Accountability for Human Rights Abuses by the United States

1. Accountability for Human Rights Abuses by the United States Thematic Hearing before the Inter-American Commission on Human Rights March 20, 2009

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

3. Purpose of This Hearing • Address the United States Government’s failure, thus far, to hold persons accountable for detainee abuse, torture, and other human rights abuses. • Seek specific recommendations by the Commission that the United States Government satisfy its legal obligations as to these abuses.

4. Summary of Facts Incontrovertible evidence exists of detainee abuse committed by U.S. Government officials and military personnel. ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody February 2007 • Suffocation by water or waterboarding • Prolonged stress standing • Beating by use of a collar • Confinement in a box • Prolonged nudity • Sleep deprivation • Subjection to noise and cold water • Denial of solid food “The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture.  In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”

5. Summary of Facts Examples of reports and statements confirming these abuses:

6. Summary of Facts High-ranking former Government officials have publicly admitted to authorizing the use of torture on detainees. Former President Bush January 11, 2009

7. Summary of Facts The United States Government has yet to hold high-ranking officials accountable for these abuses.

8. Summary of Facts Rather, the current administration has indicated its disinclination to hold human rights abusers accountable: • “The prospect of individual liability increases the likelihood that officials will make decisions based upon fear of litigation rather than appropriate military policy.” U.S. Department of Justice, Supplemental Brief, Rasul v. Rumsfeld, March 12, 2009. • “Two Obama advisers said there's little—if any—chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.” Advisers to President-elect Obama, Huffington Post, Nov. 18, 2008.

9. Legal Obligations The United States has a legal obligationto effectivelyinvestigate, prosecute, and punish those responsible for human rights violations, and to protect victims’ rights to truth, justice, and reparation for these crimes.

10. Legal Obligations Duty to Investigate, Prosecute, and Punish • Enforcement of the law will: • Promote respect for the rule of law • Provide justice and healing to victims • Deter the commission of human rights abuses • Failure– or refusal – to hold criminals accountable will: • Generate impunity • Deny victims their right to justice • Condone human rights violations • Create conditions that increase the likelihood of torture • Reduce the United States’ credibility

11. Legal Obligations The United States has a duty to protect victims’ rights: Right to Truth • Effective investigation • Reveal the facts • Reveal the extent of the Government’s involvement • Identify those responsible Right to Justice • Prompt recourse to a competent tribunal Right to Reparation • Sufficient • Effective • Prompt • Proportionate

12. Obstacles to Accountability Denying Access to the Courts The Military Commissions Act Denial of Geneva Conventions Protections • Section 5 prohibits any person from: • Invoking Geneva Conventions as source of rights • In habeas or civil proceedings • Against current or former U.S. officials or military personnel This provision: • Precludes enforcement of basic human rights protections • Denies victims right to justice • Inhibits victims’ right to reparation

13. Obstacles to Accountability Denying Access to the Courts The Military Commissions Act Denial of Access to Courts • Section 7 denies alien detainees: • The right to habeas corpus • Access to U.S. courts for any other action • Applies to detainees held since 9/11/01 This provision: • Denies victims access to courts and right to justice • Eliminates possibility of obtaining reparation • Deprives victims of right to truth

14. Obstacles to Accountability Denying Access to the Courts The Military Commissions Act Redefining War Crimes • Section 6 redefines war crimes by: • Removing “humiliating and degrading treatment” entirely • Defining “cruel or inhuman treatment” more narrowly if committed after 10/17/06 This provision: • Prevents punishment of war crimes • Deprives victims of right to truth • Condones serious human rights abuses • Creates impunity • Denies right to justice

15. Obstacles to Accountability Using Immunities and Defenses to Impede Accountability The Military Commissions Act “Advice of Counsel” Defense • Section 8(b) precludes culpability for war crimes: • Approved by the U.S. Government • Authorized by “advice of counsel” • Occurring between 9/11/01 – 1/30/05 This provision: • Grants immunity to human rights abusers • Violates international law • Creates a culture of impunity • Precludes civil and criminal accountability • Denies right to truth, justice, and reparation

