The Legal Campaign Against American Torture

Torture, like genocide and crimes against humanity, is a gross crime under international law. The right not to be tortured is constituted through the prohibition of practices that purposefully cause harm (physical and/or psychological) to persons who are in custody but have not been found guilty of a crime. (The international legal definition excludes lawful punishments regardless of their brutality.) The right not to be tortured is exceptionally strong, at least in principle, because it is absolute under any circumstances including war and conflict, and universally applies to all people at all times everywhere. The torture prohibition is foundational to the rule of law because it imposes legal limits on what states can do to people in custody when they are most vulnerable. There is, of course, a paradox: despite its clear illegality, torture is pervasive.

Following the 9/11 terrorist attacks, US officials, desperate for intelligence about al-Qaeda, decided to authorize violent, degrading and dehumanizing interrogation tactics to wage the “war on terror.” What distinguishes American torture from similar practices by authoritarian regimes is the lengths to which officials went to “legalize” patently unlawful practices by reinterpreting federal laws and international treaties to which the US is a signatory. In mid-2004, following the publication of the Abu Ghraib photos, the secret torture policy and the radical legal premises on which it was based were exposed to the public as a result of the declassification and leaking of the first batch of "torture memos." Bush administration officials justified the policy as legal, necessary and effective to “keep Americans safe.” When Barack Obama assumed the presidency in 2009, he took steps to end the use of torture (a pledge imperfectly fulfilled), but he did nothing to pursue accountability for the intellectual authors of the torture policy.

A majority of Americans have been, at best, indifferent to the torture of foreign prisoners. There has been no mobilized opposition, no political price to be paid, nor any public investment in understanding the issues and adverse consequences of the torture policy. Aside from small-scale demonstrations and on-line petition drives, no anti-torture social movement emerged. Rather, the fight against torture has taken the form of a legal campaign waged largely in courts. This legal campaign is an intervention in the evolving discourse about "what is legal" in a conflict as unconventional as America`s global "war on terror."

Over the last decade, hundreds of American lawyers, human rights professionals and legal intellectuals have devoted themselves to one or more of the following kinds of activities: (a) challenging the authorization and use of torture and cruel, inhumane and degrading treatment (CID) through litigation and legislative advocacy; (b) representing prisoners and torture victims in court; and (c) pressing for legal accountability for the authors of this policy and the state agents and contractors who engaged in torture. Those involved in this work has faced intellectual and political challenges to master the layers, contours, interpretations and applicability of multiple bodies of law governing wartime interrogation and detention (i.e., international humanitarian, human rights, military and federal laws).

The court-centered mobilizations that constitute the fight against American torture follow a historic pattern of using legal strategies to contest rights violations and governmental abuses. In the main, those involved in the US anti-torture campaign are convinced that the Bush administration’s policies damaged the rule of law, negated the legal constraints on the executive and violated the universal and absolute right of all human beings not to be tortured. This article surveys the trajectory of this campaign.

Anti-Torture Entrepreneurs

On November 13, 2001, shortly after large contingents of troops hit the ground in Afghanistan, President George W. Bush issued a military order announcing that terror suspects taken into US custody could be detained incommunicado and prosecuted under a new kind of military commission. In December, the naval base at Guantánamo (GTMO) on the south side of Cuba was designated as the primary interrogation and long-term detention facility for “unlawful enemy combatants.”

These decisions galvanized a few “norm entrepreneurs” to action. Michael Ratner, president of the Center for Constitutional Rights (CCR), had first-hand experience with the GTMO facility dating back to the Clinton administration when his organization had contested its use to warehouse Haitian refugees interdicted at sea. In January 2002, when the government published trophy-shot photos of the first prisoners bound and kneeling in a fenced pen wearing sensory deprivation gear of blackened goggles and mittens, Ratner’s suspicions were confirmed that they would be treated inhumanely.

[CCR`s Michael Ratner and Peter Weiss]

CCR’s early concern about the possible torture and abuse of foreign prisoners was driven in part by what staff lawyers were learning about the treatment of Muslim immigrants within the country who were being rounded up and detained incommunicado. According to CCR’s Barbara Olshansky:

The disappearing of people in the US and the horrible abuses in detention facilities were just shocking. I’d never seen anything like this. It opened my eyes about what the government would do. Then with the statement that no law applies in Guantanamo, I knew someone had to do something, and no one else would take the case, so CCR took it.

Within CCR, whose office is less than a mile from the site of the Twin Towers, there was a debate about the wisdom of challenging the government’s wartime detention policies. According to Ratner, it took a leap of faith for the organization to press for the rights of people who, if the administration’s allegations were true that they were the “worst of the worst” Islamist terrorists, CCR did not politically support. The decision to go forward with habeas litigation was so politically unpalatable at the time that the only people who initially joined them were Joe Margulies and Clive Stafford Smith, death penalty lawyers who were used to working against the grain of public opinion on behalf of “despised” clients. These lawyers faced two immediate challenges: One was the thick veil of secrecy shrouding government policies and practices vis-à-vis prisoners; even the identities of GTMO prisoners were classified. The second was their inexperience with military and international humanitarian law (IHL).

