Tag Archive | convention against torture

Obama’s failure to prosecute torture rears its ugly head in Republican race

gop debate torture

In the clown show known as the Republican presidential primary race, candidates are providing a clear – if, albeit, unintentional – case as to why prosecutions of the Bush-era CIA torture program are absolutely essential, and why it is so damaging that the Obama administration has shirked its responsibilities in this regard for more than seven years.

As human rights groups have long maintained, prosecuting Bush administration and CIA officials involved with the torture of terrorism suspects in the post-9/11 period is necessary so that torture is not repeated in the future by subsequent administrations who – because of previous decisions not to prosecute – may consider themselves above the law.

Indeed, this is precisely why there is a requirement under international law for allegations of torture to be investigated and prosecuted – so that torture does not become a “policy option” to be utilized or shelved depending on the political whims of the day.

This is a point that Amnesty International, for one, drove home following the release in late 2014 of a portion of the U.S. Senate’s report on the use of torture by the CIA during the Bush administration. In a statement entitled “Senate summary report on CIA detention programme must not be end of story,” Amnesty lamented that limited Justice Department investigations into CIA interrogations were ended in 2012 with no charges.

Human Rights Watch concurred, noting that unless the release of the Senate report leads to prosecutions, torture will remain a “policy option” for future presidents.

Needless to say, these exhortations have largely fallen on deaf ears, with no prosecutions launched whatsoever. Instead, the U.S. Congress responded with a largely meaningless and toothless “reaffirmation” of the ban on the torture – a totally redundant and unnecessary piece of legislation since torture has long been unambiguously banned under international law, the United States Constitution and U.S. statutory law.

Now, just as HRW, Amnesty and others have warned, this lack of law enforcement is having the predictable effects: contenders for the Republican nomination – including very possibly the next president of the United States – are making clear their plans to bring back waterboarding and other “enhanced interrogation” techniques, and to once again make torture the official policy of the United States government.

In the presidential debate on Jan. 28, for example, Sen. Marco Rubio insinuated that under his administration, indefinite detention and torture would be most welcome. “If we capture terrorists,” he said, “they’re going to Guantánamo, and we will find out everything they know.” Despite this rather oblique allusion to bringing back the policy of torture which officially ended in 2006, none of the other candidates, or the debate moderators, even raised an eyebrow.

As if that wasn’t bad enough, the debate on Feb. 6 included a virtual competition among candidates Marco Rubio, Ted Cruz and Donald Trump to see who would be the most brutal and lawless in the treatment of suspected terrorists. All three candidates voiced support for waterboarding, with Trump pledging to reintroduce the technique – and introduce even more draconian and lawless techniques – if elected: “I would bring back waterboarding, and I would bring back a hell of a lot worse than waterboarding,” he said.

As the Huffington Post explained, “Trump was out-brutalizing Cruz, who said he would only use waterboarding sparingly, in emergency scenarios.”

Rubio also reiterated his support for waterboarding, saying that terrorism cases should not be held to the same humane legal standards of traditional law enforcement. In fact, he explicitly stated that interrogating suspected terrorists is not a law enforcement function:

Well, when people talk about interrogating terrorists, they’re acting like this is some sort of law enforcement function. Law enforcement is about gathering evidence to take someone to trial, and convict them. Anti-terrorism is about finding out information to prevent a future attack so the same tactics do not apply.

And, it is true, we should not be discussing in a widespread way the exact tactics that we’re going to use because that allows terrorist to know to practice how to evade us.

He also made it clear that the travesty of justice of Guantanamo should be kept open indefinitely:

But, here’s the bigger problem with all this, we’re not interrogating anybody right now. Guantanamo’s being emptied by this president. We should be putting people into Guantanamo, not emptying it out, and we shouldn’t be releasing these killers who are rejoining the battlefield against the United States.

As for Trump, when pressed this weekend on his statements about bringing back waterboarding and devising even more brutal torture methods, he decided to double down rather than backtrack.

On Sunday, the real-estate-mogul-turned-reality-TV-star-turned-presidential-contender appeared on “This Week” with George Stephanopoulos. The appearance included this remarkable exchange on torture:

STEPHANOPOULOS:  As president, you would authorize torture?

TRUMP:  I would absolutely authorize something beyond waterboarding.  And believe me, it will be effective.  If we need information, George, you have our enemy cutting heads off of Christians and plenty of others, by the hundreds, by the thousands.

STEPHANOPOULOS:  Do we win by being more like them?

TRUMP:  Yes.  I’m sorry.  You have to do it that way.  And I’m not sure everybody agrees with me.  I guess a lot of people don’t.  We are living in a time that’s as evil as any time that there has ever been.  You know, when I was a young man, I studied Medieval times.  That’s what they did, they chopped off heads.  That’s what we have …

STEPHANOPOULOS:  So we’re going to chop off heads …

TRUMP:  We’re going to do things beyond waterboarding perhaps, if that happens to come.

Interestingly, both Hillary Clinton and Bernie Sanders – the only two remaining candidates for the Democratic Party – appeared on the same programs as Trump on Sunday, and while they commented freely on other aspects of the Republican debate, neither said anything about Trump’s call for torture.

Although it is only a matter of speculation, perhaps they were a bit reticent to comment on the torture question because they know that the only reason that this is even up for debate in the year 2016 is because for nearly eight years under Obama, the torture question has been systematically swept under the rug.

While Democrats may like to claim the moral high ground in “opposing torture,” they have in fact actively enabled torture by preventing prosecutions of torturers to take place. This is why the international community has been so adamant on the matter of prosecutions and has issued such rare public denunciations of the United States on this issue.

Following the release of the Senate torture report’s executive summary over a year ago, there was a veritable cacophony of demands for prosecutions, with some of the strongest words coming from the United Nations.

The UN Special Rapporteur on Human Rights and Counterterrorism Ben Emmerson stated unequivocally that senior officials from the Bush administration who sanctioned crimes, as well as the CIA and U.S. government officials who carried them out, must be investigated and prosecuted:

It is now time to take action. The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes. The fact that the policies revealed in this report were authorised at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.

