Human Rights USA applauds Google's decision to turn its words into action by shutting down its search service in the Chinese mainland. As we shared with you several months ago, Google threatened to no longer bow to Beijing's demands following a cyber-attack that allegedly originated in China. Yesterday, Google stated it would stop censoring search results on its site in China and began to route users through its site in Hong Kong.
Unfortunately, Chinese government censors are now censoring results routed through the Google Hong Kong sites. Click here to see Google's Mainland China service availability. Stay tuned here for further developments....
Tuesday, March 23, 2010
Tuesday, March 9, 2010
IN THE NEWS: Case Against Rumsfeld for Mistreatment of American Citizens Goes Forward
Last Friday, on March 5, 2010, a U.S. judge Judge Wayne R. Anderson (N.D. Ill.) allowed a suit against former Defense Secretary Donald Rumsfeld to go forward (in legalese: the case survived a motion to dismiss). The complaint, which alleges that Rumsfeld authorized torture against U.S. citizens, survived despite the defendant’s vigorous claims of immunity (see our earlier blog entry for more discussion of immunity issues).
According to the Complaint, in 2005, Donald Vance and Nathan Ertel, both American citizens, traveled to Iraq to work for an Iraqi security firm, Shield Group Security (SGS). After suspecting that SGS was paying off local sheiks for influence in obtaining government contracts, Vance and Ertel informed the FBI in Chicago and U.S. officials in Iraq. When SGS officials threatened their lives for revealing company information, Vance and Ertel sought protection from the U.S. military. However, after interrogating Vance and Ertel at the US Embassy, U.S. officials imprisoned them and refused to grant them habeas corpus petitions.
The plaintiffs allege that once they were in custody at a U.S. military base, officials detained these two American citizens as “persons of interest” by invoking authority Rumsfeld had previously granted. Vance was detained for three months and Ertel was detained for over a month without charges and forced to live in extremely unsanitary conditions. During this time, the plaintiffs claim that U.S. officials used tortuous interrogation techniques to attempt to solicit confessions. Some of these techniques included the use of solitary confinement, sleep deprivation, exposure to extreme cold and loud music, and other similarly cruel tactics.
Eventually, both American citizens were released without charges and allowed to return to the U.S. On December 18, 2006, plaintiffs initiated this lawsuit against Rumsfeld for authorizing the alleged constitutional violations they endured during their detention.
For more coverage, see Business Week, the Wall Street Journal, and the Huffington Post.
Prepared by International Justice Project Intern Daniel Cousineau.
Thursday, March 4, 2010
IN THE NEWS: Supreme Court Hears Arguments in Samantar Case
The Supreme Court heard arguments yesterday regarding whether former government officials who commit human rights violations should enjoy immunity under the Foreign Sovereign Immunities Act (FSIA).
The petitioner in the case, Mohamed Ali Samantar, served as Vice President, Minister of Defense, and Prime Minister under General Siad Barre in Somalia during a period of intense conflict in the region. Under the command of Samantar, who is now living just outside of Washington, DC, the Somali Armed Forces committed numerous atrocities against Somali citizens. (For more background on Mr. Samantar and the cases leading to the Supreme Court, see our previous post.)
Yesterday’s arguments before the Supreme Court addressed (1) whether a foreign state’s immunity from suit under the FSIA extends to an individual; and (2) whether an individual who is no longer an official of a foreign state retains immunity for acts committed while s/he was acting in that capacity.
In non-legal terms: We don’t allow people to sue foreign governments because that would be a political mess... but what about individual government officials? Who can be held accountable for wrongs they committed and who can use a government position as a reason not to participate in a lawsuit?