 
[Joseph Margulies, Clive Stafford Smith with Moazzem Begg]

CCR’s first GTMO clients included three British citizens, Shafiq Rasul, Asif Iqbal and Ruhal Ahmed, nicknamed the “Tipton 3” because of their common hometown. They had been captured by the Northern Alliance in Afghanistan in 2001 and turned over for bounty to US custody. CCR obtained information about these individuals from their families and British lawyers, and filed a habeas petition (Rasul v Bush) in federal court in February 2002. Around the same time, the Kuwaiti government retained the tony corporate law firm of Shearman and Sterling on behalf of the families of twelve Kuwaitis who had disappeared and were assumed to be in GTMO. According to Tom Wilner, his firm was selected because of its oil business connections in the Gulf and because the Kuwaitis wanted “a well known, reputable firm, not a pro bono firm. I said ‘yes’ because I suspected that these men were innocent, picked up by mistake.” CCR, the kind of pro bono firm the Kuwaiti government was not interested in hiring, became allied with Shearman and Sterling, and al-Odeh v. Bush was litigated in tandem and then consolidated with Rasul.

The CCR lawyers and their death penalty allies were accustomed to litigating in the shadow of the law and confronting government abuses. But Wilner, a self-described liberal establishment guy, was ideologically shocked and politically angered by what he learned about his government’s behavior toward the people he had opted to represent.

The idea that US law can’t protect humans at Guantanamo is absurd. Even iguanas are protected there!...Most lawyers, and most people in the US assume all rights come from the Constitution and the Bill of Rights. But habeas is a basic common law right. All human beings have it, regardless of the Constitution…The idea of Americans first, the hell with everyone else is appalling.

[Tom Wilner and Barbara Olshansky]

Human rights organizations were also on the forefront of efforts to expose and challenge American torture. Human Rights Watch (HRW) was the first organization to send researchers to investigate interrogation and detention conditions in the war zones, aside from the International Committee of the Red Cross (ICRC) which does not publicize its findings. John Sifton, a lawyer who worked as a counter-terrorism researcher for HRW, said that while the bombing campaign in Afghanistan was generally conforming to Geneva Convention rules of proportionality, the treatment of prisoners was abominable. “Every detainee in 2002 was subjected to or witnessed severe and repeated abuse…But until Abu Ghraib [i.e., the publication of photos in 2004], HRW’s criticism of prisoner abuse was a voice in the wilderness.”

Gabor Rona, who was working for ICRC at the start of the “war on terror,” left the organization to join Human Rights First (HRF) because, among other reasons, he wanted to apply his expertise in a more public way. (ICRC access to prisoners is contingent on confidentiality agreements with governments.) What Rona brought to HRF and, more generally, to the nascent coalition of anti-torture campaigners was a very strong knowledge of IHL and expertise in the legalities of the torture prohibition. As Rona explained, “The government has done an exquisite job utilizing ‘creative ambiguity’ about when IHL applies and what it requires when it applies. This makes it very difficult for practitioners. Add to this the general antipathy toward international law in US federal courts.”

According to Rona, challenging the government’s interrogation and detention policies was complicated by the official assertion that prisoners have no status and no rights under IHL (i.e., that they are neither “civilians” nor “combatants”). To articulate the legal counter-claim that all people have minimum rights to due process and humane treatment involved battling the government’s interpretations of law. However, Rona optimistically opined in 2005, criticizing the treatment of detainees could be linked to narratives of “humanity” that would resonate with the nation’s historical ethos. “If people can be made aware of the facts, it’s possible to mobilize them. But there are so many obstacles to bringing the facts to light. The government controls the methods, means and content of information about detainees and their conditions.”

Some members of the Judge Advocate General (JAG) corps became early interlocutors in the campaign against torture and abuse. In mid-2003, when the Bush administration began gearing up the military commissions to prosecute selected detainees, six JAGs were tapped to serve as defense counsels; they were on assignment nine months before they received their first clients. Lt. Cmdr. Charles Swift spent that time studying the commission statute and was appalled to see how far it deviated from the military justice system, and from even the most modest rule of law standards. The legal precedent for Bush’s commissions was the World War II-era Quirin case, which he termed “an abomination.” Basing the contemporary military commissions on Quirin was “like basing education policy on Plessy v. Ferguson.” Swift also said that his eyes were “opening wider” with every article about “gloves off interrogations.” He said, “’Gloves off’ means we don’t have to follow the law.”

[Lt. Cmdr. Charles Swift, Lt. Col. Sharon Shaffer, Col. Will Gunn, Lt. Cmdr. Philip Sundel]

In September 2003, CCR lawyers, who were working on Guantánamo from afar, met with the six military defense lawyers. Olshansky said she was stunned by their “ferocious attacks on the administration. I started to have some hope. These lawyers helped forge connections for CCR with retired military commanders. This gave CCR’s work some real juice.” When Swift was assigned to represent Salim Hamdan, a Yemeni who had worked as Osama Bin Laden’s driver in Afghanistan, he learned that his client was one of the first to be charged because, under brutal interrogation, he had agreed to plead guilty. The Pentagon, according to Swift, was hoping a couple of quick plea bargained convictions could be sold to the public as victories in the “war on terror.”

