AFJ joins "Public Witness Against Torture"

By Matthew Greig
AFJ Klagsbrun Fellow

On June 26, Alliance for Justice participated in a Public Witness Against Torture event on Pennsylvania Avenue just outside the White House. This event commemorated the United Nations International Day in Support of Torture Victims and called for the closing of Guantanamo.

Photo by Elana Kessler

Sponsored by National Religious Campaign Against Torture, this event was held as a part of Torture Awareness Month.  The International Day in Support of Victims of Torture was named by the United Nations in June 26, 1997 to commemorate the 10th anniversary of the date that the Convention Against Torture came into force.  Torture Awareness Month honors that day and extends the campaign throughout the month of June. Some of the national groups participating in Torture Awareness Month include: American Civil Liberties Union, Amnesty International USA, Center for Constitutional Rights, Center for Victims of Torture, Human Rights First and Human Rights Watch.

It was incredibly moving to hear the stories of those of not only the Guantanamo prisoners themselves, but also their families.  This event was held against the backdrop of the ongoing hunger strike at Guantanamo.  We at Alliance for Justice have been concerned about torture for many years.  Our 2009 First Monday video, Tortured Law, is a 10-minute documentary that examines the role lawyers played in authorizing torture.



The video was used to spark debate across the country.  It called on Attorney General Eric Holder to uphold the Constitution and the law by releasing the Justice Department’s report on the “torture memos” and authorizing a full investigation of those who ordered, designed, and justified torture.

Bipartisan task force concludes: Yes, it WAS torture

In 2009, Alliance for Justice released a ten-minute documentary, Tortured Law, showing how lawyers in the Justice Department’s Office of Legal Counsel (OLC) tortured the law itself to justify the use of unthinkably cruel interrogation techniques on alleged terror suspects.

Although these techniques were clearly torture under U.S. law, international law, and basic standards of human decency, the OLC lawyers developed an extremely stringent and self-serving definition of torture in their effort to allow this inhuman conduct. The Bush Administration followed this legal advice, and engaged in torture.


At the end of the documentary we asked: “How can we move forward without documenting what went wrong and holding accountable those who led America astray?”We called on Attorney General Eric Holder to launch a full investigation.

He refused. Congress also looked the other way.

Fortunately, a group of private citizens has taken up the challenge.The Constitution Project brought together a Task Force on Detainee Treatment. The Constitution Project did not “round up the usual suspects” to serve on the task force. It is co-chaired by former Republican Rep. Asa Hutchinson of Arkansas. Rep. Hutchinson served in multiple roles in the administration of President George W. Bush. And if his name seems familiar, it may be because of another task force he chaired – the one convened by the National Rifle Association after the Newtown shootings. Other members include William Sessions, named to run the FBI by President Reagan, and Thomas Pickering, Ambassador to the United Nations during the George H.W. Bush Administration.

The task force report was released this morning. It is a compelling and disturbing narrative that should shock the national conscience and renew demands for accountability. It covers a wide array of issues. We focus here on the issues covered in Tortured Law.

The task force concluded that the conclusions drawn by AFJ – and many others, were correct. As the task force put it:

Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture. [Emphasis in original.]

The task force is scathing in its condemnation of the top-level lawyers who denied that torture was torture:

Lawyers in the Justice Department provided legal guidance, in the aftermath of the attacks, that seemed to go to great lengths to allow treatment that amounted to torture. To deal with the regime of laws and treaties designed to prohibit and prevent torture, the lawyers provided novel, if not acrobatic interpretations to allow the mistreatment of prisoners.

