New leadership for global coalition against torture

The World Organisation Against Torture (OMCT), the principal global coalition of anti-torture organizations, has a new Secretary General today as Gerald Staberock succeeds Eric Sottas who had led the organization since its inception in 1985 and who is taking his retirement today.

Before joining OMCT in December 2010, Mr. Staberock led global programs at the International Commission of Jurists (ICJ), including its Centre for Judges and Lawyers (CIJL) and its Global Security and Rule of Law Initiative. In this context he coordinated the most comprehensive global study on counter-terrorism and human rights (ICJ Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights). Before joining the ICJ he worked at the OSCE Office for Democratic Institutions and Human Rights (ODIHR) on rule of law and anti-torture projects, including on penitentiary and legal reforms in Eastern Europe and the former Soviet Union. He concluded his judicial clerkship at the Higher Regional Court in Berlin qualifying as lawyer. He received his legal education in Bonn, Geneva and Washington DC (LLM). Mr Staberock has also written on a number of issues, including the rule of law in transition countries, counter-terrorism and human rights and the national implementation of human rights law.

“We are confident that Gerald Staberock, who has joined the OMCT nine months ago, will build on the foundation that has been laid," said Mr Yves Berthelot, OMCT President. "His legal rigour, rich experience in anti-torture and rule of law reforms in transition countries, and place at the heart of the debate on torture and counter-terrorism over the last ten years enable him to lead the organisation and to ensure its rightful place at the forefront of the fight against torture”.

“I am honoured to take up this challenge at a time when the strong and principled advocacy voice of the OMCT is more needed than ever” said Gerald Staberock, OMCT Secretary General. “The absolute prohibition of torture is challenged today through lack of respect and a pervasive culture of impunity in many parts of the world. At the same time there are opportunities not least through the transitions of the Arab spring to advance the fight against torture. This is the time to double the effort, to assist and support victims of torture, to ensure accountability and prevent torture, and to counter public complacency in the face of torture. I am looking forward to contribute to this cause together with the dedicated team in the OMCT Secretariat and in the partner organisation of the SOS Torture Network”, he added in a first comment.

Since its founding in 1997, Human Rights USA (originally called the World Organization Against Torture USA) has been a member of the SOS Torture Network, a coalition of more than 300 human rights organizations working to stop torture within their own countries. Human Rights USA's Executive Director, Theresa Harris, serves as a member of OMCT's General Assembly.

As we welcome Mr. Staberock to his new position, we gratefully applaud Mr. Sottas for his outstanding accomplishments with OMCT. The organization's achievements are the direct result of his vision, dedication and steadfast determination against torture.

One Man’s Persecution is NOT Another Man’s National Security Threat

The Third Circuit recently took the opportunity to uphold key refugee law principles and make it clear to the Department of Homeland Security (DHS) that it could not bar deserving refugees from protection in the United States without a good reason. (See Yusupov v. Attorney General, No. 09-3032 (3d Cir., June 16, 2011)).

Bekhzod Yusupov and Ismoil Samadov feared they would face persecution and torture for their religious beliefs if they were deported to their native Uzbekistan. Although the Uzbek government had issued extradition requests for the two men, claiming they were wanted for subversive activity, the U.S. Department of State and two immigration judges recognized that the Uzbek government commonly uses its criminal justice system to persecute political opponents. The immigration judges determined that the men faced a likelihood of persecution and torture and were deserving of refugee protection.

But that wasn’t the end of the story. Because the attorneys for DHS argued that the men were a danger to U.S. national security, and because the Board of Immigration Appeals (BIA) agreed, the men were granted a limited and easily revocable form of protection instead of the broader protection they had sought. And what was the primary evidence that led DHS and the BIA to conclude Yusupov and Samadov were national security risks? The extradition requests. The very same spurious, unreliable extradition requests that the immigration judges and the BIA considered proof that Yusupov and Samadov would more likely than not be tortured in Uzbekistan was also the primary evidence that they were threats to U.S. security.

In fact, DHS offered no direct evidence that either man was actually a threat to national security, basing their argument on speculative and circumstantial evidence in addition to the extradition requests.