Instead of following the instruction to plead Hamdan guilty, Swift decided to challenge the legality of the commissions themselves. Neal Katyal, a Georgetown University law professor, and Joe McMillan and Harry Schneider from the Seattle-based firm of Perkins Coie joined Swift in the federal litigation, Hamdan v. Rumsfeld. As Swift described what motivated their decision to litigate, “All men have rights, including the right to a trial -- a regular trial! The abuse of prisoners indicates that we don`t think detainees are human.”

 The Campaign Takes Off

On June 28, 2004, Supreme Court ruled in Rasul that prisoners at GTMO cannot be denied habeas corpus rights indefinitely. This decision, which came within weeks of the Abu Ghraib photos and the release of the first torture memos, had a transformative effect on legal activism. The morning after the Rasul decision, the CCR staff came into their offices to find their voicemails filled with messages from lawyers around the country volunteering to represent GTMO prisoners pro bono.

The pressure was immediate and intense. CCR frantically submitted habeas motions for every detainee whose name they knew. This strategy was an attempt to preempt the Pentagon from “extraordinarily rendering” (i.e., extra-judicially transporting) prisoners to other countries where they might be even more vulnerable to torture and abuse. To get the names of unknown prisoners, some lawyers went on ambulance chasing trips around the Middle East to find people who had missing friends or relatives. They elicited “next of friend” referrals to represent those who might be detained at GTMO.

The government sought to thwart the impact of Rasul by establishing Combatant Status Review Tribunals (CSRTs) as a substitute for court-ordered access to federal courts. On July 5, 2004, the CSRT began hearings for the approximately 600 detainees to determine if the government’s evidence justified their continuing detention or whether they would be deemed “no longer” a threat to American security. The CSRTs, staffed by non-lawyer officers, were authorized to make their determination on the basis of classified evidence and statements (first- and third-party) extracted under coercion and violence. Prisoners were not permitted to be represented by lawyers, to have access to classified evidence against them, or to call witnesses. After five months, the CSRTs had endorsed the continuing detention of 95 percent of the prisoners.

The CSRTs did not derail the legal campaign, however. By 2005, over 500 hundred lawyers from all sectors of the profession had volunteered to join the so-called “GITMO bar.” CCR was at the center of this effort, training lawyers how to file habeas petitions and coordinating the assignment of clients. Gitanjali Gutierrez of CCR said: 

These lawyers remind me of lawyers who participated in freedom summer. They represent a huge spectrum—a cross-section of America. They are seeing a truth that has been hidden by the executive branch. Human rights lawyers alone couldn’t do what these lawyers can do. Powerful lawyers from influential firms have access and influence that is powerful.

 
Indeed, some of the wealthiest firms subsidized the work expenses of solo practitioner lawyers.

[Gitanjali Gutierrez]

Gutierrez was among the first habeas lawyers to go to GTMO in 2004. One of her clients, Muhammad al-Qahtani, was alleged to be the “20^th hijacker.” The “special procedures” at GTMO had been devised in October 2002 primarily for him; his treatment included forty-nine consecutive days of 20-hour interrogations, forcible administration of intravenous fluids, drugs and enemas, sexual and religious humiliations, and death threats. She said: 

Visits with clients isn’t about intellectual and legal issues. It’s hard core human rights work…What’s hard is that at the end of each meeting you can’t make any promises. Part of the psychological torture is having promises broken and hope manipulated.

 Habeas lawyers have described the experience of working on and at Guantanamo as intense and contradictory. One of the most profound difficulties lawyers encountered was their lack of experience dealing with brutally tortured clients. This made the process of gaining and sustaining the trust of some clients exceedingly difficult. These problems were further compounded by the fact that some soldiers and guards would tell prisoners that their lawyers were homosexuals, Jews, Israeli spies and the like in a calculated effort to manipulate presumed biases to undermine trust. At another level, there was a common sense of frustration about the obstacles thrown up by the government; some lawyers experienced protracted delays in getting their security clearances, or having meetings or trips cancelled at the last minute for reasons that were never explained. Traveling to Guantánamo is expensive and difficult, and the conditions on the base are designed to maximize frustration and minimize lawyers’ time with their clients. Many lawyers had to find, hire and transport translators with security clearances in order to communicate with their clients. Lawyers were compelled to sign a “protective order” as a condition of working at GTMO which prohibited them from speaking publicly about the treatment or condition of their clients, and everything those clients told them was classified. All notes, legal documents, and correspondence to and from their clients must pass through a “privilege team,” which undermines the very principle of lawyer-client confidentiality. To see their own notes, lawyers had to travel to a secure facility in northern Virginia, and any time they wanted to discuss their case with other lawyers or do research, they were expected to pull their blinds and turn on a white noise machine.

