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.

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.’

Not So Basic Training

Last night, Charlie Rose asked CIA Director General Michael Hayden what "enhanced" interrogation techniques were. The transcript is available here -- the whole thing is worth reading if you missed the show. Apparently it's the identity of the person on the receiving end of these "enhanced" techniques that determines whether or not the techniques themselves are objectionable.

Hayden contends that, while the Department of Defense is governed by Army Field Manual, there's a zone of permissible treatment for other detainees beyond the Army Field Manual techniques but within the limits of our treaty obligations and the Constitution. In judging the acceptability of practices in this outer zone, Hayden applies the "shocks the conscience" standard to define torture -- if the treatment doesn't "shock the conscience," then it's not torture or cruel treatment. He then compares the "enhanced" techniques to the training Marines receive on Paris Island, arguing that since this tough training doesn't "shock the conscience" when it's being done to the Marines, the "enhanced" interrogation program similarly isn't "absolutely wrong."

It's unclear to me whether he's arguing that the "enhanced" techniques shouldn't "shock the conscience" because they're being applied to presumed terrorists, or whether the techniques themselves are in fact similar to training exercises that Marines have to perform. Can we hear from the Marines out there about whether techniques like "cold cell" and "long time standing" are now part of basic training?

Gen. Michael Hayden: . . . But the[re] are a whole bunch [of]other activities. I read an interesting piece in today’s Wall Street Journal, and I’m paraphrasing and I probably won’t get it perfectly right. But they were talking about the shock the conscience standard, all right? And they pointed out that if they took you and me, all right, people of our age, and put us, you and me, through what Marine Corps recruits at Paris Island and forced us to do that, that probably would shock the conscious. But it’s not illegal to do it to Marine Corps recruits, all right? That same behavior is not absolutely wrong --

Charlie Rose: Are you talking about things like sleep deprivation, cold and extreme, and --

Gen. Michael Hayden: All the things, all the stresses that we put these recruits through, all right? But we don’t think that’s torture or cruel and degrading --

Charlie Rose: But I don’t think when people think about torture that’s what they’re talking about. You know? This leads to another --

Gen. Michael Hayden:Well, that’s a wonderful point because maybe that is what I’m talking about.

Charlie Rose:So we’re saying we do --

Gen. Michael Hayden:[unintelligible]

Charlie Rose:-- do that it’s torture. If we do that, it’s not torture, that’s what you’re saying?

Gen. Michael Hayden: Again, I’m not going to talk about --

Charlie Rose:I know that, but what you just said to me. But there is -- I mean, if -- I -- you would say to me, clearly the United States does not torture.

Gen. Michael Hayden: Right.

Charlie Rose:T he president said that. The United State’s does not
torture.

Gen. Michael Hayden: That’s right.