Last Friday, the Department of Justice (“DOJ”) cleared Bush administration lawyers John Yoo and Jay Bybee of allegations of professional misconduct for their role in authorizing the use of "enhanced interrogation techniques, some of which are considered to be torture, both domestically and internationally.
In the now-infamous “torture memos,” Yoo and Bybee concluded that CIA interrogators could not be prosecuted for using certain interrogation tactics (some amounting to torture) unless they acted with the specific intent to inflict severe pain. Relying on a statute governing health benefits, they defined severe pain as that equivalent to “death, organ failure or serious impairment of bodily functions.” The authors of the memos also concluded that the president's war powers are practically unlimited, allowing him to, as Yoo told one OPR investigator, "order a village of civilians to be [exterminated]."
The long-awaited DOJ decision came from attorney David Margolis, a DOJ career veteran. Margolis was responsible for conducting a final review of DOJ Office of Professional Responsibility ("OPR") report. The report, issued on July 29, 2009, found that Yoo and Bybee wrote the legal memos with significant input from White House attorneys. The OPR report concluded that Yoo and Bybee had committed professional misconduct, and recommended that OPR's findings be referred to state bar authorities for disciplinary action and potential disbarment. For Bybee, a federal judge, the referral to state bar authorities could have also led to an impeachment inquiry.
After reviewing the OPR report, Margolis declined to adopt OPR's conclusions. Instead, he concluded that Yoo and Bybee merely exhibited "poor judgment" in providing legal authorization for the use of torture. Margolis's decision now means the DOJ will not refer Yoo or Bybee for possible disciplinary action before their respective state bar associations. It is now up to state bar disciplinary authorities to take up this issue on their own.
This about-face demonstrates why Attorney General Eric Holder must appoint an independent prosecutor -- someone unaffiliated with the DOJ, the department responsible for the legal authorization of detainee abuse policies -- to conduct a full and impartial investigation into the origins of those policies. Americans deserve to know whether, and to what extent, publicly-elected officials were involved in unlawful conduct.
The DOJ report and related documents are available here.
With assistance from International Justice Project intern Lindsey Ingraham.
Last May, we reported that a Spanish court was considering whether to open an investigation into the role of six Bush administration attorneys allegedly responsible for constructing a legal framework for detainee torture. At the same time the court was considering that petition, it was also debating whether to investigate allegations of torture, abuse, and inhuman and degrading treatment inflicted upon four former Guantanamo detainees. This post provides an update on the status of the Spanish court's deliberations with respect to the latter case.
Last year, Spain's National Court received complaints filed by a number of organizations regarding abuse allegedly inflicted upon four former Guantanamo detainees, including one Spanish citizen and three individuals apparently connected to Spain.
After receiving the complaints, but before opening an investigation, Judge Baltasar Garzon asked U.S. Attorney General Eric Holder to inform him whether the U.S. government planned to investigate these allegations itself. (Under the principle of universal jurisdiction, Spain can exercise criminal jurisdiction over a case involving the commission of serious human rights crimes by U.S. citizens only if the U.S. government refuses, or fails, to take action.)
After waiting seven months with no reply, Judge Garzon has now decided to open an investigation into the abuses inflicted upon the four former detainees.
At a time when the Obama administration has failed to take significant steps towards investigating the numerous claims of detainee abuse and torture alleged over the past several years, Judge Garzon's decision represents a bold step toward accountability for human rights violations.
At the same time, Judge Garzon's decision should serve as a reminder to the Obama administration of its own obligation, under international law, to investigate and prosecute serious human rights abuses. Under universal jurisdiction principles, Judge Garzon is able to pursue this investigation because the U.S. government has so far refused, or failed, to take action.
Despite the administration's purported commitment to transparency and accountability, it has failed to apply these principles in the area of human rights.
On August 28, 2009, Colleen Costello joined Press TV’s American Dream program to talk about the recently released documents CIA documents and Attorney General Eric Holder’s appointment of a special prosecutor to investigate abuses allegedly committed by CIA and private contractor interrogators.
Ms. Costello, an attorney for the Human Rights & Anti-Terrorism Project at Human Rights USA, discussed the violations of U.S. and international law that were documented in the recently-released 2004 CIA Inspector General’s report, which highlighted, among other things, the fact that interrogators had threatened detainees with death and personal injury, and had threatened the rape and murder of detainees’ family members.
“What has been described so far in this recently released version of the Inspector General’s report . . . is really shocking. First of all, threatening a detainee with a power drill, with a gun – it’s unlawful under international and U.S. law. . . . [I]t’s great that the Attorney General is looking to investigate exactly what happened and who is responsible. . . .”
Turning to the Attorney General’s decision to investigate these abuses, Ms. Costello emphasized the need for a full investigation of those responsible for authorizing detainee abuses – something that Human Rights USA has consistently called for over the past several years.
“Americans have a right to know what their government officials are doing in their name and on their behalf. . . . What we’re doing now, we’re looking at maybe a dozen or so interrogators from the CIA and private contractors, and we’re trying to determine whether the abuses they committed exceeded the already very broad limits set by the former administration’s Justice Department. Now, that’s ok, that’s a step, but . . . what we need to do is figure out who was responsible for authorizing even those very broad limits set by the former administration. . . . [I]f you have the former President admitting, and the former Vice President admitting that they authorized the use of waterboarding, . . . that certainly warrants an investigation.”
Watch the full program here:
American Dream is a production of Press TV, an Iranian international news network that broadcasts around the world.
On August 24, Attorney General Eric Holder named a special prosecutor to conduct a preliminary investigation into CIA interrogations that exceeded the already-broad list of techniques approved by Bush administration attorneys. Below, we address some of the most common questions raised by the Attorney General’s decision.
