Q&A: What the Attorney General's Decision Means for Human Rights

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.

View our Q&A as a pdf.

ON THE RADAR SCREEN: Renditions

There are times the news cycle is so full, it's easy to miss important announcements and events that pertain to human rights. Our "On the Radar Screen" posts are intended to alert our readers to such news to ensure you stay informed.

In the midst of recent announcements about the release of reports detailing CIA interrogations involving guns and drills and Attorney General Holder's decision to appoint a special prosecutor (and the reactions of various members of Congress thereto encouraging a broader investigation), you may have missed an important piece of news:

Yesterday, the Obama administration announced that it would, like the Bush administration, send terrorism suspects to other countries for interrogation and detention. This practice, known as "rendition," was widely condemned during the Bush administration for the simple fact that, in practice, it often meant buying someone a ticket back to torture.

Despite the Obama administration's promise to monitor the treatment of prisoners sent to other countries, many human rights advocates condemn the decision on the grounds it would still allow transfers to countries with a clear history of torture. We have seen in the past that so-called “diplomatic assurances” do not guarantee the prisoner will not be tortured.

Though we are encouraged by the administration's statement that the "Interrogation and Transfer Policy Task Force" will operate "more openly" and in greater cooperation with the State Department, ensuring that the United States meets all of its international legal obligations requires more than a newly-minted task force with an official-sounding name and assurances from our own government to ensure transferred detainees are not abused.

We will continue to monitor this matter and update you as it unfolds - how openly will the ITP Task Force actually operate? And what weight will "diplomatic assurances" from other countries be given? Has Obama learned from the mistakes of the past administration or must others suffer (while we as a country endure more embarrassment) before we change course?

BREAKING NEWS: Attorney General Holder to Appoint Special Prosecutor

Human Rights USA is pleased to share news that Attorney General Holder has decided to appoint a prosecutor to investigate interrogations that may have violated U.S. obligations not to torture. For more on this story, read the coverage in The Washington Post and The Washington Times.

As we explained earlier this month, the Attorney General should ensure that the scope of the investigation includes senior government officials responsible for directing, approving, or authorizing the use of such techniques. At this time, the focus of the investigation appears to be too narrow to include all individuals responsible for the abuses committed during the last administration. As previously discussed on this blog, failure to fully investigate the abuses could have international repercussions for the United States.

Human Rights USA has closely followed the detainee abuse issue, and has called for accountability, for the past several years. We encourages our readers to check here for additional information over the coming days, weeks, and months. For a more complete take on the Attorney General's decision, please visit our website.

JOIN US FOR: Pray the Devil Back to Hell: A Special Screening and Panel Discussion on August 24th at 7 PM.

In case you missed our previous screening, please join us on the UN's International Day of Peace for a special presentation of Pray the Devil Back to Hell at the E Street Theater next week on August 24th at 7 pm. Human Rights USA is co-sponsoring the event with the Woolly Mammoth Theater, InterAction, Peace x Peace, and the Washington DC Film Society. Human Rights USA International Justice Project Director, Piper Hendricks, will be participating in a panel discussion immediately following the film screening.

This special film screening is being put on in collaboration with the Woolly Mammoth Theater, who are set to launch their new critically acclaimed play, Eclipsed, later this month. The Woolly Mammoth's website offers a brief description of the play:

"The captive wives of a Liberian rebel officer form a hardscrabble sisterhood, their lives set on a nightmarish detour by civil war. With the arrival of a new girl who can read – and the return of an old one who can kill – their possibilities are quickly transformed. Drawing on reserves of wit and compassion, these defiant survivors ask: when the fog of battle lifts, could a different destiny emerge?"

The festivities begin at 7 pm! We look forward to seeing you there.

Independent Prosecutor MUST be Given Broad Mandate to Investigate Senior Officials Who Authorized Detainee Abuse

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 said that 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 civil rights 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.

