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.

Report Outlines Bush Administration Torture Policy, Calls for Investigations and Prosecutions

Human Rights USA, a non-profit human rights organization, released a report today entitled “Indefensible: A Reference for Prosecuting Torture and Other Felonies Committee by U.S. Officials Following September 11th.” The report presents detailed evidence that torture was the official policy of the Bush administration and that high-ranking Bush administration officials planned and authorized the illegal interrogation techniques which were used against detainee terror suspects in the aftermath of September 11th. The report calls for repudiation of torture by the U.S. government and accountability for government officials who authorized the torture. It also serves as a how-to guide for prosecutions of these officials should be conducted going forward.

From 2002 to 2007, the United States Department of Justice sanctioned acts of torture committed by members of the U.S. Central Intelligence Agency against detained suspected terrorists.  These acts of torture were outlined and authorized in a series of secret "torture memos" drafted by John Yoo, Jay Bybee, and Steven Bradbury, senior lawyers in the DOJ's Office of Legal Counsel. In the decade since the beginning of the Bush administration’s illegal anti-terrorism policies, not one torture survivor has been able to bring to justice the government officials who authorized the acts of torture. The Human Rights USA report lays the groundwork for litigation against government officials responsible for approving and using illegal interrogation techniques that were the official policy of the Bush administration.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law,  and advocates for full accountability for those officials in the U.S. government who legitimized torture. AFJ applauds and supports the Human Rights USA’s efforts to bring further light to the torture policies and achieve accountability for torture.

The new report is a collaborative effort between Human Rights USA and the International Human Rights Law Clinic at American University Washington College of Law. The report is available online.

To learn more about accountability for torture, visit our webpage.

Indictment Requested Against Bush for Torture in Canada

The Center for Constitutional Rights (CCR) and the Canadian Centre for International Justice (CCIJ) have submitted a 64-page letter to the Attorney General of Canada making the factual and legal case for indicting President George W. Bush for torture under the Canadian Criminal Code and the Convention Against Torture (CAT).  The move comes in advance of Bush’s scheduled October 20 speech at the Surrey Regional Economic Summit in Surrey, British Columbia.

CCR and CCIJ are calling on Canada’s Attorney General to begin a criminal investigation of Bush for his administration’s creation and use of a systematized torture program -- a program, they note, that Bush himself has admitted to authorizing and which is supported by ample publicly available evidence.  The organizations assert that Bush must be held accountable for actions he ordered and oversaw, including “enforced disappearance and secret detention, exposure to extreme temperatures, sleep deprivation, punching, kicking, isolation in ‘coffin’ cells for prolonged periods, threats of bad treatment, solitary confinement, and forced nudity” of detainees.”

Announcing this action, CCR Senior Staff Attorney Katherine Gallagher stated:

“George Bush has openly admitted that he approved the use of torture against men held in U.S. custody. . . . Despite this admission, no country has been willing to investigate and prosecute Bush’s criminal acts, leaving the victims of his torture policies without any justice or accountability. Canada is a signatory to the Convention Against Torture, and has an obligation to investigate Bush for his leadership role in the U.S. torture program. Torturers – even if they are former presidents of the United States – must be held to account and prosecuted. We urge Canada to put an end to impunity for Bush.”

CCIJ Legal Director Matt Eisenbrandt said:

“Canada has a strong legal framework and there is absolutely no ambiguity in our criminal code when it comes to committing or allowing torture. . . . There is grave evidence that former President Bush sanctioned and authorized acts of torture, not only in violation of Canadian laws, but also of international treaties that Canada has ratified. It is therefore clear that our government has both the jurisdiction and the obligation to prosecute Bush should he set foot again on Canadian territory.”

Noting that the United States has refused, so far, to live up to its obligation to hold torturers accountable for their actions under the CAT, CCR and CCIJ requested that Canada abide by its commitments as a signatory to the Convention and hold President Bush liable for his actions.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law,  and continues to advocate for full accountability for those officials in the U.S. government who legitimized torture.  AFJ applauds and supports these groups’ efforts to achieve accountability for torture.

The document, along with over 4,000 pages of supporting materials, is available online.  To learn more about accountability for torture, visit our webpage [http://www.afj.org/connect-with-the-issues/accountability-for-torture/]

Cheney on Torture: "Safe, Legal, and Effective"

Former Vice President Dick Cheney this week released a new memoir, In My Time. Dahlia Lithwick writes compellingly that this memoir is yet another feeble attempt to reignite the debate over whether torture is wise policy, and in so doing, to try to legitimize a patently illegal practice.

