JOIN US FOR, Torture: Too High a Cost, Film Screening & Panel Discussion on September 30th at George Washington University

UPDATE: This event will be generously supported by Red Velvet Cupcakery. We look forward to seeing everyone on Wednesday!

Seventh Circuit Rules "Threat of Forced Marriage" as Grounds for Changed Circumstances in Asylum Proceedings

The U.S. Court of Appeals for the Seventh Circuit has ruled that a threat of forced marriage arising after an order of removal can constitute “changed circumstances” that may warrant reopening of an asylum case. The Seventh Circuit overturned a Board of Immigration Appeals decision that represented a significant set-back in the fight to establish that women fleeing gender-based violence can qualify for refugee status. By overturning the Board’s decision, the Seventh Circuit has reaffirmed that refugees fleeing types of harm that are most commonly faced by women can seek protection in the United States.

When Roome Joseph initially applied for asylum in the United States, along with her family, they were fleeing persecution of Christians in their native Pakistan. When the case was denied, Ms. Joseph’s family returned to Pakistan, but she remained in the U.S. After her family informed her of their intention to force her into an unwanted marriage when she returned to Pakistan, Ms. Joseph attempted to reopen her immigration proceedings to apply for asylum based on this new threat.

Normally, motions to reopen immigration proceedings must be filed shortly after a final order of removal, but a case may be reopened at any time if an individual can show that there are changed circumstances in her country of origin that materially affect her asylum eligibility. In Ms. Joseph’s case, the Board of Immigration Appeals ruled that the family’s plans to force her to marry were “personal circumstances,” and that the changed circumstances rule applied only to “a dramatic change in the political, religious, or social situation,” such as political upheaval. The Board denied Ms. Joseph’s motion to reopen.

Overturning the Board’s decision, the Seventh Circuit held that a change in personal circumstances occurring in the applicant’s country of origin, such as a threat of forced marriage, satisfies the standards for reopening proceedings to seek asylum. In so doing, the Seventh Circuit has strengthened the ability of refugees to seek asylum from the types of harm that commonly threaten women. Historically, gender-related asylum cases fared badly in immigration courts, where judges tended to distinguish between public and private harm, finding torture of political dissidents to be grounds for asylum, while female genital mutilation or domestic violence were merely unfortunate practices that lay entirely outside the bounds of refugee law. But since the case Matter of Kasinga in 1996, the Board has recognized that the threat of practices like female genital mutilation could be grounds for asylum, and women have begun to receive asylum based on types of violence previously considered to be private, or cultural, harm that had no bearing on asylum eligibility.

The Board’s decision in Ms. Joseph’s case, however, signaled a return to the earlier viewpoint that harm occurring in the public sphere is relevant to an asylum claim, while harm occurring in the “private” sphere of the family is not. In ruling that the threat of forced marriage fell outside of the “changed circumstances” rule, the Board limited the rule to events that occurred on the national stage. Since the changed circumstance that forms the basis of a motion to reopen must be materially related to the threat of persecution, the Board’s decision would have once again limited the availability of asylum largely to those refugees fleeing more public forms of persecution – persecution as punishment for political activity, for instance – rather than women like Ms. Joseph, who face persecution at least in part from their own families.

Fortunately for Ms. Joseph and other refugee women, the Seventh Circuit’s decision recognized that a threat of forced marriage was precisely the kind of changed circumstance that could materially affect a person’s eligibility for asylum. This decision preserves the advancements made over the last two decades in the fight to protect women refugees from gender-based violence.

Human Rights USA would like to congratulate Ms. Joseph’s attorneys at Heartland Alliance’s National Immigrant Justice Center and Mayer Brown LLP for their important victory in this case. For more information on this case see Heartland Alliance’s press release.

Human Rights USA Attorney Colleen Costello Discusses Attorney General’s Appointment of Special Prosecutor on Press TV

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 THE RADAR SCREEN: Comments from Former AG Gonzales

"On the Radar Screen" posts alert our readers to important news items that may not have made the front page.

We just wanted to take a moment to share a Washington Times article with our readers regarding Former Attorney General Gonzales' remarks supporting Attorney General Holder's decision to investigate allegations of prisoner abuse. Issues of accountability and respect for human rights should not be political or partisan.

JOIN US FOR: Due to High Demand, A Second Screening of Pray the Devil Back to Hell

Tuesday, September 8, 2009 at 7 p.m. at the Wooly Mammoth Theater

641 D Street, NW.

Following the film will be a panel discussion moderated by Piper Hendricks, International Justice Project Director, Human Rights USA, with additional panelists to be announced.

Pray the Devil Back to Hell is the gripping account of a group of brave and visionary women who demanded peace for Liberia, a nation torn to shreds by a decades-old civil war. A small band of Liberian women who came together in the midst of a bloody civil war, took on the violent warlords and corrupt Charles Taylor regime, and won a long-awaited peace for their shattered country in 2003. The women's historic yet unsung achievement finds voice in a narrative that intersperses contemporary interviews, archival images, and scenes of present-day Liberia together to recount the experiences and memories of the women who were instrumental in bringing lasting peace to their country. They are living proof that moral courage and non-violent resistance can succeed, even where the best efforts of traditional diplomacy have failed.

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 screening and panel are FREE, but reservations are encouraged at screening@woollymammoth.net as space is limited.

We hope you can join us!

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.