Facing the Music: CIA and British Agents May Face Prosecution for Allegations of Torture

Remember Binyam Mohamed? Senior CIA officers could be put on trial in Britain, after it emerged this week that the British Attorney General is investigating allegations of his torture.

To refresh you, Mohamed’s case was documented in HRF’s report Tortured Justice (pp.23-24). An Ethiopian-born former British resident, he was reportedly arrested in Pakistan in April 2002 and transferred to Guantánamo in September 2004, where he remains.

Mohamed maintains that after his arrest in 2002 he was rendered to Morocco, and then transferred to CIA custody in Afghanistan. His attorneys argue that the government's allegations linking him to a “dirty bomb” plot in the United States are based on confessions their client made after his detention and torture in Morocco, where, they say, he was slashed with a razor and beaten. In response to the torture, Mohamed says he attempted to tell his interrogators what he thought they wanted to hear, falsely confessing to some of their accusations.

But now, U.S. District Judge Emmet G. Sullivan has ordered the Justice Department to turn over documents to Mohamed’s attorneys detailing their client’s treatment while in detention overseas. These documents may help prove or disprove Mohamed’s claims that he falsely confessed only after being tortured at the direction of U.S. officials.

On October 21, 2008, shortly before the Justice Department was required to turn over exculpatory evidence to the defense, the Pentagon withdrew charges linking Mr. Mohamed to the “dirty bomb” plot. "That raises serious questions in this court's mind about whether those allegations were ever true," said Judge Sullivan. The government said it stood by the allegations but chose to withdraw them in order to expedite the proceedings. "That doesn't ring true; it rings hollow," Sullivan responded. "The government has never been concerned with acting expeditiously here." Read the Washington Post article here.

Earlier this week, the United States turned over potentially exculpatory intelligence documents related to Mohamed that have been the subject of judgments by the British High Court. The U.S. government initially resisted handing them over, releasing only seven documents, but on Wednesday it turned over the 35 remaining ones. British officials also told the High Court this week that the "question of possible criminal wrongdoing" in Mohamed's case has been referred to the country's attorney general for investigation into the actions of British agents, and potentially, senior CIA officers.

Last night, Mr. Mohamed’s lawyer, Clive Stafford Smith, said: "This is a welcome recognition that the CIA cannot just go rendering British residents to secret torture chambers without consequences, and British agents cannot take part in U.S. crimes without facing the music. Reprieve will be making submissions to the Attorney General to ensure those involved, from the U.S., Pakistan, Morocco, Britain, are held responsible." Reprieve is an organization, founded by Smith, that represents prisoners facing execution at the hands of the state in the conventional criminal justice system, or those subject to imprisonment outside the reach of the law in the ‘war on terror.’

First Ever Conviction Under 1994 Torture Statute

In the first case brought under the 1994 anti-torture statute—making it a crime for United States citizens to commit torture overseas—Charles McArthur Emmanuel, also known as Charles "Chuckie" Taylor Jr., was convicted of torturing suspected opponents of his father’s government. During the trial, defense counsel argued that he was not guilty under a 2002 U.S. Department of Justice memo’s narrow interpreted of the definition of torture that required that the infliction of severe pain be the defendant’s “precise objective.” The defense counsel’s arguments were a sharp reminder of how a U.S. policy of official cruelty has jeopardized our country’s ability to hold torturers accountable for their horrendous crimes.

The case was investigated by U.S. Immigration and Customs Enforcement, and FBI agents who traveled around the world finding victims and witnesses. Miami Attorney R. Alexander Acosta said the case will serve as model for future prosecutions involving foreign torture allegations: “It is truly historic. It's the first case of its kind, but it won't be the last of its kind."

The verdict is a milestone for ensuring justice for acts of torture by U.S. citizens abroad.

Retired Generals Condemn Use of Torture

On October 23, 2008, at the University of Virginia Law School retired military leaders Lieutenant General Harry E. Soyster and Lieutenant General Charles Otstott discussed the importance of using interrogation methods that are effective, lawful and humane, and the importance of the commander-in-chief setting the highest standards for all U.S. personnel in the treatment of prisoners.

"It doesn't matter what they do, it’s what we do. We don't lower ourselves to the level of this terrible enemy we are fighting. It's about what our standards are." - General Soyster

"The rules are the same, and should be the same. All the Machiavellian work that has been done to get around those rules is detestable, and I can't believe we are doing that as an official policy in the United States of America." - General Otstott

Read about it and watch the video here.

Torturing Democracy

If you live in New York, tune in to WNET on Thursday October 30 to catch “Torturing Democracy,” a documentary examining the Bush administration’s detention and interrogation policies. You can also view the documentary and a variety of supporting materials at http://torturingdemocracy.org/, and it will be shown on a variety of other public television stations nationwide in coming weeks. There has been some controversy around a decision by PBS not to air the documentary until January 21 – the day after a new President takes office. The film’s producer Sherry Jones has rejected that offer, and has been approaching stations individually in an effort to have the film aired before 2009. Stations serving some 85% of the nation’s viewers have scheduled an air date thus far.

