Remarks on Receiving the Hans Litten Prize – PDF

2006 A Warning to Us All Hans Litten

I am really pleased to receive the Hans Litten Prize from Vereinigung Demokratischer Juristinnen und Juristen (Democratic Lawyers of Germany, as well as in the name of EALDH (European Association of Lawyers for Democracy and World Human Rights). I know it is a prize for me, but in many ways it is really a prize for the Center for Constitutional Rights, the non-profit legal organization of which I am President. The Center is primarily a litigation organization that was founded in the 1960’s and emerged out of the struggles in the United States against racial segregation in the South. I have been a lawyer at the Center since almost the beginning and its goals are much the same as at its founding: to aggressively attack injustice and insure constitutional and international human rights for the most disadvantaged, whether in the United States or abroad.

We have sought justice for citizens of Myanmar forced into slave labor by an oil company; we have sought to hold Chevron and Shell Oil responsible for killings and torture in Nigeria; we have sought to stop the United States from initiating aggressive wars whether in Central America in the 1980’s or in Iraq today and we have been concerned with domestic discrimination against women, Blacks, Hispanics and immigrants. We have a reputation for taking on the hardest cases. We look at our cases legally, but also politically. We believe that winning in court is often only possible if combined with organizing, public speaking and press.

Since 9/11 we have been widely known in the U.S. and in other countries because of our representation of the Guantanamo detainees. We were the first legal organization in the United States to take on these cases and did so shortly after 9/ 11. It was a time of great fear in the United States and no other organization would step forward. I personally received hundreds of letters of hate. We continue to fight for the rights of Guantanamo detainees and now coordinate some 500 pro bono lawyers in the United States who are working with us to represent the 460 people who are currently in cages at Guantanamo. Murat Kurnaz was one of our early clients. I understand that Kurnaz could have been returned earlier to Germany, but the German government would not accept him—despite his clear innocence.

The excesses and utter illegalities of the United States in the so-called war on terror continue to dominate my and the Center’s work. We represent Maher Arar the Canadian citizen kidnapped by the U.S. at Kennedy airport and sent to Syria where he was tortured in a practice the U.S, calls rendition and that I call outsourcing torture. I am sure you are all familiar with the similar case of El Masri, a German citizen, kidnapped and tortured by the United States. Let us hope that the German government stands up for his rights. Recently, my office has filed a case on behalf of Majid Khan, one of those recently sent to Guantanamo by the U.S. after having spent a number of years undergoing torture in a CIA secret prison. Amazingly, our lawyers have so far been denied the right to see him and the U.S. wants to make it impossible for us to disclose the secret site where he was detained and the types of torture to which he was subjected. This describes only some of the work I and my office having been doing to insure that human beings are treated humanely.

As part of our efforts to hold the U.S. officials accountable for authorizing and engaging in torture we brought a case in Germany over a year ago against various U.S. officials including Donald Rumsfeld. I am sure most of you are familiar with the case. I worked with Peter Weiss from CCR, Wolfgang Kaleck and RAV. We chose Germany because, at least as a matter of law, has an excellent law on universal jurisdiction. It was also our belief that there was no possibility for holding U.S. officials accountable for torture in the U.S. as both our criminal law justice system and our military law justice system were headed by the torturers-respectively Attorney General Gonzales and Defense Secretary Donald Rumsfeld. As I am sure you know we lost that case for both legal and political reasons. Politically, Rumsfeld said he would not visit Germany to attend the Munich Security meeting unless the case was dropped. It was dropped a week after he made this threat; he then attended the meeting. The legal reason given by the prosecutor was utterly unjustified. The prosecutor claimed that the U.S. was still involved in investigation those up the chain of command who might have engaged in or authorized torture.

In part this explains why we and Wolfgang Kaleck are back here again to file another case against Rumsfeld and others. Another year has passed and still impunity is the rule for U.S. officials who authorized torture. In fact, it is far worse now that the U.S. has passed legislation that pardons those officials who engaged in war crimes and torture they committed from after 9/11 until the present. Of course, such a pardon is illegal: war crimes cannot be pardoned as we know from efforts to do so in Argentina and Chile after the “dirty wars.” Now the German prosecutor can no longer dismiss our new case on the basis he did before. This new case will really be a test of whether the system of universal jurisdiction is to be applied only to the weaker nations of the world. Our hopes for this case and additional cases that may filed in other countries is that there will be no safe haven for U.S. officials as they travel. Our goal is prosecution and no safe haven. In the early 1980’s my co-counsel Peter Weiss won a significant civil damage human rights case in the U.S. against a Paraguayan torturer. It was the first case of its kind. In that decision the judge not only found that torture was never permitted under any circumstances, but that there was universal jurisdiction to prosecute torturers. As the judge said: “a torturer is an enemy of all human kind and can be brought to justice wherever found”: he is Hostis Humani Generis.