International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.

He further emphasized the United States’ international obligation to criminally prosecute the architects and perpetrators of the draconian torture methods described in the report:

As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.

It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.

In particular, he added, “The U.S. attorney general is under a legal duty to bring criminal charges against those responsible.”

Zeid Raad al-Hussein, the UN High Commissioner for Human Rights, said that it’s “crystal clear” under international law that the United States has an obligation under the UN Convention against Torture to ensure accountability.

“In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture — recognized as a serious international crime — they cannot simply be granted impunity because of political expediency,” he said.

UN Secretary-General Ban Ki-moon expressed hope that the partial release of the torture report is the “start of a process” toward prosecutions, because the “prohibition against torture is absolute,” Ban’s spokesman said.

Well, a year has passed and it is all too clear that there was no process being started with the release of the Senate torture report — and in fact, it was probably hoped by official Washington that this would be the end of the story.

But following the one-year anniversary of the Senate torture report being released, Human Rights Watch reiterated its calls for prosecutions in a 153-page report, “No More Excuses: A Roadmap to Justice for CIA Torture.” The HRW report, released Dec. 1, 2015, challenges claims that prosecutions are not legally possible and outlines U.S. legal obligations to provide redress to victims of torture. It also details actions that other countries should take to pursue criminal investigations into CIA torture.

Of course, this report, like virtually all other calls for justice on the torture question over the past seven years, has been studiously ignored by the Obama administration and official Washington. And with the Republicans now falling over each other to pledge their allegiance to illegal policies of torture and brutality, we are seeing the fruits of Obama’s refusal to uphold the laws of the land.

Death row prisoner Richard Glossip’s multiple stays of execution may amount to torture

too much doubt

For the fourth time in the past year, the U.S. state of Oklahoma has issued a stay of execution for Richard Glossip, an almost certainly innocent man wrongfully convicted for contracting the murder of his boss in 1997. Beyond serious questions of the man’s guilt, his multiple brushes with death in such a limited period of time are the equivalent of state-sanctioned mock execution, prohibited under international torture conventions and under U.S. law.

Glossip was convicted of murder-for-hire 18 years ago after Justin Sneed, the man who confessed to the killing, claimed Glossip had hired him to do it, despite a total lack of evidence connecting Glossip to the crime. Sneed received a life sentence without parole in a medium-security prison, while Glossip was sent to death row based entirely on Sneed’s testimony.

Despite how crucial Sneed’s testimony was in convicting Glossip, the courts have largely overlooked the fact that he gave not one but eight different accounts of what happened the night Barry van Treese was murdered.

In recent years a number of people have come forward to say that Sneed’s fingering of Glossip lacks any credibility, including former cellmates who claimed that Sneed had boasted of getting out of a death sentence by selling out an innocent man. Even Sneed’s daughter claims that her father had lied about Glossip’s involvement in the crime, stating in a clemency letter last year that he would recant if it wasn’t for his own fear of being executed:

For a couple of years now, my father has been talking to me about recanting his original testimony. But has been afraid to act upon it, in fear of being charged with the Death Penalty, and not be here for his children. My father has no reason to do so as a favor to Richard, as him and Mr. Glossip have no relationship and have had no communication in the last 17 years. I feel his conscious is getting to him. His fear of recanting, but guilt about not doing so, makes it obvious that information he is sitting on would exonerate Mr. Glossip. I’m sure if he felt safe that he would not lose his Plea Agreement, he would give new and truthful testimony, much different that his Testimony 17 years ago.  He has asked me several times to look into what the legal ramifications would be to his own case if he recanted.

Due to the massive amount of doubt surrounding Glossip’s conviction, his case has garnered worldwide attention, including from Pope Francis who on Wednesday urged Governor Mary Fallin to commute his death sentence and nearly 250,000 signers of a petition calling for his release. His supporters claim that his innocence makes his incarceration a gross violation of human rights, compounded by the multiple close calls he has had with the Oklahoma death chamber.

These brushes with death are described in a timeline of his case compiled by local Tulsa TV channel KJRH:

May 28, 2014 – Glossip’s execution date is set for Nov. 20, 2014.

Oct. 13, 2014 – Oklahoma Attorney General Scott Pruitt says the state does not have the drugs on hand or the medical staff prepared that is needed to carry out the state’s upcoming executions.

Oct. 24, 2014 – Stay of execution granted for Glossip and two other Oklahoma death row inmates

Oct. 24, 2014 – A state board voted unanimously not to recommend clemency for Glossip

Nov. 20, 2014 – Date Glossip was to be executed

Jan. 26, 2015 – State Attorney General Scott Pruitt asks for stays of execution for three death row inmates, including Glossip.

Jan. 26, 2015 – Application for stay of execution filed with United States Supreme Court. Glossip and two other inmates filed the application.

Jan. 28, 2015 – Supreme Court takes up inmates’ application for stays, pending final disposition of the case.

Jan. 28, 2015 – Glossip meets face-to-face with Sister Helen Prejean at the law library inside Oklahoma State Penitentiary.

Jan. 29, 2015 – Date Glossip was to be executed.

Aug. 10, 2015 – Actress Susan Sarandon takes to Twitter to fight against Glossip’s execution. She and Prejean rebutted tweets sent out by a spokesperson for Gov. Mary Fallin’s office.

Aug. 28, 2015 – The U.S. Supreme Court rejects a request for a new hearing. Scheduled execution will proceed.

Sept. 14, 2015 – Glossip’s attorneys claim to have new evidence days before client is scheduled to die.

Sept. 16, 2015 – Hours before his execution was to be carried out, anappeals court issued an emergency request for a stay for two weeks until Sept. 30.