The Third Circuit reversed the BIA’s decision and directed the BIA to grant both men withholding of removal, a broader form of protection than that which they had previously been granted. If a person facing deportation can show that they will more likely than not face persecution or torture in the country to which they will be deported, then under U.S. law they must be granted withholding of removal. The law is based on the principle of “non-refoulement” found in both the Convention on the Status of Refugees and the Convention Against Torture, which both state that governments should not deport people into situations of persecution and torture.

Like many countries, the U.S. makes an exception to the non-refoulement principle for individuals that pose a threat to national security. But, as the Third Circuit’s decision made clear, that exception is limited to people who pose an actual, not speculative, threat, and DHS must provide reasonable grounds for believing someone is a threat. In the cases of Yusupov and Samadov, DHS failed to meet that burden.

In its decision, the Third Circuit stressed the fact that Congress passed U.S. refugee law with the intent to fully live up to the United States’ obligations under international refugee law, and that the exceptions Congress created to the non-refoulement principle were to be applied narrowly. To apply the exception broadly enough to cover individuals falsely charged with crimes by despotic governments seeking to suppress their free expression would undermine the entire purpose of U.S. refugee law, as the Columbia Law School Human Rights Institute explained in a brief amicus curiae submitted on behalf of Yusupov and Samadov. The two men, facing politically motivated criminal charges, are text-book examples of a kind of person refugee law is meant to protect. Thankfully, the Third Circuit’s decision reinforces core principles of U.S. and international refugee law, and will allow Yusupov and Samadov to receive the protection they deserve.

Human Rights USA wishes to congratulate the attorneys at Steel, Rudnick & Ruben and Seton Hall Law School’s Center for Social Justice, who represented Yusupov and Samadov, respectively, as well as the amici curiae who contributed crucial legal analysis to the case, Columbia Law School Human Rights Institute, the Asian American Legal Defense & Education Fund, Becker, Glynn, Melamed & Muffly LLP, and Debevoise & Plimpton LLP.

Wrap-up: Bush's canceled trip to Switzerland

A few days ago, Human Rights USA was part of a loud chorus of international anti-torture advocates urging Swiss government officials to take swift action if former President Bush went through with announced plans to visit Switzerland. We are gratified that the calls for Switzerland to uphold its international obligations seem to have prompted President Bush to call off the trip. (Anyone who says international human rights law doesn't have any teeth hasn't been forced to cancel their travel plans for fear of indictment.)

The law is clear: no one, not even former heads of state, enjoys immunity from prosecution for torture. The Pinochet Precedent took that principle from theory to practice. As quoted in an article in The Guardian:

"Nobody – from those who administered the practices to those at the top of the chain of command – is under a shield of absolute immunity for the practices of secret detention, extraordinary rendition and torture," said Martin Scheinin, UN special rapporteur on human rights and professor of public international law at the European University Institute. "Legally this case is quite clear. Bush does not enjoy immunity as a former head of state, and he has command responsibility for the decisions that were taken."

How did we get to the point that a former U.S. president is not free to travel the world for fear of prosecution and protests? More importantly, how do we prevent this from happening again? Here at Human Rights USA, we believe that fully implementing the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is a good place to start. The Convention requires governments to fully investigate allegations of torture, hold perpetrators accountable, and provide redress to victims. When the U.S. government fails to uphold its obligations, other countries, like Switzerland, are obliged to step in.

The Center for Constitutional Rights, Amnesty International, and the World Organization Against Torture all issued statements reiterating the need to investigate and prosecute those responsible for torture -- even former presidents -- even former presidents of the United States of America. Today, Human Rights Watch called on U.S. officials to prosecute, saying, "The U.S. record on accountability for detainee abuse has been abysmal. The official authorization of torture by a head of state should never go unpunished."

For more news coverage, here are links to stories in the New York Times, the Washington Post, and CNN.

Switzerland Must Not Make Exceptions for the United States

The Swiss media is reporting that former President George W. Bush plans to visit Geneva on February 12, 2011. In response, the World Organisation Against Torture (OMCT) - the principle coalition of anti-torture organizations – issued a statement calling on the Swiss authorities to uphold its legal obligations under domestic law and the UN Convention Against Torture (UNCAT) regarding a visit of former President George W Bush to Geneva. As a member of OMCT, Human Rights USA joins this urgent request.

