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Experts Predict Slew of Torture Suits

Waterboard-run.jpg
Waterboard-run.jpg

Illustration by: Matt Mahurin

Last week, the Second Circuit Court of Appeals announced that its full court would reconsider the disturbing case of Maher Arar, a Syrian-born Canadian citizen arrested by U.S. authorities at JFK airport in 2002 and forcibly extradited to Syria for interrogation. As U.S. officials surely expected, Arar was questioned under torture for the next year in a Syrian prison. He was eventually released without charge.

One of the first known victims of the Bush administration’s secret “extraordinary rendition” policy, Arar sued U.S. authorities in 2004 for conspiring in his torture. A three-judge panel dismissed the case in January, saying that as an alien deported by immigration authorities, he had no right to bring a claim. But as more such cases are being filed, it appears the courts are beginning to reconsider. The entire Second Circuit court — all 22 judges — last week announced sua sponte that it would take a second look at Arar’s case. Meanwhile, similar cases filed by former detainees apparently tortured under the direction of U.S. officials could be headed to the Supreme Court.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/scales-300x300.jpgIllustration by: Matt Mahurin

Legal experts predict that many more such cases could be filed — as the hundreds of prisoners abused and then released from U.S. detention centers around the world begin seeking redress from Washington. The Detainee Abuse and Accountability Project, an independent non-governmental organization, has already documented more than 330 cases in which “U.S. military and civilian personnel are credibly alleged to have abused or killed detainees” in detention centers at Guantanamo Bay, Iraq and Afghanistan.

Among those were three British citizens — Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed — who traveled to Afghanistan in October 2001 to offer humanitarian relief to civilians displaced by the war. In late November, they were kidnapped by Rashid Dostum, an Uzbeki warlord and leader of the U.S.-supported Northern Alliance. He turned them over to U.S. custody – apparently for bounty money that American officials were paying for suspected terrorists. In December, without any independent evidence that the men had engaged in hostilities against the United States, U.S. officials sent them to Guantanamo Bay. Over the next two years, they claim, they were imprisoned in cages, tortured and humiliated, until they were returned to Britain in 2004. None was ever charged with a crime.

Seven months later, the three men, as well as another British citizen picked up in Afghanistan and imprisoned at Guantanamo Bay, sued former Defense Sec. Donald Rumsfeld and a host of other military commanders for directing and authorizing their torture, as well as violating their religious rights. (They were forced to shave their beards and watch as their Korans were flushed down the toilet.)

In January, a federal appeals court decided that even if all their claims are true, Rumsfeld and his fellow military commanders are immune from suit.

Though torture, physical abuse and humiliation of prisoners violate domestic and international law — as well as the U.S. Constitution — the court had found that the officials were acting “within the scope of their employment” and cannot be held personally responsible. What’s more, the court reasoned, they’re immune from liability because it wasn’t clear when they authorized the torture that detainees at Guantanamo Bay had any enforceable rights. As for the men’s religious rights, the court decided that none were “persons” entitled to the protection of the law they sued under. Case dismissed.

It’s become a common refrain that even if government officials broke the law, there’s no one willing to enforce it. Several other cases brought by prisoners who say they were tortured in U.S. custody have been dismissed on similar grounds, before ever reaching the merits. Atty. Gen. Michael Mukasey has repeatedly said he won’t even investigate whether government officials committed crimes by authorizing the torture of prisoners, despite the growing volume of evidence supporting that charge.

Still, it’s not clear that those who authorized the brutal interrogations at Abu Ghraib, Guantanamo and elsewhere will all get off scot-free. Lawyers representing the former British detainees say they plan to seek review in the Supreme Court.

Many international law experts believe that it’s imperative to compensate victims of state-sponsored torture. “Torture is a crime under international law,” said Christian Tomuschat, emeritus professor of public international law at Humboldt University in Berlin and a former member of the U.N.’s International Law Commission. “In every state governed by rule of law, a victim of governmental abuse should have a remedy to bring a claim of reparation against the government. That’s a basic requirement of the rule of law.”

U.S.-based lawyers say it’s particularly important in this situation — where government prosecutors refused even to investigate the allegations. “The Rasul case was brought to establish a principle of accountability,” said Sidney Rosdeitcher, an international lawyer at the corporate law firm of Paul, Weiss, Rifkind, Wharton & Garrison. “We know that there’s been an enormous amount of abuse. It’s systemic — not just a few rotten applies at Abu Ghraib. But no one of any importance has ever been held accountable.”

In the Rasul case, international-law professors, human-rights groups, military historians and former military officers were so outraged that the district court had ruled that government officials were immune from suit that they filed friend-of-the-court briefs with the court of appeals, arguing that torture is universally forbidden and couldn’t possibly be considered part of any government officials’ job; nor could policy-makers not have known it was illegal.