I SEE WHAT? A Discussion of the International Court of Justice (ICJ) and a quick look at the International Criminal Court (ICC)

In recent postings, we have discussed the International Criminal Court (ICC), both in the context of the United States' opposition to the Court and of Attorney General Holder's pending decision regarding the appointment of an independent prosecutor. In response, some of our readers have asked about the difference between the ICC and the International Court of Justice (ICJ). From a city where there seem to be more acronyms than people (especially in August), we bring you a discussion of these two courts...

In October 1943, in the midst of a devastating world war, several States spoke out for the creation of a mechanism capable of ensuring the peaceful settlement of State disputes. The United States was among the leaders of this movement and, together with China, the USSR, and the United Kingdom, issued a declaration urging the prompt establishment of “a general international organization, based on the principle of the sovereign equality” to maintain “international peace and security.” To that end, in 1945, a committee of jurists, chaired by American judge G. H. Hackworth, began to draft the statute of what would become the International Court of Justice (ICJ).

Many Americans are accustomed to attitudes of national isolationism or exceptionalism, but a look at our not-so-distant history reveals we once took a very different approach to international issues. There was indeed a time when the United States was progressive in its view of international law; in fact, the United States was once a vanguard for ensuring international accountability and the building and strengthening of international institutions.

Sadly, not quite forty years later, in 1984, the United States withdrew itself from the compulsory jurisdiction of the ICJ – a court it helped create. (“Compulsory jurisdiction” means that if a dispute involving the US was submitted to the Court, the United States would be required to subject itself to the Court's authority.) In 2005, the United States terminated its acceptance of the Court’s jurisdiction over disputes arising under the Vienna Convention on Consular Relations, a treaty that specifically named the ICJ as the venue for settling such cases.

This blog takes a look at the nature of the ICJ, the United States’ history with the Court, and the implications of our shifting stance with this international body.

What is the International Court of Justice?

The ICJ is the primary judicial organ of the United Nations (U.N.) and has been functioning in this capacity since 1946. The authority to establish the Court is found in Chapter VI of the U.N. Charter on the Pacific Settlement of Disputes, which lists judicial settlement as one of the means suggested to peacefully resolve disagreements between States. [1] (In other words, make complaints, not war.) The Court is only concerned with resolving matters between governments; individuals or other private entities cannot file cases with the ICJ. A “contentious case” before the Court may look like this: Two coast countries, State A and neighboring State B, cannot agree about where to mark the border of the continental shelf (the shallow landmass that extends into the sea), so bring the case before the ICJ to resolve.

Notably, the Court’s jurisdiction over disputes between states exists only on the basis of consent, which means that each State makes the decision regarding the extent to which it will submit to the Court’s authority. Nearly 70 States (or 1/3 of U.N. Member States) recognize the jurisdiction of the Court as compulsory, which, as mentioned above, allows that State to initiate proceedings with the Court, but also requires that State to appear before the Court should proceedings be initiated against it by one or more other States.

States that have not agreed to compulsory jurisdiction can still come before the Court in two ways 1) as signatories to a treaty that specifically names the ICJ as the venue to settle disputes, (approximately 300 treaties refer to the Court in settling disputes); and 2) on a case-by-case basis. Finally, as a court of “dual jurisdiction,” the ICJ not only has the authority to decide contentious cases between States, but may also provide advisory opinions on legal questions at the request of the organs of the U.N. or other specialized agencies.

So why did we need the ICC?

As you may recall from an earlier post, in 2002, the international community established the International Criminal Court – a venue to prosecute individuals responsible for the gravest violations of international law: genocide, crimes against humanity, and war crimes. Unlike the ICJ, which handles disputes between States, the ICC handles cases against individuals and offers recourse to the victims of their heinous crimes. The ICC addressed a significant gap in international accountability by allowing individual victims to assert their human rights, often against leaders of their own State. While the ICC has successfully ended impunity for some of the most serious human rights abuses in recent history, its effectiveness has been weakened by the United States’ refusal to become a party.