This week Dick Cheney invites us all to join him again in a game he likes to play against the rest of us called Tedious Torture Standoff. He continues to assert—this time in his memoir, In My Time—that he has “no regrets” about developing the U.S. torture program, and he continues to argue—as he did this morning on the Today Show—that torturing prisoners is “safe, legal, and effective.” He continues to assert that he would “strongly support” water-boarding if actionable information could be elicited from a prisoner. He even says that different standards apply to torturing Americans and foreigners. Cheney is trying, in short, to draw us back into the same tiresome debate over the efficacy of torture, which is about as compelling as a debate about the efficacy of slavery or Jim Crow laws. Only fools debate whether patently illegal programs “work”—only fools or those who have been legally implicated in designing the programs in the first place.

Ltihwick goes on to observe that by not holding Cheney and the other architects of the torture regime accountable, President Obama has legitimized their behavior and elevated the torture debate.  Because he has not been held accountable, Cheney is able to claim that his actions were legal. Addressing the fundamental role accountability plays in the rule of law, Lithwick writes that:

Torture really did become legal after 9/11, and even after it was repudiated—again and again—it will always be legal with regard to Dick Cheney and the others who perpetrated it without consequence. The law wasn't a hollow symbol after 9/11. It was the only fixed system we had. We can go on pretending that torture is no longer permissible in this country or under international law, but until there are legal consequences for those who order or engage in torture, we will only be pretending. Cheney is the beneficiary of that artifice.

To read the full article, click here.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law, and continues to advocate for full accountability for those officials in the U.S. government who legitimized torture.

Obama Appointee Writes Majority Decision Allowing Torture Suit to Proceed Against Rumsfeld

Judge David Hamilton, an Obama appointee to the 7th Circuit Court of Appeals who was filibustered by Republicans, cast the deciding vote yesterday in a decision with important implications for torture accountability. The Court ruled 2-1 that a lawsuit against former U.S. Defense Secretary Donald Rumsfeld by American citizens who claim to have been tortured could proceed. Judge Hamilton’s ruling in Vance v. Rumsfeld makes clear, President Obama’s judges are already having an impact on our country’s jurisprudence.

In the first 30 months of his presidency, Obama has seen 95 judges confirmed – far fewer than the number confirmed by Presidents Clinton and Bush at similar points in their presidencies.

Judge Hamilton filled a seat left vacant when Judge Kenneth Ripple, a Reagan appointee, retired. Prior to joining the Seventh Circuit, Judge Hamilton was a district court judge in the Southern District of Indiana. His stellar record on the bench, in addition to his commitment to ensuring equal justice for all, made him a strong appellate court nominee. Nonetheless, his nomination stalled in the Senate for over eight months, and his confirmation required the Senate’s first judicial filibuster. Hamilton won that vote by a margin of 70-29, and his confirmation by a vote of 59-39 on November 19, 2009. Senator Lugar was the only Republican to vote to confirm him.

Judge Hamilton’s ruling in Vance v. Rumsfeld is a powerful disavowal of the policy that lead to the plaintiffs in Vance being tortured: “The wrongdoing alleged here violates the most basic terms of the constitutional compact between our government and the citizens of this country. ... There can be no doubt that the deliberate infliction of such treatment on U.S. citizens, even in a war zone, is unconstitutional.”  The Department of Justice had argued that even if everything plaintiffs alleged were true, Rumsfeld was entitled to qualified immunity and could not be sued.  Luckily, Judge Hamilton rejected the Obama Administration’s position.

The plaintiffs in Vance are U.S. citizens who were in Iraq to work for Shield Group Security, an Iraqi company providing security services for infrastructure projects. According to reporting by the New York Times, one of the plaintiffs was a whistleblower who reported the company’s suspicious conduct to the FBI, but when the US military raided the company the informant and another employee were mistakenly detained, held for three months, and tortured.  They were eventually released without being charged with a crime.

Dahlia Lithwick wrote about the ruling on Slate:

This case isn't about the rights of an enemy soldier detained on a battlefield with a weapon in his hand. It's about the rights of brave whistle-blowers who were tortured by bureaucratic mistake.

If you don't believe the war on terror is migrating into your backyard, this case is confirmation. If you don't think the state-secrets doctrine will be trotted out to protect the government's abuse of innocent Americans as well as foreign prisoners, this case proves it. If you worry that "turning the page" means always finding more of the same, this case makes that plain. A country in which nobody is ever really responsible is a country in which nobody is ever truly safe.