Samantar’s lawyers argued that individuals who acted in the official capacity of a foreign government should be protected by FSIA (and thus not be subject to a lawsuit) because “such suits are the equivalent of a suit against the state directly.” Samantar’s attorney argued that while the Torture Victims Protection Act (TVPA) allows torture survivors and their families to bring claims against those who violated their human rights, that statute must be interpreted with existing immunity principles. In other words, FSIA should trump the TVPA. Samantar’s attorneys argue that if there is no explicit exception from Congress or waiver of immunity by the foreign state where a potential defendant is or was an official, no one should be able to hold that person accountable for actions taken in his or her official capacity. Samantar’s lawyers argued that the legislative history shows that the FSIA was intended to codify the common law and international law understandings of foreign governmental immunity and there is no mention of individuals because there was no dispute that the law would apply to individuals.
Attorneys for the Somalis who suffered under the Barre regime argued that the silence of the law shows Congress’ intent not to protect individuals from suit. The attorneys also noted that the TVPA was passed after FSIA and specifically gives torture victims and their families access to U.S. courts. The TVPA, they argued, imposed personal liability on individuals, including those who were acting with actual or apparent authority of the foreign state. Furthermore, if every act of a governmental official amounted to an act of the state, the cause of action under the TVPA would not exist. So the question becomes: can you torture someone and then avoid being held accountable by claiming you were acting on behalf of a foreign government when you did so?
The Deputy Solicitor General argued the Court should allow some lawsuits against individuals, while allowing the U.S. State Department to weigh in on immunity for such individuals.
Nina Totenberg gives a sneak peak at the arguments prior to arguments in Court today.
SCOTUSBlog has short podcasts of attorneys from both sides explaining their arguments.
SCOTUSBlog analysis of the arguments.
Transcript of yesterday’s argument.
Prepared with assistance from IJP Intern Christiaan Segura.
The petitioner in the case, Mohamed Ali Samantar, served as Vice President, Minister of Defense, and Prime Minister under General Siad Barre in Somalia during a period of intense conflict in the region. Under the command of Samantar, who is now living just outside of Washington, DC, the Somali Armed Forces committed numerous atrocities against Somali citizens. (For more background on Mr. Samantar and the cases leading to the Supreme Court, see our previous post.)
Yesterday’s arguments before the Supreme Court addressed (1) whether a foreign state’s immunity from suit under the FSIA extends to an individual; and (2) whether an individual who is no longer an official of a foreign state retains immunity for acts committed while s/he was acting in that capacity.
In non-legal terms: We don’t allow people to sue foreign governments because that would be a political mess... but what about individual government officials? Who can be held accountable for wrongs they committed and who can use a government position as a reason not to participate in a lawsuit?
Samantar’s lawyers argued that individuals who acted in the official capacity of a foreign government should be protected by FSIA (and thus not be subject to a lawsuit) because “such suits are the equivalent of a suit against the state directly.” Samantar’s attorney argued that while the Torture Victims Protection Act (TVPA) allows torture survivors and their families to bring claims against those who violated their human rights, that statute must be interpreted with existing immunity principles. In other words, FSIA should trump the TVPA. Samantar’s attorneys argue that if there is no explicit exception from Congress or waiver of immunity by the foreign state where a potential defendant is or was an official, no one should be able to hold that person accountable for actions taken in his or her official capacity. Samantar’s lawyers argued that the legislative history shows that the FSIA was intended to codify the common law and international law understandings of foreign governmental immunity and there is no mention of individuals because there was no dispute that the law would apply to individuals.
Attorneys for the Somalis who suffered under the Barre regime argued that the silence of the law shows Congress’ intent not to protect individuals from suit. The attorneys also noted that the TVPA was passed after FSIA and specifically gives torture victims and their families access to U.S. courts. The TVPA, they argued, imposed personal liability on individuals, including those who were acting with actual or apparent authority of the foreign state. Furthermore, if every act of a governmental official amounted to an act of the state, the cause of action under the TVPA would not exist. So the question becomes: can you torture someone and then avoid being held accountable by claiming you were acting on behalf of a foreign government when you did so?