What did the Attorney General authorize? Attorney General Eric Holder expanded the scope of an investigation already being undertaken by special prosecutor John Durham. The expanded scope of Mr. Durham’s mandate will allow him to conduct a preliminary investigation into the dozen or so cases of detainee interrogation that the DOJ previously declined to prosecute. This preliminary review will allow him to determine whether a sufficient basis exists for a more thorough investigation into these cases. If a full investigation is deemed necessary, it is possible – but not guaranteed – that some CIA interrogators could be prosecuted.
What was the reason for the Attorney General’s decision to appoint a special prosecutor? The Attorney General based his decision on two reports: the Department of Justice’s Office of Professional Responsibility (OPR) review of detainee interrogations and the 2004 CIA Inspector General’s (OIG) report on detainee interrogations.
The OPR report reviewed DOJ Office of Legal Counsel (OLC) memos written by former administration attorneys who attempted justify the use of torture and other abusive interrogation tactics. The OPR report also examined the DOJ’s decision, under the Bush administration, to decline prosecution in certain detainee abuse cases involving CIA interrogators and recommended that the DOJ reexamine those decisions not to prosecute. The CIA OIG report enumerates several instances of detainee abuse committed by CIA interrogators and private contractors, including waterboarding, mock executions, and improvised interrogation techniques, such as pointing a weapon at a detainee.
Based on the OPR’s recommendation and the evidence of abuse outlined in the CIA OIG report, the Attorney General determined that further investigation was required. He asked Mr. Durham to broaden the scope of his investigation to include the detainee abuse cases that the DOJ previously decided not to prosecute.
Were torture and other human rights abuses actually committed during the “war on terror”? Yes. Numerous internal U.S. agency, U.S. congressional, foreign legislative, media, and independent non-governmental reports have repeatedly confirmed that detainees held by U.S. forces at Guantánamo, bases in Iraq and Afghanistan, and at secret CIA “black sites” in various locations around the world suffered grave human rights abuses. Significantly, former administration officials have publicly confirmed the use of torture and other forms of human rights abuse against detainees. Among the abuses reported are:
Forced disappearances
Waterboarding
Beatings
Deprivation of sanitary conditions
Deprivation of basic necessities
Rape
Stress positions
Sensory deprivation
Sensory bombardment
Sleep deprivation
Prolonged isolation
Confinement in a box
Prolonged use of handcuffs and shackles
Exposure to extreme hot or cold
Serious bodily injury
Deprivation or restricted provision of solid food
Threats of physical violence, rape, and death against detainees
Threats of physical violence, rape, and murder against detainees’ family members
Denial of medical care
Exploitation of fears
Sexual, religious, cultural, or other forms of degrading treatment
Forced disappearances
Murder
Sexual assault or abuse
Mutilation or maiming
Who committed these abuses? Individuals working for the CIA, the Defense Department, and those agencies’ private contractors were all directly involved in the abuse of detainees. However, responsibility for detainee abuse does not stop there. Former President Bush and former Vice President Cheney have both publicly admitted that they approved of and authorized the use of waterboarding – a form of torture – in violation of U.S. and international law. Other high-ranking administration officials from the DOJ, DOD, CIA, and DOS were also complicit in the development and implementation of the detainee interrogation program.
Why prosecute torture and other human rights abuses? The United States is party to a number of international treaties that prohibit torture and cruel, inhuman, and degrading treatment, including the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, both of which are also codified under U.S. federal criminal law, and the International Covenant on Civil and Political Rights. Torture is universally prohibited under international law, and may not be justified under any circumstances, including during times of war or for purposes of national security.
Criminal accountability is a fundamental element of human rights protection. Without it, abusers enjoy impunity for their crimes, an undesirable result in any democratic system. The necessity of criminal accountability for human rights crimes is reflected in U.S. domestic law as well as several binding international treaties to which the United States is a party, including the Convention Against Torture and its domestic implementing legislation, 18 U.S.C. § 2340, and the Geneva Conventions and their implementing legislation, 18 U.S.C. § 2441 (the War Crimes Act).
As with other crimes, prosecuting human rights violations accomplishes three primary goals: deterrence, punishment, and justice. The enactment and enforcement of criminal law serves as a deterrent to would-be violators, putting them on notice that they will be held to account for their wrongdoing. By punishing criminals, we incapacitate abusers so that they cannot continue to violate the law, and we ensure that no person remains above the law. Finally, under federal law, crime victims are entitled to certain rights, including the right to participate in criminal proceedings, confer with the government about the case, and the right to full and timely restitution. The prosecution of their abusers gives victims a sense of closure and finality to their suffering.
In the words of Justice Brandeis, “[i]f the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” The public has a strong interest in ensuring that government officials conduct business on behalf of the electorate in an open, honest, and lawful manner. When government leaders violate the law, the public has an interest in ensuring that wrongdoing by public officials be exposed and that criminal law be fairly and expeditiously administered.
Will a criminal investigation into interrogation practices limit our national security by causing interrogators to shy away from certain techniques? This concern involves two issues: the efficacy of harsh interrogation techniques and the rules under which interrogators are expected to operate.
Harsh interrogation techniques such as torture are unlawful and possess little, if any, long-term value. Career interrogators attest that harsh interrogation tactics authorized by the former administration were ineffective, likely doing more harm than good to our national security. The coercive techniques used on detainees during the “war on terror” were modeled after those used by Communist China on American soldiers during the Korean War. According to a government study conducted after the war, the techniques used by China were meant to elicit false confessions. In other words, the point of the interrogation techniques was not to elicit truthful confessions, but rather, any confession that the Chinese government could use to support its anti-America propaganda.
