Why hasn’t Abu Zubaida been tried?

Abu Zubaida has not been charged with any crime, yet he has been detained for ten years. Despite several pending motions before the U.S. District Court for the District of Columbia since 2009, no rulings have been issued in order to move Mr. Zubaida's habeas case forward. Instead, the U.S. government opposes each motion and refuses to produce evidence to support Mr. Zubaida's indefinite detention.

In the Washington Post, Amanda L. Jacobsen, counsel for Mr. Zubaida, acknowledges that as in Poland, charges for illegal conduct, such as torture, should be brought against U.S. government officials. More importantly, however, charges should be brought against Mr. Zubaida so that he can defend himself in open court. The United States has failed to indict Mr. Zubaida and even admitted that contrary to U.S. government's prior assertions, Mr. Zubaida was not a member of al-Qaeda, nor did he have any knowledge of al-Qaeda's operations.

Guantanamo detainees are imprisoned indefinitely, despite successful habeas petitions and orders of their release. U.S. government documents report that Mr. Zubaida was waterboarded eighty-three times within a one month span. However, allegations of torture likely are not the cause of the U.S. government's refusal to charge him. So why has the United States waited more than a decade before initiating criminal proceedings? As Ms. Jacobsen asserts, it is time to find out.

Original posting of this article can be found here.

Holding Spy Tech Companies Responsible for Human Rights Violations

In a blog post closely related to yesterday's NY Times Peter Weiss op-ed, Cindy Cohn and Trevor Timm of the Electronic Frontier Foundation take a look at how the Kiobel v. Royal Dutch Petroleum and Mohamad v. Rojaub cases pose serious implications for corporate accountability for human rights violations. In the wake of recent events in the Middle East, North Africa, and China--including the death of American journalist Marie Colvin--U.S. and E.U. manufactured equipment and technology has been linked to torture and other human rights violations. Both upcoming cases--Kiobel and Mohamad--address the same essential question: "Are corporations “individuals” for purposes of liability under human rights laws?" If the Supreme Court decides to say 'no,' corporations could be held basically immune from responsibility for helping to commit gross human rights violations. 

In the past, courts have held corporations liable for knowingly assisting in human rights abuses, theoretically providing a 'strong discentive' for companies to get involved with 'dirty business.' However, in recent years, more and more U.S. and European companies have begun selling spy surveillance technology and equipment--under little oversight or corporate accountability--that has led to known human rights abuses. As aptly summarized by Cohn and Timm, "if the Court does require the same responsibilities of corporations not to torture that it already requires of humans, it may help hold these surveillance companies accountable in the courts when they are responsible for assisting in human rights atrocities around the world, and more importantly, it may hopefully help dissuade companies from getting into bed with these repressive governments in the first place. " Read the full article here. 

Should Corporations Have More Leeway to Kill than People Do?

In a recently published op-ed, Peter Weiss of the New York Times discusses the many implications and potential ramifications of an upcoming case to be heard by the Supreme Court.  According to Weiss, the justices are essentially being asked to decide 'whether the corporations to which they have been extending the rights of individuals should also be held accountable for crimes against human rights, just as individuals are.' The precedent for the case begins with a 1980 decision regarding an obscure law enacted in 1789, the Alien Tort Statue, which 'has been interpreted to mean that foreigners who commit heinous crimes abroad in violation of international law can be held accountable in the United States if they are present or do business here.' Since this decision, dozens of successful alien tort claims have allowed victims of egregious human rights violations abroad that were supported or sanctioned by corporations to seek justice in the U.S. However, in a September 2010 a U.S. Second Circuit court ruled in Kiobel v. Royal Dutch Petroleum that only individuals, and not corporations, can be sued under the Alien Tort Statue.  

The plaintiffs in the case, members of the Ogoni people of the Niger's delta, have accused Royal Dutch Shell of assisting the Nigerian government with acts of torture and other crimes against humanity.  The case has moved to the Supreme Court and will be decided on Tuesday. As opined by Weiss, the judges face a tough decision: 'whether to accept an argument that, in effect, leaves corporations less culpable than individuals are for human rights violations committed abroad — or whether to hold that if a 200-year-old law can be used to hold individual violators to account, it can be used against corporate violators as well.' Read the full op-ed here, with more details about the case and its history. 

The Torture Memos, Ten Years Later

"Our journey to Abu Ghraib began in earnest with a single document--written and signed without the knowledge of the american people."

A recently published article from The Atlantic takes a look back at the series of Bush administration memos which authorized and directed the use of 'enhanced interrogation techniques' against detainees in the War on Terror. Ten years ago, on February 7th, 2002, President Bush signed a memo arguing that the U.S. was not bound by its obligations under the Geneva Convention on Prisoners of War. According to Bush administration officials, 'the new paradigm' of the War on Terror '[rendered] obsolete Geneva's strict limitations on questioning of enemy prisoners and [rendered] quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges.' The memos represent an 'extraordinary departure from American legal policy' and the danger of allowing political leadership and the executive branch to make serious policy changes without consulting the American people or Congress. The article ties the aftermath of the memos to the recent U.S. drone program authorized by the Obama administration and its complete lack of legal justification. Read the full article from The Atlantic.

CIA Rendition Case Heads to Europe's Top Human Rights Judges

In a positive development for rendition accountability outside the U.S., the Open Society Justice Initiative's case on behalf of Khaled El-Masri against Macedonia for its complicity in his rendition will now be reviewed by the Grand Chamber of the European Court for Human Rights. According to a press release from the Open Society Foundation, El-Masri was seized by Macedonian agents on December 31, 2003, held incommunicado for 23 days and accused of being a member of Al-Qaida. The Macedonian agents then handed him over to U.S. CIA agents, who transported him to a prison in Kabul, where he was secretly detained and interrogated for fourth months before being flown back to Albania and left on the side of a road.

Both the U.S. and Macedonia have denied the facts of El-Masri's detention and rendition. According to U.S. cables released by Wikileaks, US diplomats put pressure on Germany not to seek the extradition of several Americans allegedly involved in the case, while also encouraging Macedonia to maintain its silence on what happened." The U.S. has declined to pursue the investigation of possible abuses linked to the Bush-era program of 'extraordinary rendition.' Nevertheless, inquiries into alleged abuse have been announced in the UK, Spain, and Poland.

While the Obama administration has stood firm on its decision not to investigate former Bush administration officials and their authorization of 'enhanced interrogation techniques,' the Justice Department is nearing the end of an investigation into the deaths of two detainees in CIA custody. During his testimony before the House Oversight and Government Reform Committee, Attorney General Eric Holder revealed that "there were ....things that were done during the course of those interrogations that are antithetical to American values, that resulted in the deaths of certain people." Check out the full story from Politico.

Torture and Impunity in US Courts

An article by Jonathan Hafetz succinctly addressed the problems associated with the torture and abuse of detainees who are indefinitely held as a matter of "national security." The US Court of Appeals for the Fourth Circuit found that individuals subjected to torture and other abuse and detained in connection with the "war on terror" may not obtain a judicial remedy for such mistreatment.

"The court's decision effectively creates a national security exception to the general principle that government officials may be held accountable for the torture and prolonged arbitrary detention of US citizens."

View the article in its entirety here.