As journalists Ziva Branstetter and Cary Aspinwall described the scene yesterday at the prison where Glossip was scheduled to die at 3:00 PM,

Outside the white walls of the Oklahoma State Penitentiary, Glossip’s family and friends thought he was already dead. Reporters heard them crying out in anguish when they learned the Supreme Court had denied Glossip’s request for a stay.

It turned out Oklahoma didn’t have the right lethal drug to carry out the last step of his execution. Instead of potassium chloride, which stops the heart, the prison had potassium acetate.

“That’s just crazy,” Glossip said, via speakerphone held up as reporters crowded around. “Nobody has really said much of anything.”

Glossip has had four stays of execution, including on Sept. 16, the day he was to be put to death. The stay on Wednesday “is the most stressful it has been.” He had been moved to a holding cell and was not taken into the death chamber.

“I’m sitting there watching TV trying to keep up with the news and find out what’s going on,” he said.

So, basically, because the state of Oklahoma purchased the wrong drug to use on Glossip he got one more stay of execution with a new date to die in 37 days’ time. But as Sister Helen Prejean noted in a tweet yesterday following the Governor’s stay of execution, “If Oklahoma can’t be trusted to buy the right lethal injection drugs, how can anyone trust them to convict the right person?”

Beyond serious questions regarding the basic competence of Oklahoma state officials, yesterday’s stay of execution raises grave issues over the state’s – and by extension, the U.S.’s – compliance with the UN’s Convention Against Torture (CAT), which defines the crime of torture in Article 1:

 [T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

As a state party to the CAT, the United States has adopted domestic legislation to ensure compliance with the treaty’s provisions. The Torture Statute, formally known as Title 18, Part I, Chapter 113C of the U.S. Code, defines the crime of torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”

“Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death.

Considering the fact that Richard Glossip has now faced the threat of imminent death not once, not twice, but four times, it is clear that his treatment violates the letter and spirit of both international conventions and domestic statutes. It is effectively a mock execution, which is even prohibited under U.S. military interrogation and detention guidelines.

The likelihood that he is in fact innocent only compounds the tragedy and seriously calls into question the United States’ commitment to basic human rights.

For more on the Glossip case, click here.

To add your name to the petition demanding that his execution be stopped once and for all, click here.

Without prosecutions, Senate’s ‘reaffirmation’ of torture prohibition largely meaningless

cia torture report

Human rights groups are welcoming the Senate’s adoption yesterday of an anti-torture amendment as part of the National Defense Authorization Act (NDAA) for Fiscal Year 2016, despite the fact that it doesn’t provide for any accountability to those who have authorized or committed torture in the past.

Officially called “the reaffirmation of the prohibition on torture,” the amendment, introduced last week by Senator John McCain (R-Ariz.) and Dianne Feinstein (D-Calif.), effectively prohibits U.S. officials from using torture techniques including mock executions, sexual humiliation, hooding prisoners and waterboarding by requiring they follow the U.S. Army Field Manual. It was adopted by a vote of 78-21.

“Without this amendment, abuses committed in the name of national security, such as forced rectal feeding and mock burials, would be all too easy for the CIA to repeat in a climate of fear-mongering about terrorism,” said Amnesty International USA’s executive director, Steven W. Hawkins.

Human Rights First praised what it called the “historic bipartisan amendment that prevents the future use of torture by any U.S. government agency.” The legislation, according to the group, will “ensure that the use of torture or cruel treatment is never again the official policy of the United States.”

But will it?

The fact remains that the torture techniques authorized by the White House and committed by the CIA in the years following 9/11 were already illegal – serious violations of both international law and domestic law – so it’s not entirely clear what is new about this “reaffirmation” of the prohibition on torture.

In fact, torture has long been banned by Common Article 3 of the four Geneva Conventions, which was further codified by the 1987 UN Convention Against Torture (CAT). The CAT provides a clear-cut definition of what constitutes the practice — which the U.S. is clearly guilty of as documented in the Senate report on torture released last year.

As stated in Article 1 of the CAT:

[T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The CAT further unambiguously states that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

As a state party to both the Geneva Conventions and the CAT, the United States has adopted domestic legislation to ensure compliance with the treaties’ provisions. The War Crimes Act punishes any grave breach of the Geneva Conventions, including any violation of Common Article 3.

The Torture Statute, formally known as Title 18, Part I, Chapter 113C of the U.S. Code, provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States. (Domestic incidents of torture are covered by state criminal statutes.)

The law consists of three sections (2340, 2340A, and 2340B), which define the crime of torture.

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

In other words, it is not enough for the Senate to simply “reaffirm” a so-called “torture ban.” There is a legally binding obligation under the Convention Against Torture, in fact, to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature.”

For its part, Amnesty International did acknowledge yesterday – despite generally welcoming the Senate vote – that more must be done to bring the United States into compliance with its international obligations:

This legislation is one step of many that the U.S. government must take to guard against a return to torture and other ill-treatment and abide by its international human rights obligations. The U.S. government has not brought any criminal charges against those responsible for torture and enforced disappearances in the CIA secret detention program. Nor has the U.S. government withdrawn U.S. reservations to UN human rights treaties—reservations that the George W. Bush-era Justice Department Office of Legal Counsel exploited to write permission slips for torture and other ill-treatment.

The torturers in the CIA have for too long been protected by the Obama administration and U.S. Department of Justice, even while human rights defenders and whistleblowers such as John Kiriakou, Jeffrey Sterling and Chelsea Manning have been sent away for long prison terms for much less serious offenses. It is long past time for this double standard to be lifted and the committers (and authorizers) of torture to be prosecuted to the fullest extent of the law.

A cacophony of demands for accountability follows long-delayed release of CIA ‘torture report’

cia_torture_report_0

From the United Nations and the European Union to Human Rights Watch and Amnesty International to the governments of China and Afghanistan, voices are being raised around the world demanding accountability in response to the long-delayed release of the U.S. Senate’s CIA torture report.