The report includes a comprehensive series of recommendations, including some to ensure that the Office of Legal Counsel abides by the law – and that officials are held accountable in the future when they follow clearly erroneous legal advice. These recommendations include:

• Consultation: OLC must should always consult with subject matter experts at the agencies impacted by its legal advice, and when it gives advice that is contrary to that of experts, it should “include and clearly outline opposing legal views to its own” and explain why it rejected that advice.
• Accountability: Congress should amend federal law to make clear that in the future, “in situations where a person or ordinary sense and understanding would know that their treatment of a detainee inflicts or is likely to result in severe or serious physical or mental pain or suffering, reliance on advice of counsel that their actions to not constitute torture or war crimes shall not be a complete defense.”
• Transparency: OLC periodically should review old opinions that have been kept secret to see if they can be declassified. “If any and all opinions from the OLC might someday, at the appropriate time, be disclosed,” the task force says, “OLC attorneys would be more mindful of their responsibility to act in an impartial manner on behalf of the nation and less likely to engage in advocacy that could later prove to have been misguided.”

AFJ supports these recommendations and calls on the Obama Administration and Congress to implement them.It is the least we can do to live up to our founding principles of freedom and democracy.

New York Times story on the task force report

More AFJ resources on torture

D.C. Circuit strikes blow against military commissions in Hamdan v. U.S.

The Court of Appeals for the D.C. Circuit recently dealt a blow to the military commissions used as a substitute for civilian trials to try alleged enemy combatants, holding that the retroactive application of the Military Commissions Act violates the Constitution. While the military commissions used to convict detainees have been criticized by civil and human rights advocates, efforts to try suspects in federal court have stalled in the face of political opposition.

Following the September 11, 2001 terrorist attacks, President George W. Bush issued an executive order establishing military commissions to prosecute alleged al Qaeda members and “aiders and abettors.” Salim Hamdan, Osama bin Laden’s driver and body guard, was captured in November 2001. He was then tried in a military commission as an unlawful enemy combatant and was eventually convicted of conspiracy. Hamdan challenged the President’s authority to set up war crimes tribunals. In 2006, Hamdan v. Rumsfeld reached the Supreme Court, which held that President Bush’s military commissions violated the Geneva Conventions and Uniform Code of Military Justice without Congressional authorization. The Court suggested that Congress make clear the scope of the President’s authority. In response, Congress passed the 2006 Military Commissions Act (MCA), which expanded the President’s power to try alleged enemy combatants in military tribunals.

The government then charged Hamdan with conspiracy and with material support of terrorism, one of the new charges added by the MCA. The D.C. Circuit found that the 2006 Military Commissions Act essentially created new illegal acts in violation of the Constitution. The court explained that no international treaty made material support a crime, nor was it a crime under customary international law. It’s not even in the military handbook on the law of war. Under the Constitution, the government cannot retroactively charge Hamdan for acts made illegal after they were committed. 

Salim Hamdan’s has already finished serving his sentence and may not be greatly affected by the decision in his case. However, the D.C. Circuit’s holding undermines the legitimacy of many of the military commissions’ past convictions; as Adam Serwer explains in Mother Jones, “[e]very single detainee at Gitmo who has been convicted by military commission has been at some point charged with material support for terrorism . . . . And it's not just material support charges that could be affected. Conspiracy charges, which were also not a war crime under United States law before 2006, could be thrown out for similar reasons.”

Serwer also explains why the military commissions charge detainees with material support so frequently: “prosecutors love material support charges because they're vague and relatively easy to prove. Material support often involves conduct that might not necessarily be violent—like driving bin Laden's car or cooking his food—that somehow helps a terrorist group.”

It is interesting to note that the D.C. Circuit Judge that wrote the opinion in Hamdan v. U.S., Judge Brett Kavanaugh, a George W. Bush nominee who is a favorite of conservatives. 

Alliance for Justice has strongly opposed the distortion of our legal system during the “War on Terror,” including calling for accountability for those who enacted and carried out the torture of detainees in American custody. To find out more and watch our 2009 film Tortured Law and read about AFJ’s efforts to fight back against these abuses.

A Decade of Guantanamo: Where Do We Stand Today?

Ten years ago this week, the United States opened a detention facility at its naval base in Guantanamo Bay, Cuba.

Since that time, the name “Guantanamo” has come to be associated both in the United States and around the world with torture, lawlessness, indefinite detention, violations of civil rights, violations of international law, and abuse of power. The facility has been open for ten years now, but unfortunately, as Dahlia Lithwick noted this week in Slate, “It’s hard to say anything new about 10 full years of Guantanamo, beyond the fact that most of what we wrote two, four, and seven years ago still holds mostly true.”