16. Obstacles to Accountability Using Immunities and Defenses to Impede Accountability Misuse of the State Secrets Doctrine Intended Purpose: • Evidentiary privilege • Withhold specific evidence to protect national security Misuse: • Invoked to have cases dismissed entirely This practice: • Prevents victims from knowing truth about abuses • Denies justice todetainees and other victims • Shields perpetrators from accountability

17. Obstacles to Accountability Using Immunities and Defenses to Impede Accountability “Qualified Immunity” Defense Intended Purpose: • Protect officials from frivolous lawsuits Misuse: • Invoked to preclude liability for torture and other abuse • Claimed detainees’ right to freedom from torture “not clearly established” This practice: • Prevents victims from knowing truth about abuses • Denies victims right to justice • Precludes possibility of obtaining reparation

18. Obstacles to Accountability Using Statutes of Limitation to Preclude Prosecutions Existing statutes of limitation: • Most U.S. federal crimes: 5 years. • Torture (not resulting in death): 8 years. • Torture (resulting in death): none. • Conspiracy:5 years. Statutes of limitation for human rights abuses: • Violate international law • Impede victims’ rights to justice and reparation • Contribute to an environment of impunity The United States Government must: • Initiate criminal investigations into abuses • Amend U.S. law to toll or repeal statutes of limitations

19. Obstacles to Accountability Bilateral Immunity Agreements (BIAs) BIA Policy: • United States has signed 100+ BIAs with other countries • Congress recently rescinded legislation authorizing the BIA policy • But BIAs have not yet been revoked Enforcement of BIAs would: • Grant immunity for war crimes and crimes against humanity • Deny right to redress and justice • Encourage countries to ignore obligation to punish abuses The United States Government should: • Revoke BIAs • Sign and ratify Rome Statute

20. Proposed Accountability Measures Various accountability measures might be used to address these abuses: • Criminal investigations and prosecutions • Commissions of inquiry • FOIA requests and litigation • Reparations

21. Proposed Accountability Measures Criminal Investigations and Prosecutions The United States has a legal obligation to conduct criminal investigations and prosecutions of human rights abuses. Criminal trials would: • Restore victims’ rights to truth and justice • Afford victims and society right to know extent of Government’s involvement • Deter future abuses • Reaffirm commitment to human rights and rule of law The United States Government must: • Effectively investigate human rights violations • Identify perpetrators • Prosecute and punish those responsible

22. Proposed Accountability Measures Commissions of inquiry A commission of inquiry would: • Afford victims and society the facts about abuse • Identify those responsible A commission of inquiry would not: • Hold perpetrators accountable • Grant reparations to victims • Satisfy the United States’ legal obligations, if immunity is granted The United States must: • Effectively investigate human rights abuses • Identify those responsible

23. Proposed Accountability Measures FOIA requests and litigation • Used to secure information about violations of law committed by United States Government officials • But only provide a partial view, and cannot serve as primary means of obtaining truth about abuses • The United States Government itself must investigate: • abuses committed • extent of the Government’s role in those abuses • rationale for the decisions to implement these policies • ramifications of these events

24. Proposed Accountability Measures Reparations The following forms of reparation may be required: • Restitution • Restore victims to place of residence or another country where they will be safe from harm • Compensation for: • Physical or mental harm • Lost opportunities and lost earnings • Medical and legal fees • Rehabilitation, including: • Medical or psychological care • Social or legal services • Satisfaction • Reveal truth about abuses • Issue public apology

25. Conclusion Evidence of human rights violations committed by United States Government officials is incontrovertible. To meet its legal obligations, United States Government must: • promptly and effectively investigate abuses • ensure those responsible are held to account • provide adequate reparation to victims of abuse

26. Request Issue recommendations that the United States Government: • Initiate criminal investigations and prosecutions • Reform laws that deny victims the right to truth, justice, and reparation • Undertake other institutional reforms necessary to bring Government into compliance with international legal obligations • Make any and all necessary reparations, including issuing a public apology to victims