Interrogation experts believe that the most effective interrogations are those that do not involve the use of harsh techniques. The FBI has demonstrated its longstanding success at interrogating terror suspects using “rapport-building” techniques, which are non-coercive and non-abusive in nature, unlike many of the tactics approved by former administration officials.
Interrogators need clear rules, not vague legal memos or shifting policies, to guide them. Part of the problem created by the former administration was its inconsistent policy on detainee interrogations. During the “war on terror,” the rules for interrogation changed several times, and could differ depending on whether an interrogator was working in Guantanamo, Iraq, Afghanistan, or at a secret CIA “black site.” This constant shifting meant that interrogators were unsure of the rules that applied to them, or if any applied at all.
As the recently-released CIA OIG report determined, under the former administration’s policies, interrogators were aware that their actions likely violated the law and were concerned that they would be “vulnerable to legal action in the United States or abroad . . . ” (p. 101), or that CIA officers would one day “wind up on some ‘wanted list’ to appear before the World Court for war crimes . . . .” (p. 94). Investigating violations of U.S. domestic and international law, and punishing those responsible, ensures that future interrogators will have clear guidance of what is, and is not, permitted under the law.
Why do we want to “look back” on the past? The criminal justice system is, inherently, retrospective in nature. One of the key goals of criminal justice is to deter people from violating the law. The only way our laws have power is if we enforce them, which requires investigating and prosecuting crimes that have occurred. Unless administration officials responsible for directing or authorizing the use of torture and other human rights abuses are held to account, future administrations may engage in the same unlawful behavior, without fear of repercussions.
Wouldn’t a criminal investigation distract the public from other important issues? There is no excuse to turn a blind eye to transgressions committed by officials entrusted by the American people to lawfully serve them. Enforcement of the law is a non-negotiable issue. The best way for the current administration to address, and ultimately, put to rest, the torture issue is to appoint a special counsel to fully investigate the scope of the abuses committed. If no one violated the law, no one will be punished. Conversely, if any are found to have violated the law, they should be held to account.
What authority does the Special Prosecutor have to conduct his preliminary investigation? Special prosecutor Durham was originally appointed by former Attorney General Michael Mukasey to investigate the CIA’s destruction of detainee interrogation tapes. At the time of his appointment, Mr. Durham was an Assistant U.S. Attorney for the District of Connecticut, which means that he was an employee of the Justice Department.
Under 28 U.S.C. § 509 et seq., the Attorney General may delegate any of his powers to a Justice Department employee, and may authorize the employee to conduct any legal proceeding that a U.S. Attorney is permitted to conduct. Under these procedures, the Attorney General often determines the scope of the special prosecutor’s mandate, may require the prosecutor to report directly to him, and may also limit the prosecutor’s ability to investigate related criminal matters that could arise during the course of his investigation.
Although Attorney General Holder has not yet explained the details of Mr. Durham’s mandate to investigate unlawful interrogations allegedly committed by CIA interrogators, the scope of Mr. Durham’s investigative authority appears to be limited. The preliminary investigation will focus only on approximately twelve detainee abuse cases, and Mr. Holder has not stated whether Mr. Durham has the flexibility to investigate any related criminal matters that arise during his investigation. For instance, although Mr. Durham will investigate whether certain CIA interrogators exceeded the rules set out by the DOJ’s Office of Legal Counsel, it seems he will not have the power to investigate whether those rules were consistent with U.S. domestic and international law.
Is the special prosecutor’s authority sufficient? Although Mr. Durham is a highly respected federal prosecutor who has been developed a reputation as a tough, impartial, and relentless prosecutor, the authority from which he derives his investigative powers is not sufficient to ensure a full or impartial investigation. While the selection of special prosecutor Durham permits the investigation of detainee abuse to move forward quickly, the decision does not ensure a complete investigation.
First, the Attorney General cannot escape the fact that the mandate for Mr. Durham’s investigation is unnecessarily limited. Mr. Holder should, therefore, appoint a Special Counsel, unaffiliated with the Justice Department, to conduct a more comprehensive investigation into the role played by former top-level government officials in the detainee abuse. The Attorney General derives the authority to appoint a Special Counsel from DOJ regulations, codified at 28 C.F.R. § 600.1 et seq., which allow him to appoint an attorney from outside the DOJ when the subject of investigation presents a conflict of interest for the DOJ and where the public interest requires it.
Every official – current or former – is entitled to a fair and impartial investigation, not tainted by accusations of partiality or bias. A Special Counsel will be able to independently, and without the same personal or professional constraints as the Attorney General, exercise prosecutorial discretion to decide whether charges should be brought against any of the individuals investigated. The appointment of Special Counsel under these circumstances would also allow the Attorney General to avoid any appearance of impropriety, should the Special Counsel decline to prosecute.
Moving forward, the Attorney General should allow Mr. Durham to complete his preliminary investigation, and if a full investigation is warranted, the Attorney General should appoint a Special Counsel – someone who comes from outside the DOJ – to carry forth a full investigation.
As we reported last week, Attorney General Eric Holder is leaning towards appointing an independent prosecutor to investigate detainee abuse committed during the Bush administration. Sources close to Holder recently saidthat the scope of any independent investigation is likely to be limited, focusing only on CIA interrogators whose actions exceeded the broad rules set by the former administration.
In response to this news, Human Rights USA, along with a number of other human and civilrights groups, have called for the Attorney General to broaden the scope of the investigation to include senior government officials responsible for directing, approving, or authorizing the use of such techniques.
Since 2004, Human Rights USA has been calling for the appointment of an independent prosecutor to investigate senior officials' involvement in detainee abuse and the extraordinary rendition program.