As David Cole recognized in the New York Times:

'The existence of Guantanamo likely created more terrorists around the world than it ever detained.’ So said President Barack Obama in 2009, defending his promise to close the prison camp there. He is hardly the only one to hold the view that Guantánamo undermines our security and should be shuttered. Former President George W. Bush, former Secretary of Defense Robert Gates, former secretaries of state Colin Powell and Condoleezza Rice, and Senator John McCain, all agreed that the United States would be better off without Guantánamo. Few images do more to serve Al Qaeda’s interests.

There were hopes that the United States could remove this stain on its national character.  Unfortunately, Congress has imposed restrictions on detainee transfers that have made it much more difficult to turn the page on this sad chapter in American history.

The United States was founded on a set of principles, and those principles are challenged every day by the continued operation of Guantanamo Bay and by everything Guantanamo Bay has come to represent.  Serious accusations have been made that torture was commonplace at Guantanamo, and Alliance for Justice has long advocated for greater accountability for those who legitimized torture at such facilities. We have called on Attorney General Eric Holder to conduct a full investigation of those who authorized torture.

This facility has been allowed to remain open for an entire decade.  It must not remain open any more.

No Court Trial for 9/11 "Mastermind"

Today's New York Times reacts to the symbolism of the Justice Department's decision to reverse course and put Khalid Shaikh Mohammed before a military tribunal instead of a civilian court of law.

According to the Times editorial:

That retreat was a victory for Congressional pandering and an embarrassment for the Obama administration, which failed to stand up to it.

The wound inflicted on New York City from Mr. Mohammed’s plot nearly a decade ago will not heal for many lifetimes, yet the city, while still grieving, has thrived. How fitting it would have been to put the plot’s architect on trial a few blocks from the site of the World Trade Center, to force him to submit to the justice of a dozen chosen New Yorkers, to demonstrate to the world that we will not allow fear of terrorism to alter our rule of law.

But, apparently, there are many who continue to cower, who view terrorists as much more fearsome than homegrown American mass murderers and the American civilian jury system as too “soft” to impose needed justice. The administration of George W. Bush encouraged this view for more than seven years, spreading a notion that terror suspects only could be safely held and tried far from our shores at Guantánamo and brought nowhere near an American courthouse. The federal courts have, in fact, convicted hundreds of terrorists since 9/11. And federal prisons safely hold more than 350 of them.

Click here to read the full editorial.

A tragic anniversary marks the ongoing erosion of the rule of law

On January 11, 2002, 20 captives from the war in Afghanistan were brought to the Guantánamo Bay detention camp and one of the most ignominious chapters in our nation’s history began. On January 11 of this year, after nine years, over 170 are still there, making a mockery of fundamental principles of American justice and the rule of law.

The abuses of Guantánamo are well documented and Alliance for Justice has signed a letter with over 100 other organizations calling for the detention center to be closed and for the Obama Administration to either charge or release the prisoners held there.

Critically, the letter also calls for accountability for the crimes committed against detainees in Guantánamo or elsewhere, including torture and other violations of human rights. It is startling that in spite of significant documentation of the unconscionable and illegal abuse of prisoners, not a single American official has been held publically accountable or referred to a grand jury for prosecution. It is a sad day for the rule of law when former President George Bush can go on national television and admit to authorizing torture in direct contravention to American and international law, and not feel the slightest compunction about doing so.

We remain particularly disturbed that the lawyers who authored memoranda authorizing torture, and whose actions can only be described as a willful perversion of well-established legal principles, have escaped personal or professional responsibility for their actions. For example, John Yoo is a law professor at the University of California at Berkeley and Jay Bybee was given a lifetime appointment to the Ninth Circuit Court of Appeals. No formal action has been taken by any official entity, including the Justice Department or a court of law, to hold any of them accountable or to definitively refute the theories they propounded in the memos, which sought to manufacture a legal framework to justify Bush Administration crimes.

