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.

Closing Guantánamo Will Require More Than the Stroke of a Pen

Amid the current debate about how the next U.S.  president should handle prisoners being held at Guantanamo Bay, Human Rights First Executive Director/CEO Elisa Massimino argues that:

Closing Guantánamo will require more than the stroke of a pen. It will take comprehensive policy changes and a major investment of domestic and international political capital. But it can be done, and it can be done in the new administration's first year.

Read her op-ed in the International Herald Tribune (11/18/08).

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.

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.

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.’

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.

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.

Coerced Evidence Rejected at Guantanamo Trial; but the Process Is Still a Stain on the American Justice System

As the Los Angeles Times reported (07/22/08):

The military judge overseeing the first war crimes trial against a terrorism suspect at Guantanamo Bay agreed Monday to bar some evidence against Osama bin Laden's former driver because it was obtained in "highly coercive environments and conditions."

On the trial's opening day, Navy Capt. Keith J. Allred denied defense appeals to exclude other statements Salim Ahmed Hamdan made during interrogation by U.S. agents in Afghanistan as well as during his more than six years' imprisonment at Guantanamo Bay, Cuba. The judge said he would withhold judgment on a May 2003 interrogation until the defense had time to review 600 pages of detention records, which the government did not turn over until Sunday -- the night before trial.

Judge Allred's efforts to keep some coerced evidence out of the trials at Guantanamo are notable. But this does not change the fact that the system in place to try terror suspects held by the U.S. retains few of the fundamental protections that are the cornerstone of the American justice system - and which have long been an example to the rest of the world.

In a recent report, Tortured Justice, Human Rights First showed how the introduction of coerced evidence, obtained through the use of official cruelty, into military commission trials at Guantanamo Bay is rapidly contaminating the justice system and jeopardizing the prospects for the successful prosecution of terrorists.

In the report, HRF recommends that in order to stop the pollution of America’s justice system:

• The U.S. government should try terrorist suspects by court-martial or in civilian criminal courts where coerced confessions are inadmissible, the introduction of hearsay evidence is restricted to protect reliability and the rules governing the disclosure and introduction of classified evidence are clear.

• The U.S. government should prohibit the admission of statements extracted through torture or coercion during detention hearings and criminal trials for terrorist suspects.

• Congress should require the U.S. government to provide detainees with counsel at detention hearings, and restore habeas corpus rights to detainees designated as enemy combatants

• Congress should impose additional discovery requirements on government prosecutors in terrorism cases, subject to the same procedures employed in U.S. courts for evaluating potentially classified evidence.