The United States and the ICJ

As a founding member of the ICJ, the United States accepted compulsory jurisdiction of the ICJ in 1946. In the next thirty-eight years, the United States was a party to ten cases, in which the Court facilitated the peaceful resolution of disputes, as well as clarified Treaty obligations and principles of international law. However, in 1984, in a dispute between Nicaragua and the United States, the Court held that the United States had violated obligations under the United States-Nicaragua Friendship, Commerce and Navigation Treaty by supporting and aiding military and paramilitary activities in and against Nicaragua.[2] In response to this judgment, the United States withdrew from the case and terminated its acceptance of compulsory jurisdiction.[3] This defiant response to the Court and international community in the mid-80s set the United States on the path to exceptionalism.

At that time, the United States still accepted jurisdiction on a case-by-case basis and as a party to Treaties naming the ICJ as the venue to settle disputes. However, in 1999, another unfavorable judgment planted the seed of complete separation. Under the Optional Protocol to the Vienna Convention on Consular Relations, any alleged violation of the Convention would be resolved by the ICJ. The Protocol requires signatories to submit to the jurisdiction of the ICJ, and allows the Court to “make the final decision when their citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad.”

In 1999, under the auspices of the Convention, Germany sought to halt the imminent execution of Walter LaGrand, a German national being held in the US. In response, the ICJ issued a provisional measure calling on the United States to ensure LaGrand’s death sentence was not carried out, but LaGrand was executed the same day. Two years later, Germany asserted that the United States had 1) violated its legal obligation under the Vienna Convention to give consular officers access to imprisoned nationals; and 2) failed to comply with the ICJ’s provisional measure.

The ICJ found in Germany’s favor, ruling: 1) the United States violated the Convention by not informing the German consulate of the imprisonment and subsequent sentence of LaGrand and his brother (who had been executed for the same crime before Germany made its initial request to the ICJ in 1999); and 2) the provisional measure of the ICJ was binding on the U.S. government. Three years later, after a similar case in which the ICJ ordered the United States to review the convictions of 51 Mexicans who had been sentenced to death without being informed of their right to consular assistance, the United States withdrew from the Optional Protocol. Any guesses who proposed the Protocol in 1963? The United States.

Conclusion

Last March, the U.S. Supreme Court addressed the ICJ’s aforementioned “order to review” regarding the 51 Mexicans sentenced to death in the case Medellin v. Texas. In 2004, President Bush had cooperated with this ruling and ordered trial revisions. However, most courts, including a court in Texas that had sentenced convicted murderer Jose Ernesto Medellin, did not comply with Bush’s instruction. In reviewing the lower court’s “disobedience,” the Supreme Court ruled in favor of Texas and held that “neither (the ICJ) nor the president’s memorandum constitutes directly enforceable federal law that pre-empts state limitations.” [4]

The implications of the landmark Medellin judgment are felt far beyond the enforceability of Consular Treaties, and further erode the United States’ international reputation. A State’s refusal to respect its decisions compromises the ICJ’s ability to function effectively as a forum for peaceful resolution on the international stage. Sixty years ago, the United States was proudly at the center of that stage. Unfortunately, much has changed in a few decades. While most States throughout the world recognize the value and legitimacy of international law, U.S. indifference (at best) and hostility (at worst) to the ICJ and similar international institutions threatens to undermine the very system the United States helped create.

By Nadia Ben-Youssef, Legal Intern, International Justice Project

[1] U.N. Charter. Chapter VI (Art. 33).

[2] Nicaragua v. United States, 1984 I.C.J.Rep. 169 (Order of May 10).

[3] Morrison, Fred L. (January 1987). "Legal Issues in the Nicaragua Opinion”, 81 Am. J. Int'l L. 160, 162.

[4] See Medellin v. Texas, 128 S.Ct. 1346, 1353 (2008).