The anniversary we mark with sadness today is a reminder of the fragility of the rule of law and of what is at stake when that principle is ignored. It’s not too late to hold accountable many of the architects of the brutal and illegal policies of the Bush Administration. The Justice Department should appoint an independent prosecutor with a mandate to investigate torture and other crimes and to establish once and for all that we are a nation of laws and that no one is exempt from obeying them, not even the most powerful among us.

As the Guantánamo Bay detention camp enters its tenth year, not only does the fate of the remaining prisoners hang in the balance, so too do the integrity of our legal system and the soul of our nation.

AFJ Opposes Blanket Ban on Transfer of Guantanamo Detainees for Criminal Prosecution

This morning the Senate introduced an omnibus spending bill for 2011 which includes a provision preventing Guantanamo detainees from being transferred to the U.S. – even for purposes of prosecution. This blanket ban would override the executive branch’s prerogative to decide the best forum to try suspected terrorists and prevent the Obama Administration from obtaining criminal prosecutions in federal courts. Under current law, Guantanamo detainees cannot be transferred to the United States, except for purposes of criminal prosecution.

Alliance for Justice recently joined a broad coalition of human rights organizations in signing a letter opposing a ban on blanket transfers. The letter pointed out that:

If a blanket ban on transfers were to become law, it would obstruct the Obama administration from bringing terrorism suspects to justice in the most experienced and proven forum. These are the very same federal courts that have been used by the Justice Department during the Bush and Obama administration to convict more than 400 individuals of terrorism‐related crimes since 9/11. The Federal Bureau of Prisons has also proven fully capable of securely detaining individuals convicted of the most serious crimes of terrorism, such as co‐conspiracy in the 9/11 attacks, the 1993 World Trade Center bombing, and the 1998 East African embassy bombings, without harm to the surrounding communities – and, of course, without escape.

. . .

If Congress imposes a blanket transfer ban, it would greatly hinder efforts to put to rest a legacy of failed detention policy. There is widespread agreement among our country’s leading national security and foreign policy experts – including General David Petraeus, General Colin Powell, Secretary of Defense Robert Gates, and five former Secretaries of State from both parties – that closing the Guantánamo Bay detention facility is essential to U.S. counterterrorism efforts and to repairing the standing of the United States as a country committed to human rights and the rule of law.

Alliance for Justice strongly opposes the blanket ban and urges Senators to vote against it.

When Will Guantanamo be Closed?

A year after President Obama signed Executive Orders ending torture and ordering the closure of the U.S. detention facility at Guantanamo Bay, Cuba, and in the wake of the attempted Christmas Day bombing, four retired generals gathered today to reiterate their support for the lawful treatment of suspected terrorists and the closure of the detention facility at Guantanamo Bay.

Representing a group of 33 retired generals and admirals with diverse and distinguished military careers, the generals stated that torture, military commissions, and Guantanamo undermine national security and American values. The group spoke at the National Press Club in a discussion hosted by Human Rights First.

The group has been outspoken on these issues, lobbying in many outlets for the closure of Guantanamo, the lawful treatment of detainees, and the trial of detainees in federal court.

Torture is not only unlawful and immoral under US law and values. Torture undermines security efforts. It fails to produce reliable, actionable intelligence. Instead, it soils our reputation abroad and provides enemies of the United States with effective propaganda. Guantanamo provides an apt symbol of previous torture by US officials and must be closed, both to speed our return to the rule of law and to aid our national security efforts. As former Defense Intelligence Agency Director Harry Soyster pointed out today, intelligence gathering relies on informants abroad who trust that detainees will be treated humanely.

Retired military judge and Brigadier General James Cullen pointed out, the United States justice system has proved successful in trying, convicting, and imprisoning terrorists. 195 international terrorists were convicted in US federal courts between 9/11 and July 2009; 355 domestic and international terrorists are currently held in US prisons. None have escaped. Further, Cullen said, though the now reformed military commissions can provide a fair trial, they will not achieve the same credibility as a federal criminal court.