Organizational Muscle

A number of organizations, each with distinctive mandates and institutional skills, supported the anti-torture legal campaign. Given HRW’s strength in field research, their work concentrated on monitoring and reporting on prison conditions in Afghanistan, then Iraq, and CIA black sites. For the American Civil Liberties Union (ACLU), a litigation powerhouse, the decision to work on behalf of foreign prisoners held overseas was a new venture. The ACLU needed lawyers with international law litigation experience, so they hired Steven Watt from CCR and Jamil Dakwar, a Palestinian citizen of Israel with extensive experience on cases involving Israeli torture. According to Dakwar, there are strong similarities between Israeli and American interrogation and detention strategies, including racist biases and intense dehumanizing “othering.” But, Dakwar contended, the Israeli Shabak (i.e., General Security Services) is legions ahead of the Americans in terms of an ability to effectively use persuasion, deception and cooptation of prisoners. “Americans have nothing to fall back on but violence in their desperation for information.”

HRF’s strengths include IHL analysis and a capacity for advocacy among political elites on Capital Hill. When the ACLU decided to litigate a case of torture against Secretary of Defense Donald Rumsfeld and other named officials, it sought to ally with HRF in order to benefit from the latter’s ties to retired JAGs who were critical of the torture policy. HRF was reluctant to join in litigation without the support of these JAGs, who were hoping that the scandal sparked by the Abu Ghraib photos and the torture memos would force the military to clean its own house. When it became clear that there would be no accountability and that the administration was promoting rather than firing culprits, the retired JAGs came on board. ACLU and HRF brought a civil suit, Ali v. Rumsfeld, on behalf of five Iraqis and four Afghanis who had been tortured in US custody.

Two ACLU lawyers, Jameel Jaffer and Amrit Singh, spearheaded the organization’s dogged pursuit of official documentation about the torture policy through Freedom of Information Act (FOIA) litigation. They followed leads provided by human rights researchers, investigative journalists and lawyers representing detainees. Their success in extracting thousands of pages and posting them on a dedicated website was crucial to legal strategizing. According to Watt, 

Ali v. Rumsfeld is the first case that is taking on those who promulgated the use of torture and CID against foreign detainees. The government keeps putting forward the “bad apple” argument but FOIA demonstrates the opposite: It was policy, and you can see it came from the highest levels…This litigation is one means of trying to piece together the whole history, and get it into the public domain. We want the public to understand that the government is lying.

[Amrit Singh and Jameel Jaffer]

For a brief period in 2004-05, there was some Congressional push-back against the torture policy. Three so-called “Republican dissenters” in the Senate—John McCain, a torture survivor from the Vietnam war, Lindsey Graham, a reservist JAG officer, and John Warner, chair of the Armed Services Committee—were exorcised over the administration’s interrogation policy because it exposed soldiers to the risk of court martial and threatened to undermine military discipline. HRF and the retired JAGs were active in Capital Hill advocacy that led to the McCain amendment, passed by Congress in 2005, that (re)prohibited CID by military interrogators. But under pressure from Vice President Dick Cheney, a Congressional majority, including McCain, conceded to a “CIA exception” that would allow agents and contractors to continue using tactics that the military was no longer permitted to use. In December, Congress passed the Detainee Treatment Act that contained jurisdiction-stripping language to bar detainees in US custody from pressing their torture (or habeas) claims in federal courts, undermining the enforceability of the McCain amendment.

Hopes Raised and Dashed

On June 29, 2006, the Supreme Court ruled in Hamdan that the presidentially-created military commissions are unconstitutional. The Hamdan ruling also declared that prisoners captured in the “war on terror” have rights under the Geneva Conventions, at minimum those designated in Common Article 3 that unequivocally prohibits torture, cruel treatment and “outrages on human dignity,” thus rebuking the administration’s claim that they are rightless. This ruling raised the specter that those who had violated—or ordered the violation of—the Geneva Conventions could be prosecuted under the federal War Crimes Act (1996).

[Neal Katyal and Charles Swift]

The Hamdan decision sparked jubilance and relief among people involved in the legal campaign. But, as one prescient law professor cautioned in an email message to an anti-torture listserve on the eve of the ruling, the greater the victory seemed, the worse the backlash would be. She was right. On September 6, 2006, in a nationally televised address, President Bush acknowledged the existence of CIA black sites and the authorization of waterboarding and other “alternative” interrogation tactics, which he characterized as “tough,” “safe,” “lawful” and “necessary.” He announced that fourteen “high value detainees” (HVDs) were being transferred from black sites to GTMO, including self-proclaimed 9/11 planner Khalid Sheik Muhammad (KSM) who had been in CIA custody since 2003 during which he was waterboarded 183 times. In the same speech, Bush criticized the Supreme Court’s Hamdan ruling and announced that the administration had drafted legislation to undo the constraints it imposed. Support for this legislation in Congress was pursued using strong partisan pressure (easily heightened by the fact that 2006 was an election year), and a media campaign casting opponents as “terrorist sympathizers.”