For Eric Sottas, Secretary General of the OMCT ‘there is not the slightest doubt that Switzerland is obliged under both international law and its domestic law to initiate an investigation for acts of torture against any individual present on its territory that has committed, authorized, participated in or was otherwise complicit in acts of torture. There are no laws that provide an exception for former head of states’.

OMCT's letter to the Swiss government points to the compelling body of evidence about the US policies of torture and ill-treatment under the Bush administration. These policies are well documented and to a large extent publicly acknowledged, including by the former President’s own admissions of having authorized interrogations practices that constitute torture.

‘This is not about targeting a former US President. It is about the respect for the rule of law’, added Eric Sottas. In February 2001 the OMCT had mandated Mr Francois Membrez to bring a criminal complaint for torture against the former Interior Minister of Tunisia Abdallah Kallel on behalf of a victim. The General Prosecutor of Geneva swiftly initiated - on the basis of the same principles as those at stake today – an arrest warrant which could only not be executed because the Minister had left the country in record speed. Ten years later he was prevented from leaving Tunisia in order to be brought to justice, a development seen by Tunisian and European commentators to be influenced by the case opened at the time in Geneva.

Torture is a crime under international law wherever and by whoever it is committed and for the OMCT it is central that the law must not distinguish on the basis of the status or origin of the offender. The OMCT also recalls that the United States has so far not taken any steps to assume its responsibility to undertake comprehensive independent investigations with the aim of bringing those responsible to justice for torture, enforced disappearances and other crimes under international law. Nor have they provided any remedies or reparations for the victims of such practices even in the case of well documented abuse.

Governments should not believe that the question of legal accountability will just go away. To the contrary it needs to be addressed now and states, and especially the political allies of the United States, should start exercising their influence to bring the impunity for orture, secret detention and extraordinary renditions to an end.

Thanks to TASSC for hosting meeting with UN Special Rapporteur

On January 13, the Torture Abolition and Survivor Support Coalition (TASSC) hosted a meeting with the newly appointed UN Special Rapporteur on Torture, Dr. Juan Mendez. We're grateful that TASSC invited us to attend this meeting and thankful to work alongside the passionate advocates against torture who were there, including more than twenty survivors of torture from TASSC as well as representatives from the National Religious Campaign against Torture, Advocates for Survivors of Torture and Trauma, Pax Christi USA, Maryknoll Office for Global Concern, and the U.S. Conference of Catholic Bishops.

We were especially inspired to hear Dr. Mendez describe his "victim-centered" approach to his mandate. As Special Rapporteur, a job he stepped into two months ago, Dr. Mendez will investigate individual reports of torture worldwide and work with governments to stop and prevent torture. Being a survivor of torture himself, he has a very special sensitivity to the rights of survivors to information and redress.

At the meeting, Dr. Mendez noted that he is in discussions with the U.S. Government about complaints of torture committed in the name of national security, including allegations regarding the conditions in which Pvt. Bradley Manning is being held in Quantico, Virginia. He also discussed the international status of the U.N. Convention for the Protection of All Persons from Enforced Disappearances and Optional Protocol to the U.N. Convention Against Torture (neither of which has been ratified by the U.S.)

For more about the meeting, please visit TASSC's website: http://tassc.org/blog/2011/01/tassc-hosts-u-n-special-rapporteur-on-torture/

We're watching this case closely... so is the Blog of the Legal Times:

D.C. Circuit Appeals Ready to Void Torture Suit

A federal appeals court in Washington appears poised to uphold the dismissal of a suit that alleges government torture in Afghanistan and in Iraq of nine civilians who claim they were beaten, burned and shocked before being released without charges.

Survivors of torture have a right to redress and accountability. The UN Convention Against Torture, which the U.S. has ratified, sets this out in no uncertain terms. And yet, Senior Judge Harry Edwards told ACLU attorney for the plaintiffs, Cecillia Wang, “You can’t prevail under the law of the circuit... It’s not your fault. That’s what the law of the circuit is.”

When we talk about closing the gaps between international human rights standards and U.S. laws, this is what we mean.

No Immunity For Ordering Torture

According to Dan Froomkin:

British human rights lawyer Geoffrey Robertson was quoted in the British press this week as saying Bush's admission could leave him open to arrest and possible prosecution if he visits countries that have ratified the UN torture convention.