The Deputy Solicitor General argued the Court should allow some lawsuits against individuals, while allowing the U.S. State Department to weigh in on immunity for such individuals.
Nina Totenberg gives a sneak peak at the arguments prior to arguments in Court today.
SCOTUSBlog has short podcasts of attorneys from both sides explaining their arguments.
SCOTUSBlog analysis of the arguments.
Transcript of yesterday’s argument.
Prepared with assistance from IJP Intern Christiaan Segura.
Wednesday, February 24, 2010
IN THE NEWS: Arrest in U.S. of Former Warlord from Liberia
This week's arrest in New York of George Boley, Sr., an alleged former Liberian warlord, has highlighted the need to pursue prosecutions for Liberia’s past atrocities if Liberia is currently unable to do so itself. According to recent reports, Boley, Sr. is the former leader of an armed rebel group called the Liberian Peace Council (LPC), which is known to have committed rape, torture, extrajudicial killings, arbitrary detention, and forcible recruitment during the fourteen years of armed conflict in the country that lasted until 2003.
The U.S. Immigration and Customs Enforcement (ICE) has charged Boley, Sr. with holding invalid immigration documents and committing extrajudicial killings overseas (as an immigration violation - not as a criminal charge). Boley Sr. now faces removal from the United States. Like former President Charles Taylor, Sr., he received higher educations degrees in the United States before returning to Liberia and entering politics. In 1997, Boley Sr. made an unsuccessful bid for president of Liberia. In the last twenty years, he has traveled between the US and Liberia while raising a family in the United States.
The 60-year-old appeared before immigration officials today, February 24, and denied all charges against him. Another immigration hearing is scheduled for March 16, 2010. If Boley Sr. is found guilty of the administrative charges against him, he could be deported from the United States back to Liberia. If the judge decides to deport him, Boley Sr. says that he will request political asylum to remain in the United States.
Boley Sr. has claimed that the accusations against him are false and alleges that some Liberians who escaped the civil war used fraudulent allegations about the LPC to strengthen their applications for political asylum in the U.S. ICE is amassing and investigating the allegations of atrocities committed by the LPC under Boley’s tenure for its immigration case. ICE stated that “it will not allow the United States to be a safe haven for those trying to avoid prosecution and punishment for crimes committed in their homelands.” Further, “ICE will not relent in [its] efforts to ensure that human rights violators are brought to justice and removed from our communities.”
However, human rights advocates are calling attention to the fact that Liberia currently lacks credible justice mechanisms to prosecute serious crimes committed during its internal conflicts between 1989 and 2003. In its report last year, Liberia’s Truth and Reconciliation Commission (TRC) maintained that the LPC had committed numerous human rights violations, including massacres and sexual crimes. The TRC, which is an advisory body, recommended that Boley Sr. be prosecuted, though no official action has been taken in Liberia to charge him with any crimes. The TRC's final report highlighted problems in the Liberian justice system and called for the establishment of a hybrid international-national tribunal with Liberian and foreign judges to try past crimes. However, many doubt that Boley Sr. would be brought to justice if returned to Liberia.
The inability of the Liberian justice system to adequately prosecute Boley Sr. raises questions as to the duty of the United States to hold him accountable for his violations of international law. Although at this time, neither country has criminally charged him, advocates are backing the possibility of undertaking criminal investigations against Boley Sr. in the United States.
This situation parallels the case of Charles Taylor, Jr., the American-born son of former Liberian president who is now on trial under the auspices of the Special Court for Sierra Leone. In October 2008, a Florida jury found Taylor Jr. guilty of participating in torture and conspiracy to commit torture within Liberia under a 1994 U.S. law commonly known as the Torture Statute, which implemented the United States' obligations as a State Party to the UN Convention Against Torture and which states that U.S. citizens accused of committing torturous acts overseas can be tried in a U.S. federal court. It is unclear at this time whether Boley Sr. will be charged with any crimes and the human rights abuses with which Boley Sr., a non-U.S. citizen, is accused could be prosecuted in the United States under federal laws prohibiting torture and war crimes committed abroad. What is known is that Boley Sr.’s case could have serious implications for holding human rights abusers accountable for their actions.
