Report Documents First-hand, Verifiable Evidence of Ill-treatment and Torture of Detainees Under U.S. Custody

During the past several years, the U.S. government has consistently argued that it does not condone torture and that its treatment of detainees in overseas detention centers, though harsh, is not illegal. At the same time, many top administration officials sought to reexamine the United States' domestic and international legal obligations in order to find a way to justify the use of "harsh interrogation techniques," many of which amount to torture and cruel, inhuman, and degrading treatment, in order to obtain information that they suspected detainees of having.

For example, in August 2002, attorneys for the Justice Department drafted a memorandum in which they purported to “clarify” the definition of torture. In actuality, the authors of the memorandum, John Yoo and Jay S. Bybee, completely redefined torture so that, in order for physical pain to constitute torture, it must “be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Likewise, the infliction of mental pain, in order to amount to torture (as defined by Yoo and Bybee), must " result in significant psychological harm of significant duration, e.g., lasting for months or even years”.

Moreover, Yoo and Bybee wrote that even if interrogation methods do violate the law, they could be justified under certain circumstances, such as when necessity or self-defense require – a proposition that directly contradicts the absolute prohibition of torture under longstanding and universally-accepted human rights standards.

Their memo was later withdrawn by lawyers for the DOJ, but others similar in scope replaced it. Even as evidence continues to mount indicating that such memos formed the basis of unlawful interrogation practices, leading to the abuse and torture of detainees in Abu Ghraib and elsewhere, the administration stuck to its claim that detainees were being treated humanely and in accordance with international law.

The administration’s continued insistence that it does not torture has now suffered yet another blow from a recent report published by Physicians For Human Rights (PHR), which examined former detainees who had been held in U.S.-controlled prisons, and found concrete and irrefutable evidence of the physical and psychological fingerprints of torture.

In the report – Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and its Impact – PHR clinicians interviewed 11 former detainees and verified their stories in accordance with U.N. guidelines for assessing physical and psychological evidence of torture. In each case, available evidence corroborated the former detainees' claims. The former detainees were arrested in different locations in Iraq and Afghanistan and held in various prisons whose names are now synonymous with detainee abuse and torture: Abu Ghraib, Guantanamo, Bagram, and other U.S.-run prisons in Iraq and Afghanistan. Despite the fact that former detainees often shared no common language, and were held at different prisons at different times, thus making corroboration among them highly unlikely, if not impossible, their stories shared significant similarities.

The former detainees reported brutal beatings during their arrest and transfer to detention facilities, as well as being severely deprived of basic necessities, lack of sanitation, and assaults upon their person and dignity during their imprisonment, including:

• Being forced to live in urine-soaked detention rooms;
• Being prevented access to clean drinking water, toilets, or clothing;
• Subjected to forced isolation in small, dark rooms for extended periods of time; and
• Non-stop, intense sensory bombardment consisting of bright lights and/or loud music for days at a time, resulting in severe sleep deprivation.

The medical evidence was also consistent with the former detainees’ claims of physical assault and torture, instances of which included:

• Severe beatings;
• Electric shocks; and
• Sodomy with rifles and sticks.

PHR’s evaluation made clear that the former detainees are still suffering from the long-term effects of their ill-treatment. Many former detainees reported: significant persistent and chronic physical pain and functional impairment; severe and disabling depression; difficulty sleeping; hypervigilance; intense anxiety and panic attacks; and diminution of social and work life, resulting in serious difficulties in finding employment and in being able to support their families.

Broken Lives confirms claims of torture and abuse of detainees in U.S. overseas detention facilities using established and accepted investigative methods. The fact that each former detainee who participated in the study reported being subjected to similar methods of abuse strongly suggests that such abuse likely was, and perhaps still is, widespread and systemic.

The conclusions of Broken Lives impeach yet again the administration’s claims that the abuse of detainees in U.S. detention centers has been limited to a few isolated, independent instances caused by “a few bad apples on the night shift.”

By Mustafa Unlu, Human Rights & Anti-Terrorism Legal Intern at Human Rights USA.

Supreme Court rules that Guantanamo detainees have right to habeas corpus

In a remarkable decision issued today, the U.S. Supreme Court ruled that Guantanamo Bay alien detainees have a right to challenge the lawfulness of their detentions in U.S. federal courts. The 5-4 decision was issued in the combined cases of Al Odah v. United States and Boumediene v. Bush.

In its decision, the Court ruled that Congress had not validly suspended habeas corpus. Under Article I, Section 9, Clause 2 of the Constitution, the writ of habeas corpus may only be suspended in times of rebellion or invasion -- neither of which have occurred.

Just as significantly, the Court also ruled that the alternative to habeas corpus that Congress set up in 2005 under the Detainee Treatment Act, which only permits detainees to challenge the lawfulness of their detentions under very restrictive and limited terms, is an inadequate and ineffective alternative to habeas. The DTA, according to the Court, did not provide sufficient legal protections to detainees who sought to challenge their detentions under the DTA scheme.