In this new filing of the Rumsfeld complaint we also added some of the lawyers as defendants in the case. These lawyers wrote some of the key legal memos that were the building blocks of the torture program in the United States. Some of our lawyer friends both in the Unites States and Germany did not favor the addition of lawyers. They argued that it was merely legal advice. But it was not merely legal advice. [Here I will discuss the legal case against the U.S, lawyers.]

So here I am again in Germany to again make an effort with Peter Weiss, Wolfgang, RAV, FIDH and other organizations to end the impunity of U.S. officials for torture.

It was on one of my last trips here, in connection with the earlier case, that I first heard of Hans Litten and was moved to tears. He has remained in my thoughts ever since. I consider the awarding of the prize to me to be one of the significant events of my life. Hans Litten is a hero to me and the best example of the role we lawyers must play in standing for justice no matter the cost.

When I was in Germany a year or so ago the Berlin Bar Association hosted a reception for me and others who were participating in a Universal Jurisdiction Conference. The woman President introduced herself and told the story of how and why the Bar Association was named The Hans Litten Bar Association. I am sure you all know the story. The name had been agreed upon by lawyers from East and West Germany. She explained that Hans Litten was a well-know n lawyer of only 29 years old in 1931. In that year, two years prior to Hitler’s taking power, he had been the lawyer representing two workmen who had been stabbed by Hitler’s Nazi Storm Troopers. In presenting his case, Litten called Hitler to the witness stand and cross-examined him for two hours. He tried to establish that acts of violence by the Nazis were planned by the Nazi party and part of its program. The storm troopers were convicted and sentenced to long prison terms.

Hitler never forgot that trial, his embarrassing cross-examination or Hans Litten. On the night of the Reichstag fire, February 28, 1933, the SS placed Litten under arrest–if that is the right word-as there were no charges and no crime. He was taken into what the Nazi’s called “protective custody;” and was considered an enemy of the state. Litten was sent from camp to camp, from Spandau to Dachau and tortured by beatings and mock executions as a means of obtaining a confession—a confession admitting that he knew defendants he had represented were guilty of murder. He confessed under torture only to take it back a short time later and then he was tortured again. His mother, although well connected, could do nothing to free him. On one of her visits to a top Nazi official she was told that no legal steps could be taken, that as there was no court to go and, therefore, no lawyer was necessary. After enduring five years of detention and torture, Litten committed suicide in 1939.

Now of course most of you know this story-so why am I telling it to you again? I am telling it to show you how important I consider this award and what Litten stood for, but also because his story can tell us something about the rights we are losing in the so-called war on terror, particularly as exemplified by the Bush administration.

A few weeks after this Berlin Bar Association meeting I bought the book Litten’s mother wrote about her struggle to free her son, “Beyond Tears.” It makes chilling reading and not just for what the Nazis did then, but for where the Bush administration is taking us today. Litten’s mother thought she had a chance to free her son, because as she said, “I still imagined that we were living in a legal state.” But as she says, “law had become weaker and weaker as a guardian of justice.”

I tell this story not to say that we in the United States are living in Germany of the 1930’s, but to emphasize the dangers of the direction in which the Bush administration is taking us. In a number or respects we in the United States are no longer living in a legal state; and law has become weaker as a guardian of justice. The constraints on the executive, an executive under law and beholden to law are rapidly evaporating. This is particularly so regarding detention and torture. For if the state can, as it did in Germany, arrest and detain you without charges, there is no freedom. That is what the Magna Carta prohibited in 1215–detention without trial and detention at the whim of the King. Out of that prohibition grew the guarantor of our freedoms-the writ of habeas corpus. That writ required the state, the king or the executive to legally justify in a court the detention of any prisoner.