The report’s 500-page executive summary — the full 6,000 pages are still classified — details gruesome techniques used against prisoners detained for suspected ties to terrorism, including practices such as near drowning, forcing detainees to stand on broken legs, threatening to kill or rape detainees’ family members, forced “rectal feeding” and “rectal hydration,” and disturbing details on a medieval “black site” prison in Afghanistan known as the Salt Pit, where at least one detainee froze to death.

hoodedprisonersThe brutal interrogation sessions lasted in many cases non-stop for days or weeks at a time, leading to effects such as “hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation,” and produced little to no useful information – raising serious questions about whether the torturers were motivated by genuine intelligence-gathering concerns or were simply acting out of sadism and cruelty.

While some voices being raised, such as those of the UN and Amnesty International, have been explicit in their calls for criminal prosecutions of the architects of the torture policies detailed in the report, others such as the EU and the governments of U.S. allies such as Great Britain are a bit more muted and conciliatory to the U.S. government.

Nevertheless, virtually all are unequivocally condemning the U.S. regime of enforced disappearances, extraordinary rendition, indefinite detention and torture that has defined U.S. counter-terrorism policies since Sept. 11, 2001.

Some of the strongest words have come from the UN Special Rapporteur on Human Rights and Counterterrorism Ben Emmerson, who stated unequivocally on Tuesday that senior officials from the Bush administration who sanctioned crimes, as well as the CIA and U.S. government officials who carried them out, must be prosecuted.

In a statement issued following the release of the report, the UN rapporteur said:

It is now time to take action. The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.

The fact that the policies revealed in this report were authorised at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.

International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.

He further emphasized the United States’ international obligation to criminally prosecute the architects and perpetrators of the draconian torture methods described in the report:

As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.

It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.

In particular, “The U.S. attorney general is under a legal duty to bring criminal charges against those responsible,” he added.

Zeid Raad al-Hussein, the UN High Commissioner for Human Rights, said that it’s “crystal clear” under international law that the United States has an obligation under the UN Convention against Torture to ensure accountability.

“In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture — recognized as a serious international crime — they cannot simply be granted impunity because of political expediency,” he said.

UN Secretary-General Ban Ki-moon expressed hope that the torture report is the “start of a process” toward prosecutions, because the “prohibition against torture is absolute,” Ban’s spokesman said.

The UN’s calls were echoed by those of Amnesty International, the American Civil Liberties Union and Human Rights Watch, who in separate statements demanded that the individuals responsible for these policies be brought to justice.

Noting that the Senate report “must not be end of story,” Amnesty International lamented that limited Justice Department investigations into CIA interrogations were ended in 2012 with no charges. “Access to justice for those who endured abuses has been systematically blocked by U.S. authorities, including on the grounds of state secrecy,” noted Amnesty.

Said Erika Guevara, Americas Director of Amnesty International:

The declassified information contained in the summary, while limited, is a reminder to the world of the utter failure of the USA to end the impunity enjoyed by those who authorized and used torture and other ill-treatment. This is a wake-up call to the USA, they must disclose the full truth about the human rights violations, hold perpetrators accountable and ensure justice for the victims. This is not a policy nicety, it is a requirement under international law.

The ACLU’s Hini Shamsi stated:

The release of the Senate’s torture report summary is a tipping point and a reminder that the United States has never fully reckoned with a past that includes waterboarding, stress positions, beatings, sleep deprivation, threats of harm to children and other family members, among many devastatingly cruel acts. Once again, Americans, all of us, have an opportunity to choose how we end this story, whether that’s responsibly, with a full return to our laws and values, or shamefully, by failing to act now that the report summary is released. A conclusion that begins to heal wounds and rebuild U.S. credibility as a defender of rights instead of a perpetrator of rights violations consists of five parts, all of which work together to ensure that our nation never tortures again.

Shamsi offered a blueprint for accountability that includes the appointment of a special prosecutor, CIA reform, apologies to victims, and full disclosure.

Human Rights Watch said that President Obama should use his last two years in office to prosecute the crimes that the report has revealed. HRW Executive Director Kenneth Roth noted that “the Senate report summary should forever put to rest CIA denials that it engaged in torture, which is criminal and can never be justified.”

In an op-ed published by Reuters, Roth called out the lawyers of the Bush administration who provided legal rationales for torture, noting that “it is regrettable that those senior George W. Bush administration lawyers have escaped accountability for their complicity in torture, given their obligation as public officials and their ethical duty as lawyers to uphold the law.”

Their twisted justifications were not impartial interpretations of legal provisions but rather a judicial cover for criminality. “At minimum, they should have been disciplined for malpractice, if not prosecuted as accomplices,” wrote Roth.

He added:

Prosecution should also include the senior Bush officials who authorized torture and oversaw its use. To President Obama’s credit, he stopped the use of “enhanced interrogation techniques” from the moment he took office six years ago. But he has steadfastly refused to permit a broad investigation of the use of torture after 9/11, allowing only a narrow investigation into unauthorized interrogation techniques that resulted in no prosecutions.

Unless the Senate report’s revelations lead to prosecution of officials, torture will remain a “policy option” for future presidents, noted HRW.

The group described in detail U.S. hypocrisy on the issue of torture, providing an annotated table consisting of past statements of the U.S. government condemning other governments for the very same tactics that it has defended when employed by the CIA and U.S. military.

Noting that for years the U.S. denied that these techniques constituted torture, HRW noted plainly that many clearly do. “International bodies and U.S. courts have repeatedly found that ‘waterboarding’ and other forms of mock execution by asphyxiation constitute torture and are war crimes,” the group pointed out.

Further,

Other authorized techniques, including stress positions, hooding during questioning, deprivation of light and auditory stimuli, and use of detainees’ individual phobias (such as fear of dogs) to induce stress, violate the protections afforded all persons in custody – whether combatants or civilians – under the laws of armed conflict and international human rights law, and can amount to torture or “cruel, inhuman, or degrading treatment.” Accordingly, the United Nations Committee against Torture and the UN Special Rapporteur on Torture have clearly stated that these techniques are torture.