That includes a good chunk of the globe.

"George W Bush has confessed to ordering waterboarding, which in the view of almost all experts clearly passes the severe pain threshold in the definition of torture in international law," Robertson said. "[H]e is an ex-head of state so he is not entitled to immunity from arrest and trial."

Robertson added: "So his retirement travel plans may well be circumscribed, although he never ventured abroad before he became President, and no doubt made the statements in his book having been advised of this potential consequence."

"Damn right" couldn't be more wrong.

According to the Washington Post, former President Bush not only admits to ordering torture in his upcoming memoir, he is proud of it. The article says that when asked whether approved the CIA's use of waterboarding against 9/11 suspect Khalid Sheik Mohammed, he replied, "Damn right."

How can he get it so wrong? Waterboarding is torture, which is illegal and immoral under all circumstances. Period.

Statements like these also put U.S. national security at risk. As the Executive Director of the Center for Victims of Torture says, "This cavalier attitude by the President who authorized torture in violation of U.S. and international law not only damages our nation’s credibility throughout the world, but also discourages global cooperation to combat
terrorism. It was only last week the U.S. was reminded that to protect our country from terrorists, and to collect vital information, we need the trust of individuals and governments worldwide. The bombs shipped on airplanes bound for the U.S. were stopped because of the cooperation of foreign intelligence services. The U.S. stands the best chance of becoming the ally of more people around the world—people who can join us in the fight against terrorism—by rejecting torture. This effort is severely hampered when our leaders makes such careless and rash remarks without realizing the harmful impact on America’s security."

If you need evidence to back up this statement, just look to the many questions U.S. allies posed during last week's UPR about closing Guantanamo and ending torture. These questions came from concerns that other democracies share about how the U.S. has undermined global efforts to end torture, and how the facts revealed about U.S. use of torture has been used to drum up antagonism toward the U.S. and other western democracies.

Former President Bush's statement shows exactly why an independent non-partisan commission tasked with examining and reporting publicly on torture and cruel treatment of prisoners is needed, and why that investigation ought to look at command responsibility, not just the lower ranking officers who carried out torture.

Human Rights USA's clients who have survived torture at the hands of foreign government officials look to the U.S. to be a positive force for ending torture worldwide. They demand, and deserve, accountability to ensure that the U.S. never again sinks to these tactics.

Felony Torture Statute is Constitutional

Today, the US Court of Appeals for the Eleventh Circuit held that the statute passed to implement the Convention Against Torture is constitutional. The decision upholds the jury verdict and sentence holding Charles "Chuckie" Taylor, Jr.'s accountable for torture committed when he was head of the Anti-Terrorism Unit (ATU) in Liberia.

The court's decision reads: "After thorough review, we conclude that all of Emmanuel’s convictions are constitutional. The United States validly adopted the CAT [Convention Against Torture] pursuant to the President’s Article II treaty-making authority, and it was well within Congress’s power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture. Furthermore, we hold that both the Torture Act and the firearm statute apply to extraterritorial conduct, and that their application in this case was proper. Finally, we conclude that Emmanuel’s trial and the resulting convictions were not rendered fundamentally unfair by any evidentiary or other procedural errors, and that his sentence is without error. Accordingly, we affirm Emmanuel’s convictions and sentence in all respects."

The full decision is available here: http://www.ca11.uscourts.gov/opinions/ops/200910461.pdf

International Day in Support of Victims of Torture - Nothing can justify torture and ill-treatment under any circumstances

USA: REDRESS FOR TORTURE LONG OVERDUE

Washington, DC – Geneva, 26 June 2010. On the occasion of the International Day in Support of Victims of Torture, the World Organisation Against Torture (OMCT) and its member organisation in the United States, Human Rights USA, jointly call on the Government of the United States of America to show its commitment to abolish torture and other forms of ill-treatment by implementing effectively the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).

OMCT and Human Rights USA welcome the Obama Administration’s stated desire to bring U.S. policies in line with international human rights norms and, to that end, the decision last year to release previously confidential documentation of torture ordered during interrogations. We also applaud the decisions to release some detainees from Guantánamo Bay to third countries, transfer one terrorism suspect to New York to stand trial in federal court rather than by military tribunal, and order the closure of CIA secret prisons.