In October 2006, Congress passed the Military Commissions Act (MCA) that resurrected the cancelled commissions and authorized the use of evidence and confessions extracted through “coercive interrogations.” The MCA also amended the War Crimes Act to provide immunity for past violations of the Geneva Conventions by US officials dating back to 1997, and stripped the federal courts of jurisdiction over all prisoners detained in the context of the “war on terror.” According to Scott Horton, the MCA is “a piece of legislation that will stand in history alongside the Alien and Sedition Acts and the Fugitive Slave Act as a reminder of the kind of constitutional vandalism that Congress is capable of when it really tries.”

[President Bush signing the Military Commissions Act, October 2006]

On May 10, 2007, Hamdan was recharged with conspiracy and providing material support for terrorism. His attorneys tried to continue the fight, but the Supreme Court declined to hear challenges to the Congressionally-created commissions. When the trial got underway, the defense lawyers filed motions to suppress Hamdan’s self-incriminating statements on the grounds that they had been elicited through torture and abuse and therefore were unreliable. The military judge agreed to exclude those from the Bagram prison in Afghanistan but not Guantánamo, despite that at the latter his treatment included 50 days of sleep deprivation under “Operation Sandman.” On August 6, 2008, the six-officer military jury pronounced its verdict. Hamdan was found guilty of providing material support for terrorism but was acquitted of the conspiracy charges. The jury sentenced him to five and a half years and credited him for time served since he arrived at Guantánamo. Five months later, his sentence was up and he was repatriated to Yemen. Secretary of Defense Robert Gates, who succeeded Rumsfeld, was so angered by the time served credit that he lobbied to have that option eliminated, which it was when the MCA was revised in 2009.

Omar Khadr, a Canadian citizen who was captured in Afghanistan when he was 15, was one of the first ten GTMO detainees to be charged. He was accused of violating the laws of armed conflict—as reinterpreted by the US government after 9/11—for being an unlawful enemy combatant who allegedly threw a grenade that killed a US soldier. At Bagram, he was beaten; threatened with rape and snarling dogs; hung by his wrists for hours, which exacerbated the pain of his gunshot injuries; and hooded and soaked with water until he began to suffocate. His captors also shined bright lights into his eyes, which had been damaged by shrapnel. At GTMO, Khadr was again beaten and threatened with rape and dogs, had his hair pulled out, was subjected to protracted sleep deprivation under the “frequent flyer program” (i.e., protracted sleep deprivation) and was doused with a pine-scented cleaner and used as a “human mop” on the floor where he urinated after being denied access to a toilet. He was sequestered in isolation for protracted periods, and force fed after he joined the prisoners` hunger strike.

Khadr’s legal team, which underwent several transformations over the years, was originally composed of Rick Wilson and his American University colleague Muneer Ahmad (now at Yale). At their first meeting in November 2004 and again the following April, the lawyers administered psychological questionnaires to Khadr, which they showed to two doctors who assessed that he displayed symptoms of post-traumatic stress disorder. They filed motions on Khadr’s behalf, O.K. v. Bush, seeking to force the government to provide them with his medical records and to bar further interrogations. They lost.

The first military lawyer assigned to Khadr’s case, Lt. Col. Colby Vokey, was joined and then succeeded by Lt. Cmdr. William Kuebler and Lt. Rebecca Snyder. Two Canadian lawyers, Nathan Whitling and Dennis Edney, provide legal counsel but, as non-Americans, could not defend him in the military commissions. In September 2008, the judge assigned to the case, Col. Patrick Parrish, rejected the defense motion that these commissions do not have jurisdiction over crimes of a child soldier, but in October 2008 he suspended the case until after the November elections.

When Barack Obama assumed the presidency, there was hopefulness among the rule of law restoration crowd that the idea of prosecuting a child soldier for war crimes (the first since the Nuremberg tribunals) would be abandoned in favor of the internationally sanctioned route of rehabilitation. That hope was dashed in October 2009 when Obama signed into law a new MCA. In November, Attorney General Eric Holder announced that Khadr was one of five people slated for prosecution under the re-revised military commissions. Khadr`s new military lawyer was Lt. Col. Jon Jackson.

In April and May 2010, the Khadr case moved into the phase of pre-trial hearings on defense motions to challenge and suppress self-incriminating statements he gave to interrogators at Bagram and GTMO. Among the witnesses at those hearings were several interrogators, jailers and medical providers who testified about how he had been threatened with prison gang rape by “big black guys and neo-Nazis,” beaten and put into stress positions, and denied adequate pain medicine for his injuries. The 2009 MCA prohibits the use of statements elicited through CID, but it falls on military judges to determine what those standards are and how they apply in specific cases. Jennifer Turner, the ACLU monitor who attended the April-May hearings, reported that “the prosecution objected constantly to questions the defense asked of interrogators, especially about standard operating procedures. The judge kept sustaining those prosecution objections.” Jackson told the Miami Herald’s Carol Rosenberg,

I never envisioned a scenario in my career as an Army lawyer that would require me to defend a child-soldier against war crimes charges levied by the United States. I always believed we were better than that.

