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Sorting Out the Torture Memo Issues, Part II: Deriving Appropriate Frameworks for Establishing Legal Culpability

Published on September 19, 2009        Author: 
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In my first post, I began to address concerns brought to mind by W. Bradley Wendel’s excellent review for Legal Ethics (12:1) of five books on the “torture memos” generated by the U.S. Justice Department’s Office of Legal Counsel (OLC). That post lamented the tendency of the discourse on the memos’ improprieties to focus on criminal law issues while neglecting non-penal international legal norms, which were violated much more systematically (and, I would argue, with much more egregious human consequences).

There is, however, a flip side to the observation that the legal structure and political culture of the United States do not place breaches of international legal obligation altogether beyond the scope of domestic legal authority or policy consideration. In retrospectively judging the conduct of the memos’ authors – the subject of the still-withheld report of the Justice Department’s Office of Professional Responsibility, and of potential criminal investigations (in the U.S. and abroad) – one must apply standards in effect at the time and in the specific institutional setting of the activity, however much one may wish to reform those standards prospectively. And here, the case is likely to be closer than is generally imagined, and dependent on more fine-grained assessments than even most legal scholars have appreciated.

As Wendel has elsewhere acknowledged, much of the adverse reaction to the memos stems from revulsion toward very idea of a legalistic rendering of such a morally-charged subject matter. What so many observers find malodorous about the memos is that they seek at all to specify the threshold of criminal liability – especially, with respect to the penal statute implementing the Torture Convention, the line between torture and cruel, inhuman, and degrading treatment. I have attended fora of legal scholars at which the memos have been condemned as embodying the evils of “positivism.” This charge is understandable, given that even the most rigorous and accurate analysis of this distinction is inevitably a disgusting spectacle. But such a charge can only hearten the memos’ authors and their defenders, since it places them comfortably on the traditionalist side of a perennial debate, and deflects attention from the memos’ distortions of positive law. Read the rest of this entry…

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Sorting Out the Torture Memo Issues, Part I: The Devaluation of Non-Penal International Norms

Published on September 15, 2009        Author: 
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Editor’s Note: See herefor a post welcoming Professor Roth

While we continue to await the long-withheld report of the U.S. Justice Department’s Office of Professsional Responsibility (OPR) on the conduct embodied in the notorious Office of Legal Counsel (OLC) “torture memoranda,” W. Bradley Wendel sorts out some of the issues in the current issue (12:1) of Legal Ethics. In “The Torture Memos and the Demands of Legality” (earlier version available on SSRN), Wendel reviews five books on the subject, including one authored by protagonist John Yoo. The result is a balanced, but ultimately pointed, account that avoids the oversimplifications that have frequently marked both criticisms and defenses of the memos’ authors.

Though reciting the usual criticisms of some of the memos’ more extravagant claims, Wendel renders a distinctive analysis of the government lawyer’s duties. Wendel concedes “that there are many different virtues of government, of which legality is only one.” He moreover allows that Attorney General Robert Jackson’s 1940 rationalizations of the Destroyers for Bases Agreement were morally necessary even though legally dubious. At least, though, “Jackson’s opinions were cautious and hedged, acknowledged limits to the power asserted by the President, and were no broader than necessary for the task at hand.” John Yoo’s position, by contrast, “really does boil down to a failure to differentiate between policy advising and legal advising. … The rule of law has no independent normative significance for Yoo.”

There are several pertinent nuances here that are worthy of further exploration. I will address one set of these now, and deal with others in a subsequent post.

Among both critics and defenders of the memos, there has been a remarkable inattention to the memos’ treatment of breaches of international human rights and humanitarian law obligations as such, as opposed to international crimes specified by treaty and reflected in domestic implementing legislation. Read the rest of this entry…

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Report on UK Complicity in Torture

Published on August 5, 2009        Author: 
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On Tuesday the Joint Parliamentary Committee on Human Rights published its report on allegations of UK complicity in torture. I would particularly like to draw our readers’ attention to the Committee’s legal analysis of the scope of the UK’s obligations as a matter of two treaties, the UN Convention against Torture and the European Convention on Human Rights, at para. 17 ff.