We must close the detention facility at Guantanamo Bay, to provide complete closure and show our allies abroad that the United States has decisively rejected the practice of torture. Torture at Guantanamo, Bagram, and CIA black sites was not the action of a few rogue interrogators; it was the product of policy carefully crafted by the Bush administration, and legal cover from the Office of Legal Counsel. To effectively prevent future torture, we must hold accountable those who designed that policy and provided that cover. In an effort to achieve accountability for torture and close Guntanamo, AFJ participated in an action today to raise awareness about this vital issue. To learn more you can watch our short documentary, Tortured Law.

Will Military Commissions Act Gain Legitimacy?

The Senate Armed Services Committee held a hearing today on the proposed amendments to the military commissions responsible for trying the detainees at Guantanamo Bay. Three major themes were evident throughout the hearings: the desirability of trying detainees in Article III federal courts versus trying them in the proposed military commissions and where such trials took place; raising the legal standards under which the military commissions operate to match or exceed those required in international law; and, whether the proposed changes would help regain legitimacy in prosecuting the detainees.

Most of the discussion centered on the debate between trying detainees in federal courts versus military commissions. Several of the Republican Senators argued against trying any detainees in Article III federal courts because, they alleged, that would lead to the recognition of constitutional rights for detainees. But David Kris, Assistant Attorney General for the National Security Division at the Department of Justice testified that regardless of the form of trial used due process rights have already been recognized by the Supreme Court.

The hearing also focused on three major proposed changes to the military commissions: (1) the shift in the burden of proof in admitting hearsay; (2) barring statements coerced through torture or other cruel, inhuman, or degrading treatment; and, (3) defendants’ rights to choose their defense counsel. And, every panelist agreed that the military commissions should hew closely to the Uniform Code of Military Justice requirements, departing only when absolutely necessary as required by law.

All changes to the commissions ultimately address whether, moving forward, the commissions will gain legitimacy. Vice Admiral Bruce E. MacDonald, Judge Advocate General of the Navy, stated that a good test of this would be whether America would be willing to try one of its own soldiers in such a system.

Take Action Against Torture

The United Nations has set aside June 26th as an International Day in Support of Victims of Torture to mark ratification in 1987 of the UN Convention Against Torture. Alliance for Justice has joined with many other organizations to call on Americans to observe this day by taking action against torture.

Though the United States is a party to the convention, since 9/11 our government has detained and tortured hundreds of individuals, held people in secret prisons and at Guantanamo, created a tribunal system that allows secret evidence and tortured confessions – all of which has proven damaging to our Constitution and core values at home and detrimental to our reputation and national security throughout the world.

On June 26th, please call on Congress, the White House, and the Attorney General to restore justice and hold accountable those responsible for leading our country astray by enabling torture in the name of national security.

You can call President Obama in the White House at (202) 456-1414 and Attorney General Eric Holder’s office at 202-353-1555.

You can call your members of Congress or the U.S. Capitol Switchboard at (202) 224-3121 and ask for your senators' and representative's offices.

Once connected, identify yourself as a constituent and urge these officials to take the following actions:

Close Guantanamo. President Obama has announced his intention to close the prison by January 2010. Congress should work with the President to ensure the prison is closed and the individuals held there are charged and prosecuted or repatriated.

End military commissions permanently. These kangaroo courts didn’t work under the Bush administration and cosmetic changes in the Obama administration won’t work either. The system is fatally flawed. Federal courts can provide a true measure of justice, while respecting the rule of law and upholding American values.

Reject indefinite detention. As Americans, we hold ourselves to a higher standard. Our Constitution and core values demand that we prosecute crime where evidence exists and release individuals where evidence of wrongdoing is lacking or non-existent – mere suspicion is not enough to deny anyone due process. We must hold true to our values and reject any attempt to give any president the ability to detain people indefinitely without charge.

Support an investigation of torture. As more and more evidence comes to light about the treatment and interrogation of detainees, the evidence demands a thorough investigation of the abuse, the architects of that abuse and prosecution of any crimes that were committed. Just as important, the American people deserve a full and fair accounting of what took place to ensure torture never happens in our name again.