However, the administration continues to enforce policies that, as President Obama recognized during his presidential campaign, do not respect human rights. These include detention of suspects at the Guantánamo Bay facility, extraordinary rendition policies, and use of coerced testimony in military tribunals. The U.S. Government has yet to hold accountable government officials who ordered or provided the legal justifications for torture. In addition, the Obama Administration has thwarted efforts by survivors of torture like Maher Arar and Khaled El-Masri to access the courts in order to assert their rights, seek remedies, and secure accountability.

On this day dedicated to victims of torture and other ill-treatment, OMCT and Human Rights USA urge the United States Government to launch prompt, effective, independent and impartial investigations into the alleged torture and ill-treatment as well as other human rights violations that took place during the previous administration. The result of such investigations must not only be made public, but criminal prosecutions must moreover be brought against the suspected perpetrators of ill-treatment. If they are found guilty, a penalty proportionate to their crimes should be imposed.

Furthermore, the victims must be granted adequate redress for their suffering, including rehabilitation for physical and psychological impacts of the abuses, as required by the Convention against Torture. The U.S. Government should cease its practice of improperly invoking the “state secrets doctrine,” so that victims will be afforded fair and effective access to independent and impartial courts of law as well as ensured access to all relevant information concerning the reasons for their arrests and detention in order to allow them to effectively challenge the abuses committed and seek adequate redress, including compensation and rehabilitation. The U.S. Government also should avoid seeking “qualified immunity” for Government officials as a means of avoiding liability for torture and other human rights abuses that are already universally prohibited as a matter of law and therefore cannot be considered “official acts” entitled to immunity.

Lastly, the U.S. Government should issue formal apologies to each individual victim of these abuses. By assuming responsibility for these grave abuses of fundamental human rights, the Obama administration would send a strong message to the world that the United States of America takes its duty to protect human rights, including the absolute prohibition against torture, seriously.

REFLECTION: The Civil Judgment against Taylor Jr. - What does it mean?

On February 5, 2010, while preparing for what has been called the "snowpocalypse" here in Washington, DC, we at Human Rights USA learned that the Court in our civil case against Charles Taylor, Jr. ("Taylor Jr.") had awarded a total of $22.4 million in damages to our five clients for the atrocities they endured at the hands of Taylor Jr. and the Anti-Terrorism Unit (ATU) forces under his command. As we shared the exciting news with our clients, colleagues, and the media, we faced the question: "What does this decision mean? What does it mean to the plaintiffs – to the legal community – to potential defendants – and to the world?"

Law students at the University of Pittsburgh invited us to comment on exactly these questions. To read our responses as they appear in the JURIST Hotline section of the school's online journal, click here.

HAPPENINGS ON THE HILL: October 6, 2009 Human Rights Violators Accountability Hearing

On Tuesday, October 6, 2009, at 10 am, the Senate Committee on the Judiciary Subcommittee on Human Rights and the Law will hold its second ever hearing addressing how to hold human rights violators found in the United States accountable for their crimes. The Subcommittee will focus on important developments in this area of law, including the successful prosecution and conviction of Charles ("Chuckie") Taylor, Jr. We encourage our readers to attend the hearing or tune in via webcast for this important discussion. You can read Human Rights USA's submission to this hearing here.

Accountability and the Obama Administration

This article provides a good discussion of the decisions the Obama Administration will need to make in light of comments by Susan J. Crawford, the convening authority for the U.S. military commissions, about the torture by the U.S. military of Guantánamo detainee Mohammed al-Qahtani.

As noted in the article, the prosecution of Charles ("Chuckie") Taylor, Jr. under the U.S. law prohibiting torture was an extremely positive step toward holding torturers accountable. We encourage the Obama Administration to follow the precedent set by the Taylor case and hold all torturers in our borders accountable for their crimes. Mistreatment of fellow human beings by methods that are universally condemned simply cannot be ignored.