On August 9, 2010, Judge Parrish ruled that all Khadr’s self-incriminating statements were valid because he had found “no credible evidence” of torture. The Khadr trial started on August 10, but was suspended the same day when Jackson collapsed in court from a medical condition. In October, a plea bargain was negotiated in which Khadr pleaded guilty to all charges and was sentenced to eight more years, with the agreement that he can petition Canada after one year to be repatriated to serve the remainder there. 

Litigating the Torture Legacy

In 2008, the Supreme Court ruled in Boumediene v. Bush that the 2006 MCA’s jurisdiction stripping was unconstitutional and that GTMO detainees have a constitutional right to habeas corpus because the US exercises “de facto sovereignty” on the base. This decision opened federal courts to habeas petitions filed by members of the GTMO bar. When judges in the lower courts began reviewing the circumstances of detainees’ arrests, conditions of confinement, interrogation treatment, and the contents and quality of the government’s evidence to justify their continued detention, the petitioners won—and the government lost—over 70 percent of the cases. But the government appealed almost every loss, and the DC Circuit Court of Appeals reversed the lower court on every decision clearing a detainee, demonstrating its intention to prevent any prisoners from being released from GTMO on a court order.

Of the 779 prisoners ever brought to GTMO, only 36 have been charged or designated for prosecution. The work of lawyers in exposing torture has been critical in the withdrawal of charges against five GTMO prisoners: Muhammad Jawad, an Afghan who was estimated to be about 12 at the time of his capture and transfer to GTMO in 2002, was accused of throwing a grenade at a passing convoy that wounded two US soldiers and their translator. At a pre-trial hearing on June 19, 2008, his military lawyer, Maj. David Frakt, moved to have the charges dismissed on the grounds of torture and outrageous government conduct. The prosecutor assigned to the case, Lt. Col. Darrel Vandeveld, had resigned in protest. Frakt and Vandeveld cooperated to expose the extent of the frequent flyer program at GTMO. The military judge refused to dismiss Jawad’s charges on those grounds, although, paradoxically, he did recommend that those directly involved in Jawad’s abuse be disciplined. In 2009, the federal judge who heard Jawad’s habeas motion ruled that he was a non-combatant. Finally, a military judge dismissed the charges because the only government evidence to support the allegation that he threw the grenade was false tortured statements he had made at Bagram. He was repatriated to Afghanistan in August 2009. (Jawad would have been transferred to Afghan custody at Pul-e-Charki prison, but one of his military lawyers flew to Afghanistan to precede his arrival and intervened with the government to prevent that.)

British resident Binyam Mohamed was arrested by the Pakistanis at the Karachi airport in April 2002 and then transferred to US custody in Afghanistan in May. In July, the CIA extraordinarily rendered him to Morocco where he was brutally tortured for 18 months (including having his penis sliced with a razor), following which he was rendered back to Afghanistan and held in a black site. In September 2004, he was transferred to Guantánamo, where he was charged with providing material support for terrorism. But the allegations were false, and he was cleared, released and repatriated on February 23, 2009. Mohamed’s account of British security agents’ collusion in his torture led to the first criminal investigation in that country for complicity in the US extraordinary rendition program, and he was one of six former GTMO prisoners who sued the British government for abetment of torture. In December 2010, the government paid them millions of dollars in compensation to derail further investigation and the consequences that might derive.

Mohamedou Ould Slahi, a Mauritanian, was arrested by his own government at the behest of the US. He was turned over to Jordan for interrogation, then extraordinarily rendered to Afghanistan before ending up at GTMO. He was suspected of being involved in al-Qaeda plots and was touted by Bush administration officials as the “highest value” GTMO detainee (before the September 2006 transfer of 14 from black sites). These allegations were based largely on his own tortured confessions and statements elicited by HVDs in CIA custody. A military prosecutor, Lt. Col. Stuart Couch, resigned to protest the plans to prosecute Slahi on the basis of tortured evidence. In March 2010, a judge who reviewed Slahi’s habeas petition condemned the government for egregious abuses. These included taking him in a boat off the coast of GTMO and threatening to drown him, and telling him that his mother had been arrested and would become the first female prisoner at GTMO. In June, the Obama administration filed papers urging an appeals court to reverse the judge’s release order to release him. Jonathan Hafetz, one of the civilian attorneys who represented him, said, 

Salahi`s case is a national disgrace - rendition, brutal torture, and eight years of arbitrary detention without charge or any reliable or credible evidence. Regrettably, rather than ending this shameful episode that flouts the rule of law, and repatriating Salahi, the government is seeking to prolong his illegal imprisonment.

Six GTMO prisoners are accused of conspiring in the perpetration of the 9/11 terrorist attacks: KSM, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali, Walid bin Attash and al-Qahtani (the alleged 20^th hijacker). In November 2008, then-Convening Authority for the military commissions Susan Crawford said that al-Qahtani could not be prosecuted because he had been so badly tortured by the military at GTMO. On November 13, 2009, Holder announced that the other five would be moved to New York, “the scene of the crime,” to stand trial in federal court. But in response to withdrawal of support for the plan from local officials and ardent condemnation by Republican leaders, that plan was shelved. In January 2011, Congress attached an amendment to the Defense Authorization Bill prohibiting trials of GTMO detainees in federal courts. On May 30, 2011, military commissions charges were referred for the five 9/11 suspects. Whenever their cases move to trial, their torture and abuse in CIA custody will certainly be an issue.