Though I am in broad agreement with the Committee’s observations, I am somewhat troubled by the emphatic nature of their conclusion that

There is therefore no room for doubt, in our view, that complicity in torture would be a direct breach of the UK’s international human rights obligations, under UNCAT, under customary international law, and according to the general principles of State Responsibility for internationally wrongful acts.

The Committee’s analysis does tend to paper over a number of very complex issues. For instance, the text of the UNCAT does not explicitly provide for a state obligation not to commit torture or not to be itself complicit in torture. Rather, it (1) provides for a positive obligation of states to prevent acts of torture within territories under their jurisdiction (Art. 2), and for a (2) positive obligation to criminalize acts of torture committed by individuals (Arts. 4 & 5). A negative obligation, and consequent state responsibility for the internationally wrongful act of torture committed by an individual whose actions are attributable to the state, is not written in the treaty. It can only be inferred from it by implication, much in the same way as the ICJ in the Bosnian Genocide case inferred a negative state obligation not to commit genocide through its organs or agents from a similarly worded treaty, the Genocide Convention.

Second, in regard of the CAT, but even more in regard of the ECHR, there is the problem of the extraterritorial application of the treaties. For instance, it is far from clear under the existing jurisprudence of the European Court (above all Bankovic) that the UK would bear state responsibility even if one of its own agents actually tortured a person held by Pakistani authorities in Pakistan (or wherever), let alone so if the UK was ‘merely’ assisting a Pakistani torturer.

Third, there is some degree of conceptual confusion in the Committee’s report between complicity as a notion of (domestic or international) criminal law applicable to individuals, and complicity as a matter of state responsibility, as set out in Article 16 ILC ASR. (Much of the same confusion was evident in the Bosnian Genocide case, on which see more here, at 680 ff). Just to give one example, Article 16 could in no way be applied to the ECHR for torture done in, say, in Pakistan or Uzbekistan, because these two states are not parties to the ECHR, and Article 16(b) requires that both the state committing an act and the state complicit in the act share the same legal obligation. It is only if Article 3 ECHR was interpreted as setting out a distinct wrongful act of state complicity in torture that the UK could be responsible, and there is no case law directly on point – and again, there is also the Article 1 jurisdiction issue.

Having said this, of course, the Committee is a political, not a judicial body, and it can’t be expected to cover all the nuances in a legal question. It will hopefully thus manage to serve its main advocacy purpose of putting further pressure on the government to disclose some of its more nefarious dealings. If, however, a case of UK complicity in an extraterritorial act of torture were to be actually litigated, particularly before the European Court, it would be far from free of any doubt.

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The European Court on Domestic Violence

Published on June 9, 2009        Author: 
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Today the European Court of Human Rights delivered an important judgment dealing with domestic violence in Turkey. The case is Opuz v. Turkey, Application no. 33401/02, 9 June 2009. The Court found violations of Articles 2 and 3 ECHR, because Turkey failed to fulfill its due diligence obligations to do all that it could have reasonably done to prevent the abuse of the applicant by her ex-husband, who also eventually murdered the applicant’s mother, despite being aware of his violent behavior. Bolder still, the Court found a violation of the prohibition of discrimination in Article 14 ECHR, as it established that domestic violence in Turkey was gender-based, and the Turkish authorities failed to suppress an atmosphere conducive of such violence, even if they had no intent to discriminate themselves. The Court awarded the applicant 30.000 euros in damages, a very significant sum in Strasbourg terms, which will hopefully serve as an incentive to Turkey and other states in Europe with similar systemic problems with domestic violence to work on improving their record.

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Cheney Chatter and Complicity

Published on May 15, 2009        Author: 
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Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School.  His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

Former Vice-President Dick Cheney is chatting about his role in assuring approval and use of manifestly unlawful interrogation tactics such as waterboarding during the eight-year Bush Administration.  According to Cheney, he has “[n]o regrets” that he was directly involved in the approval of severe interrogation methods, including waterboarding, and he has admitted that he was involved in helping to get the process cleared by President Bush.  “[T]his was a presidential decision,” Cheney said, “and the decision went to the President.  He signed off on it.” (see here)

On September 16, 2001, Cheney publicly declared that “[a] lot of what needs to be done … [“on the dark side”] will have to be done quietly, … using … methods that are available to our intelligence agencies … to use any means at our disposal, basically, to achieve our objective.”  He added: “we” “have the kind of treatment of these individuals that we believe they deserve.”  For the next two years, many of his preferences were effectuated by his top lawyer, David Addington.  Moreover, it has been reported that Cheney attended meetings of the National Security Council’s Principals Committee in the White House Situation Room during 2002 and 2003, at which specific tactics such as waterboarding and the “cold cell” were addressed and expressly and/or tacitly approved and abetted.  It has also been reported that during this time there was “live feed” or “real time” viewing of parts of actual interrogations, including that of al Qahtani at Guantanamo Bay, Cuba.

