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Abu Ghraib Torture Victims Deserve Compensation

9:39 am in Uncategorized by gaborronahrf

2010 Anti-Torture Vigil - Week 3

2010 Anti-Torture Vigil - Week 3 by Shrieking Tree, on Flickr

Abu Ghraib. Eight years ago the Iraqi prison was the site of physical and psychological torture, rape, sodomy and murder of Iraqi prisoners committed by Americans under the authority of Americans. While 11 soldiers were convicted on detainee abuse charges and Army investigations implicated at least five private contractors in similar crimes, no contractor was ever even charged.

But what about the victims?

Are they entitled to compensation for what they suffered at the hands of Americans? In fact the UN Convention against Torture and the International Covenant on Civil and Political Rights – two of the most important international human rights treaties to which the United States is a party – not only prohibit such conduct but require States to provide “enforceable” or “effective” remedies to victims.

In fact, not one victim of official cruelty in U.S. custody, whether in Iraq, Afghanistan, CIA detention abroad, Guantanamo or elsewhere, has had access to an enforceable, effective remedy. Why? Because the Bush administration, and then the Obama administration, have successfully argued in court that allowing these claims to be heard would endanger national security.

One such case was filed by Abu Ghraib torture victims against private military contractors CACI International Incorporated and Titan Corporation (now L-3 Services) who provided interrogation and translation services. The case was dismissed on the ground that contractors involved in combat activities on a battlefield should be protected from lawsuits.

The victims appealed to the U.S. Supreme Court and Human Rights First submitted an amicus brief, available here, arguing that the decision by the D.C. Circuit to immunize the criminal conduct of private military contractors is incompatible with the United States’ international legal obligations. The Supreme Court has yet to decide whether or not to hear the case. The Court first wants to hear if the U.S. Government, which is not a party to the suit, has an opinion or interest.

Human Rights First has sent a letter to Acting Solicitor General Neal Katyal, the official responsible for representing the government before the Supreme Court. We’ve urged the government to urge the Court to hear the case and to reverse the decision that denies victims a remedy. See our letter here, explaining why the dismissal of these claims is bad law and bad national security policy.

Some Thoughts On Al Nashiri And Military Commissions While Waiting For The Grown-Ups To Take Over‬

6:57 am in Uncategorized by gaborronahrf

Courthouse at Guantanamo

Courthouse at Guantanamo by NewsHour, on Flickr

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia. They will seek the death penalty for his alleged role in the USS Cole attack of 2000 and an attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.‬‪ ‬‪

These charges provide a perfect teachable moment about what’s wrong with military commissions and why prosecution of al Nashiri is better left to the regular, federal criminal courts.‬‪ ‬‪

What the government says here is that al Nashiri is a war criminal for attacking the Cole. But if the Cole attack was in a war, then it’s not a war crime because under the laws of war, the USS Cole is a legitimate military objective, as are the sailors on the vessel.

Aha, but isn’t al Nashiri an “unlawful combatant?” No he’s not. In fact, the Obama administration has rightly deep-sixed the Bush-era term “unlawful enemy combatant,” for Guantanamo detainees, replacing it with “unprivileged enemy belligerent.” This is consistent with a recognition that under the laws of war, participation in hostilities by civilians is not “unlawful.” Since military commissions may only take up crimes in violation of the laws of war, everything charged in connection with the Cole attack would be out the window, with the possible exception of perfidy.‬‪ ‬‪

But surely, Congress can “define and punish” war crimes so what’s the problem? Yes, Congress is empowered to do that under the Constitution, but only within the limits of international law. And those limits include the prohibition against prosecuting people for conduct that occurred before the law came into effect. That’s a violation of the international legal principle of legality, a component of which is the ex post facto prohibition, also enshrined in the U.S. Constitution. ‬‪

And even perfidy goes out the military commission window if the Cole attack was NOT part of an armed conflict. The attack occurred almost a year before the 9/11 attacks and the Congressional Authorization for the Use of Military Force, so the jurisdictional prerequisite for military commissions is questionable.‬‪ ‬‪
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High-Tech Terrorism or Low-Tech Fearmongering?

11:30 am in Uncategorized by gaborronahrf

To paraphrase H.L Mencken, no one ever went broke underestimating how low a politician will go to gain an advantage.

Exhibit A: Vice President Joseph Biden, who likens Wikileaks honcho Julian Assange to a “high-tech terrorist.”

What a nice marriage of images. Especially for those of us old enough to recall poor Clarence Thomas who, when charged with sexual harassment in his Supreme Court confirmation hearing, so deftly turned defense into offense by calling the accusations a “high-tech lynching for uppity blacks.”

Now that terrorism is the new communism, why shouldn’t everyone the government wants to vilify be labeled a terrorist?