Beyond Brutality, Beyond Mediocrity

An experienced interrogator who helped the U.S. government investigation into the abuses at Abu Ghraib wants to form a professional organization for interrogators from around the world that would lobby for appropriate oversight, high standards and a code of conduct. Torin Nelson has worked in Bosnia, Iraq, Afghanistan and Guantanamo Bay, Cuba. Although he thinks legal reforms that came about after the Abu Ghraib scandal are an important first step, he thinks that forming such an organization would make interrogation not only more humane, but more effective: “So we've gotten beyond brutality - the next step is getting beyond mediocrity.” Retired Brigadier General David Irvine, who has taught prisoner interrogation for the U.S. Army Reserve, agrees. As the U.S. military seems to be learning that brutality can't win a battle against an insurgency, the same is true of brutality in interrogation.

"I think there has been a real sea change in the way virtually every entity that is involved in intelligence gathering, and particularly interrogation, comes to the table now," said Irvine. "I really believe that all of the attention that was focused on Abu Ghraib and on torture has made everybody very, very cautious."

General Irvine has worked extensively with a group of retired military leaders who have spoken out against torture. If you haven’t lately, check out HRF’s blueprint on how to end torture.

How to End Torture: A Blueprint

During last night’s debate, both presidential candidates reiterated that they are in agreement in opposing torture. Senator Obama and Senator McCain both understand that America's reputation has been damaged and our national security undermined because of the Bush Administration's policy of torture and official cruelty. Lucky for them both, Human Rights First has just unveiled a detailed, multi-phased blueprint to end official cruelty and restore America's commitment to the rule of law within the next president's first year in office.

As part of this strategy, the memos discussed in yesterday's Washington Post story – along with other memoranda or orders authorizing or justifying cruel treatment or secret detention – must be made public so that Congress and the public fully understand how laws mandating humane treatment were circumvented.

It’s not long, so please go read the whole thing here. In the meantime, in it are concrete recommendations, including:

• Expressly renouncing torture and official cruelty in the president's inaugural address and announcing a single standard of humane treatment across all government agencies based on the military's Golden Rule: We must not engage in conduct that we would consider unlawful if perpetrated by the enemy against captured Americans.
  
• Revoking all White House, Justice Department, Defense Department and CIA orders and memoranda authorizing or justifying cruel treatment or secret detention.
  
• Ordering the National Security Advisor to undertake a comprehensive interagency review of all torture memoranda and documents and to make these documents public, to the greatest extent possible, so that Congress and the public fully understand how laws mandating humane treatment were circumvented.
  
• Declaring a moratorium on renditions that have sent detainees from U.S. custody to torture in other countries, and direct a comprehensive review of rendition practices and the use of diplomatic assurances.
  
• Strengthening counterterrorism efforts by directing the Secretary of Defense and the Director of National Intelligence to undertake a comprehensive review and reform of U.S. government human intelligence gathering practices, including interrogation.
  
• Appointing a nonpartisan commission, modeled on the 9/11 Commission, to investigate the facts and circumstances relating to U.S. government detention and interrogation operations since September 11, 2001, and make public a report on its findings.

Candidates Again Agree on Opposing Torture

In last night's debate we once again saw unanimous condemnation of the Bush Administration's torture policies from the candidates. Here's the transcript, with the candidates responding to a question about their differences with party leaders:

OBAMA: . . . . Now, you've shown independence -- commendable independence, on some key issues like torture, for example, and I give you enormous credit for that. But when it comes to economic policies, essentially what you're proposing is eight more years of the same thing. And it hasn't worked. And I think the American people understand it hasn't worked. We need to move in a new direction.

SCHIEFFER: All right...

MCCAIN: Let me just say, Bob.

SCHIEFFER: OK. About 30 seconds.

MCCAIN: OK. But it's very clear that I have disagreed with the Bush administration. I have disagreed with leaders of my own party. I've got the scars to prove it.

Whether it be bringing climate change to the floor of the Senate for the first time. Whether it be opposition to spending and earmarks, whether it be the issue of torture, whether it be the conduct of the war in Iraq, which I vigorously opposed. Whether it be on fighting the pharmaceutical companies on Medicare prescription drugs, importation. Whether it be fighting for an HMO patient's bill of rights. Whether it be the establishment of the 9/11 Commission.

More Secret Torture Memos

Today's Washington Post has a report on the existence of White House memos authorizing torture and official cruelty:

The Bush administration issued a pair of secret memos to the CIA in 2003 and
2004 that explicitly endorsed the agency's use of interrogation techniques such
as waterboarding against al-Qaeda suspects -- documents prompted by worries
among intelligence officials about a possible backlash if details of the program
became public.

Can we see these memos? Of course not. The White House says they're classified. Read the full article here.