Read our full Press Release below (also available here).
Press Release
August 13, 2009
Human Rights USA Calls for Appointment of Independent Prosecutor to Investigate Full Scope of Crimes Committed by Former Administration Officials
Sources close to the Attorney General claim that he is close to making a decision on the appointment of an independent prosecutor.But, according to these sources, rather than seek an investigation into the full range of crimes committed by former administration officials, Holder is only considering cases in which CIA interrogators exceeded the techniques approved by administration attorneys.That news is discouraging.
By now, it is apparent that lawyers for the Bush administration wrote legal memoranda approving techniques that clearly violate the Geneva Conventions and U.S. laws.To investigate only the CIA interrogators who exceeded the broad rules set by the administration is to repeat the faulty investigations conducted by the former administration.
The Bush administration was widely criticized for blaming widespread detainee abuse on a handful of “bad apples.”Despite the fact that more than 600 civilian and military personnel have been implicated in detainee abuse, investigations have yielded few prosecutions: less than 50 people have been held to account, all of them low-ranking military or civilian personnel.Even then, many of the punishments meted out have been mild relative to the crimes committed.
An investigation into crimes committed by low-level CIA interrogators is an attempt to again blame detainee abuse on just a few “bad apples.”This kind of limited investigation does not reach the heart of the problem: the administration authorized tactics that violated accepted standards of domestic and international law.
The Attorney General must appoint an independent prosecutor to investigate those who authorized and approved these abuses, not only those who committed them.
To ensure that an investigation is not hampered by artificial limitations imposed for political reasons, the independent prosecutor must be given: a broad mandate to conduct an investigation into the origins of the detainee abuse program; wide latitude to pursue any prosecutions deemed necessary as a result of the investigation; freedom to operate outside the day-to-day control of the Justice Department; sufficient funding to carry out the mandate; and ample time, with possibility for extension, to conduct the investigation.
Attorney General Holder must not allow former administration officials to enjoy impunity for their crimes. To do so would be to condone serious transgressions of some of the most basic and fundamental human rights protections our laws afford. Investigating and prosecuting these abuses affords justice to the victims and their families, deter future administrations from committing these crimes, and send a message to the rest of the world that America is a country of laws. In short, Attorney General Eric Holder must put “justice” back in the Justice Department.
Last month, we wrote about the United States government's notorious opposition to the International Criminal Court (ICC), an international tribunal that provides a judicial forum for victims to seek legal redress against states responsible for some of the gravest violations of international law, including genocide, crimes against humanity, and war crimes. This month, we tie together three recent events -- two of which involve the ICC -- that demonstrate the expanding role that international law plays in what were once considered to be U.S. domestic affairs.
Although the ICC was created in 2002, the United States has yet to sign and ratify the Rome Statute, the treaty that established the ICC. However, recent remarks attributed to Secretary of State Hillary Clinton and Attorney General Eric Holder evidence a shift in attitude, one that could mean greater U.S. support for the international tribunal specifically, and accountability for human rights more generally. But it could also mean greater diplomatic entanglements with other countries.
In response to a question she received from a student during a talk at the University of Nairobi in Kenya today, Secretary Clinton remarked that it is a "great regret" that the United States is not a party to the ICC, adding: "I think we could have worked out some of the challenges that are raised concerning our membership by our own government, but that has not yet come to pass." Somewhat optimistically, she noted that the United States has "supported the court and continue to do so."
Meanwhile, over in the Justice Department, it was recently reported that Attorney General Eric Holder is leaning towards appointing an independent prosecutor to investigate and, where warranted, prosecute former Bush administration officials responsible for detainee abuse and torture. What do these two events have in common? Secretary Clinton's comment about the United States' continuing support of the ICC could carry more weight than she intended, depending on how the Attorney General plays his cards.
While unrelated to Secretary Clinton's remarks, Attorney General Holder's ultimate decision regarding the appointment of an independent prosecutor could have a profound effect on the United States in the long run, both with respect to its relationship with the ICC and its diplomatic relations with other countries. To understand the interconnectedness of the two worlds that the Attorney General and Secretary of State inhabit, consider the following scenarios:
If the Attorney General declines to prosecute the allegations of serious human rights violations against former Bush administration officials, the ICC could, as a court of last resort, exercise jurisdiction over the case under limited circumstances. Jurisdiction would only extend to cases where, for instance, the state on whose territory the crime was committed refers the matter to the ICC Prosecutor. Although this possibility seems unlikely, there are a great number of countries in which abuses amounting war crimes or crimes against humanity were allegedly committed. Those countries include the following ICC member states:
Afghanistan (which became a party to the ICC on 10 Feb. 2003); Albania (31 Jan. 2003); Austria (28 Dec. 2000); Bosnia-Herzegovina (11 Apr. 2002); Bulgaria (11 Apr. 2002); Canada (7 July 2000); Croatia (21 May 2001); Cyprus (7 Mar. 2002); Denmark (21 June 2001); Estonia (30 Jan. 2002); Finland (29 Dec. 2000); France (9 June 2000); Germany (11 Dec. 2000); Greece (15 May 2002); Hungary (30 Nov. 2001); Iceland (25 May 2000); Ireland (11 Apr. 2002); Italy (26 July 1999); Jordan (11 Apr. 2002); Lithuania (12 May 2003); Malta (29 Nov. 2002); Netherlands (17 July 2001); Norway (16 Feb. 2000); Poland (12 Nov. 2001); Portugal (5 Feb. 2002); Romania (11 Apr. 2002); Spain (24 Oct. 2000); Sweden (28 June 2001); Switzerland (12 Oct. 2001); and the United Kingdom (4 Oct. 2001).