Detainees had challenged the sufficiency of the DTA process, claiming that, unlike the legal protections afforded under habeas review, the DTA did not grant detainees the right to counsel, the right to meaningfully challenge evidence presented against them, the right to present exculpatory evidence, or the right to secure their release if they were found to not be enemy combatants. The DTA would have also allowed the government to present evidence obtained through coercion or torture.

This means that detainees are not required to abide by the terms set out in the Detainee Treatment Act, but rather, may challenge their detentions in U.S. federal courts via habeas petitions.

A copy of the Court's decision is available here.

DHS Agent Arrested for Raping Green Card Applicant

On March 11, New York prosecutors arrested Isaac R. Baichu, a 46-year old immigration official, after he extorted sex from a young Colombian woman seeking a green card. Three days after her green card interview, Mr. Baichu began making personal phone calls to the young woman's cellphone. Nina Bernstein from the New York Times reports:

He hinted, she said, at his power to derail her life and deport her relatives, alluding to a brush she had with the law before her marriage. He summoned her to a private meeting. And at noon on Dec. 21, in a parked car on Queens Boulevard, he named his price — not realizing that she was recording everything on the cellphone in her purse. “I want sex,” he said on the recording. “One or two times. That’s all. You get your green card. You won’t have to see me anymore.” She reluctantly agreed to a future meeting. But when she tried to leave his car, he demanded oral sex “now,” to “know that you’re serious.” And despite her protests, she said, he got his way.

The victim took the sixteen-minute recording to the police, who arrested and pressed charges against Mr. Baichu on March 11. He has been released on $15,000 bond, and has been suspended with pay by the Department of Homeland Security. The victim still has not received a green card. The Department of Homeland Security regularly receives complaints of employee misconduct, but reports a significant backlog in pending complaints.

Bernstein's article breaking the story illustrated "the vast power of low-level immigration law enforcers, ... a growing desperation on the part of immigrants seeking legal status ... [and] the difficulty and danger of making a complaint, even in the rare case when abuse of power may have been caught on tape."

Human Rights USA's Refugee Project Director called the case "just one example of the failings of a poorly managed agency that operates under a statutory and regulatory scheme that fosters impunity and places non-citizens in a position of acute vulnerability to abuse."

Please go here for more information on this case.

Human Rights USA Pays Tribute to Rep. Tom Lantos

Human Rights USA pays tribute to Rep. Tom Lantos (D-CA), who died of esophageal cancer on Monday, February 11, 2008. Lantos, a Holocaust survivor who twice escaped from forced labor prison camps, was one of Congress’s most outspoken advocates for the protection of human and civil rights.

Led by strong moral convictions and an unwavering devotion to justice, Lantos reached across the political aisle to inspire bipartisan cooperation on human rights issues. As Chairman of the House Foreign Affairs Committee, Lantos teamed up with Rep. Chris Smith (R-NJ) in his relentless pursuit of justice for two of Human Rights USA’s clients, Chinese free speech advocates Shi Tao and Wang Xiaoning, who are imprisoned as a result of the cooperation between U.S. internet giant Yahoo! and the Chinese government.

At a hearing on November 6, 2007, Lantos and Smith sharply questioned Yahoo! CEO Jerry Yang for his company’s role in the arrest, imprisonment, and torture of Shi Tao and Wang Xiaoning. Lantos urged Yang to apologize to the detainees, and to “beg forgiveness” from the detainees’ families, who attended the hearing. Yang turned and bowed, and later acknowledged their responsibility. One week later, Yahoo! and the families settled the Alien Tort Claims Act/Torture Victims Protection Act lawsuit filed by Human Rights USA on behalf of Shi Tao and Wang Xiaoning, and stated its commitment to preventing further abuses of this type.

For the past twenty-four years, Lantos and his wife, Annette, sought to make human rights a more visible issue in Congress by establishing the Congressional Human Rights Caucus (CHRC). The CHRC is designed to bring together members of Congress, Administration officials, and human rights experts to address human rights concerns and to bring them to the forefront of Congress’ work. Through Lantos’ leadership, the group has succeeded in drawing attention to issues concerning the rights of women and children, ethnic genocide, and disappearances, among many others.

Tom Lantos’ leadership, both as a member of Congress and as a loyal friend of the human rights community, will long be remembered.

The State Secrets Protection Act

The state secrets privilege* is a common law privilege typically asserted by the government whenever the introduction of evidence into court would present a threat to national security. It is raised in cases involving a variety of issues, many of which involve fundamental rights and claims of government misconduct.

Traditionally, the state secrets privilege privilege has been asserted by the government in order to avoid being compelled to introduce evidence in court. Lately, however, the government has invoked the privilege seeking to have entire cases dismissed. In many instances, judges have dismissed cases without even reviewing the evidence at issue or determining whether a legal basis exists for privilege. In this way, the state secrets privilege has been perverted, and rather than serving as an evidentiary rule, it has become a justiciability rule -- something far different from its original purpose. The Judicial branch, moreover, has become incapacitated in its responsibility for providing checks and balances on the Executive branch.