The 7th Circuit decision comes on the heels of a district court decision last week also allowing a separate but similar torture claim against former Defense Secretary Rumsfeld to go forward. The plaintiff in that case is a civilian employee of an American defense contracting company in Iraq who alleges he was abducted by the American military in 2005, held, and tortured for nine months in a military jail without ever being charged with a crime. In allowing the claim against Rumsfeld to move forward, Judge Gwin of the U.S. District Court for the District of Columbia held that the Constitution protects Americans at home and abroad and that “the court finds no convincing reason that United States citizens in Iraq should or must lose previously-declared substantive due process protections during prolonged detention in a conflict zone abroad.”[1]

Alliance for Justice praises these decisions and continues to demand accountability for torture. These recent court decisions are a step in the right direction to ensuring that our leaders are held accountable for their actions. Learn more about accountability for torture here.

District Judge Allows Army Veteran to Sue Rumsfeld for Torture

United States District Judge James Gwin has permitted an Army veteran to go forward with a federal suit in the District of Columbia against former Secretary of Defense Donald Rumsfeld for torture, the Seattle Times reports.

The veteran, whose name is undisclosed, was an employee of an American contracting company and translator for the U.S. Marine Corp in the Iraqi province of Anbar.  As he was preparing to return home, the military suddenly arrested and imprisoned him for nine months, denying him representation by a lawyer, by the Marines, or by his employer, and without informing his family, who was expecting him home for annual leave.  While in prison, he suffered abuse, including being kicked, threatened, and blindfolded during questioning.  The Department of Justice accused him of helping give the enemy confidential information and helping the enemy to enter Iraq.  However, after months of incarceration and interrogation, the government never formally charged him.

The man’s attorney, Mike Kanovitz, suspects the military of detaining his client to keep him from revealing an important connection he made with a sheik while gathering information in Iraq.

The lawsuit alleges that Secretary Rumsfeld himself made decisions about torture techniques on a case-by-case basis, including the decision to hold this veteran without access to the legal system.  This case is one of the few in which a federal judge has allowed a suit against Rumsfeld personally to go forward.  Last year, District Judge Wayne Andersen of the Northern District of Illinois held that torture victims Donald Vance and Nathan Ertel could personally sue Rumsfeld for approving the methods used on them.  Suing a high-ranking government official has become difficult under the Supreme Court’s decision in Ashcroft v. Al-Kidd, which held that a suit against a high-ranking official may only proceed if that official was directly connected with a constitutional rights violation and fully knew that the action was such a violation.

In allowing the suit to proceed, Judge Gwin held that “[t]he court finds no convincing reason that United States citizens in Iraq should or must lose previously declared substantive due process protections during prolonged detention in a conflict zone abroad.”

Thus far, no high-ranking officials have been held accountable for torture. Click here to learn more about accountability for torture.

Human Rights Watch to the Obama Administration: Don’t Let Torturers Get a Free Pass

- Peter Laumann

In a powerful Washington Post op-ed today, Human Rights Watch Executive Director Kenneth Roth reminds us that we cannot truly move forward as a country without holding accountable those officials who authorized and justified torture.

Republicans have continued to engage in “self-serving propaganda” by claiming that torture led us to Osama bin Laden (it didn’t), or that we can’t prosecute terror suspects in civilian courts because (inherently unreliable) evidence seized through torture is inadmissible. In his op-ed today, Roth gives two decisive reasons to reject President Obama’s equivocal “look forward, not backward” approach to torture: without accountability, there is nothing to stop torture from happening again; and not investigating and prosecuting tortures is a violation of our binding obligations under the Geneva Conventions and U.N. Convention against Torture.

Roth’s piece coincides with the release of Getting Away with Torture, a methodical Human Rights Watch Report cataloging, in painful detail, the harsh realities of the torture regime, the legal case for accountability, and what remains to be done. Unfortunately, the Obama Administration has failed to enforce the law and prosecute those who now gloat over their authorization of torture. While the investigation assigned to Assistant U.S. Attorney John Durham once carried promise, its scope was limited only to personnel on the ground who exceeded authorized interrogation techniques, rather than to those at the top who fabricated new legal doctrines to justify a clearly illegal regime of torture. Even in this severely circumscribed class of roughly one hundred cases, only two will receive a full criminal investigation from the Department of Justice.

The Convention against Torture authorizes universal jurisdiction for punishing war crimes. After waiting for the United States to follow its legal obligations, Spain initiated investigations into Bush Administration officials’ complicity in the torture regime, after its criminal case against Spanish Guantánamo Bay detainees fell apart due to the systematic abuse of prisoners at the American prison facility.

Another lawsuit filed by victims of alleged torture in Switzerland forced former President Bush to cancel his trip to the country in February.

