Accountability for Human Rights Abuses by the United States

Thematic Hearing before the Inter-American Commission on

Human Rights

March 20, 2009

Order of Presentation

Other members of our delegation include: Theresa Harris, Human Rights USA Piper Hendricks, Human Rights USA Lynne Kates, Center for Constitutional Rights Jamil Dakwar, American Civil Liberties Union

Colleen CostelloHuman Rights USA

Summary of Facts

Legal Obligations Under International and Regional Human Rights Law

Michael Ratner

Center for Constitutional Rights

Obstacles to Accountability and Justice

Analysis of Proposed Accountability Mechanisms

Purpose of This Hearing Address the United States Government’s

failure, thus far, to hold persons accountable for detainee abuse, torture, and other human rights abuses.

Seek specific recommendations by the Commission that the United States Government satisfy its legal obligations as to these abuses.

Summary of FactsIncontrovertible evidence exists of detainee abuse committed by U.S. Government officials and military personnel.

ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody

February 2007

Suffocation by water or waterboarding Prolonged stress standing Beating by use of a collar Confinement in a box Prolonged nudity Sleep deprivation Subjection to noise and cold water Denial of solid food

“The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture.  In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”

Summary of Facts

Report of the U.N. Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism

Torture, rendition, systemic nature of abuse, improper concealment of illegal acts, human rights obligations

March 2009

Susan B. Crawford, Convening Authority of Military Commissions at Guantanamo Bay

Torture January 2009

Senate Armed Services Committee Torture, systemic nature of abuse, involvement of senior U.S. Government officials

December 2008

Physicians for Human Rights Torture June 2008

United Nations Human Rights Committee Rendition, torture, involvement of U.S. civilian and military officials

September 2006

Inter-American Commission on Human Rights Transfer, rendition July 2006

The European Parliament Rendition June/July 2006

Amnesty International Rendition April 2006

U.S. Federal Bureau of Investigation Torture, cruel, inhuman, and degrading treatment

January 2006

Center for Human Rights and Global Justice Rendition June 2005

Report by Ret. General Antonio Taguba Torture, “systemic and illegal” nature of abuse

January 2004

Examples of reports and statements confirming these abuses:

Summary of FactsHigh-ranking former Government officials have publicly admitted to authorizing the use of torture on detainees.

Former President BushJanuary 11, 2009

Summary of Facts

The United States

Government has yet to hold

high-ranking officials

accountable for these

abuses.

Summary of FactsRather, the current administration has indicated its disinclination to hold human rights abusers accountable:

“The prospect of individual liability increases the likelihood that officials will make decisions based upon fear of litigation rather than appropriate military policy.” U.S. Department of Justice, Supplemental Brief, Rasul v. Rumsfeld, March 12, 2009.

“Two Obama advisers said there's little—if any—chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.” Advisers to President-elect Obama, Huffington Post, Nov. 18, 2008.

Legal ObligationsThe United States has a legal obligation to effectively investigate, prosecute, and punish those responsible for human rights violations, and to protect victims’ rights to truth, justice, and reparation for these crimes.

American Declaration on the Rights and Duties

of Man

International human rights law

U.S. domestic law

Article I Article II Article XVIII Article XXV Article XXVI

Convention Against Torture International Covenant on Civil and Political Rights Customary International Law

Torture Statute War Crimes Act Geneva Conventions and laws of war Federal Criminal Law

Legal ObligationsDuty to Investigate, Prosecute, and Punish

Enforcement of the law will: Promote respect for the rule of law

Provide justice and healing to victims

Deter the commission of human rights abuses

Failure – or refusal – to hold criminals accountable will: Generate impunity

Deny victims their right to justice

Condone human rights violations

Create conditions that increase the likelihood of torture

Reduce the United States’ credibility

Legal ObligationsThe United States has a duty

to protect victims’ rights:

Right to Truth Effective investigation

Reveal the facts Reveal the extent of the Government’s involvement

Identify those responsible

Right to Justice Prompt recourse to a competent tribunal

Right to Reparation Sufficient Effective Prompt

Proportionate

Obstacles to AccountabilityDenying Access to the Courts

The Military Commissions Act

Denial of Geneva Conventions Protections

Section 5 prohibits any person from: Invoking Geneva Conventions as source of rights In habeas or civil proceedings Against current or former U.S. officials or military

personnel

This provision: Precludes enforcement of basic human rights protections Denies victims right to justice Inhibits victims’ right to reparation

Obstacles to AccountabilityDenying Access to the Courts

The Military Commissions Act

Denial of Access to Courts

Section 7 denies alien detainees: The right to habeas corpus Access to U.S. courts for any other action

Applies to detainees held since 9/11/01

This provision: Denies victims access to courts and right to justice Eliminates possibility of obtaining reparation Deprives victims of right to truth