Election Season is an Opportunity to Reflect on Human Rights

On the occasions of U.S. and Canadian election campaigns, Romeo Dallaire writes today in an opinion piece in the Toronto Star about Omar Khadr. “Both the United States and Canada are in the midst of election campaigns,” Mr. Dallaire writes, “so what better time for a principled discussion about human rights and international legal obligations?” He goes on to praise both John McCain and Barack Obama, who have each pledged to shut down Guantanamo if elected.

Mr. Khadr is a Canadian citizen and former child soldier accused of throwing a grenade that killed a U.S. soldier in 2002 in Afghanistan. He was 15 at the time, and has been held at Guantanamo Bay since he was 16. He is scheduled to be tried for war crimes on November 10, 2008 under the U.S. military commission system. Preparations for his trial have been characterized by legal shortcomings; read about our colleagues’ observations of Khadr’s case at military commission hearings at Gitmo here. Click here for more background on the case of Omar Khadr.

Rubber Band Nears its Breaking Point

91 pages of emails and documents produced through a FOIA request have shed new light on the treatment of two American citizens and a legal U.S. resident in military jails within the United States. The documents show that the men were treated the same way as prisoners at Guantanamo Bay: interrogated by the CIA and Defense Intelligence Agency, repeatedly denied access to attorneys and mail from home, allowed no outside contact, deprived of natural light for months. Yaser Esam Hamdi, Jose Padilla, and Ali Saleh Kahlah al-Marri were designated as by the White House as "illegal enemy combatants," and ordered to be held in military jails for years of interrogations without criminal charges, which would not have been allowed in civilian jails. In the documents, it’s striking that uniformed officers at the military jails grew increasingly uncomfortable and alarmed by orders to treat prisoners inhumanely. Here, “an officer was still raising alarms about Hamdi's mental state after 14 months behind bars with no contact with lawyers, family or other prisoners.

"I told him the last thing that I wanted to have happen was to send him anywhere from here as a 'basket case,' of use to no one, to include himself," the officer wrote in an e-mail to undisclosed government officials in June 2003. "I fear the rubber band is nearing its breaking point here and not totally confident I can keep his head in the game much longer."

Experienced interrogators confirm that torture and other inhumane and abusive interview techniques are unlawful, ineffective and counterproductive. In June, HRF convened a meeting of interrogators from the military, CIA, and FBI, and they developed a set of principles to guide effective interrogation practices. Read them here.

HRF Applauds Decision to Release 17 Uighurs From Gitmo

Yesterday, for the first time, a federal court ordered the release of prisoners held at Guantanamo Bay. 17 Chinese Uighurs have been held at Gitmo for nearly seven years. They were cleared for release in 2004, and last week the U.S. Government conceded that they would no longer be treated as “enemy combatents”. However, they have not been returned to China because of fears they will be abused upon their return, and no third country has agreed to accept them. Resettling the Uighurs in the U.S. is an important step towards closing Guantanamo. Human Rights First applauded the ruling:

"Today's ruling takes yet another step toward dismantling the flawed legal framework underlying the detentions at Guantanamo and toward repairing our reputation as a nation committed to human rights and the rule of law," said Human Rights First Senior Associate Deborah Colson. "Judge Urbina correctly found that the U.S. Constitution prohibits the indefinite detention of innocent men and women without legal cause."

Another Perspective on Torture in the Campaign

We liked what both Sens. McCain and Obama had to say about interrogation and detainee treatment issues at the first debate, and we hope that if the topic comes up at tonight's VP debate, we hear similarly strong anti-torture comments from both sides. But for a different take on this issue in the campaign, check out this piece at cbsnews.com:

"Why should the average fellow care about the treatment of detainees when gas prices have doubled and his 401k value has dropped in half? Why should a hockey mom care about the procedures employed by military prosecutors when banks are refusing to loan money, home values are way down and bad mortgages litter the landscape?

For a long time, the legal aftermath of the terror attacks of September 11, 2001 was an enormous part of the political conversation in Washington and around the country. That is no longer the case. And neither candidate seems particularly troubled by it."

Mr. Cohen's point is well-taken, but it seems to us that these issues have deservedly received more airtime during this election than in 2004, and we've been heartened to see how it seems to have become more politically viable - compared to 2004 - to take a strong anti-torture stance, as both candidates have.

Online Discussion of Jane Mayer's The Dark Side

TPM is currently hosting an online discussion of Jane Mayer's The Dark Side: The Inside Story Of How The War On Terror Turned Into A War On American Ideals featuring Jane, Christopher Hitchens, journalist and literary critic, Scott Horton, Harpers Contributor and New York Attorney specializing in human rights law and the law of armed conflict, Emily Bazelon, senior editor at Slate, Spencer Ackerman, journalist and blogger and Marty Lederman, visting professor of Law at the Georgetown University Law Center, and blogger. Check it out here.