According to the Center for Constitutional Rights (CCR), SERE tactics were being used against detainees at Guantanamo in September 2002 and that, during October 2002, military intelligence interrogators “used military dogs in an aggressive manner to intimidate” al Qahtani.  In November 2002, FBI Deputy Assistant Director Harrington reported that al Qahtani had exhibited symptoms of “extreme psychological trauma.”  Around the third week in November, he was subjected to what was known as the “First Special Interrogation Plan,” a plan to use tactics later detailed in an 84-page log describing their use during a six-week period.  CCR reported that among several tactics used were: threats against his family, forced nudity and sexual humiliation, threats and attacks by dogs, beatings, and exposure to low temperatures for prolonged times. Each of these tactics is patently illegal under the laws of war, human rights law, and the Convention Against Torture, among other relevant international legal proscriptions and requirements.  As my article The Absolute Prohibition of Torture [forthcoming in 43 Valparaiso Law Review 1535 (2009)] documents, death threats, use of dogs to create intense fear, beatings, the cold cell or a related inducement of hypothermia, and waterboarding are each manifest forms of “torture” that are absolutely prohibited under all circumstances and regardless of the status of the victim.  If they were not torture, they would also be absolutely prohibited as cruel, inhuman or degrading treatment, along with the other tactics mentioned.

Cheney’s direct involvement is evidence of complicity in international crime.  Read the rest of this entry…

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Obama Administration to consider prosecution of lawyers for Torture: But why just the lawyers?

Published on April 23, 2009        Author: 
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On Tuesday, President Obama suggested that the United States might consider prosecution of some of the individuals who are connected with the harsh interrogations techniques used by the CIA on Al Qaeda detainees (see here). Earlier, the US President had made it clear previously that those CIA personnel who had relied in good faith on the legal memos written by the Office of Legal Counsel in the US Dept of Justice would not be prosecuted. On Tuesday, he reiterated that stance though using slightly different language. He stated it would not be appropriate to prosecute those “who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House” (see the White House transcript here). This statement and what appeared to me to be an emphasis on those who acted strictly within the confines of the opinion (Obama even used his hands to draw a rectangular box as he said the words “four corners” of the opinion) suggests that Obama is open to the prosecution of some of the CIA interogators. It also also highlights the significance of the revelation that some of the interrogations went beyond the limits set out the memos (see the story in the New York times and the discussion by Kevin Jon Heller at Opinio Juris). In an earlier post on this blog, I stated that there are reasonable (though not undisputable) grounds for arguing that under international criminal law, CIA officials who conducted the interrogations in reliance on the advice of US government lawyers might be able to rely on the mistake of law/superior orders defence codified in Art. 33 of the ICC Statute.

Even more significant is Obama’s refusal to rule out prosecution of those lawyers who authored the opinions that justified the interrogation techniques. Obama stated the US Attorney General will make a decision on the investigation or prosecution of those who formulated the legal opinions. One question that arises here is: why focus on the lawyers? Much of the discussion has centered on their role. Obama’s response was to a question asking for clarification on the position of those who devised the policy on enhanced interrogation techiques. However, his answer which did not rule out prosecutions only referred to “to those who formulated those legal decisions.” But what about the others? The people who actually suggested the techniques and pushed for their use. Are they subject to investigation too? No doubt, answering that question is politically difficult given that questions will be raised as to how high up the chain one goes. And we know from recent reports that the approval of those policies was at the very highest levels of government. However, if the administration is to consider prosecutions at all, there seems to be little reason to stop with the lawyers. Indeed the Torture Convention, to which the US is party imposes an obligation on US to submit cases of torture to its prosecuting authorities.