Han’s Litten’s story struck close to home. I, as I said, along with the Center for Constitutional Rights and hundreds of other lawyers represent some 460 Guantanamo detainees. Many of them have been imprisoned for five years. They were picked up all over the world, and like Litten they have never been charged, tried or sentenced. They can be and some may be detained forever merely at the whim of the President. And like Litten they have been tortured. Litten committed suicide when he could no longer stand the detention and the torture; three Guantanamo detainees have done so and countless others have tried to do so a number of times. The administration calls the Guantanamo detainees “enemy combatants;” Litten was called an “enemy of the state.” But both terms signify that for the governments detaining them, those so labeled have no rights, need not be charged with a crime and can be detained forever.

In Germany, as Litten’s mother soon found out, there was no court to complain to; it was simply not allowed. It is similar for the Guantanamo detainees. The Bush administration asserted that no court could hear the case of any of the Guantanamo detainees. No writ of habeas corpus could be filed and no legal steps could be taken to challenge a Guantanamo detainee’s detention. But, this is where Litten’s case and that of the Guantanamo detainees parted ways, or so I thought. The Center for Constitutional Rights made the first efforts to challenge the Guantanamo detentions and in June 2004 the Supreme, citing the Magna Carta, upheld the detainees’ right to file writs of habeas corpus. The detainees could require the Bush administration to legally justify their detentions in a federal court. We all breathed a sigh of relief. The President was not above the law.

For over two years and since the decision, we have struggled to get hearings for our many clients. The Bush administration has fought us every step of the way despite the Supreme Court ruling. We did get attorneys to Guantanamo and those visits exposed the mistreatment and torture to which our clients had been subjected. We have yet to have a court hearing in which the government was forced to justify any one of the hundreds of detentions. But we are getting closer or were. Now, tragically, it appears that the Guantanamo detainees, like Litten, may not get the chance to challenge their detentions in court. In December 2005 Congress passed legislation, Graham-Levin Amendment that purported to strip the courts of the right to hear habeas corpus cases brought by detainees at Guantanamo. This restriction on the right of habeas corpus nullifies the Supreme Court ruling and once again will make it almost impossible for Guantanamo detainees to challenge their imprisonment. We went to court again and in June 2006 the Supreme Court found that Congress did strip the courts of Habeas Corpus jurisdiction. It was our second Supreme Court victory, but it was a close 5-4 decision. We may not be so lucky again.

Despite this victory we are no closer to getting hearings for our clients in court, Once again the administration went to Congress and the Republican dominated Congress in October of this year again took away the right of habeas corpus from our clients. In fact, the Congress went even further. It stripped the right of habeas corpus not just from the Guantanamo detainees, but every non-citizen detained by the United States, even legal permanent residents of the United States. Think about this; the power given to the President is breathtaking. He can detain any non-citizen even one living as a permanent resident in the Unites States and hold them in prison forever.

Detainees can be held without ever getting into court and without any chance to test their detentions. Their identities may never be known-they are disappeared– and under this new legislation, known as the Military Commissions Act, Vice President Cheney claims that Congress has given legal authority for torture.

Once again we are going to court. But meanwhile 460 Guantanamo detainees, countless others at Bagram and in Iraq and at CIA secret sites remain imprisoned. Assuming we win the case again, it will have meant seven years in prison without any court hearing for our Guantanamo clients.

Sometimes I get asked or rather told that I should not focus so much on the United States-after all there are countries where much worse human rights violations are occurring. I have at least two answers to this question. First, I live in the United States and it is my government that is committing these abuses. I do not want to stand idly by and let these fundamental human right violations by my country continue. But there is another reason. The U.S. is the most powerful country in the world and at one time stood for the rule of law and for human rights. It sharply criticized torture abroad, military trials and disappearances. It published and continues to publish human rights reports on countries throughout the world. What amazing hypocrisy! Of what value are these reports if the U.S. is leading the torture bandwagon? If the U.S., in the name of fighting terror, can go off the page of law and human rights, why cannot every country do the same thing? We are at a serious moment in our world and may well be entering a dark age. We must do all we can to bring ourselves back toward the light. Holding those U.S. officials accountable for torture is a first step and I hope we can count on all of you.

We still have a chance, a small but important one, to change course. There is plenty to do and not just in the United States. We are all Democratic Lawyers. Those of you here in Germany have a role to play. From Germany’s role in the Iraq war, to its failure to insist on rights for Kurnaz, to its possible cooperation in rendition, Germany too is cooperating with the dark side. It must not be allowed to do so.

Hans Litten’s story should be a warning to us all.