PH

Yoo and Addington Obstruct Congressional Effort to Examine Bush Administration’s Authorization of Torture

In a contentious hearing before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, last Thursday, two “architects” of the Bush administration’s torture policies refused to yield any information on the authorization of waterboarding and other harsh interrogation techniques. David Addington, Chief of Staff and Former Counsel to Vice-President Cheney, and John Yoo, former Deputy Assistant Attorney General, appeared before the Subcommittee on June 26, the 21^st anniversary of the adoption of the Convention Against Torture. Yoo appeared voluntarily, but a defiant Addington came only under subpoena, without submitting written testimony or offering an opening statement.

Yoo, author of the now infamous “Yoo memos,” which provided the legal analysis that led to the adoption of torture tactics in interrogation of detainees at Guantanamo and elsewhere, deflected the majority of questions from Committee members with the shield of a “professional obligation to the Department of Justice to obey their instructions.” Whatever those instructions may have been, they prevented Yoo from saying anything about his opinions and knowledge of the use of the memos he drafted. Upon the Chairman’s insistence that Yoo either assert a privilege or start answering questions, he claimed attorney-client privilege and the need to protect confidential or sensitive information.

Addington, on the other hand, claimed impaired recollection. When asked about his trips to Guantánamo, after which it is reported that officials started using harsher interrogation techniques, he could not recall whether he had discussed interrogation techniques while there. He also denied having advocated any particular position regarding interrogation techniques, claiming only to have requested Yoo’s legal analysis.

While seemingly futile, the testimony of Yoo and Addington is revealing. U.S. government agencies administered interrogation techniques in reliance on the Yoo memos. Yoo and Addington’s obstructionism and unwillingness to even acknowledge, let alone take responsibility for, the effect of their actions on the types of techniques used further demonstrates a severe lack of accountability within the Bush administration. Torture has been committed in violation of domestic and international law, and one by one, U.S. officials refuse to answer questions from the American people and their representatives. As Chairman Nadler asserted in his opening statement, “that is unacceptable.”

By Danielle Goldstone, Human Rights & Anti-Terrorism Legal Intern at Human Rights USA

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

Celebrating a Year of Unprecedented Success

As the holidays roll in, take a moment to join us in celebrating a year of unprecedented success in litigation on behalf of survivors of torture, slavery, and gender-based violence. Download our Winter 2007 Newsletter (hot off the press today!) and read about our latest work:

• Yahoo! Inc. Settles Historic Human Rights Lawsuit
• Human Rights USA Supports First Prosecution Under Anti-Torture Statute
• Asylum Granted to Albanian Woman Fleeing Forced Prostitution

Join us in ringing in the new year and moving forward:

• Forward our newsletter to your colleagues and friends.
• Buy holiday gifts at our new online store.
• Send a note of support to one of our clients, letting them know that you stand behind them as they fight for their safety, dignity, and rights, or
  
• Make a tax-deductible contribution to Human Rights USA before year’s end.

German Court Asked to Review Decision Not to Investigate Rumsfeld in Torture Case

Today, human rights groups appealed to the Frankfurt High Regional Court in Germany, asking the court to review a German federal prosecutor's decision not to proceed with an investigation into high-ranking U.S. officials' involvement in the abuse and torture of detainees held in Iraq, Afghanistan, and Guantanamo Bay. The request, which names former Defense Secretary Donald Rumsfeld, former Attorney General Alberto Gonzales, former CIA Director George Tenet, and other high-ranking military officers and former government attorneys as the subjects of the investigation, is the second of such requests to be filed in Germany.*

The first complaint was filed in November 2004 by German attorney Wolfgang Kaleck, with the support of U.S. and international human rights groups. A German prosecutor dismissed that request, stating that the nations of the victims and the accused should be given the first opportunity to conduct the criminal prosecutions. However, since that first request was filed, U.S. officials have failed to take any action in investigating the allegations of abuse and torture. Moreover, now that the U.S. Congress has passed the Military Commissions Act, the likelihood that U.S. officials will ever be prosecuted in the United States has become virtually nil.

The MCA, signed into law on October 17, 2006, presents significant legal obstacles to prosecuting U.S. officials in U.S. courts. The MCA narrowly limits the types of conduct for which U.S. officials may be held liable, essentially granting them immunity for particular types of criminal conduct such as acts of torture. In addition, the statute allows defendants to claim, as a defense, that the detention and interrogation tactics they used were "lawful," or that the defendant didn't know that certain types of techniques were unlawful. The Office of Legal Counsel, which advises the Attorney General and the Executive branch on the lawfulness of proposed courses of conduct, has previously stated that certain forms of torture are lawful -- a view that has been widely criticized by legal scholars and the human rights community.