A complaint filed by any one of those 30 countries could bring former U.S. officials before the very court the Bush administration so desperately sought to marginalize.
ICC jurisdiction would also extend in cases where the Security Council refers a matter to the ICC Prosecutor (a less likely proposition, given the United States' influence on the Council). Under an equally unlikely scenario, the United States, as a non-party to the ICC, could accept the Court's jurisdiction only with respect to a particular crime in question. These scenarios are all, of course, purely hypothetical at this point. But the ICC is young: just because U.S. citizens have not been called to account before the Court does not mean that it can't happen.
The Attorney General's decision whether or not to appoint an independent prosecutor could also affect a criminal complaint currently pending before a Spanish court. In early May, human rights lawyers filed a complaint in Spain's National Court, alleging that six Bush administration officials (the "Bush six") created a legal framework for torture against U.S. detainees, in violation of international human rights law. The Spanish judge in charge of the complaint, Judge Eloy Velasco, said that before he decides whether to open his own investigation in Spain, he plans to ask the United States whether it intends to investigate such abuses. Attorney General Holder stated his intent to cooperate with whatever investigation might take place in Spain.
Under the principle of universal jurisdiction, a foreign country can exercise criminal jurisdiction over a case involving the commission of serious human rights crimes by U.S. citizens only if the U.S. government refuses, or fails, to take action. Attorney General Holder's decision to appoint an independent prosecutor could, for that reason, thwart any efforts by other countries to seek accountability themselves.
Conversely, the Attorney General's decision not to prosecute former U.S. officials could also have serious consequences overseas, but for different reasons. The United States' refusal to prosecute serious human rights violations would open up the door for another state to prosecute those crimes under its universal jurisdiction statute. Judge Velasco, or any other foreign judge considering such a complaint, could then exercise universal jurisdiction over the case. Should any of the named defendants in the case travel to the country in which the complaint is being investigated, they risk arrest, trial, and punishment overseas. Even if they step foot in a country other than the one in which the complaint was filed, they could still be extradited to the prosecuting state in order to stand trial.
The decision whether or not to appoint an independent prosecutor is no doubt a difficult one. Whatever choice he makes, Attorney General Eric Holder's decision is sure to make waves at home, across the Atlantic, and throughout history.
The Senate Armed Services Committee’s report on the treatment of detainees in U.S. custody – the product of a 2-year-long bipartisan inquiry – heightens the need for a criminal investigation into abuse and torture authorized by officials of the previous administration.
The extensive report [pdf], numbering over 260 pages, found not only that interrogation techniques used on detainees were designed with a purpose of eliciting false confessions, but also that top-level government officials were involved from the early stages and throughout the development of the interrogation program.
The indefinite detention of any person solely for the purpose of interrogating him is prohibited under the laws of war and under U.S. law. The United States government recognized this longstanding legal principle in the 2004 Supreme Court case Hamdi v. Rumsfeld, in which the Court recognized that “indefinite detention for the purpose of interrogation is not authorized.” United Nations human rights officials [pdf] and the International Committee of the Red Cross have been equally clear in addressing U.S. policy, stating that the indefinite detention of prisoners of war or civilian internees solely for purposes of interrogating them contravenes the provisions of the Geneva Conventions.
The SASC report also details the fact that senior-level government officials were involved in the design, development and implementation of such practices. According to a former senior U.S. intelligence official, former Vice President Cheney and former Defense Secretary Donald Rumsfeld were, “for most of 2002 and into 2003 . . . demanding proof of the links between al Qaida and Iraq.”
Former U.S Army psychiatrist Maj. Charles Burney, who was deployed to Guantanamo Bay in mid-2002, confirms these statements in the SASC report: “while we were there a large part of the time we were focused on trying to establish a link between AI Qaeda and Iraq and we were not being successful in establishing a link between AI Qaeda and Iraq. The more frustrated people got in not being able to establish this link . . . there was more and more pressure to resort to measures that might produce more immediate results.” The former administration’s fixation on eliciting false confessions to establish such a link is demonstrated by the CIA’s interrogation of two detainees a combined total of 266 times, from 2002-2003.
That high-level officials demanded the use of harsher interrogation techniques in order to elicit a confession, with no regard for veracity, to establish a link between al Qaida and Iraq demonstrates their complicity in acts that violate U.S. and international law. As the Senate Armed Services Committee concluded in its report:
The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.
In addition to compromising our moral authority, these acts violate our laws. As Senator Levin, Chairman of the Senate Armed Services Committee, said in his remarks announcing the release of the report, “senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques. Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses.”
Attorney General Eric Holder must appoint an independent counsel to investigate those officials responsible for directing, authorizing, or otherwise facilitating these practices, and prosecuting those found to have violated the law. He must do so in order to ensure that the American people have a full understanding of the role that the U.S. government played in these damaging human rights violations, to ensure that those individuals victimized by such abuse receive justice and full disclosure of the reasons for their suffering, and to ensure that those responsible for such grievous violations of basic human rights norms are held to account.
Almost one year ago, then-presidential-candidate Barack Obama said that if “genuine crimes” such as torture, rendition, or illegal wiretapping were committed by high-level U.S. government officials, his administration would investigate them. He said, more specifically, that “if [he] found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then [he thinks] a basic principle of our Constitution is [that] nobody is above the law.”
Four memos released last week by the Justice Department present the clearest indication to date of the Bush administration’s attempts to seek legal authorization for criminal acts. By writing these memos, the Justice Department’s Office of Legal Counsel (OLC) created legal cover for the use of waterboarding and other abuses by the CIA; the Bush administration then used these memos to justify indefensible human rights violations, such as torture and cruel, inhuman, and degrading treatment.