Human Rights Watch has urged the United States to comply with its obligations through a series of targeted recommendations. These include: full pursuit of Department of Justice criminal investigations into post-9/11 interrogation and detention practices; a nonpartisan Congressional commission to use a variety of tools – including the possible appointment of a special prosecutor – to investigate mistreatment of detainees; and ensuring that victims of torture are provided adequate redress as required by the Convention against Torture.

Other countries have gone through a period of soul-searching, during which former government officials were held accountable for serious crimes. Conservatives made a national spectacle with President Clinton’s impeachment for sexual misconduct. It is time that the far more serious offense of legitimizing torture – a clear crime against humanity under binding human rights treaties and domestic law – is brought to justice through the American legal system. Alliance for Justice documented the radical justifications for torture in Tortured Law, and continues to advocate for full accountability for those officials in the U.S. government who legitimized torture.

Department of Justice Announces It Will Not Prosecute Nearly 100 Incidents Allegedly Involving Torture

In 2009, U.S. Attorney General Eric Holder directed special prosecutor John Durham to investigate the interrogations of certain detainees, alleged to have been tortured, and to determine whether federal law may have been broken. Durham has been actively investigating these cases – some of which were fatal. Attorney General Holder today announced that a full criminal investigation will be launched into two of those cases, both of which resulted in the death of the detainee. The remaining 99 instances of alleged abuse will be dropped from Durham’s ongoing investigation.

According to Attorney General Holder’s statement:

Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.

While AFJ applauds the fact that two of the incidents will be criminally investigated, we continue to believe that accountability must go to the highest levels and include those who crafted the Bush Administration’s torture policy – including the lawyers who twisted the law to justify torture as an acceptable tactic in the so-called war on terror. AFJ has long believed that accountability for torture is necessary to ensure that these gross human rights abuses do not happen again and to restore our country’s reputation as a nation of laws. The AFJ film Tortured Law explores the role government lawyers played in authorizing torture, and calls for a full-scale investigation of those who ordered and justified torture.

Senate Confirms Three DOJ Nominees

Today the Senate confirmed three top Justice Department attorneys after a lengthy delay. James Cole, who has been opposed by Republicans because he supported using civilian courts to try suspected terrorists, was confirmed 55-42 to be Deputy Attorney General. Cole was nominated on May 24, 2010, and was successfully filibustered by Republicans in May of this year. Virginia Seitz was confirmed on a voice vote to head the Office of Legal Counsel (“OLC”), and she is the first Senate-confirmed OLC head since 2004. Finally, Lisa Monaco was confirmed on a voice vote to lead the National Security Division.

Seitz’s nomination is notable because the OLC is known as the "constitutional conscience" of an administration, offering authoritative opinions on complex and important legal matters about which agencies within the executive branch might disagree, and exercising judgment independent of the political will of the president. However, during the Bush Administration between 2002 and 2007, OLC lawyers such as Jon Yoo and Jay Bybee authorized every interrogation practice proposed by the CIA, even those that many legal experts agree violate our federal laws prohibiting torture and conspiracy to commit torture and war crimes; our constitutional ban on cruel and inhuman treatment; and the Geneva Conventions' absolute prohibition of torture.

For more information on the OLC and issues related to torture, please visit AFJ’s Accountability for Torture webpage.

Special Prosecutor Durham May Soon Issue Subpoenas in Torture Investigation

U.S. Attorney John Durham has begun to subpoena witnesses before a grand jury as part of an ongoing investigation into alleged acts of CIA Bush-era torture, according to TIME Magazine. In 2009, U.S. Attorney General Eric Holder instructed Durham to investigate approximately 12 instances of interrogation involving torture of suspected terrorists, some of which were fatal.

Although the name of the individual(s) who may be prosecuted remains unknown, TIME reports rumors that CIA interrogator Mark Swanner may be the subject of the prosecution. While pursuing the case marks a positive step towards justice for Bush-era war crimes, Alliance for Justice believes that accountability must extend to the orchestrators of the torture at the highest levels, including the authors of the torture memos, like John Yoo and Jay Bybee.

AFJ has long believed that accountability for torture is necessary to ensure that these gross human rights abuses do not happen again and to restore our country’s reputation as a nation of laws. The AFJ film Tortured Law explores the role government lawyers played in authorizing torture, and calls for a full-scale investigation of those who ordered and justified torture.

To read the full TIME article, click here.

Supreme Court Grants Immunity to Ashcroft for Abusing Material Witness Warrants to Detain American Citizens

In its first day back from Memorial Day weekend, the Supreme Court today held that using material witness warrants as a pretext for detaining alleged terrorism suspects, with no probable cause to arrest for criminal wrongdoing, does not violate the Fourth Amendment in Ashcroft v. al-Kidd.

