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.

“Seven Years… Is More Than Enough”

Big news yesterday: U.S. District Judge Richard J. Leon has ordered the release of five detainees who have been held at Guantanamo without charges since January 2002. Judge Leon ruled that the Justice Department had not proved that five of the six Algerian detainees at Guantanamo were enemy combatants under the government's own definition, and ordered them released “forthwith.”

"Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough," he said. In an unusual statement, he urged the government not to appeal his decision and "to end this process."

Judge Leon’s ruling is the first on whether the government's evidence is sufficient to justify the confinement of a detainee. The order springs from the landmark Supreme Court Boumediene decision in June that Guantanamo detainees have the right to challenge their confinements in federal court under the legal doctrine of habeas corpus. HRF welcomed that decision as a step toward restoring the credibility of the United States as a nation committed to due process and the rule of law. Judge Leon’s ruling is a forceful indictment of the administration's detention policies.

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.

Don’t Bring Guantanamo to the United States

Although we noted yesterday that Obama’s team has denied any intention to establish some form of preventive detention, my colleague Sharon Kelly has further strong arguments against such a move in The Hill’s Congress Blog, writing, based on her observations at Guantanamo, that “how terrorists are tried is as important as where they are tried”:

By announcing his intention to close the prison at Guantanamo Bay and bring to justice suspected terrorists held there, President-elect Obama would send an important message that the United States will again be a global leader on human rights. But closing Guantanamo only to bring it home to the United States would be taking one step forward followed by two steps back. Among the many lessons learned from the misguided Guantanamo episode is that new, ad hoc justice systems are prone to fail.

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.

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."

Missing at Guantanamo: Signs of a Fair Trial

This week marked the beginning of the trial of Salim Ahmed Hamdan, the first Guantánamo Bay prisoner to face trial by military commission. These first few days have highlighted the deficiencies in the process afforded these men.

High amongst these is Judge Allred’s decision that the Fifth Amendment right against self-incrimination does not apply to Hamdan and that some statements obtained through coercion may be admitted as evidence. By allowing the prosecution to rely on self-incriminating statements obtained far from the battlefield without Miranda warnings and through coercion, Judge Allred has violated domestic and international fair trial standards. In the federal criminal justice system, a defendant must be warned that statements may be used against him before his interrogation begins, and corroborating evidence is required at trial to support such statements. Contrary to this norm, the LA Times reported today that much of the government’s case against Hamdan is based on self-incriminating statements alone.

The lack of crucial safeguards typically afforded defendants in the criminal justice system is only the latest proof that the military commission process is deeply flawed and that it cannot result in any just outcome.