Perhaps the reason that the focus is just on lawyers is because US criminal law recognises a mistake of law defence in circumstances where international criminal law does not.  Read the rest of this entry…

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Filed under: EJIL Analysis, Torture
 

The Water Cure with Saline Solution, or How a Modern Bureaucracy Does Torture

Published on April 18, 2009        Author: 
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Having now read the four recently released ‘torture’ memos, I was perhaps most struck with their bureaucratic tone and the sterile overall narrative that they presented. The earlier Yoo/Bybee memos dealing with general issues such as the meaning of the term ‘torture’ in the UN Convention against Torture and US implementing legislation were rightly criticized for their facetious analysis. On that point, these four memos – or at least the three 2005 memos signed by Bradbury – are on the whole admittedly not as obviously bad. The legal analysis at times even sounds plausible – thought it is manifest that the advice given is actually not advice, but an apology for an already predetermined outcome. It is also riddled with caveats, with the OLC regularly saying that there is room for reasonable disagreement with its conclusions, or that a court might not arrive at the same result, etc. The occasional plausibility of the analysis is aided by the fact that the OLC is interpreting US statutes implementing the CAT, and that these contain Senate understandings and definitions which require narrower interpretations than the text of the treaty itself (this is what allows, for example, for strained interpretations of what constitutes severe mental pain or suffering).

But where these memos differ from the previously disclosed ones is in that they are an attempt to analyze (or, rather, justify) the various specific interrogation techniques used by the CIA against its high-value detainees. In other words, they apply the law to the facts, and the OLC had to get the facts from somewhere. That somewhere was, of course, the CIA itself – its interrogators, doctors, psychologists or what have you. And therein lies the rub. Just as the CIA interrogators can claim that they relied on OLC legal advice in good faith, so can the OLC lawyers claim that they relied in good faith on the CIA’s presentation of the facts.

Just read, for example, the sterile narrative of the various measures to be employed against Abu Zubaydah, the first high-value detainee, in the first new memo. The possible adverse effects of the (cumulative) application of these various measures on Abu Zubaydah’s physical and mental health are constantly and consistently downplayed, and are generally portrayed in euphemistic terms as mere ‘discomfort’ or ‘distress’, rather than suffering. Factual determinations, such as that there was no suffering, are based on the account of doctors participating in interrogation, or on the experiences of the US military’s own SERE program that attempts to train resistance to these interrogation techniques. No attempt is made at any time to ascertain directly the views of the detainees themselves, or the actual reality of the interrogations – the CIA is always taken at its word. Contrast, for instance, the OLC’s account of the techniques to be used against Abu Zubaydah, and Abu Zubaydah’s own (probably quite credible) harrowing account in the recently leaked ICRC report (at Annex I).

That none of the techniques arises to the level of torture comes as no surprise. Indeed, it could be reasonably said that most of the techniques do not amount to torture, especially if used in isolation. What did come as a bit of a surprise was the ‘bug in a box’ method – since Abu Zubaydah was determined to have an irrational fear of insects, it was proposed to put him in a confined box with an insect that could then merrily crawl all over him. Though the insect would have been harmless, Abu Zubaydah would have been told otherwise. Naturally, this bug method was also not considered to be torture by the OLC, but it was in fact never used even though it was authorized – it was probably thought to have been just a tad too medieval for modern sensibilities. Or too Orwellian.

Read the rest of this entry…

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Filed under: EJIL Analysis, Torture
 

Obama Administration Releases Four OLC Torture Memos

Published on April 16, 2009        Author: 
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The Obama administration has just released four new ‘torture’ memos, written by lawyers working in the Office of Legal Counsel of the Department of Justice in the Bush administration. The release of these memos has been long anticipated, and seems to have produced much wrangling within the Obama administration, with the CIA pressing to keep them classified. Some portions of the memos are redacted, to protect the identities of actual interrogators.

The memos are now available at the ACLU website. A statement by President Obama, in which he explicitly states that his administration will not prosecute any CIA interrogator who relied on the OLC advice in good faith, is available here. A similar statement by the Attorney General is available here. I will post more on the memos when I have the time to read them.