You can check out other entries on this blog regarding Charles Taylor, Jr. here. For other cases addressing the accountability of foreign officials in the U.S., read about the Samantar case here. On March 3, 2010, the Supreme Court will hear oral arguments in the case of Samantar, a former Somali government official who is believed to have overseen grave human rights violations in Somalia. The question facing the Court is whether former officials of foreign governments who commit human rights violations abroad can use the U.S. as a “safe haven” to avoid being held accountable for their crimes. Check back here for updates on developments in these and other accountability matters.
Written with assistance from International Justice Project Intern Kacey Mordecai.Tuesday, February 23, 2010
IN THE NEWS: DOJ Concludes: No Accountability for Torture Memo Attorneys
Last Friday, the Department of Justice (“DOJ”) cleared Bush administration lawyers John Yoo and Jay Bybee of allegations of professional misconduct for their role in authorizing the use of "enhanced interrogation techniques, some of which are considered to be torture, both domestically and internationally.
In the now-infamous “torture memos,” Yoo and Bybee concluded that CIA interrogators could not be prosecuted for using certain interrogation tactics (some amounting to torture) unless they acted with the specific intent to inflict severe pain. Relying on a statute governing health benefits, they defined severe pain as that equivalent to “death, organ failure or serious impairment of bodily functions.” The authors of the memos also concluded that the president's war powers are practically unlimited, allowing him to, as Yoo told one OPR investigator, "order a village of civilians to be [exterminated]."
The long-awaited DOJ decision came from attorney David Margolis, a DOJ career veteran. Margolis was responsible for conducting a final review of DOJ Office of Professional Responsibility ("OPR") report. The report, issued on July 29, 2009, found that Yoo and Bybee wrote the legal memos with significant input from White House attorneys. The OPR report concluded that Yoo and Bybee had committed professional misconduct, and recommended that OPR's findings be referred to state bar authorities for disciplinary action and potential disbarment. For Bybee, a federal judge, the referral to state bar authorities could have also led to an impeachment inquiry.
After reviewing the OPR report, Margolis declined to adopt OPR's conclusions. Instead, he concluded that Yoo and Bybee merely exhibited "poor judgment" in providing legal authorization for the use of torture. Margolis's decision now means the DOJ will not refer Yoo or Bybee for possible disciplinary action before their respective state bar associations. It is now up to state bar disciplinary authorities to take up this issue on their own.
This about-face demonstrates why Attorney General Eric Holder must appoint an independent prosecutor -- someone unaffiliated with the DOJ, the department responsible for the legal authorization of detainee abuse policies -- to conduct a full and impartial investigation into the origins of those policies. Americans deserve to know whether, and to what extent, publicly-elected officials were involved in unlawful conduct.
In the now-infamous “torture memos,” Yoo and Bybee concluded that CIA interrogators could not be prosecuted for using certain interrogation tactics (some amounting to torture) unless they acted with the specific intent to inflict severe pain. Relying on a statute governing health benefits, they defined severe pain as that equivalent to “death, organ failure or serious impairment of bodily functions.” The authors of the memos also concluded that the president's war powers are practically unlimited, allowing him to, as Yoo told one OPR investigator, "order a village of civilians to be [exterminated]."
The long-awaited DOJ decision came from attorney David Margolis, a DOJ career veteran. Margolis was responsible for conducting a final review of DOJ Office of Professional Responsibility ("OPR") report. The report, issued on July 29, 2009, found that Yoo and Bybee wrote the legal memos with significant input from White House attorneys. The OPR report concluded that Yoo and Bybee had committed professional misconduct, and recommended that OPR's findings be referred to state bar authorities for disciplinary action and potential disbarment. For Bybee, a federal judge, the referral to state bar authorities could have also led to an impeachment inquiry.