Obstacles to AccountabilityDenying Access to the Courts

The Military Commissions Act

Redefining War Crimes

Section 6 redefines war crimes by: Removing “humiliating and degrading treatment” entirely Defining “cruel or inhuman treatment” more narrowly if

committed after 10/17/06

This provision: Prevents punishment of war crimes Deprives victims of right to truth Condones serious human rights abuses Creates impunity Denies right to justice

Obstacles to AccountabilityUsing Immunities and Defenses to

Impede Accountability

The Military Commissions Act

“Advice of Counsel” Defense

Section 8(b) precludes culpability for war crimes: Approved by the U.S. Government Authorized by “advice of counsel” Occurring between 9/11/01 – 1/30/05

This provision: Grants immunity to human rights abusers Violates international law Creates a culture of impunity Precludes civil and criminal accountability Denies right to truth, justice, and reparation

Obstacles to AccountabilityUsing Immunities and Defenses to

Impede Accountability

Misuse of the State Secrets Doctrine

Intended Purpose: Evidentiary privilege Withhold specific evidence to protect national security

Misuse: Invoked to have cases dismissed entirely

This practice: Prevents victims from knowing truth about abuses Denies justice to detainees and other victims Shields perpetrators from accountability

Obstacles to AccountabilityUsing Immunities and Defenses to

Impede Accountability

“Qualified Immunity” Defense

Intended Purpose:

Protect officials from frivolous lawsuits

Misuse: Invoked to preclude liability for torture and other abuse Claimed detainees’ right to freedom from torture “not

clearly established”

This practice: Prevents victims from knowing truth about abuses Denies victims right to justice Precludes possibility of obtaining reparation

Obstacles to AccountabilityUsing Statutes of Limitation to

Preclude Prosecutions

Existing statutes of limitation: Most U.S. federal crimes: 5 years. Torture (not resulting in death): 8 years. Torture (resulting in death): none. Conspiracy: 5 years.

Statutes of limitation for human rights abuses:

Violate international law Impede victims’ rights to justice and reparation Contribute to an environment of impunity

The United States Government must: Initiate criminal investigations into abuses Amend U.S. law to toll or repeal statutes of limitations

Obstacles to AccountabilityBilateral Immunity Agreements (BIAs)

BIA Policy: United States has signed 100+ BIAs with other countries Congress recently rescinded legislation authorizing the BIA

policy But BIAs have not yet been revoked

Enforcement of BIAs would: Grant immunity for war crimes and crimes against humanity Deny right to redress and justice Encourage countries to ignore obligation to punish abuses

The United States Government should: Revoke BIAs Sign and ratify Rome Statute

Proposed Accountability Measures

Various accountability measures might be used to address these abuses:

Criminal investigations and prosecutions

Commissions of inquiry

FOIA requests and litigation

Reparations

Proposed Accountability Measures

Criminal Investigations and Prosecutions

The United States has a legal obligation to conduct criminal investigations and prosecutions of human rights abuses.

Criminal trials would: Restore victims’ rights to truth and justice Afford victims and society right to know extent of

Government’s involvement Deter future abuses Reaffirm commitment to human rights and rule of law

The United States Government must: Effectively investigate human rights violations Identify perpetrators Prosecute and punish those responsible

Proposed Accountability Measures

Commissions of inquiry

A commission of inquiry would: Afford victims and society the facts about abuse Identify those responsible

A commission of inquiry would not: Hold perpetrators accountable Grant reparations to victims Satisfy the United States’ legal obligations, if immunity is

granted

The United States must: Effectively investigate human rights abuses Identify those responsible

Proposed Accountability Measures

FOIA requests and litigation

Used to secure information about violations of law committed by United States Government officials

But only provide a partial view, and cannot serve as primary means of obtaining truth about abuses

The United States Government itself must investigate:

abuses committed

extent of the Government’s role in those abuses

rationale for the decisions to implement these policies

ramifications of these events

Proposed Accountability Measures

Reparations

The following forms of reparation may be required:

Restitution Restore victims to place of residence or another country

where they will be safe from harm Compensation for:

Physical or mental harm Lost opportunities and lost earnings Medical and legal fees

Rehabilitation, including: Medical or psychological care Social or legal services

Satisfaction Reveal truth about abuses Issue public apology

ConclusionEvidence of human rights violations committed by United States Government officials is incontrovertible.

To meet its legal obligations, United States Government must: promptly and effectively investigate abuses

ensure those responsible are held to account

provide adequate reparation to victims of abuse

RequestIssue recommendations that the United States Government:

1. Initiate criminal investigations and prosecutions

2. Reform laws that deny victims the right to truth, justice, and reparation

3. Undertake other institutional reforms necessary to bring Government into compliance with international legal obligations

4. Make any and all necessary reparations, including issuing a public apology to victims