Supreme Court Revives Chance for Justice in Torture Case

The Supreme Court’s decision to revive a lawsuit brought by four British men who claim they were tortured at Guantanamo provides the plaintiffs with a chance for justice and the public with an opportunity to learn how policies that undermined American interests and tarnished our reputation came to be embraced.

The four men -- Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal al-Harith -- were captured in late 2001 in Afghanistan and were transferred to Guantanamo in early 2002. In March 2004, they were returned to Britain. Their lawsuit named then-Defense Secretary Donald Rumsfeld and 10 military commanders. They claimed they were subjected to torture, harassed as they practiced their religion, and forced to shave their religious beards.

“This case presents the question of whether senior officials of the United States government can be held accountable ... for ordering the religious humiliation and torture of Guantanamo detainees," their lawyers said in the appeal to the Supreme Court. "This case presents the opportunity to recognize and enforce rights that are at least as basic and essential to human autonomy -- the right to worship and the right not to be tortured."

As the publicly released portions of the Senate Armed Services Committee report showed last week, the responsibility for the United States’ authorization of torture and abuse extends far beyond the low-ranking individuals who have faced punishment for their actions. “This case presents an opportunity to get to the bottom of the torture scandal so that we can put this sorry chapter behind us,” said Sharon Kelly, Campaign Manager for We Can End Torture Now.

Detainee Abuse Cannot Be Attributed to “a few bad apples”; Top Bush Admin Officials Are to Blame

A report released yesterday by the Senate Armed Services Committee said that top Bush Administration officials bore major responsibility for the abuses committed by American troops in interrogations at Abu Ghraib in Iraq, Guantánamo Bay, Cuba, and other military detention centers: "The fact is that senior officials in the United States government solicited information on how to use aggressive (interrogation) techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

The report, which represents the most thorough review by Congress to date of the origins of the abuse of prisoners in American military custody, rejects the contention by the Bush Administration that tough interrogation methods have helped keep the country and its troops safe. The report also rejects previous claims that Defense Department policies played no role in the harsh treatment of prisoners at Abu Ghraib in late 2003 and in other episodes of abuse. The abuse of prisoners at Abu Ghraib, the report says, “was not simply the result of a few soldiers acting on their own” but grew out of interrogation policies approved by Mr. Rumsfeld and other top officials, who “conveyed the message that physical pressures and degradation were appropriate treatment for detainees.” The portions made public today also include information about the use of Survival Evasion Resistance and Escape (SERE) techniques--designed to simulate abusive tactics used by our enemies to elicit false confession--against detainees in U.S. custody.

The report, as Mark Benjamin at Salon.com writes, “is all about naming names, and the summary is stunningly frank in its conclusions, particularly in comparison to the passive language employed by most government investigations into abuse.”

Although most of the report remains classified, the release of the unclassified portions underscores the need for a complete and open investigation into U.S. government detention and interrogation practices since September 11, 2001, and for accountability for those who authorized or engaged in prisoner abuse. "The United States must openly confront its role in sanctioning cruel treatment so that the American public and Congress can learn from past mistakes and prevent future abuse," said Deborah Colson, Interim Director of Human Rights First's Law and Security Program.

HRF is also urging President-elect Obama to establish a nonpartisan commission to investigate the facts and circumstances relating to U.S. government detention and interrogation operations since September 11.

"The next president must restore America's commitment to humane treatment and prevent future sanctioning of cruel treatment by directing the new attorney general to investigate potential criminal conduct related to detainee abuse," said Colson. "Prosecution is a strong deterrent against abuse and would send a signal that no one is above the law," added Colson.

The Bush Admin Denials Continue: 'We Did Not Torture' ... 'We Followed' the Law

Obama on 60 Minutes: Regaining America's Moral Stature

President-elect Obama spoke about ending torture and closing Guantanamo on 60 Minutes last night:

"I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture, and I’m going to make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world."

