Organization of American States – Inter-American Commission on Human Rights (IACHR) Hearing on Accountability for Violations of Human Rights in the United States – Speech Notes – PDF

2009 IACHR Hearing Notes

Thank the commission for this impt hearing US govt failure to hold accountable persons responsible for torture, detainee abuse and other human rights abuses

  1. Past actions—gitmo case-7 years later—ccr–
  2. CCR efforts—both branches of accountability:

2 A. investigate, pros, punish—attempts in Europe materials and produce materials–

2.B. Truth justice and reparation—series of civil cases—survivors—arar; rasul—gitmo; Turkish; dead at Gitmo; these and others—stymied—past and current- admin.

  1. First steps by US to get off page of torture—

eo’s but not enuff; loopholes; some in the orders eg annex m; some by statute—limits

on common article 3—

(give you more—rendition; ec’s; military commis; habeas bagram;

  1. Major obstacle in accountability is lack of will by US—yes a number of legal obstacles we have described—but a commitment to accountability for crimn invest to reparations would overcome many of them—

We have the criminal stat.—still a core left-2241 war crimes; 2340 and 2340a anti torture stat. —a lot of narrowing etc. but with political will overcome—

So when we hear —from US govt: look forward and not back—hearing that lack of will—

A misunderstanding of what is required and the role accountability plays—

It is looking forward —accountability and esp criminal invest is how we deter in the future-

Otherwise next govt. president can take back what this govt has done—

Or on Wed: Holder: We will let the law and the facts take us to wherever we go,” Holder said. But he added that the administration does not want to criminalize policy differences.

Holder said the department is “mindful” of recent news accounts. (danner) But when asked whether there was a formal Justice Department investigation, Holder said, “I wouldn’t say that.”

Impt to forcefully remind the US of its obligations under international law-­To do otherwise grant impunity violate our obligations

  1. Some of the Obstacles to accountability—in the US—by courts, executive or statute—

Amt to immunity for serious human rights abuses—civil and criminal–outlined in detail—some sense—

  1. Provisions in MCA (2006) need to be repealed: (note 26) civil and criminal
  • No person invoke Geneva as source of rights—habeas or civil (sec 5)
  • No alien ec’s writ of habeas corpus;
  • no aliens use cts to challenge lawfulness of “detention, transfer, treatment, trial, or conditions of confinement” (no habeas—already unconst at to gitmo); no damages cases even for torture)
  • 7(b) makes retroactive—(no challenges) to sept 11, 2001 as to war crimes, crimes against humanity and other human rights abuses
  • Repealed portion of War Crimes Act that criminalized all violations of Common Article 3 removes the prohibition on “outrages upon personal dignity, in particular humiliating and degrading treatment.” In its place, the Military Commissions Act prohibits “cruel or inhuman treatment.” (much narrower-­”intended to inflict severe or serious physical or mental pain or suffering) (P.L. 109-366, Sec. 6(b)(1)(A)(retroactive to nov 26 1997)—so what would be war crimes before are no longer
  • Allows just following orders/legal advice– defense for war crimes and other major human rights abuses—(look up provision)
  1. US position in litigation obstacles to truth justice and reparations—cases to expose what occurred, declare it illegal and begin to make whole—

This admin has continued the obstacles the last admin way of these cases–

  • State secrets—jeppesen—rendition–endsit even if publicly known—only place not discussed is the courtroom—judges reaction
  • Qualified immunity—even from allegations committed torture—CCR case—Rasul v Bush—Claim law against torturing people at gitmo not clearly established—again this admin same position; likewise in Padilla v Yoo a qualified immunity defense +he was only giving legal advice when allegations much stronger;

Statutes of Limitation that would prevent investigation, prosecution and punishment eliminated or tolled (page 17—notes 47/49—commission and cat)

Anti torture stat.-8 years if no death-2340 and 2340a (18 use 3286(b))

War crimes stat. 2441

Conspiracy–5 years –last overt act—

There is Only a Little More than a Year Left in the Statute of Limitations Period for Certain Alleged Crimes of Torture: Torture and abuse of Abu Zubaydah in the spring and summer of 2002, prior to the issuance of the August 1, 2002 OLC opinions. The eight-year statute of limitation period for Anti-Torture Act will expire in spring 2010. prosecutor has only a little more than a year from today to bring charges for some important and well-documented alleged torture or abuse incidents.