The European Union added its two cents on Wednesday saying that the Senate report “raises important questions about the violation of human rights by the U.S. authorities,” according to a statement by European Commission spokeswoman Catherine Ray. Despite the lack of accountability for these violations, Ray essentially praised President Barack Obama for ending the program in 2009 when he took office and for allowing the publication of the Senate’s findings.

“This report is a positive step in confronting publicly and critically the Central Intelligence Agency’s detention and interrogation program,” she said.

EU member states “recognize President Obama’s commitment to use his authority to ensure that these methods are never used again,” she added.

Not to be outdone in this exercise in diplomatic fellatio, the United Kingdom seemed to go out of its way to downplay the seriousness of the crimes described by the Senate report. UK Prime Minister David Cameron said that “after 9/11 there were things that happened that were wrong,” when he was asked about the report.

“Those of us who want to see a safer, more secure world, who want to see this extremism defeated, we won’t succeed if we lose our moral authority, if we lose the things that make our systems work and our countries successful,” Cameron said.

The German government welcomed the report and said that “torture can never be justified.” However, Obama has clearly spoken out against torture and in favor of human rights, according to the statement.

Other governments were less kind.

Asraf Ghani, president of Afghanistan – the site of some of the most deplorable acts of torture and maltreatment detailed in the report – called the report “shocking” and said that the CIA’s brutal interrogation program “violated all accepted norms of human rights in the world.”

President Ghani, who assumed his position in September, added, “There is no justification for such acts and human torturing in the world.”

Frequent targets of U.S. criticism such as China and North Korea also weighed in, using the opportunity to point out that the U.S. is being hypocritical for highlighting their human rights abuses while whitewashing its own.

“As Human Rights Day approaches, high-profile cases of violations within American borders and by its agencies abroad are being scrutinised, especially as it pertains to be a defender of civil liberties globally,” the Chinese state-owned Xinhua News Agency said in a commentary on Tuesday.

North Korea condemned the CIA’s “inhuman torture” methods highlighted in the Senate report. Pyongyang said the revelations posed a major test to the credibility of the UN Security Council, which it accused of “shutting its eyes” to rights violations by one of its permanent members while criticizing North Korea’s rights record.

Newspapers around the world have also raised harsh objections to the U.S. torture program and its attendant impunity that has seemingly become official United States policy. As the International Business Times reported on Wednesday,

Several international media outlets covered the extensive report of the five-year Senate Intelligence Committee investigation into the harsh techniques used to interrogate terrorists after the Sept. 11, 2001 attacks.

In Europe, columnists were angry with the U.S. for broadcasting an image of fairness and freedom while conducting torture behind the scenes. Bild, Germany’s leading tabloid, wrote that the torture report’s verdict that the CIA torture techniques ultimately didn’t work “cannot be beat for uniqueness.” Austria’s Kleine Zeitung ran a front-page photo with a superimposed headline reading “America’s Shame.”

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The IBT article continued:

In the United Kingdom, a headline in the Daily Mail summed up its reaction to the report: “A truly black day for the ‘civilized’ West.” The opinion piece said the Senate committee’s release, “demolished the boast of the world’s most powerful democracy that it inhabits a higher moral universe than the terrorists it condemns as barbarians.” …

Spain’s prominent newspaper El País led its homepage with the CIA torture report Wednesday, with multiple stories chronicling what role the Bush administration played in allowing the enhanced interrogation tactics, as well as criticism of the report from former spies. Its main headline read in Spanish: “US uncovers the dirty war of the Bush era.”…

Colombia’s El Tiempo published multiple stories about the CIA torture report, its top headline blasting “The ‘unholy’ methods of the CIA after September 11.” …

Ecuador’s El Universo focused on how the CIA misled Congress. Its top headline read, “The CIA acted ‘more brutal’ than what it told Congress, says report.” Cuba’s official Granma newspaper followed a similar path. It’s website carried the CIA story toward the bottom of its homepage with the headline: “CIA interrogations, more brutal than thought.” …

The privately owned Egyptian daily Al Masry Al Youm featured a report detailing the methods used by the CIA to torture prisoners, highlighting the use of diapers and anal feeding. The Israeli daily Haaretz focused its coverage on the CIA’s citation of an Israeli Supreme Court ruling to justify its legal case for torture.

whitewashSeemingly oblivious to the worldwide condemnations of the CIA’s torture program and the seriousness of the international calls for accountability and justice, President Obama used the publication of the Senate report as an opportunity to tout the virtues of the United States, and actually praised the Central Intelligence Agency for its professionalism in carrying out its responsibilities.

In a stomach-turning, hypocrisy-laden statement focused on the well-worn but highly discredited notion of “American Exceptionalism,” Obama said:

Throughout our history, the United States of America has done more than any other nation to stand up for freedom, democracy, and the inherent dignity and human rights of people around the world. As Americans, we owe a profound debt of gratitude to our fellow citizens who serve to keep us safe, among them the dedicated men and women of our intelligence community, including the Central Intelligence Agency. Since the horrific attacks of 9/11, these public servants have worked tirelessly to devastate core al Qaeda, deliver justice to Osama bin Laden, disrupt terrorist operations and thwart terrorist attacks. Solemn rows of stars on the Memorial Wall at the CIA honor those who have given their lives to protect ours. Our intelligence professionals are patriots, and we are safer because of their heroic service and sacrifices.

In the years after 9/11, with legitimate fears of further attacks and with the responsibility to prevent more catastrophic loss of life, the previous administration faced agonizing choices about how to pursue al Qaeda and prevent additional terrorist attacks against our country. As I have said before, our nation did many things right in those difficult years. At the same time, some of the actions that were taken were contrary to our values. That is why I unequivocally banned torture when I took office, because one of our most effective tools in fighting terrorism and keeping Americans safe is staying true to our ideals at home and abroad.

He went on to trumpet his own commitment to human rights in rather misleading and self-serving statements about how he supposedly ended torture and pushed for the publication of the Senate report:

I will continue to use my authority as President to make sure we never resort to those methods again.