“These legal doctrines [of immunity] have no place where there’s a clear military prohibition on this kind of conduct,” said Rosdeitcher, who wrote the brief on behalf of the former military officers. “Mistreatment of prisoners is forbidden by the Uniform Code of Military Justice. And it’s been outlawed going all the way back to George Washington, after the battle of Trenton — when he forbid the mistreatment of Prussian mercenaries.”

In fact, as detailed in the brief, it was President Abraham Lincoln who first codified the requirement that prisoners of war be treated humanely. The Lieber Code, which applied equally to non-traditional enemies, forbade the “intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death or any other barbarity.” It also prohibited using violence to extract information.

The rules of war were updated after World War II, in the 1949 Geneva Conventions. Common Article 3 – common to all four conventions – prohibits “violence to life and person…mutilation, cruel treatment and torture; …[and] outrages upon personal dignity, in particular, humiliating and degrading treatment…” The article applies to all prisoners — not just traditional prisoners of war.

But just because something is unlawful doesn’t mean victims will get a remedy. Part of the problem, legal experts explain, is that even though the Supreme Court has lately proved willing to defy the Bush administration and rule that detainees at Guantanamo Bay have rights under the U.S. Constitution, that doesn’t mean it’s ready to give the detainees denied them the right to sue. It’s the difference between using the law as a sword or as a shield.

“A court may be more comfortable protecting someone’s interests to be free from unlawful imprisonment, yet more reluctant to hold government officials liable,” said William Aceves, a professor of international law at California Western School of Law, who drafted the amicus brief on behalf of international law professors and human-rights organizations.

But if there’s no way of enforcing the laws designed to rein in overly aggressive government tactics, what good are they?

“The most frustrating situation is where victims don’t even get their day in court,” said Aceves.

That’s what happened to Khaled al-Masri, a German citizen of Lebanese descent kidnapped by the CIA in Macedonia in 2003 and sent to Afghanistan. There, he claims, he was brutally interrogated, tortured and sodomized. CIA officials eventually realized they’d captured the wrong man. They released him in May 2004.

When he sued, the court dismissed his case based on the government’s argument that it would reveal state secrets and endanger national security.“That’s really troubling,”said Aceves.

It’s particularly troubling because the state-secrets doctrine requires the court to trust the executive branch to decide what constitutes a legitimate state secret. Yet, as Barry Siegel points out in his new book, “Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case and the Rise of State Secrets,” even in the original case that established state secrets as a defense – involving the crash of a B-29 bomber that killed nine men in 1948 — the government wasn’t hiding state secrets. It was merely covering up its own negligence.

Lawyers for the former detainees aren’t giving up just yet. But even if the courts remain reluctant to let the cases proceed, there may be other ways of compensating victims. The New York City Bar Assn.’s task force on national security and rule of law, for example, recently recommended that the federal government at least provide an administrative procedure to compensate victims of torture, or cruel, inhuman and degrading treatment. “Victims of violations of Common Article 3 must have some remedy that compensates them and deters future violations,” the group said in its July report.

Not everyone agrees. Legal commentator Stuart Taylor Jr., in a Newsweek column in July, called on President George W. Bush to pardon all officials involved. He wrote it would be more effective to convene a Truth Commission. Georgetown Law professor Rosa Brooks has also called for a Truth Commission.

That might at least provide a forum for the victims to be heard. But it wouldn’t compensate them for their suffering, which usually continues well after the physical abuse ends. “These people are having trouble moving ahead with their lives,” said Eric Lewis, a partner in the firm Baach Robinson & Lewis, which, with the Center for Constitutional Rights, represents the British plaintiffs in the Rasul case.

Some lawyers predict that U.S. officials are more likely to be held accountable outside the United States. “I would be very surprised,” said Aceves, “if the government officials that were involved in drafting the torture memos, that played a role in the policies in Abu Ghraib and elsewhere, were not very cautious about their foreign travel.”

After all, Gen. Augusto Pinochet of Chile was arrested while traveling in Britain in 1998 on a warrant issued by a Spanish judge under the theory of universal jurisdiction. That set a precedent that may now be causing some U.S. officials to watch their step. “I can’t imagine that John Yoo, for example, would not be thinking about that and consulting with his own counsel before he travels anywhere,” said Aceves, referring to the attorney who wrote one of the administration’s torture memos.

Pinochet must be on Donald Rumsfeld’s mind, too, given that lawyers have already tried to prosecute the former defense secretary in Germany, France, Argentina and Sweden.

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