were African-American, voted using same-day registration, which was not available this year. And 7,500 voters cast their ballots outside of their home precincts that year.

There were many irregularities reported across the country on and before election day, for example in Georgia, where more than 40,000 voter registrations went missing, most of them representing communities of color, who largely support Democrats.

Speaking on Democracy Now on Tuesday, Georgia state Representative Stacey Abrams described how this may have happened. The state of Georgia, she explained, headed by the secretary of state, requires that every registration form goes through a series of screens, including the Social Security Administration proof of citizenship.

“And the problem is that, according to experts, that proof could be a false negative almost 40 percent of the time, which means that you could have a 20-year-old who’s a college student without an ID, without a driver’s license, who submits his Social Security number and is rejected falsely but is never told that they’re rejected and is never told why,” she said. “And we think that a variety of these problems—clerical errors, screenings—these have all led to more than 40,000 of our applications not being properly processed.”

Ben Jealous, chair of the Southern Election Fund, further explained how Georgia’s secretary of state, Brian Kemp, may have been involved in impacting the failure to process the tens of thousands of voter registration forms.

“What is terrifying about Georgia,” Jealous said,

is you see how a man who could be a good man on most days, Mr. Kemp, can get worried, in a very public way, about the impact of these changes in who’s voting in Georgia and how it could impact his party, and then very publicly appear to be dragging his feet. The allegations that he made are so ridiculous, it’s just like hard to comprehend. Georgia’s law says as soon ink goes onto a voter reg form, it has to be turned in. So if I hand you a form at your door and you write down “Mickey Mouse,” I’ve got to hand it in. When you have a law like that, up to 10 percent of the forms can be impacted. Out of 86,000, he’s been able to find maybe 50. You know, if it was above, say, 8,600, we would be concerned, because it’s their own law that requires you to turn in these problematic forms. They’ve done such a great job, when there could have been 86,000, there’s 50.

Prior to the election, Kemp had publicly fretted about how many new Democratic voters were being registered in his state, further raising concerns about his role in intentionally disenfranchising would-be voters:

After we get through this runoff, you know, the Democrats are working hard. And all these stories about them, you know, registering all these minority voters that are out there and others that are sitting on the sidelines, if they can do that, they can win these elections in November.

The inappropriate roles that partisan secretaries of states and other election administrators play in U.S. elections have long been a concern of OSCE observers. As the OSCE Office for Democratic Institutions and Human Rights put it in its final report on the 2012 U.S. election:

General elections are administered at the state level and there is no federal election management body with oversight responsibilities. On the state level, administrative authority is vested in the respective state secretary or state election board. However, the greater part of election administration is typically delegated to county or lower-level election officials, resulting in a wide variety of electoral practices across the country. …

While some senior election officials are appointed, others are elected. Election administration bodies are often partisan, although 19 states and the District of Columbia provide bipartisan or independent bodies. Very few OSCE/ODIHR LEOM interlocutors raised concerns about the impartiality of county election officials. However, some county-level election supervisors ran on party tickets for re-election in 2012, raising possible conflicts of interest.

In order to avoid these conflicts of interest, the OSCE recommended that “if senior election officials at state and lower levels are elected, the states could consider holding such elections in non-federal election years, to avoid any real or perceived conflicts of interest.”

Further, “there should be a national body with sufficient resources and outreach capacity to provide guidance on election administration and serve as a central clearinghouse to develop good electoral practices. Congress should ensure that such a body has the necessary financial and human resources to fulfil these duties in an effective manner.”

Needless to say, this has not taken place in the United States, which tends to brush off and ignore the recommendations from the international community on how to better meet its obligations on holding democratic elections (as well as all other international norms).