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WikiLeaks, then Congress, Reveal Reluctance to Account for Guantanamo and Torture

12:30 pm in Uncategorized by gaborronahrf

The pander-to-fear-du-jour for members of congress is a provision that would prevent the transfer of Guantanamo detainees to the US for any purpose, including for prosecution. Passage of this ill-founded measure could effectively put the nail in the coffin of efforts to end the failed Guantanamo experiment, perpetuating its legacy of arbitrary detention and detainee abuse. It would also leave little alternative but to either release people who should not be released, or detain them indefinitely without charge or trial, or try them in the universally discredited kangaroo courts known as military commissions, which have conclusively demonstrated their inability to try their own way out of a paper bag.

Human Rights First has correctly labeled this initiative as “tantamount to obstruction of justice.”

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Wrong, Wrong and Right on Federal Courts for Terrorism Cases

2:02 pm in Uncategorized by gaborronahrf

Gabor Rona
International Legal Director

There are two distinct camps criticizing the use of federal courts to try terrorism suspects after last week’s federal court conviction of former Guantanamo detainee Ahmed Ghailani. Both are wrong.
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CIA Misconduct in Peruvian Killing Underlines Inconsistencies – and Problems – in U.S. Policies

7:34 pm in Uncategorized by gaborronahrf

Talk about exquisite timing.

Two days ago, the New York Times reported on the just-released publication of a 2008 report on the CIA’s negligence, deceit, disregard for its own rules and stonewalling in connection with investigation of its practice of shooting down airplanes in Peru in 2001. Back then, it was deadly mistakes made in the war on drugs.

A day later, the Wall Street Journal published a report about ramping up the CIA’s targeted killing program in the war against terrorism (or against Al Qaida, as the Administration now calls it).

The Peru example underscores why the United States should not be using the CIA to conduct targeted killings. The CIA operates, understandably, in secret. When and if its conduct is investigated, the reports of its violations usually remain secret as well. The power to impose death should not be delegated to an entity, and to individuals, so shielded from standard measures of accountability.
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Wikileaks Iraq Documents Raise Critical Questions

5:12 pm in Uncategorized by gaborronahrf

The trove of Iraq war documents recently made public by Wikileaks underscores several important truths.

One, the American people have a right to know when Americans or their allies commit violations of the laws of war. Two, the American government has been woefully nontransparent. Transparency is key to accountability, to minimizing violations and to preventing the civilian population from turning against US forces. This, in turn, protects, rather than endangers, US troops.

These documents will help round out the picture of both US and Iraqi violations in detention contexts. Human Rights First has previously reported on the lack of accountability in the face of documented detainee abuses committed by US military and contractors, too many ending in the death of detainees. Since 2008, the US has stopped reporting even the fact of deaths that occur in its custody, and has consistently refused to release the results of any investigations it conducts into these deaths. Lawyers have had to sue the government under the Freedom of Information Act (FOIA) to get even the most basic information, much of which has still not been released.

These newly released documents will shed further light on the success or failure of accountability mechanisms, including those based on command responsibility, for abuses committed by Iraqi personnel. To the extent such abuses were known to US personnel, questions arise concerning the duty to intervene, to report abuses, to refrain from transferring detainees where abuses are predictable, and to hold accountable those who wrongly fail to act when action is required. There is reference in the Wikileaks documents to a military order, “FRAGO (fragmentary order) 242,” which has been characterized as a prohibition of US investigation of Iraqi abuses absent direction from command headquarters. The existence of such orders, and their compatibility with other military regulations implementing obligations to respect and ensure respect for the laws of war, must be investigated.

These documents also contain disturbing allegations that may amount to violations of the laws of war in the conduct of hostilities by US forces and contractors, including use of force against civilians and against individuals seeking to surrender. To the extent new violations are identified, questions about accountability of perpetrators and their commanders, as well as remedies for victims must be addressed.

The calculation of civilian casualties alleged in these newly-release documents exceeds the numbers the government has made known until just recently. While it is difficult to determine which, if any, figures are accurate, this discrepancy raises several questions: Is the US labeling as “combatant” persons who do not meet the criteria for targeting under the laws of war and therefore, should be labeled “civilian?” Are adequate measures in place for determining casualties?

It must also be acknowledged that for much of the time the US has been at war in Iraq, the Bush Administration operated under legal guidance for Afghanistan that wrongly denied the protections of the Geneva Conventions and other international legal standards applicable to civilians and detainees. It will be necessary to ask whether there is evidence of a nexus between this faulty legal guidance and alleged abuses by US or Iraqi military personnel or by contractors in Iraq. Such abuses might include physical violence against individuals, approval of transfer of individuals to circumstances where abuse was predictable, and failure to report, investigate, or to attempt to put a stop to known abuses.

Finally, we note that the UN Special Rapporter on Torture, Manfred Nowak, has called upon the United States to investigate allegations of a U.S. role in human rights abuses in Iraq. The United States, as a party to the Convention Against Torture, is obliged to investigate alleged violations of the Convention and hold violators accountable. While the jury is out on the exact nature, extent and truth of allegations contained in the Wikileaks documents, there is no doubt that their content is sufficient to trigger the obligation to investigate.

Stay tuned.