Litigating Accountability

During the Bush years, the Supreme Court overturned a few lower court decisions to rule against the administration in cases involving the habeas rights of people detained as unlawful combatants and against Congressional jurisdiction-stripping legislation (Rasul, Hamdan, and Boumediene). But in civil suits brought by plaintiffs who were tortured by US agents or government-hired contractors, or extraordinarily rendered by the US to other countries for torture, no court has provided meaningful redress for victims or accountability for individual perpetrators or the authors of the torture policy. Considered together, these decisions are jurisprudentially incoherent except in sanctioning official impunity.

Khaled El Masri, a German citizen, attempted to sue the US officials responsible for his extraordinary rendition and torture. In December 2003, he was kidnapped by the CIA in Macedonia and disappeared into a black site in Afghanistan where he was tortured for five months. When the CIA realized that his arrest was a case of mistaken identity, rather than apologizing or acknowledging what they had done, they dumped El Masri in a remote region of Albania, from which he eventually made it back to Germany. On December 5, 2005, the ACLU filed El Masri v. Tenet in the Eastern District of Virginia. The defendants were CIA Director George Tenet, ten unnamed CIA agents and ten unnamed employees of the private corporation whose planes were contracted to transport El Masri between southern Europe and Afghanistan. The government asserted the “state secrets” privilege, arguing that to reveal information about the decision making that led to El Masri’s kidnapping or his treatment in CIA custody would violate national security. On May 12, 2006, the District Court dismissed El Masri’s case. One month later, the Council of Europe released the report of its investigation into illegal US activities, finding that 100 people -- including El Masri -- had been kidnapped by the CIA on the continent.

[Khaled El Masri]

On appeal to the Fourth Circuit, El Masri’s attorneys charged that the district court had made a legal error by endorsing the government’s overly broad interpretation of state secrets in this case; in the past, the doctrine had been used to limit or restrict specific pieces of sensitive evidence, not to entirely block litigation alleging egregious government misconduct. But the dismissal was upheld by the Fourth Circuit, and on October 9, 2007, the Supreme Court declined to hear El Masri’s appeal.

Maher Arar, a Canadian citizen, was taken into incommunicado custody while transiting through the John F. Kennedy airport in New York in September 2002. He was extraordinarily rendered to Syria where he was tortured for ten months. When the Syrians decided that he was innocent of all the allegations provided to them by US officials, he was released and repatriated to Canada. On January 22, 2004, CCR attorneys David Cole and Maria La Hood filed Arar v. Ashcroft in the Eastern District of New York. The defendants were US officials serving at the time of Arar’s arrest and rendition: Attorney General John Ashcroft, Deputy Attorney General Larry Thompson, FBI Director Robert Mueller, Secretary of Homeland Security Tom Ridge, Commissioner for the Immigration and Naturalization Service (INS) James Ziglar, three other named immigration officials and ten “John Does” from the FBI and INS. Arar’s attorneys alleged that his treatment violated US obligations under the Convention against Torture, and proffered his right to sue under the federal Torture Victims Protection Act.

[Maher Arar]

In 2005, the government moved to shut down the litigation by invoking state secrets, asserting that the discovery of information about the decision making that led to Arar’s rendition to Syria would reveal sensitive intelligence gathering methods and would be harmful to US national security and foreign relations. On February 16, 2006, Judge David Trager dismissed Arar’s suit on the grounds that national security and foreign policy considerations are the purview of the executive branch and Congress, and even if US officials’ conduct violated treaty obligations or customary international law, the courts can provide no remedy. Trager also dismissed Arar’s claims of due process violations while he was detained in the US on the grounds that, as a non-citizen who had not been “admitted” into the US (he was held in the security zone of JFK airport), he had no constitutional standing to make such claims.

The Canadian government conducted its own investigation which completely exonerated Arar, issued an official apology for providing false information that led to his arrest and paid him $10 million in compensation. Despite this, the US barred him from traveling into the country in October 2007 to testify before Congress at a hearing that was examining his case and the policy of extraordinary rendition; he testified by video link. (His name remains on a no-fly list compiled under Bush and maintained under Obama.) On June 30, 2008, in a 2-1 vote, the Second Circuit dismissed Arar’s case on the grounds that adjudicating his claims would interfere with national security and foreign policy. The dissenter, Judge Guido Calabresi, wrote that this decision gives federal officials the license to “violate constitutional rights with virtual impunity.” 

In August 2008, the Second Circuit decided to rehear Arar en banc (i.e., full panel of judges). On November 2, 2009, the Second Circuit ruled (7-4) to affirm earlier rulings that someone who was tortured by proxy at the behest of American officials can find no civil remedy in US courts. Judge Calabresi, again dissenting, decried the majority’s “utter subservience to the executive branch,” its misunderstanding of the Torture Victims Protection Act and the federal statute that prohibits torture and refoulement. In his dissenting opinion, Calabresi wrote that the “holding that Arar, even if all of his allegations are true, has suffered no remedial constitutional harm legitimates the Government’s actions in a way that a [mere] state secrets dismissal would not. The conduct that Arar alleges is repugnant, but the majority signals -- whether it intends to or not -- that it is not constitutionally repugnant” [emphasis in original]. On June 14, 2010, the Supreme Court issued a 22-word decision declining to hear Arar’s case on appeal, leaving intact the Second Circuit’s ruling.