  1. Bilateral immunity agreements and ICC

100 countries prohibit sending to icc —can result in no military or economic aid

(american servicemens protection act repealed)

Nethercutt amend—withdrawn and suspension of US BIA policy

Sign and ratify ICC

Obstacles—conclusion –will; repeal; positions in court

  1. Some Discussion of Accountability Mechanisms—Summary -fuller discussion

Criminal Investigations and Prosecutions if Warranted

Indispensable no matter what other mechanisms employed:

deter future human rights violations (not tolerate or repeat); provide justice to victims

and punish—otherwise impunity and a future where abused can and will be repeated

US support gallup ; some members of congress—but Obama admin—

Commission has already expressed itself on this before —asked US to investigate prosecute and punish—reiterate—in light of change and more info claimer –CAT; commission rulings; Geneva;

Other laws:

As to : Commissions of Inquiry— Presidential Commissions, Congressional Commissions; Hybrid Commissions, Truth Commissions—we outline problems—Understand they Can play a impt role esp for survivors and victims stories, truth and reform

But not used as substitutes for civil and criminal liability or forestall or minimize

calls for criminal liability

Criminal liability out front

Authority to refer for crim prosecution

No immunity

Prosecutor involved so don’t harm chances for cimin prosecution

The commission most p.r. in US —lahey —has none of these attributes and appears to be a substitute for crim prose:

  1. immunity; 2 expose and turn the page 3. Criticizes those fixated on prosecutions—4. Mistakes and learn from errors—but more is req’d

Colleen Constello sum up—

Critical juncture—laws against impunity apply to the big and the small

Or justice jackson or simic

And disavow the unwritten understanding that crimes committed by the United States

ask the Inter-am human rights commis to reaffirm

FOIA Litigation

Restitution, –including place of residence or another country

Financial Compensation

Rehabilitation

Satisfaction—truth and govt role

  1. How does the MCA limit the use of the Geneva Conventions in U.S. courts?

The law prohibits anyone from ever raising claims under the Geneva Conventions in lawsuits against the United States or U.S. personnel. If this law had been in place previously, Hamdan would have been prevented from bringing one of the most important claims in his case — that the commissions set up by President Bush violated the fair trial requirements of Common Article 3 of the Geneva Conventions.

Interrogation Policy, Geneva Conventions, and the War Crimes Act

  1. How does the MCA change the War Crimes Act?

The War Crimes Act makes certain violations of the laws of war felonies if they were committed against or by a U.S. citizen. The act was intended to be used to prosecute enemies of the U.S. who abused U.S. troops. Enacted in 1996, it was amended a year later to ensure that it covered non-international as well as international armed conflicts. The sponsors wanted to be sure that warlords in Somalia or other actors in non-international armed conflicts could be held accountable for abuse of U.S. troops. To date, no one has ever been prosecuted under the War Crimes Act.

Among U.S. personnel, CIA operatives, civilian officials, and civilian contractors responsible for abuses are most vulnerable to prosecution under the War Crimes Act. Members of the armed forces responsible for abuses face prosecution in courts-martial under the Uniform Code of Military Justice.

As discussed below, the legislation narrows the scope of the War Crimes Act, decriminalizing certain acts that were previously considered criminal offenses.

  1. Are the CIA’s most abusive “enhanced” interrogation techniques still criminal under this legislation?

The primary Senate authors of the legislation have stated that the CIA’s most abusive “enhanced” interrogation techniques are criminalized under the MCA.

The MCA specifies nine offenses that it defines as “grave breaches” of Common Article 3 that can be prosecuted as war crimes. Besides torture, the list includes “cruel and inhuman treatment,” defined as conduct that causes serious or physical mental pain or suffering. The legislation unfortunately defines serious physical pain or suffering as existing only where there is “extreme” pain or other extreme injuries: substantial risk of death, burn or serious physical disfigurement, or significant impairment of a body part, organ or mental faculty. However, the MCA improves upon previous U.S. law by specifying that the infliction of mental pain need not be prolonged to be unlawful, at least with regard to future conduct.