The MCA's broad grant of immunity, particularly for crimes like torture that violate well-recognized human rights standards, disregards the United States' binding obligations under international and domestic law. The United States, as a party to the Convention Against Torture, is bound by the treaty's prohibition against torture. The United States is also obligated under U.S. domestic law not to commit torture. The Foreign Affairs Reform and Restructuring Act of 1998 incorporates article 3 of the CAT, which prohibits countries from transferring individuals to countries where they will more likely than not be tortured. Under U.S. criminal law, the Torture Convention Implementation Act makes it a crime to violate the CAT's anti-torture provisions.

Even though torture is unlawful under domestic and international law, the MCA significantly limits the liability of U.S. officials for their human rights abuses. Furthermore, the U.S. government's unwillingness to enforce these obligations means that injured parties must look to foreign courts to secure justice. Without any guarantee that the United States will enforce its obligations not to torture, we now turn to foreign tribunals to hold perpetrators accountable for committing major human rights abuses.

Human Rights USA supports the German court's review of the prosecutor's decision not to investigate human rights violations committed by U.S. officials. HRUSA has submitted supporting evidence to accompany the petition for review. Among the supporting evidence provided by HRUSA are two complaints filed by HRUSA with the U.S. Department of Justice, seeking an investigation into the CIA's extraordinary rendition program and into the detainee abuse taking place in Iraq, Afghanistan, and Guantanamo Bay, as well as an affidavit by HRUSA's Executive Director, Morton Sklar, detailing the organization's efforts to seek criminal accountability for these major human rights abuses. The fact that HRUSA's requests for investigation went unanswered by the U.S. government only underscores the necessity for the German court's review of this case.

CC

*Under German law, German courts may exercise universal jurisdiction over defendants who are alleged to have committed genocide, crimes against humanity, and war crimes, regardless of the nationality of the parties or the location where the alleged acts took place. However, German law does not obligate federal prosecutors to open an investigation.

Court Says Female Genital Mutilation Consititutes Torture, Halts Our Client's Deportation

In a groundbreaking decision, the Seventh Circuit Court of Appeals became the first court at the Circuit Court of Appeals level on Friday to stay the deportation of a mother whose daughters, both U.S. citizens, would be subjected to female genital mutilation (FGM), a form of torture, if deported to Nigeria. Human Rights USA worked creatively to ensure that Philomena Nwakolo and her daughters, Rachel and Victoria, are now safe from abuse and torture in Nigeria.

Philomena came to the United States in the 1980s on a visa that is typically granted to the spouses and children of students. Philomena took a paid job shortly after arriving, not realizing that she wasn't permitted to perform paid work, and the INS began deportation proceedings against her.

After trying several times, unsuccessfully, to obtain permission to remain in the United States, Philomena finally decided to seek protection under a federal law which implements the Convention Against Torture (CAT), an international statute obliging countries not to deport individuals to places where they face the likelihood of being tortured.

Finally, in 1999, after several years of trying to reopen her case, Philomena again sought to reopen her case based on "changed circumstances." The changed circumstances were the birth of Philomena's daughter, then 3 years old, as well as additional legal protections that had been enacted pursuant to the CAT.

Although Philomena's petition to reopen was denied, she went to the Seventh Circuit Court of Appeals to petition for review of the lower court's refusal to reopen her case. The Seventh Circuit granted her request, and held that a stay of removal "promotes the public's compelling interest in ensuring that minor United States citizens are not forced into exile to be tortured."

The Seventh Circuit Court's decision is the first to hold that female genital mutilation constitutes torture, and is unique in that the court considered the effects of deportation on the children of an alien, as well as on the alien herself.

For additional news articles on this case, please see the following:

• Chicago Daily Law Bulletin, 7th Circuit Puts Brakes On Deportation , December 30, 2002
• Washington Post, Court Blocks Dallas Woman’s Deportation , Citing Threat Of Mutilation, January 3, 2003