HRF in the News

In his long piece “After the Imperial Presidency” in the New York Times Sunday Magazine, Jonathan Mahler discusses the assertion and expansion of presidential power under George W. Bush, the role that partisan politics has played in the complacency of the Congress, and the difficulty faced by the legislative branch when trying to push back against strong and determined president. In the article, he highlights the role played (and, more importantly, not played) by Congress with respect to U.S. interrogation and detainee treatment policies and quotes HRF Executive Director Elisa Massimino:

McCain first got involved in the torture fight in early 2005, when it was by no means a popular cause, particularly inside his own party. “At a time when there was not a single person in the United States who had any influence who was willing to take this issue on, he took it on,” says the executive director of Human Rights First, Elisa Massimino, who worked with McCain on the torture bill.

Yesterday, in Slate, he jumped on the “Dismantling Guantanamo” bandwagon, and wrote about the difficulties facing the Obama Administration in dealing with the approximately 250 detainees still imprisoned at Guantanamo. He writes, “It seems safe to say that Obama's preferred venue for trial will be the federal courts. This is the approach many on the left have been agitating for since 9/11. Last May, Human Rights First issued a 183-page report, "In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts," aimed at supporting this argument.” Yes we did.

Terrorist Cases Should Be Tried in U.S. Federal Courts

The good news is in the headline of this Washington Post story, Guantanamo Closure Called Obama Priority. According to Obama advisers speaking anonymously, the Obama Administration will launch an immediate review of the classified files of those detained - some 250 people - at Guantanamo Bay upon taking office. Closing Guantanamo would send a potent message to the rest of the world, and would “create a global wave of diplomatic and popular goodwill that could accelerate the transfer of some detainees to other countries.”

But there has been talk – denied by Obama’s transition team – about contemplating some form of preventive detention backed by a new civilian national security court. Proponents of preventive detention often cite national security concerns and the need to protect operational secrets as grounds for keeping some of the cases out of U.S. federal courts. They also note that some cases against detainees in custody have been compromised by torture and coercive interrogations.

Fair enough, but hiding the use of torture, and allowing the use of evidence gathered by torture is anathema to U.S. standards of justice. Some Obama advisers acknowledge that the degradation of the image of the U.S. because of the Bush Administration’s policies is too severe to countenance any form of preventive detention. At any rate, Human Rights First believes that the federal courts are up to the task of trying those detainees who can be put on trial:

"The federal criminal courts are capable of handling serious terrorist cases and capable of handling people and evidence seized overseas, without sacrificing the government's need to protect sensitive material, while protecting defendants' rights," said Deborah Colson, a senior associate at Human Rights First.

Read our report, where HRF noted that since the Sept. 11, 2001, attacks, there have been 107 successful prosecutions of international terrorism cases in the federal courts, compared with three convictions in military commissions at Guantanamo Bay, including one plea bargain. (See also our Blueprint to Close Guantanamo detailing the steps necessary to close Guantanamo.)

During the campaign, Obama seemed to favor federal prosecution of terrorism suspects: "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in August, after the completion of the first trial at Guantanamo Bay, which resulted in a relatively mild sentence for Osama bin Laden's driver.

Looking Forward: Ending Torture Under President Obama

With the celebratory cheers brought on by the decisive election of Barack Obama on Tuesday night fading, we are turning our sights on the transition to his inauguration, and the steps necessary to implement some of the promises made on the campaign trail. Although President-elect Obama faces a variety of challenges starting January 20, overhauling the Bush Administration’s most aggressive detention and interrogation policies, including the secret prison network run by the CIA, is among the most urgent.

HRF has called on the President-elect to address these issues right away:

"The erosion of human rights protections in the United States in the aftermath of September 11th has had a profound impact on human rights standards around the world," said Elisa Massimino, Executive Director and Chief Executive Officer of Human Rights First. "We urge President-elect Obama promptly to turn the page on the policies of torture and other abuse that have deprived the United States of its ability to lead on human rights for the past seven years."

Although some advisers acknowledge that the economic crisis may siphon his attention away from foreign policy efforts, these are issues on which Obama placed heavy emphasis during his campaign, and the President-elect's team told the LA Times that they expect his early moves to be "appreciated overseas, and create a more favorable environment for the new administration right at the start."