Torture is unequivocally and universally prohibited under all circumstances, including during times of war, out of necessity, in self-defense, or where legal counsel purport to authorize it. The notion that a government attorney can provide cover for officials who seek to torture and commit other war crimes was unequivocally rejected over half a century ago when, during the Nuremberg trials, U.S. prosecutors sentenced Nazi war criminals to prison or death for committing crimes against humanity.
Under both domestic and international law, the United States is required to investigate and, where warranted, prosecute those responsible for committing acts such as torture and other war crimes or crimes against humanity. These obligations are set forth clearly in the Uniform Code of Military Justice, United States criminal laws, the Geneva Conventions, the Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, and customary human rights standards.
In his public statements regarding the memos, Mr. Obama recognized that “the United States is a nation of laws.” But it is only a nation of laws if laws have meaning, are given precedence over politics, and are enforced. The next step President Obama must take is to ask Attorney General Eric Holder to appoint a special prosecutor to investigate these crimes and, where warranted, prosecute those responsible. It is time for the United States to prove that it is, once again, a nation of laws.
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.
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.
Facing strong Congressional pressure and the threat of court-ordered discovery proceedings, Yahoo agreed to settle the lawsuit filed against it by Human Rights USA on behalf of internet users in China, who were jailed for exercising their free speech rights. This is the second major case in which a U.S. corporation has been held financially accountable, through a settlement agreement, for its involvement in human rights abuses. The other case was Unocal, which involved major human rights abuses by the oil and gas company in its construction of a gas pipeline in Burma.
The Yahoo lawsuit, filed in April, sought to hold the internet company accountable for its complicity in handing over identifying internet user information to Chinese authorities, which was used to arbitrarily arrest and detain two of the plaintiffs in the lawsuit -- well-known Chinese journalist Shi Tao, and pro-democracy advocate Wang Xiaoning. Both men have been subjected to abuse and torture while in prison. It is suspected that many more individuals have been similarly affected by the sharing of internet user information, including journalists and bloggers listed in two recent reports issued by Reporters Without Borders and the Committee to Protect Journalists.
While the details of the settlement agreement remain private according to its terms and the parties' wishes, the issues raised in the course of litigation and in the Congressional hearing indicate some of the key points that were the focus of concern. These include the urgent need to secure, as soon as possible, the release from prison of Wang Xiaoning and Shi Tao; preventing further disclosure of internet user information that could lead to arbitrary arrest and torture; and the need to aid other prisoners who have been jailed as a result of the disclosure of identifying internet user information.
The resolution of the case by settlement agreement is not a perfect solution. Human Rights USA would have preferred that the court make specific findings, on the record, about the unlawful nature of Yahoo's actions, and that the case reach a final judgment that would be legally enforceable by the court. However, the plaintiffs and their families, along with Congress, felt strongly that immediate action was needed to secure the release of the prisoners, particularly given the five years it would take to bring the case to an end, which would have extended beyond the prison sentences that the two plaintiffs are serving.
This settlement agreement highlights the fact that U.S. corporations must pay greater attention to the consequences that their actions have on human rights, and that they will be held accountable for participating in, or aiding and abetting, major human rights abuses.
The agreement should also provide incentive for Congress to adopt the Global Online Freedom Act, a statute which, if passed, would prohibit U.S. internet companies from disclosing identifying internet user information to repressive governments that are likely to use such information to put a clamp on free speech and free press rights. This law would also provide U.S. companies with additional justification for not complying with government requests for this type of information, where compliance would result in the imprisonment or torture of individuals for repressive purposes.
In a victory for torture survivors, the Southern District Court of Florida today upheld the December 2006 indictment against Chuckie Taylor for torture and conspiracy to commit torture. Relying in part on the amicus brief submitted by Human Rights USA on behalf of multiple human rights organizations, the court rejected the defendant’s claims that the criminal prosecution of torturers constitutes a violation of the U.S. Constitution and an improper intrusion on foreign sovereignty. The court denied Taylor’s motion to dismiss and ordered the criminal case against him to move forward.
This decision confirms the long-standing notion that every nation that has ratified the Convention Against Torture – including the United States – is responsible for enacting and enforcing criminal sanctions against torturers, wherever they may be found, and irrespective of where the acts of torture took place.
The criminal charges filed against Chuckie stem from incidents that took place in 2002, while Chuckie headed the ATU. The specific incidents giving rise to acts of torture include “repeatedly burning the victim's flesh with a hot iron, burning various parts of his body with scalding water, including forcing the victim to hold scalding water in his hands at gunpoint, repeatedly electrically shocking the victim's genitalia and other body parts, and rubbing salt into the victim's wounds.”
This case represents the first time that U.S. prosecutors have sought to hold an individual criminally liable for torture. Taylor was indicted under the Torture Convention Implementation Act (18 U.S.C. §§ 2340-2340A), a 1994 federal statute making it a federal crime to commit, or attempt to commit, torture outside of the United States. Under the TCIA, individuals may be prosecuted if they are either U.S. citizens, or if they are found within the United States, regardless of their nationality. Having been born in the United States, Chuckie’s U.S. citizenship renders him subject to liability under the Act. Taylor was initially captured and detained in Miami in March 2006 for passport fraud.
If found guilty, Chuckie Taylor could be imprisoned for up to 20 years, fined, or both. The maximum sentences allowable under the are a life sentence, or the death penalty when an act of torture results in death.
Yahoo! is quickly learning that the cost of doing business in China is not free. Unfortunately, this lesson is already all too familiar to Chinese citizens like Wang Xiaoning who, thanks to the complicity between Yahoo! and the Chinese government, face increasing threats to their rights to free speech and association, not to mention other fundamental human rights such as the right to freedom from torture.
