Harvard Universitys Human Rights Program: Since the United States last reported to the Committee Against Torture in 2006, even more evidence has emerged confirming that civilian and military officials at the highest level created, designed, authorized, and implemented a sophisticated, international criminal program of torture. In August 2014, President Barack Obama conceded that the United States tortured people as part of its so-called War on Terror, yet the United States continues to shield senior officials from liability for these crimes, in violation of its obligations under the [UN] Convention Against Torture. [...] The post-9/11 U.S. torture program is breathtaking in scope. Two presidential administrations are implicated—one through design and implementation, the other primarily (though not exclusively)8 through its cover-up and obstruction of justice. The program was conducted in the U.S. Guantánamo Bay Military Base, Cuba, as well as in secret locations around the world in collaboration with fifty-four countries, including Bosnia-Herzegovina, Canada, Djibouti, Egypt, Indonesia, Iraq, Italy, Jordan, Libya, Lithuania, Mauritania, Morocco, Pakistan, Poland, Romania, Russia, Syria, Thailand, the United Arab Emirates, the United Kingdom (Diego Garcia), and Yemen. The program was conceived and authorized at the highest levels in the United States government. [...] The [U.S. Office of Legal Counsel] justified the use of techniques like near-drowning (waterboarding), stress positions, sleep deprivation, and forced nudity by adopting an absurdly narrow legal definition of torture, described by the former Dean of Yale Law School Professor Harold Koh as so narrow that it would have exculpated Saddam Hussein. [...] The legal rationales offered by U.S. officials in attempts to shield those responsible for torture, including those at the highest levels, are contrary to international law, in addition to being flawed, facially inapplicable to many senior officials, and inconsistent. [...] Reliance on severely flawed legal advice cannot be invoked as a defense to torture. First, reliance on advice of counsel cannot be a defense if, as the evidence suggests, the OLC memoranda were reverse engineered in pursuit of a specific result. An internal government investigation found evidence that the OLC attorneys were aware of the result desired by the client and drafted memoranda to support that result, at the expense of their duty of thoroughness, objectivity, and candor. ... Nor can the rationale apply in those cases when the legal memoranda were issued after the fact, in what would seem like an effort to justify and shield from criminal or civil liability conduct that was already underway. [...] Counselor of the Department of State Philip Zelikow reported that a memorandum he had written in opposition to the authorization of enhanced interrogation techniques had been ordered collected and destroyed. In late 2002, the Legal Counsel to the Chairman of the Joint Chiefs of Staff commenced an independent legal review into the legality of proposed interrogation techniques, prompted by serious concerns raised by senior military lawyers at the Air Force, the Navy, the Marine Corps, the Office of the Judge Advocate General, and the Criminal Investigation Task Force. The Chairman of the Joint Chiefs of Staff (at the request of the General Counsel of the Department of Defense William Haynes II) quickly shut it down. The deliberate sidelining and suppression of senior dissenting voices further underlines that the OLC memoranda were authored and applied as a legal pretext for what was known to be unlawful. [...] Finally, the prohibition against torture is absolute. The United States’ shielding of senior military and civilian officials who authorized, acquiesced or consented to torture violates the principle of non-derogability as understood in the Committee’s General Comment No. 258 and places the United States in continued breach of its obligations under the Convention [Against Torture]. The Convention provides that neither exceptional circumstances nor an order from a superior officer may be invoked as a justification of torture. [...] The United States has blocked or failed to cooperate with pertinent criminal proceedings in foreign courts, including those of France, Spain, and Italy. The Bush and Obama administrations and the United States Congress have repeatedly blocked attempts at redress in civil courts by torture survivors and the relatives of torture victims. The Department of Justice under both administrations has invoked jurisdictional and immunity doctrines to shield government officials from civil liability for torture, and U.S. courts have largely deferred to the government’s arguments. [...] The Defense Department created Behavioral Science Consultation Teams, staffed with psychologists and psychiatrists who also developed torture techniques, advised interrogators on how to exploit prisoners, and calibrated their pain. To protect them from professional liability, the Defense Department promulgated policies asserting that these psychologists, because they were not ‘charged with the medical care of detainees, were not subject to a duty to limit or avoid harm. The Defense policies conflate[d] legal standards with ethical ones, effectively declaring ethical anything that did not violate criminal laws—the same laws that the Justice Department was busy redefining. By building these shields, the United States successfully set the stage for immunity and impunity in the sphere of professional regulation as well. To date, none of the psychologists who played key roles in the torture program has been disciplined by a licensing board or professional association. [...] In responding to the Committee’s Question 23(a) regarding the obligation to investigate acts of torture (Article 12), the United States entirely failed to address the Committee’s specific request for information related to investigations and prosecutions of senior military and civilian officials. Neither the Department of Justice nor the U.S. military has prosecuted any senior-level officials who are alleged to have committed, ordered, or been complicit in the torture in the context of the so-called war on terror. Despite this evident lack of accountability, the Government Report ignored the Committees reference to senior officials, instead pointing to 100 low-level service members that have been court martialed for mistreatment of detainees. [...] [T]he Government Report conspicuously omits reference to the War Crimes Act (18 U.S.C. 2441) in its list of laws that provide jurisdiction to prosecute for the torture and ill-treatment of detainees. This omission is the latest in a series of steps taken by the United States to water down or evade its obligation to prosecute war crimes. ... The government has also blocked redress for survivors by arguing that the judicial imposition of such liability threatened national security, and by invoking a vast state secrets privilege that suppressed information necessary to the victims claims. [...] The United States should promptly and impartially prosecute senior military and civilian officials responsible for authorizing, acquiescing or consenting in any way to acts of torture committed by their subordinates. This recommendation is supported by and builds on recommendations made by this Committee, as well as by the Human Rights Committee, the Special Rapporteur on torture, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on health, the Special Rapporteur on freedom of religion, and the Working Group on Arbitrary Detention. These UN bodies have been calling for independent and impartial investigations of all perpetrators, including highest-level civilian and military officials, since 2006. In its most recent 2014 review of the United States, the Human Rights Committee specifically recommended that persons in positions of command, are prosecuted and sanctioned, and that the ‘responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. Harvard Law School - Shadow Report to the United Nations Committee Against Torture on the Review of the Periodic Report of the United States of America (September 29, 2014): [hrp.law.harvard.edu/wp-content/uploads/2014/10/CAT-Shadow-Report-Advocates-for-US-Torture-Prosecutions.pdf]
Posted on: Fri, 31 Oct 2014 04:05:26 +0000
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