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Filed under: EJIL Reports, Torture
 
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ICRC Report to CIA: Treatment of High Value Detainees Amounted to Disappearance and Torture

Published on April 7, 2009        Author: 
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Nehal Bhuta is Assistant Professor of Law at the University of Toronto and a member of the EJIL’s Scientific Advisory Board. . He has worked with the International Justice Program of Human Rights Watch and was a consultant with the International Center for Transitional Justice in New York. In 2008/2009 he is a Hauser Research Scholar at New York University Law School.

The New York Review of Books has today posted in full the ICRC’s report (of February2007) to the CIA based on interviews with 14 “High Value Detainees”  (HVDs) who were “rendered” to CIA-run “blacksites” and held there for several  years, before finally being transferred to Guantanamo. The ICRC interviewed the HVDs one at a time as to their treatment, and provides quite a nauseating narrative of abuse, degradation and humiliation. Unsurprisingly, the ICRC concludes that the treatment met the legal definition of both enforced disappearance and torture. According to the Report’s Conclusion:

 All of the fourteen were subjected to a process of ongoing transfers to places of detention in unknown locations and continuous solitary confinement and incommunicado detention throughout the entire period of their detention. The fourteen were placed outside the protection of law during the time they spent in the CIA detention program. The totality of the circumstances of which they were held effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, incontravention of international law.

Moreover, and in addition to the continuous solitary confinement and incommunicado detention, which was itself a form of ill-treatment, twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological ill-treatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regimes. This regime was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain, and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalization and dehumanization.

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, constitutes a torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment, constituted a gross breach of medicine ethics and, in some cases, amounted to participation in torture and/or cruel, inhumane, or degrading treatment.

One thing that struck me when reading the report was the similarities  between the nature and purpose of the techniques used by the Americans, and those used by the Egyptian and Syrian (and Iraqi) intelligence services. The latter are all much more “low-tech” but have the same aim: to crush the spirit and personality of the detainee by a devastating combination of physical and psychological mistreatment administered repeatedly over time. Indeed, some of the techniques are exactly the same: beatings, confinement in small spaces, enforced nudity, and deprivation of basic hygiene facilities. The idea is that even if detainee is saying anything (including fabricating information just to stop the pain), by breaking their will one will eventually hear from them everything that they might know, and thus obtain intelligence that can be used for further inquiries and interrogation.

None of this is about ticking bombs – indeed, the techniques presume a fairly prolonged regime of mistreatment. It is about crushing a human being’s sense of themselves as human.

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What’s in a Name: The GWOT, Redefinition Accomplished

Published on April 2, 2009        Author: 
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These past few months have seen the emergence, or rather the beginning of the emergence of the Obama’s administration’s policy towards the fight against global terrorism. A significant part of that policy is the new administration’s relationship towards international law. While some have pointed out (disapprovingly or not) that the Obama administration is continuing many of the policies of its predecessor, for example in relation to the state secrets doctrine, others have expressed much optimism, particularly in regard of some of the high-ranking appointments within the administration, such as those of Harold Koh or Anne-Marie Slaughter.

At this time it is of course much too early to tell whether the new administration will take international law into consideration seriously or not. Optimism may well be warranted, but it should in any case be a tempered, cautious one. The recent brief of the Obama administration in the Guantanamo litigation that we discussed earlier (see here and here) at best sent an ambivalent signal. On the plus side, the brief explicitly invokes international law, while its dropping of the term ‘enemy combatant’ is not only commendable as a matter of policy, but as Dapo explained also has implications on the question of targeting. On the other hand, the new administration basically retained the previous administration’s preventative detention standard, with a little bit of rebranding, even though this standard was simply conjured up out of thin air. Even more importantly, it retained the Bush administration’s position that the United States is engaged in some sort of global, amorphous armed conflict with Al-Qaeda, to which the international laws of war apply.

This last position is particularly troublesome. The Obama administration has dropped the ‘global war on terror’ or GWOT meme, now apparently redefining it as ‘overseas contingency operations’ (see more here and here, courtesy of Jon Stewart and the Daily Show). But the substance of the position is still the same, and we have still heard no explanation why this conflict is an armed conflict in the sense of IHL, outside the undisputed (and limited) non-international armed conflicts in Afghanistan, Iraq, and perhaps Pakistan. As was acknowledged at an excellent panel on closing Guantanamo at the ASIL meeting last week, this question is of fundamental importance, with wide-ranging implications on issues such as detention or targeted killings, and it still remains unresolved.

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