Addressing detainee treatment and interrogation policies and closing Guantanamo would provide a needed break from the past. The world has so soured on the Bush Administration that foreign leaders are suspicious of American proposals, "even when they're good ones," an advisor added.

Obama has declared that the Guantanamo Bay prison in Cuba should be closed and that detainees should be handled through the U.S. military justice system, and also supported increased oversight of the secret CIA detention program and efforts to promote a single standard of humane interrogation techniques that would restrict the CIA to interrogation techniques used by the military. But there’s a lot of difficult work ahead – and this is where organizations like HRF come in, to keep the pressure on, and to help sort out the details. In the new environment of an Obama Administration, we expect our views to be taken seriously.

'Today We Have More Hope ... '

Human Rights First Executive Director and CEO Elisa Massimino speaks about the election of Barack Obama and what it means for restoring our nation's commitment to human rights and the rule of law. Watch the video in which President-Elect Obama cites his meetings, organized by HRF, with our group of retired Generals and Admirals:

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.’

More Disarray at Guantanamo Bay

Army Lt. Col. Darrel Vandeveld, a prosecutor involved in war crimes cases at Guantanamo, has quit citing ethical concerns. According to Vandeveld, the prosecution is failing to share evidence that could help defendants with defense attorneys. Vandeveld had been prosecuting Mohammed Jawad, 24, accused of throwing a grenade into a military jeep in Kabul in 2002 (when he was just 16 or 17 years old), injuring two U.S. troops and their interpreter.

"My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery," wrote Vandeveld in his filing. "I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain 'procedure' for affording defense counsel discovery."

It is increasingly clear that the military commission system is ill-equipped to deliver justice. Check out our report on the proven track record of federal criminal courts in prosecuting terrorism cases -- without compromising fairness – for a better solution to dealing with these difficult cases.


Oh, but there’s more. On the same day of Vandeveld’s resignation, a military judge rejected a formal motion by Khalid Sheik Mohammed to disqualify himself because of bias and his upcoming retirement. It looks like it will a long time before KSM’s victims see justice, especially since the issue of KSM’s torture continues to be an issue in the case.

Navy Lt. Cmdr. James E. Hatcher, the lead military attorney for defendant Tawfiq bin Attash, said that if a new judge is appointed, a new round of pretrial hearings would be required and the new judge would be forced to reexamine earlier rulings.

That could set back a process that still lacks a trial date and promises to be protracted. The loquacious Mohammed, as he does on most days, took the lead in speaking for the other four defendants, all of whom face the death penalty if convicted on various murder and war crimes charges.

CIA Director Michael V. Hayden has confirmed that Mohammed was subject to waterboarding, a technique that simulates drowning, among other tactics when he was held by the intelligence agency. But the Bush administration has argued that the coercive interrogation techniques it sanctioned did not amount to torture.

Defense attorneys said they will seek to exclude from trial all evidence extracted under duress. "Torture is at issue in this case," said Navy Lt. Cmdr. Brian Mizer, who is representing Ammar al-Baluchi. "It is going to be at the very center of this case."

Retired Military Leaders Speak Out Against Torture

These retired officers are speaking out to bring detainee treatment back into line with the Geneva Conventions and ensure that torture is never again a part of U.S. policy.

Mike Posner on the Question of 'Enhanced Interrogation'

On Monday, April 30, former CIA Director George Tenet published his memoir, At the Center of the Storm. Much of the coverage of the book has focused on Mr. Tenet’s assessment of the CIA’s role leading up to the war in Iraq. But both in the book and in several media appearances, Mr. Tenet has tried to justify the CIA’s use of secret prisons and so-called “enhanced interrogation techniques.”