On April 18th, Wang Xiaoning filed suit against Yahoo! Inc. and its subsidiaries for their role in aiding and abetting torture abuses against Chinese journalists and human rights advocates in China. In 2002, Wang was arbitrarily detained and subsequently arrested by Chinese authorities for having written and published articles advocating for democracy and a multiparty system in China. His arrest was made only after Yahoo!’s Chinese subsidiary handed over Wang’s identification to the government. By turning over identifying information of its customers, Yahoo! is enabling acts of torture, forced labor, and arbitrary and prolonged detention to occur. As a result, Wang Xiaoning and others like him now sit in prison for having done nothing more than exercise their free speech rights.
Above, Wang's wife, Yu Ling, holds a copy of the Chinese court's judgment against her husband, which cites Yahoo's complicity in sharing with Chinese authorities Wang's anonymous e-mail information. Wang is now serving a 10-year sentence for having expressed pro-democratic views via his Yahoo! e-mail account and Yahoo! Groups, and has suffered abuse and torture at the hands of Chinese officials during his imprisonment.
The Chinese government, as a condition of allowing foreign internet companies to access its market by hosting internet servers in China, requires that foreign companies agree to turn over identifying information of internet users, block access to certain websites, and prevent internet users from being able to search certain words, like “freedom.” The identification information turned over by internet companies is used by the Chinese government, as it was in Wang Xiaoning’s case, to repress individuals who advocate for democratic reforms and greater human rights protections in China by subjecting them to arbitrary arrest, long-term imprisonment, and torture.
In 2005 – three years after Wang’s arrest – Yahoo! Inc. partnered its Chinese subsidiary, Yahoo! China, with the Chinese internet company Alibaba.com, and granted Alibaba the right to use its brand name. This move represents Yahoo’s attempt to gain access to the up-and-coming internet market in China, while trying to shield itself from liability for violating international human rights standards by distancing itself from China’s operations. Yet Yahoo! retains substantial organizational control over its China subsidiaries. By disregarding the rights of their Chinese customers, Yahoo! only facilitates the Chinese government’s repressive practices.
The American public has become increasingly perturbed by the negative social impact that U.S. enterprise can have on individuals in other countries. Perhaps the most notable example of the public outcry against corporate involvement in human rights abuses is the U.S. House of Representatives hearing in 2006, in which Yahoo! and several other U.S. internet companies were brought before the House to explain their complicity with the Chinese government’s censorship policies. Congressman Tom Lantos likened Yahoo!’s actions to the corporations that contributed to the atrocities of the Holocaust in Nazi Germany.
The lawsuit against Yahoo! and its subsidiaries by Wang Xiaoning and his wife, Yu Ling, underscores the dire need for U.S. corporations to put human rights and international law first in all of their business dealings, especially when operating in countries like China that commit torture and other major human rights abuses on a systemic basis.
With increasing attention being given to the business practices of U.S. companies, this lawsuit ought to convince other U.S. companies to think twice before doing business with the Chinese government, especially when ‘doing business’ means placing people at peril of their lives. U.S. companies would do well to remember that corporate profit does not justify human rights abuses.
Recent revelations about significant deficiencies in the FBI's bungling of security investigations of U.S. citizens under the Patriot Act suggests that a great deal more is involved than just isolated instances of negligence resulting in occasional invasions of privacy.
On Tuesday, FBI Director Robert Mueller admitted to the FBI's failure to abide by legal requirements laid out under the Patriot Act regarding the use of national security letters (NSLs) and intelligence surveillance warrants.
Earlier this month, the Department of Justice released two reports - one on the FBI's use of NSLs, and the other on the FBI's obtainment of business records - severely criticizing the FBI's abuse of the law. The NSL report blasted the FBI for failing to report to Congress on its use of NSLs, as it is required to do under the 2005 Patriot Reauthorization Act. Of the 143,000 NSL requests issued between 2003-2005, thousands of NSLs were never reported to Congress.
Interestingly, when Congress imposed this reporting requirement upon the FBI in 2005, the Bush administration staunchly opposed the requirement, citing instead the need to withhold information from Congress that might "impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties." It appears that Congress' efforts to impose oversight over the FBI were in vain. The executive branch never intended to respect the law, but per its usual course of action, has chosen to dilute the law, in letter and in spirit.
In addition to its failure to fulfill its reporting requirements, the FBI also, according to the report:
Requested information exceeding the scope of the agency's authority under the Patriot Act.
Issued NSLs that were not tied to any ongoing investigation (under the Patriot Act, the NSLs must be "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities").
Issued "exigent letters" to telephone companies, rather than NSLs, that were signed by people not authorized to sign NSLs. In other words, the FBI went around the law. When it could not legally issue NSLs, it issued "exigent letters" instead, thereby failing to follow the processes required for obtaining private information about individuals. This resulted in telephone companies handing over information about individuals to the FBI before the proper NSLs and subpoenaes had been approved.
In testimony before the House last week, Inspector General Glenn A. Fine attributed the administration's abuse of the law to "mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance and lack of adequate oversight."
But something more than just simple "mistakes" and reporting deficiencies seems to be at work here. What the scope and extent of the abuses suggest is that when legal requirements inconveniently stand in the way of the government's war on terrorism, the current administration chooses not to take the law seriously.
When Bush swore to defend and uphold the Constitution, he could only have meant that he would not let that revered document stand in his way of expanding his powers. Other examples of the administration's irreverence of the law include:
Presidential signing statements that are issued, not to aid in interpretation of Congressional legislation, but rather, to override it.