Lawsuits have also targeted corporate colluders in government torture. Binyam Mohamed was one of five plaintiffs who sued the private corporation that provided the planes and pilots used in their extraordinary rendition to torture. In May 2007, the ACLU filed Mohamed et al v. Jeppesen Dataplan, Inc. in the Northern District of California. The government invoked state secrets and in February 2008, the case was dismissed. The ACLU appealed to the Ninth Circuit. At the appeals hearing in February 2009, one month into the Obama presidency, one of the judges asked if there would be a change in the government’s position in this case, to which the answer was no. In April, the court reversed the district court’s decision, ruling that the government cannot invoke the state secrets privilege to dismiss the entire suit. The case would have been remanded back to district court, but the Obama administration appealed that decision and requested an en banc hearing. The oral arguments took place in December 2009, and on September 9, 2010, the Ninth Circuit dismissed Mohamed on the ground of “state security.” The ACLU appealed to the Supreme Court, which declined to hear the case in May 2011.

In Saleh v. Titan/CACI, more than 250 Iraqis, represented by CCR, sued the security contractors from two firms which were involved in their torture and abuse at Abu Ghraib. A District Court provided a summary judgment against CACI. However, on September 11, 2009, the DC Circuit Court of Appeals ruled that both corporations were engaged in combat activities and therefore have immunity from any civil liability, including for torture. Lawyers appealed this decision, and the Obama administration filed motions opposing further hearings. On June 27, 2011, the Supreme Court declined to hear the case. According to Rona of HRF,

Last week on the International Day in Support of Victims of Torture, President Obama proclaimed that the United States “will remain a leader in the effort to end torture around the world and to address the needs of torture victims.” Nothing undermines the credibility of the United States as a voice for human rights and for respect for the rule of law more than its hypocritical dismissal of the suffering of torture victims at the hands of the US government and its agents.

Conclusion

Has the decade-long anti-torture legal campaign been a failure? Yes, if the evaluation is based on the overall outcome of cases; US courts have overwhelmingly refused to provide accountability for perpetrators or justice for victims. To a large extent, the radical reinterpretations of international law devised by the Bush administration remain operative. Consequently, some lawyers have drawn bleak conclusions about the fruits of their labors. Joe Margulies has written that he now looks back on Rasul as a failure.

But in 2002, there was no other choice. The Bush Administration had created a prison beyond the law, Congress was a stony monolith, and the parents and family of lost prisoners pleaded that their loved ones not be abandoned. At that moment, there was no choice but to litigate. He would do it again tomorrow, were the circumstances the same. His mistake, for which he takes sole responsibility, was to believe that law, in an intensely legalistic society, was enough.

In my opinion, this legal campaign has not been a failure, despite the losses. Were it not for the work of lawyers and their allies, the torture policy would not have been challenged at all. Moreover, the legitimacy and necessity of litigation (on any socially significant matter) cannot be judged solely by the outcome of cases. The very act of going to court serves at least two important functions: It demonstrates a commitment to the norms and laws that torture is always and everywhere illegal, and it creates a record of struggle to defend human rights and enforce international law. This campaign will be important in the future, perhaps even more than at present, as a record of resistance to inhumanity and dehumanization. Like the long struggles against slavery and de jure racism, those who fought and lost are remembered today for being on the right side of history, and those fights eventually paid off. Those who have been engaged in this legal campaign were willing to devote themselves, sometimes at the risk of their reputations and careers, to fight the authorization and pervasive use of torture and CID.

Any good student of “law in action” knows the importance of the long view in assessing the impact of legal initiatives and activities. Perhaps there is a lesson and a hope to be drawn from other contexts where governments engaged in massive violations of human rights and the rule of law. For example, in the 1990s, retributive justice initiatives started to sweep through Latin America against the torturers and murderers of previous regimes. The passage of time and the changed political environment opened up new opportunities that had seemed impossible a decade earlier. To these ends, the record of authoritarian-era struggles by lawyers and human rights activists that had borne little fruit at the time became a critical factor in more recent quests for justice and accountability.

Such a prospect for the US in the future is by no means a sure thing. But to make it a possibility, there is work to be done in the court of public opinion. This involves challenging the specious lies that torture “works,” and attacking interpretations of law that would create rights-free zones and rightless individuals. When national leaders of the world’s lone superpower endorse or excuse torture, and courts provide impunity, the adverse consequences are international and global. By the same measure, every fight against torture anywhere in the world is an expression of respect for the rule of law and a defense of the most important human right. In the US, the fight against torture has been hard, often frustrating, and has produced few victories. But it is the good fight, and those who have made this history have done a service for us all.