As Commander in Chief, I have no greater responsibility than the safety and security of the American people. We will therefore continue to be relentless in our fight against al Qaeda, its affiliates and other violent extremists. We will rely on all elements of our national power, including the power and example of our founding ideals. That is why I have consistently supported the declassification of today’s report. No nation is perfect. But one of the strengths that makes America exceptional is our willingness to openly confront our past, face our imperfections, make changes and do better.

These comments are almost completely false. Obama has neither used his full “authority as President to make sure we never resort to those methods again,” nor “consistently supported the declassification” of the Senate report. In fact, as many Senate Democrats have complained, he has fought tooth and nail to prevent the publication of the report, and more substantially, by blocking prosecutions of the architects and practitioners of the CIA’s torture program, he has virtually ensured that torture will remain a “policy option” for future presidents, as Human Rights Watch has warned.

Rejecting these claims as the empty platitudes and self-serving obfuscations that they are, several grassroots organizations are holding a series of nationwide demonstrations over the next week to demand accountability from the CIA, as well as its sister organization and partner in crime, the NSA.

For a full list of events, click here.

Pressure mounts against U.S. torture impunity

aclu accountability for torture

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.

Torture impunity becomes further entrenched in the USA

proscute-torture

With recent reports indicating that the Obama administration may be maintaining the legal arguments of the previous administration as they pertain to the applicability of international law in counterterrorism operations overseas, as well as leaked news of the much-touted Senate CIA torture report avoiding the assignment of responsibility for these policies, it is growing increasingly obvious that impunity for torture has become undisputed official U.S. policy.

As The New York Times reported over the weekend,

When the Bush administration revealed in 2005 that it was secretly interpreting a treaty ban on “cruel, inhuman or degrading treatment” as not applying to C.I.A. and military prisons overseas, Barack Obama, then a newly elected Democratic senator from Illinois, joined in a bipartisan protest.

Mr. Obama supported legislation to make it clear that American officials were legally barred from using cruelty anywhere in the world. And in a Senate speech, he said enacting such a statute “acknowledges and confirms existing obligations” under the treaty, the United Nations Convention Against Torture.

But the Obama administration has never officially declared its position on the treaty, and now, President Obama’s legal team is debating whether to back away from his earlier view. It is considering reaffirming the Bush administration’s position that the treaty imposes no legal obligation on the United States to bar cruelty outside its borders, according to officials who discussed the deliberations on the condition of anonymity.

If Obama does decide to continue the policy of denying the Convention Against Torture’s jurisdiction in overseas operations, the message to the world will be received loud and clear that U.S. torturers are indeed above the law – that indeed no legal constraints exist on the U.S. global war on terror, neither its military operations that respect no nation’s sovereignty, its secret black site prisons nor its grotesque regime of enforced disappearances and torture.

While some might argue that it’s unfair to jump to conclusions and important to give Obama the benefit of the doubt until a final decision is made as to whether the treaty is legally binding on the United States regarding human rights obligations, in fact there is little reason to offer such latitude.

After all, the Obama administration has already declared that another landmark human rights accord – the International Covenant on Civil and Political Rights – has no bearing on U.S. overseas operations, drawing a stinging rebuke earlier this year from the UN Human Rights Committee, which monitors compliance with the ICCPR.

As stated in the HRC’s “concluding observations” issued on March 27, 2014:

The Committee regrets that the State party [the United States] continues to maintain the position that the Covenant does not apply with respect to individuals under its jurisdiction, but outside its territory, despite the interpretation to the contrary of article 2, paragraph 1, supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and State practice. The Committee further notes that the State party has only limited avenues to ensure that state and local governments respect and implement the Covenant, and that its provisions have been declared to be non-self-executing at the time of ratification. Taken together, these elements considerably limit the legal reach and practical relevance of the Covenant (art. 2).

In response to this highly restrictive interpretation of the ICCPR which undermines human rights globally, the UN urged the United States to “interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of the object and purpose of the Covenant, and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances.”

The HRC also regretted the lack of accountability for past human rights violations:

The Committee is concerned at the limited number of investigations, prosecutions and convictions of members of the Armed Forces and other agents of the United States Government, including private contractors, for unlawful killings during its international operations, and the use of torture or other cruel, inhuman or degrading treatment or punishment of detainees in United States custody, including outside its territory, as part of the so-called “enhanced interrogation techniques”. While welcoming Presidential Executive Order 13491 of 22 January 2009 terminating the programme of secret detention and interrogation operated by the Central Intelligence Agency (CIA), the Committee notes with concern that all reported investigations into enforced disappearances, torture and other cruel, inhuman or degrading treatment committed in the context of the CIA secret rendition, interrogation and detention programmes were closed in 2012, resulting in only a meagre number of criminal charges being brought against low-level operatives. The Committee is concerned that many details of the CIA programmes remain secret, thereby creating barriers to accountability and redress for victims (arts. 2, 6, 7, 9, 10 and 14).

The State party should ensure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in positions of command, are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. The State party should also consider the full incorporation of the doctrine of “command responsibility” in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.

This lack of accountability is expected to continue, with the one comprehensive official attempt to ascertain the level of U.S. criminality in the war on terror – the Senate’s years-long investigation into CIA torture – studiously avoiding the assignment of culpability for these illegal policies.

As McClatchy reported on October 16,

bush tortureA soon-to-be released Senate report on the CIA doesn’t assess the responsibility of former President George W. Bush or his top aides for any of the abuses of the agency’s detention and interrogation program, avoiding a full public accounting of one of the darkest chapters of the war on terror.

“This report is not about the White House. It’s not about the president. It’s not about criminal liability. It’s about the CIA’s actions or inactions,” said a person familiar with the document, who asked not to be further identified because the executive summary – the only part to that will be made public – still is in the final stages of declassification.