Unfortunately, such blatant disregard for the law permeates the executive branch, seemingly, at all levels. Although FBI Director Mueller and Attorney General Alberto Gonzales (who oversees the FBI) have both expressed disappointment at the agency's failures to abide by the law, they have also indicated that they intend to continue using NSLs, despite their fundamental flaws. Mueller admitted that "mistakes were made," but in the same breath called the NSLs the "bread and butter" of the FBI's investigations, labelling them "absolutely essential" in helping the government to obtain information. What makes the NSLs so valuable to the administration is the fact that they can be, and have been, obtained illegally and without adequate privacy protections. Take away the FBI's ability to obtain information in an unlawful manner, and the FBI's surveillance program will be significantly curtailed, much to the chagrin of some members of this administration.
Given the cavalier "anything goes" mentality held by those responsible for combatting terrorism, tinkering with the language of the law to try to prevent further abuses will not be enough. The Bush Administration's response to all of this is not to address the problems inherent in the secret surveillance program, but rather, to continue engaging in injudicious surveillance and finding new ways to sidestep legal requirements. Indeed, the administration's approach has always been to undermine the rule of law to the point of ineffectuality.
How many more times will we be told that we must concede our fundamental liberties in the name of an undefined "war against terrorism", that the law has once again been ignored, that "mistakesweremade"?
After declining to enter a plea at an earlier session of his preliminary military commission hearing, Guantanamo Bay detainee David Hicksplead guilty before the nation's first Military Commission on Monday. Hicks' guilty plea should not prevent us from taking a long, hard look at the appropriateness and legality of using the military rather than civilian courts for these prosecutions.
Two critical questions that must be addressed are, first, whether these special military trials meet basic fairness and due process standards, and second, whether the approach taken by military tribunals is desirable even if they can be considered adequate for purposes of due process. The fact that Hicks has admitted his guilt should not be taken as a green light for these military trials to continue.
It must be understood that the special military commissions set up by the Bush Administration to prosecute suspected terrorists are worlds apart from the military trials that normally take place under the Uniform Code of Military Justice (UCMJ). Many of the traditional due process protections provided in typical UCMJ trials are not present in the special military commissions that were created to deal with alleged terrorists. Additionally, the rules of the UCMJ are not binding on, or applicable to, military commissions trials.
Detainees do not have the right to be represented by counsel of their choosing.
Evidence obtained through torture, coercive interrogations, or improper long-term detention is admissible in certain circumstances, as is hearsay evidence.
No regular judicial appeal is permitted. The only avenue for judicial review is through the "convening authority", which woud be the Secretary of Defense or his designee, who cannot be characterized as impartial.
Detainees are denied the same fundamental due process protections that are provided for defendants in typical military criminal cases and in criminal trials in U.S. courts and international tribunals. For example, detainees do not have the right to prompt notification of the charges issued against them, nor do they have a right to speedy trial before an impartial court, and may be subject to secret trials closed to the public.
The applicability of international law in U.S. courts, particularly the Geneva Conventions, is severely constricted.
These deficiencies are nothing new to the Guantanamo detainee trials. On June 29, 2006, the U.S. Supreme Court in Hamdan found these deficiences to be so blatant and unacceptable that it rejected the first set of military commission procedures (established under Military Commission Order No. 1), finding them to be in violation of U.S. military law and in conflict with the requirements of the Geneva Conventions. It was in response to the Court's decision in Hamdan that Congress made changes to the rules for the military commissions, enacting the Military Commissions Act of 2006.
Unfortunately, the new standards do not come close to remedying all of the problems that the Supreme Court identified in Hamdan. For example, the judge in Hicks' hearing threw Hicks' two civilian counsel out of the courtroom, finding that they were "not authorized to participate in the military commission proceedings." Under the MCA, detainees may be represented by civilian and military attorneys, so long as defense counsel meet certain specifications. Civilian attorneys qualify to represent detainees based on regulations prescribed by the Secretary of Defense. However, the Defense Secretary has not yet issued those regulations. One of Hicks' attorneys, Joshua Dratel, refused to sign a form agreeing to be bound by unwritten regulations, thereby signing off on his ethical obligations carte blanche and being subject to a system that makes up the rules as it goes.
Rebecca Snyder, another of Hicks' civilian attorneys, is a military reserve lawyer, but was disqualified from representing Hicks because she had not been called into active duty. She would have to change her reserve status before being permitted to appear before the commission. Such a bold move by the judge effectively constitutes a rejection of Hicks' entire defense team, leaving Hicks with only his military attorney to defend him.
But even if a greater degree of due process was to be provided in the military commissions procedures, the military trial approach cannot be justified. For years, the United States has strenuously objected to the use of military trials as a matter of principle, because of concerns that this process has been misused in so many cases with the aim of producing expedited results and bypassing normal rule of law standards.
Another significant problem is that it is not at all clear that alleged terrorists fall outside of the jurisdiction of the regular criminal courts as "unlawful enemy combatants" in wartime. Technically, under traditional standards of international law, unless the detainees were captured on a battlefield, such as in Iraq or Afghanistan, there is no basis for treating them as "war criminals" subject to military trial as unlawful enemy combatants. They may have committed international crimes - a fact that has yet to be established. But their actions should not be considered war crimes, since the "war on terrorism" is neither an armed conflict between governments, nor an external conflict involving competing national factions, under the terms of the Geneva Conventions.
Whatever the technical legalities or the merits (or demerits) of the military trials may be, the United States should not now be supporting the use of military trials when, with good reason, we have objected to this approach for so long, when other governments bypassed the regular legal profess for the sake of expediency.
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About Human Rights USA
At Human Rights USA, we bring justice to survivors of human rights violations through creative impact litigation, working to bring U.S. laws in line with international human rights standards.
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