After reviewing the OPR report, Margolis declined to adopt OPR's conclusions. Instead, he concluded that Yoo and Bybee merely exhibited "poor judgment" in providing legal authorization for the use of torture. Margolis's decision now means the DOJ will not refer Yoo or Bybee for possible disciplinary action before their respective state bar associations. It is now up to state bar disciplinary authorities to take up this issue on their own.
This about-face demonstrates why Attorney General Eric Holder must appoint an independent prosecutor -- someone unaffiliated with the DOJ, the department responsible for the legal authorization of detainee abuse policies -- to conduct a full and impartial investigation into the origins of those policies. Americans deserve to know whether, and to what extent, publicly-elected officials were involved in unlawful conduct.
The DOJ report and related documents are available here.
Thursday, February 18, 2010
IN THE NEWS: Koh and Bellinger on International Law in the U.S.
As Washington, DC gets back up and running after last week's severe snow storm, a large group of people (ok, ok, mostly lawyers) interested in international law gathered yesterday to hear Harold Koh, Legal Advisor to the State Department, and his predecessor, John Bellinger III, speak about the role of the Office of the Legal Advisor and the status of international law in the United States. Koh likened the Obama administration’s record over the past year to digging out from a snowstorm, noting that “[i]t takes a lot more time to dig out from a snowstorm than it does for the snow to fall.”
Last month marked the anniversary of President Obama’s signing three executive orders that were intended to signal a shift in U.S. foreign policy. They ordered (1) the closing of Guantanamo Bay; (2) the suspension of the C.I.A. interrogation program; and (3) the review of all U.S. government detention policies and legal positions. Although these executive orders were met with wide acclaim across the international community, the Obama administration continues to face difficulty implementing them.
Koh noted that implementing the executive orders and other foreign policy initiatives will take time. “We have been tasked with unwinding policies that we would not have implemented,” Koh said. When further questioned by Bellinger why the Obama administration had not acted swiftly in forging stronger ties with the International Court of Justice, Koh replied that addressing these issues would require an act by Congress.
Koh also addressed the need for the United States to ratify several treaties - including the Convention on the Rights of the Child (CRC) and the Convention for the Elimination of Discrimination Against Women (CEDAW). Having been confirmed by 62 votes, Koh joked that he "knows how a treaty feels," as treaties require 67 votes to be ratified by the U.S. Senate.
To read further coverage of the event, click here. The event was broadcast by C-SPAN - to watch this interesting and entertaining discussion, click here.
Prepared with the assistance of International Justice Project Intern Daniel Cousineau.
Last month marked the anniversary of President Obama’s signing three executive orders that were intended to signal a shift in U.S. foreign policy. They ordered (1) the closing of Guantanamo Bay; (2) the suspension of the C.I.A. interrogation program; and (3) the review of all U.S. government detention policies and legal positions. Although these executive orders were met with wide acclaim across the international community, the Obama administration continues to face difficulty implementing them.
Koh noted that implementing the executive orders and other foreign policy initiatives will take time. “We have been tasked with unwinding policies that we would not have implemented,” Koh said. When further questioned by Bellinger why the Obama administration had not acted swiftly in forging stronger ties with the International Court of Justice, Koh replied that addressing these issues would require an act by Congress.
Koh also addressed the need for the United States to ratify several treaties - including the Convention on the Rights of the Child (CRC) and the Convention for the Elimination of Discrimination Against Women (CEDAW). Having been confirmed by 62 votes, Koh joked that he "knows how a treaty feels," as treaties require 67 votes to be ratified by the U.S. Senate.
To read further coverage of the event, click here. The event was broadcast by C-SPAN - to watch this interesting and entertaining discussion, click here.
Prepared with the assistance of International Justice Project Intern Daniel Cousineau.
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