The Senate Intelligence Committee report also didn’t examine the responsibility of top Bush administration lawyers in crafting the legal framework that permitted the CIA to use simulated drowning called waterboarding and other interrogation methods widely described as torture, McClatchy has learned.

Despite the lack of accountability for those who actually crafted these illegal torture policies, the United States government had the gall to claim in its “periodic report” recently submitted to the UN Committee Against Torture that it is complying fully with the Convention Against Torture (CAT).

The government claimed [PDF], “U.S. law provides jurisdiction in a number of ways that could be relied on for criminal prosecution of torture and ill-treatment of detainees” and offered a few examples. The problem is, the Justice Department division the government cited as a bulwark against impunity for torture appears to have prosecuted zero public cases of torture against U.S. officials.

So, the government’s periodic report to the UN is basically one lie after another, and for these reasons, it is becoming painfully obvious that the only possibility for accountability may in fact be an international tribunal charged with prosecuting these crimes.

Because the U.S. has so consistently flouted its legally binding obligation under the CAT to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature,” it may be up to the international community to help ensure that an officially sanctioned climate of impunity does not take hold in the United States on the issue of torture.

Under the terms of the CAT (which the U.S. has ratified), a state party that is not fulfilling its obligations to prosecute torture may be referred to a committee to adjudicate the matter. As the Compliance Campaign has previously noted, it’s high time for this adjudication to take place. If it doesn’t, torture impunity will become even further entrenched, with ominous implications for the whole world.

Time for an international tribunal on CIA torture

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Thanks to a number of intrepid journalists working to learn the details of the still-classified 6,300-page report on the CIA’s torture and rendition program, we now know that the human rights abuses committed in the war on terror have included clear-cut cases of law-breaking, even going beyond the overly permissive interrogation guidelines of the Bush White House and Justice Department.

As Jason Leopold reported yesterday at Al Jazeera America,

According to the Senate report, Al Jazeera’s sources said, a majority of the more than 100 detainees held in CIA custody were detained in secret prisons in Afghanistan and Morocco, where they were subject to torture methods not sanctioned by the Justice Department. Those methods are recalled by the report in vivid narratives lifted from daily logs of the detention and interrogation of about 34 high-value prisoners. The report allegedly notes that about 85 detainees deemed low-value passed through the black sites and were later dumped at Guantánamo or handed off to foreign intelligence services. More than 10 of those handed over to foreign intelligence agencies “to face terrorism charges” are now “unaccounted for” and presumed dead, the U.S. officials said.

To be clear, what we are talking about here are not policy disputes, but unambiguous incidents of abduction, torture, forced disappearances and homicide. It has long been apparent that these actions have been conducted in violation of international law, but what is new about the revelations coming to light from the Senate torture report is that the harsh interrogation techniques used by the CIA have gone well beyond what was sanctioned by the Justice Department.

This is significant because for years, the justification that the Obama administration has used in avoiding criminal prosecutions of CIA officers implicated in torture is that they were operating under legal guidelines provided by the Department of Justice and White House Office of Legal Counsel.

As president-elect Obama indicated just before taking office in 2009, there should be prosecutions if “somebody has blatantly broken the law” but that in general, the CIA should have no fear of “looking over their shoulders and lawyering up.”

Speaking on ABC’s This Week on Jan. 11, 2009, he said:

We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to look at past practices. And I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering up. …

[W]e have not made any final decisions but my instinct is for us to focus on how do we make sure that moving forward, we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward.

The Bush administration had authorized interrogation tactics like waterboarding that likely went beyond what is permitted under federal laws and international treaties, but the defenders of the torture program had always said their actions were legal under a president’s wartime powers.

Now, however, that we know that the torture and abductions went beyond the legal guidelines offered to provide CIA officers with “the color of law” in carrying out their brutal interrogations, this argument no longer holds water. But rather than following up on his earlier pledges to hold those accountable who had “blatantly broken the law,” Obama is now obliquely implying that there will likely be no prosecutions for blatant law-breaking.

In a statement regarding the controversy, Obama said on March 12:

The first day I came into office, I ended the practices that are subject to the investigation by the Senate committee, and have been very clear that I believed they were contrary to our values as a country. Since that time, we have worked with the Senate committee so that the report that they are putting forward is well informed and what I have said is that I am absolutely committed to declassifying that report as soon as the report is completed. In fact, I would urge them to go ahead and complete the report and send it to us and we will declassify those findings so that the American people can understand what happened in the past and that can help guide us as we move forward.

With respect to the issues that are going back and forth between the Senate committee and the CIA, John Brennan has referred them to the appropriate authorities and they are looking into it and that’s not something that is an appropriate role for me and the White House to wade into at this point. But the one thing that I want to emphasize is that the substantive issue, which is how do we operate even when we are threatened, even when even gone through extraordinary trauma has to be consistent with the rule of law and our values. And I acted on that on the first day and that hasn’t changed.

What is conspicuously absent from that statement is any indication that prosecutions may ensue for the violations of the law that we now know have occurred.

For this reason, it is becoming painfully obvious that the only possibility for accountability may be an international tribunal to take the lead in prosecuting these crimes.

It should be pointed out that there is a legally binding obligation under the Convention Against Torture to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature.”

This provision recognizes that it is only in a climate of impunity – such as the climate that currently exists in the United States – that the crime of torture is able to take place.

In order to prevent this climate of impunity from being institutionalized, under the terms of the Convention (which the U.S. has ratified), a state party that is not fulfilling its obligations to prosecute torture may be referred to a committee to adjudicate the matter.

It’s time for this adjudication to take place. If it doesn’t, CIA criminality and impunity will become even further entrenched, with ominous implications for the whole world.

Sidestepping international obligations, Dems reiterate ‘torture ban,’ endorse ‘universal values’

Demonstrators march on the 2012 Democratic National Convention on Sept. 2. (AP Photo/Gerry Broome)

The 2012 Democratic Party platform released yesterday offers a renewed pledge to close the prison camp at Guantanamo and reiterates President Obama’s ‘torture ban’ which he initiated his first week in office. In a section called “Advancing Universal Values,” the platform endorses the right of individuals “to speak their mind, assemble without fear, have access to information, worship as they please, and choose their own leaders.” Other universal values embraced by the Democrats “include dignity, tolerance, and equality among all people,” as well as the fair administration of justice.