In recent years, the state secrets privilege has been asserted by the government in an increasing number of cases. As reported by Senator Kennedy, compared to previous administrations, the Bush administration has invoked the privilege in 25% more cases, and has used the privilege to seek dismissal of lawsuits in 90% more cases.

Many of these recent cases involve challenges to the government's war on terror practices. Since 2002, the state secrets privilege has been invoked in lawsuits involving wireless domestic surveillance (ACLU v. NSA and CCR v. Bush), unlawful surveillance activities by private communications companies (Hepting v. AT&T), and the CIA's extraordinary rendition program (El-Masri v. Tenet and Arar v. Ashcroft), among many others. These lawsuits make all too evident the need for uniform rules outlining the use and disposition of state secrets claims.

In asserting the privilege, the government has sought to dismiss cases outright, without affording the courts an opportunity to determine whether a legal basis even exists for the privilege. Courts, moreover, are being asked to apply the privilege without any legislative guidance or clear case precedent. Legislative action that provides clear rules and promotes uniform application of the privilege is needed to guide courts in determining the merits of cases that present very important issues.

Congress is beginning to take notice of the need for legislative guidance on the judicial application of the state secrets privilege. Today, Senators Ted Kennedy (D-MA) and Arlen Specter (R-PA) introduced the State Secrets Protection Act (SSPA), legislation aimed at reining in the U.S. government's increasingly frequent invocation of the state secrets privilege.

Rules are needed to provide clear standards for courts to use so that they can conduct discovery and examine all of the evidence before determining whether a legal basis for the state secrets privilege exists. Without such rules, courts are likely to dismiss a case or claim based on the state secrets privilege before discovery is even conducted.

In cases where the evidence is determined to be privileged, courts should be able to require the government to provide a substantially equivalent alternative form of unclassified evidence, which solves two problems that frequently arise in state secrets cases: the government could retain sensitive and protected information, and opposing parties would have the opportunity to have their cases be reviewed on the merits.

Federal courts are well-equipped to handle assertions of the state secrets privilege. Judges are already entrusted with the handling of highly sensitive information under a number of federal statutes that permit federal courts to review secret evidence. Courts are competent to conduct in camera review of the evidence before determining its admissibility. In camera review has long been used by the courts to review protected or classified information while still respecting the government's need to limit exposure of such information to the public. There is no reason why this same form of review shouldn't be permitted in reviewing evidence purported to be protected by the state secrets privilege.

Legislative guidance on the courts' applicability of the state secrets privilege is needed to guide courts in applying the state secrets privilege. Not only would clear rules restore the balance between the judicial and political branches, but, just as importantly, they would permit individuals the opportunity to have their claims be fairly addressed in a court of law, thereby ensuring that justice is not denied to injured parties.

*The state secrets privilege is commonly referred to in conjunction with the Supreme Court's articulation of the privilege in U.S. v. Reynolds, 345 U.S. 1 (1953). That case involved a negligence lawsuit filed by three widows whose husbands, employees of an Air Force contractor, had been killed in a plane crash while conducting tests on "secret electronic equipment." In their lawsuit against the government, the widows sought full disclosure of the Air Force's accident report. The government responded by invoking the state secrets privilege, claiming that disclosure of the report would threaten national security. The government refused even to disclose the report in camera.

In ruling for the government, the Supreme Court -- without even looking at the report -- held that the government may invoke the privilege to withhold information, even when such information is vital to the opposing party's case. However, when the accident report was finally declassified and made public in 2000, the report contained not a shred of information pertaining to state secrets. What it did contain, however, was evidence of the government's negligence in failing to maintain the aircraft's airworthiness.

Destruction of CIA Torture Tapes

On NBC-TV's Today Show this morning, one of the CIA agents involved in the interrogation of terror suspects using "enhanced" techniques such as waterboarding that amount to torture indicated that approval of these practices was obtained from the highest levels of the White House each time these abuses took place. Presumably, similar approval was obtained for destruction of the tapes.

Destruction of the tapes may well have constituted obstruction of justice because several courts had previously ordered preservation of any evidence of torture taking place at the hands of the U.S. Government. But that illegality should not obscure the more serious violation of law taking place here with the President's authorization. These were the acts of torture themselves that are absolutely prohibited under both treaty obligations (the Convention Against Torture), and U.S. statutes that make torture a crime under U.S. law.

The White House and Department of Justice memoranda justifying the use of torture techniques for the interrogation of suspected terrorists by "redefining" what the U.S. government considered to meet the definition of torture did not, and could not, alter the fact that U.S. officials, possibly with the specific approval of the President, were engaging in conduct that our own laws deem serious crimes.

- Morton Sklar, Executive Director