What Mr. Tenet says about the monitoring of prisoners in CIA custody:

“CIA officers came up with a series of interrogation techniques that would be carefully monitored at all times to ensure the safety of the prisoner.”
[At the Center of the Storm, p. 242]

Human Rights First’s response:

Monitored by whom? The CIA program Mr. Tenet refers to included holding prisoners in secret incommunicado detention with no access to the International Committee of the Red Cross or any outside monitoring agency. This practice is illegal under U.S. and international law. According to a number of reports, including an in-depth report by Human Rights First, the CIA has operated these secret detention facilities in a number of places including Afghanistan, Pakistan, Jordan, Morocco, Poland, Romania, Bulgaria, the Ukraine, Kosovo, Macedonia and on Diego Garcia.

What Mr. Tenet says about torture and “aggressive interrogation techniques”:

“The most aggressive interrogation techniques conducted by CIA personnel were applied to only a handful of the worst terrorists on the planet, including people who had planned the 9/11 attacks and who, among other things, were responsible for journalist Daniel Pearl’s death. The interrogation of these few individuals was conducted in a precisely monitored, measured way intended to try to prevent what we believed to be an imminent follow-up attack. ”
[At the Center of the Storm, pp. 241-42].

“I don’t talk about techniques and we don’t torture people . . . Whatever we did was authorized. Whatever the program is, the Attorney General of the United States said is legal, you can go ahead.”
[Interview with Scott Pelley – CBS “60 Minutes,” April 29, 2007]

“[W]hat we did was authorized, legal, prudent, briefed. And we don’t torture and I don’t talk about techniques.”
[Interview with Larry King, CNN “Larry King Live,” April 30,2007]

Human Rights First’s Response:

What Mr. Tenet terms “aggressive interrogation techniques” reportedly include torture and other cruel, inhuman or degrading practices like these:

Water Boarding: The detainee is bound to a board while water is poured over his face, which is wrapped in plastic. This causes near asphyxiation and a fear of drowning

Exposure to Severe Cold Temperatures: The detainee is soaked in cold water and left to stand naked in a cold cell.

Stress Positions: the detainee is cuffed and shackled in uncomfortable positions for upwards of 40 hours, depriving him of sleep and causing him pain.

The Belly Slap: The detainee is hit in the stomach, with the intent to cause pain but not internal injury. Government doctors reportedly warned that it could cause permanent internal damage.

In addition the CIA has reportedly denied pain medication, and used extreme sleep deprivation, sensory deprivation and isolation.

All of these techniques violate U.S. and international laws to which US officials, including CIA personnel, are bound. Each of these techniques also explicitly violates the U.S. Army’s Field Manual on Intelligence Interrogation. Last September, on the day the revised Army Field Manual was made public, Lt. General John Kimmons, the Army’s Deputy Chief of Staff for Interrogations announced the Army’s rejection of official cruelty: “[N]o good intelligence is going to come from abusive practices.”

Mr. Tenet’s use of the term “Torture”:

“Larry, we don’t torture people. It’s very important for people to understand that we live in a nation of laws.”
[Interview with Larry King, CNN “Larry King Live,” April 30, 2007]

Human Rights First’s Response:

Mr. Tenet and other administration officials have consistently drawn a distinction between what they deem to be torture, which they say the US does not allow, and other forms of official cruelty, which they argue may be practiced. In August 2002, lawyers in the Office of Legal Counsel of the Justice Department defined torture to mean that “[w]hen the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm.” The memo was written at the request of the CIA, which was looking for legal authority to use the techniques described above. Under public pressure, the administration withdrew this definition, which flies in the face of the common sense meaning of the term. But Mr. Tenet and others have continued to assert that the CIA’s “alternative interrogation procedures” are not torture and therefore legal.

These “enhanced” or “alternative” interrogation techniques violate U.S. and international law, including the Detainee Treatment Act, passed overwhelmingly by Congress in the fall of 2005. This law explicitly bans all forms of cruel, inhuman or degrading treatment of any prisoners in US custody. It also applies the Army’s field manual to all U.S. agencies including the CIA when they operate in a US military facility.