This definition of “cruel and inhuman treatment” responds to the administration’s claim that some of the “enhanced” interrogation techniques allegedly approved in the past — techniques like extended sleep deprivation, exposure to extreme cold, and waterboarding (mock drowning) were not cruel and inhuman because they did not cause “prolonged” suffering. While the administration may argue that such techniques are still allowed, Senators John McCain and John Warner, two of the MCA’s primary authors, have stated that the legislation is specifically designed to criminalize these and other abusive interrogation practices allegedly used by the United States.1 Such methods violate the international law prohibitions against cruel and inhuman treatment, and may amount to torture.

  1. Does the MCA immunize U.S. personnel (including CIA personnel) from prosecution for past abuses?

To a large extent, yes. As amended in 1997, the War Crimes Act criminalized all violations of Common Article 3 of the Geneva Conventions, as well as grave breaches of the Geneva Conventions. Anyone responsible for the cruel, humiliating or degrading treatment of detainees captured during a non-international armed conflict could be prosecuted under the law. The MCA revises this portion of the War Crimes Act, replacing the blanket criminalization of Common Article 3 violations with a list of “grave breaches” of Common Article 3, which are specified and defined in the legislation. While torture and cruel and inhuman treatment qualify as “grave breaches,” degrading and humiliating treatment do not. The MCA also eliminates as a war crime the passing of sentences by a court that does not meet international fair trial standards.

The legislation also includes two separate definitions of cruel and inhuman treatment, one that applies to abuses that occurred prior to the passage of the MCA and another that applies to future conduct. Whereas any non-fleeting mental pain or suffering is defined as cruel and inhuman treatment if committed after the passage of the MCA, the pain must be “prolonged” to qualify as cruel and inhuman treatment prior to the passage of the act. This may immunize from prosecution those officials and interrogators who have authorized or carried out abusive interrogation techniques — such as waterboarding and extended sleep deprivation — that cause time-limited but severe mental anguish.

  1. Does the legislation authorize torture or other abusive interrogation practices?

No. The legislation does not authorize the use of torture or abusive interrogation practices. However, it narrows the definition of prosecutable war crimes under the War Crimes Act and makes it much more difficult for detainees to obtain relief from such abuses in court.

The United States, including all U.S. officials, remains bound by international law and the international treaties it has ratified — including the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture — not to engage in torture or practices that amount to cruel, inhuman, and degrading treatment. In addition, the Detainee Treatment Act of 2005, which prohibits the use of cruel, inhuman, or degrading treatment, remains binding on all U.S. personnel operating anywhere in the world. In fact, the legislation explicitly states that the list of “grave breaches” of Common Article 3 does not represent the “full scope of U.S. obligations under that Article.”

  1. The legislation gives the president the authority to interpret the “meaning and application” of the Geneva Conventions. What does this provision mean?

This provision is arguably just a restatement of the president’s existing interpretative powers under the Constitution. As the head of the executive branch, the president is charged with implementing U.S. legal obligations, including U.S. treaty obligations. The legislation makes clear that the president’s interpretation carries no more weight than any other executive branch regulation, and can be overturned by a court.

Of concern, however, this provision appears to endorse President Bush’s view that he has the authority to interpret and redefine the terms of the Geneva Conventions. The additional provisions that preclude any person from invoking the Geneva Conventions as a source of rights in an action against any U.S. official will make it difficult, if not impossible, for individuals to challenge presidential interpretations of the Conventions.

The legislation does require the president to publish these interpretations in the Federal Register. Assuming that the president takes this obligation seriously—and issues detailed interpretations—this will provide much-needed transparency regarding how the U.S. interprets and plans to implement its international treaty obligations.

1 Senator Warner of Virginia speaking for the Military Commissions Act of 2006, on September 28, 2006, to the United States Senate, S. 3930, 109th Cong., 2nd sess,. Congressional Record pt. 10390. Bob Schieffer, Face the Nation with Senator John McCain, CBS News, September 24, 2006.