“We must always seek to uphold these values at home, not just when it is easy, but, more importantly, when it is hard,” states the platform. It goes on to explain that upholding these values “is why the President banned torture without exception in his first week in office.”

What the platform fails to mention is that in fact there was no need for the president to “ban torture” in the first place, since torture has long been banned by both domestic and international law. Common Article 3 of the  four  Geneva  Conventions  of 1949 established a prohibition  against  torture, which was further codified by the 1987 UN Convention Against Torture. The Convention Against Torture provides a clear-cut definition of what constitutes the practice. As stated in Article 1:

[T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The Convention further unambiguously states that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

As a state party to both the Geneva Conventions and the Convention Against Torture, the United States has adopted domestic legislation to ensure compliance with the treaties’ provisions. The War Crimes Act punishes any grave breach of the Geneva Conventions, including any violation of Common Article 3.

The Torture Statute, formally known as Title 18, Part I, Chapter 113C of the U.S. Code, provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States. (Domestic incidents of torture are covered by state criminal statutes.)

The law consists of three sections (2340, 2340A, and 2340B), which define the crime of torture.

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

It is widely acknowledged that policies instituted by the previous administration openly violated these provisions of domestic law, and by failing to prosecute those crimes, the Obama administration is itself violating international law. It is not enough for Obama or the Democratic Party to simply reiterate that “the United States doesn’t torture.” There is a legally binding obligation under the Convention Against Torture to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature.”

Under the provisions of the Convention, a state party that is not fulfilling its obligations to prosecute torture may be referred to a committee to adjudicate the matter.

The Democratic platform’s reiteration of Obama’s ‘torture ban’ comes less than a week after Attorney General Eric Holder announced that CIA agents would face no charges over the torture and death of detainees while in custody. On Thursday, the Justice Department announced it was ending a criminal investigation that had been probing the deaths of two men: one in Iraq and one in Afghanistan. As Democracy Now reported, “Gul Rahman died in 2002 while being held at a secret CIA facility known as the ‘Salt Pit’ in Afghanistan. He had been shackled to a concrete wall in near-freezing temperatures. Manadel al-Jamadi died in 2003 while in CIA custody at Iraq’s notorious Abu Ghraib prison. His corpse was photographed packed in ice and wrapped in plastic.”

Eric Holder said in a statement on Thursday, “Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

Holder did not explain precisely what that “fully developed factual record” may have entailed, nor did he expand upon what “admissible evidence” there was, and perhaps more importantly, what sort of inadmissible evidence might exist. Instead, he injected seemingly irrelevant details about other investigations into “any possible CIA involvement with the interrogation and detention of 101 detainees who were alleged to have been in United States custody subsequent to the terrorist attacks of September 11, 2001.”

“A number of the detainees,” said Holder, “were never in CIA custody.” This, of course, implies that a number of the detainees were in CIA custody.

Rights groups slammed the Justice Department decision. “That the Justice Department will hold no one accountable for the killing of prisoners in CIA custody is nothing short of a scandal,” said Jameel Jaffer, ACLU deputy legal director.

The Justice Department has declined to bring charges against the officials who authorized torture, the lawyers who sought to legitimate it, and the interrogators who used it. It has successfully shut down every legal suit meant to hold officials civilly liable.

Continuing impunity threatens to undermine the universally recognized prohibition on torture and other abusive treatment and sends the dangerous signal to government officials that there will be no consequences for their use of torture and other cruelty. Today’s decision not to file charges against individuals who tortured prisoners to death is yet another entry in what is already a shameful record.

The Center for Constitutional Rights also criticized the decision and noted the importance of independent investigations.

Once again, the United States has shown it is committed to absolving itself of any responsibility for its crimes over the past decade. Today’s announcement belies U.S. claims that it can be trusted to hold accountable Americans who have perpetrated torture and other human rights abuses, and underscores the need for independent investigations elsewhere, such as the investigation underway in Spain, to continue. Impunity does not always cross borders.

Marjorie Cohn noted that the announcement is just the latest in a long line of betrayals by the Obama administration.

Last year, Attorney General Eric Holder announced that his office would investigate only two incidents, in which CIA interrogations ended in deaths. He said the Justice Department “has determined that an expanded criminal investigation of the remaining matters is not warranted.” With that decision, Holder conferred amnesty on countless Bush officials, lawyers and interrogators who set and carried out a policy of cruel treatment.

Now the attorney general has given a free pass to those responsible for the deaths of Gul Rahman and Manadel al-Jamadi.

Both men died horrible deaths in U.S. custody. In 2002, Rahman froze to death after being stripped and shackled to a cold cement floor in the secret Afghan prison known as the Salt Pit. Al-Jamadi died after being suspended from the ceiling by his wrists. Tony Diaz, a U.S. military police officer who witnessed al-Jamadi’s torture, said that blood gushed from his mouth like “a faucet had turned on” when he was lowered to the ground. A military autopsy ruled al-Jamadi’s death a homicide.

As horrendous as they may have been, the two deaths are not unique. 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 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.”

The Democratic Party platform however brushes aside these concerns, blandly stating that “Advancing our interests may involve new actions and policies to confront threats like terrorism, but the President and the Democratic Party believe these practices must always be in line with our Constitution, preserve our people’s privacy and civil liberties, and withstand the checks and balances that have served us so well.”

The disconnect between these empty words and the demonstrable reality is profound. If the Democratic Party really believes that counter-terrorism policies must be in line with the Constitution and civil liberties, they should simply enforce the laws that exist on the books. As their platform states, “We must always seek to uphold these values at home, not just when it is easy, but, more importantly, when it is hard.”

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