Mr. Tenet’s comments on the effectiveness of the CIA’s enhanced interrogation program:

“Information from these interrogations helped disrupt plots aimed at locations in the United States, the United Kingdom, the Middle East, South Asia and Central Asia." [In the Center of the Storm, p. 242]

“I know that this program has saved lives. I know we’ve disrupted plots.”
[Interview with Scott Pelley, CBS “60 Minutes,” April 29,2007]

Human Rights First’s response:

While these coercive interrogations may have yielded some useful intelligence, they also have stained America’s image in the world and seriously undermined support for U.S. efforts in Iraq, Afghanistan and elsewhere among people around the world whose cooperation and expertise the U.S. needs.

In some important cases, these techniques also have led to official reliance on unreliable information extracted by coercive means. One striking example is the case of Ibn al-Shaykh al-Libbi. He was interrogated by the CIA in Pakistan and then turned over by them to the Egyptian intelligence services for coercive interrogation. Under duress he gave detailed information describing ties between al Qaeda and Saddam Hussein. The Bush administration relied heavily on this testimony in making the case for the war in Iraq , at the UN and elsewhere. Al-Libbi later recanted his testimony after he was returned to U.S. custody, and the U.S. intelligence community recommended that information obtained from al-Libbi be regarded as highly suspect.

Mr. Tenet’s response to Senator John McCain and others who are calling for an end to all forms of official cruelty:

“Listen, Larry, I respect Senator McCain and I know what his experience was . . . And Senator McCain raised something at the end that’s quite important. He raised this values question. He raised where we want to be as a society. All I’m saying , wherever we decide to be , whatever the country decides , whatever we decide on a bi-partisan basis, listen: I accept the issues he raises.”
[Interview with Larry King, CNN “Larry King Live,” April 30,2007]

Human Rights First’s response:

We agree with Mr. Tenet that these issues are about values and who Americans want to be as a people.

Responding specifically to Mr. Tenet’s book Senator John McCain said:

“A man I admire more than anyone else, General Jack Vessey, former Chairman of the Joint Chiefs of Staff … told me once – he said ‘John, any intelligence information we might gain through the use of torture could never, ever balance the damage that it does to our image in the world.' I agree with him. Look at the war in Algeria. Look, the fact that you torture someone, they are going to tell you everything they think you want to know. It’s an affront to everything we stand for and believe in.”

“It’s interesting to me that every retired military officer whether it be Colin Powell or whether it be former chairmen of the Joint Chiefs of Staff – everybody whose been in war doesn’t want to torture people and think that it’s the wrong thing to do. And history shows that.”
[Interview of John McCain by Chris Wallace on “Fox News Sunday,” April 29, 2007]

What Military Leaders Say

And finally these are comments by three senior military leaders on the same subject.

“I continue to read and hear that we are facing a ‘different enemy’ in the war on terror; no matter how true that may be, inhumanity and cruelty are not new to warfare nor to enemies we have faced in the past. In my short 46 years in the armed forces Americans confronted the horrors of prison camps of the Japanese in World War II, the North Koreans in 1950-53, and the North Vietnamese in the long years of the Vietnam War, as well as knowledge of the Nazi’s holocaust depredations during World War II. Through those years, we held our own values. We should continue to do so.”
[Letter from General John Vessey , former head of the Joint Chiefs of Staff, to Senator McCain opposing a proposed redefinition of Common Article 3 (the humane treatment standard) of the Geneva Conventions, September 12, 2006]

“The world is beginning to doubt the moral basis of our fight against terrorism. To redefine Common Article 3 would add to those doubts. Furthermore it would put our own troops at risk.”
[Letter from General Colin Powell to Senator McCain on the same subject, September 13, 2006.]

“This issue is all about how we, as Americans, act. Do we walk our talk? Do we change the rules of the game because our enemy acts in a horrific manner? Do we give up our honor because our enemy is without honor? If we do, we begin to mimic the very behavior we abhor.”
[Letter from General Charles Krulak, former Commandant of the Marine Corps, to Senator McCain, September 2006.]

Ex-CIA Director George Tenet Faces Torture Question on '60 Minutes'