Eight justices unanimously held that former Attorney General Ashcroft was entitled to qualified immunity from suit, because there was no clearly established constitutional law prohibiting the pretextual use of material witness warrants to preventively detain terrorism suspects. However, Justice Scalia’s majority opinion went much further, holding that the government’s subjective intent in obtaining a material witness warrant is irrelevant under the Fourth Amendment. In other words, so long as the government’s material witness warrant is validly obtained, it does not matter whether the government actually intends to use a detainee as a witness in a prosecution, even if the warrant was a pretext to arrest a suspected terrorist.

The case arose in the aftermath of the September 11, 2001 terrorist attacks. Attorney General Ashcroft “authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations . . . with no intention of calling most of these individuals as witnesses.”

Abdullah al-Kidd, a native-born American citizen who was a college football star at the University of Idaho, was targeted for surveillance and ultimately detained in 2003, while boarding a flight to Saudi Arabia to pursue a doctoral degree in religious studies. Al-Kidd allegedly had information “crucial” to the prosecution of Sami Omar al-Hussayen, but was never called as a witness during his detention or supervised release, which lasted fourteen months and ended in al-Hussayen’s acquittal on all charges. As explained by Justice Ginsburg,

Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days’ incarceration, kept in high-security cells lit 24 hours a day, strip-searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist.

While there was no probable cause to arrest al-Kidd for criminal wrongdoing (and not even the suspicion of wrongdoing), the Obama Administration defended Ashcroft, with Acting Solicitor General Neal Katyal claiming in oral argument that al-Kidd’s “lawsuit seeks personal money damages against a former attorney general of the United States for doing his job."

Under Harlow v. Fitzgerald, qualified immunity protects government officials from suits for money damages, unless a plaintiff can show that (1) the official violated a statutory or constitutional right, and (2) that the right in question was clearly established at the time of the alleged violation. The Ninth Circuit held that Ashcroft was not shielded from suit for abusing the material witness statute as a pretext for arresting terrorism suspects absent probable cause of wrongdoing. Had the majority limited its opinion to the second prong – that there was no clearly established constitutional rule forbidding the pretextual use of material witness warrants – the Court would have produced a single, unanimous opinion. However, Justice Scalia took the unnecessary step of assuming the validity of the material witness warrant in order to announce a new constitutional rule. Under the majority’s new formulation, so long as a magistrate signs a material witness warrant under objectively reasonable circumstances – that is, if it “may become impracticable to secure the presence of the [witness] by subpoena” – the Attorney General can never be held accountable for harsh, pretextual detentions of American citizens.

Each of the concurring opinions noted that the validity of al-Kidd’s material witness warrant was unclear at best. The federal government omitted and misrepresented crucial information to secure the warrant. For example, the government submitted an affidavit claiming that al-Kidd had purchased “one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000,” when he had actually purchased a round-trip coach ticket costing $1,700. Furthermore, “the Magistrate Judge was not told that al-Kidd’s parents, wife, and children were all citizens and residents of the United States,” and that al-Kidd had been cooperative with FBI agents in several earlier interviews. As Justice Ginsburg concluded in her concurring opinion, “there is strong cause to question the Court’s opening assumption – a valid material-witness warrant – and equally strong reason to conclude that a merits determination was neither necessary nor proper.”

Justice Kennedy’s concurring opinion explained that the majority opinion did not uphold the validity of al-Kidd’s material witness warrant, leaving this question to lower courts on remand. Thus, as both Justice Ginsburg and Justice Sotomayor express in their concurrences, the majority opinion, decided on the assumption of a valid warrant, clearly overreached. Chief Justice Roberts, along with other conservatives on the Court, have often stated their preference for “limited” opinions that only decide the case at hand. Here, the majority decided a hypothetical; once the Court decided that there was no clearly established constitutional right, Attorney General Ashcroft was entitled to qualified immunity and nothing further was needed to resolve his appeal.

Nevertheless, the Court crafted a new rule, holding that an American citizen can be detained as a “material witness,” even if the federal government has no intention of ever calling that individual to testify. Brutally harsh “preventive” detention, which in Justice Ginsburg’s view presented “a grim reminder of the need to install safeguards against disrespect for human dignity,” has been given new protection by the conservative wing of the Supreme Court. While al-Kidd has settled some of his claims against lower-level officials and his suit against Attorney General Ashcroft is not entirely foreclosed (since it is still possible that the lower courts will find that the underlying warrant was not validly obtained), an effort to hold high-level government officials accountable for the ongoing, post-9/11 assault on civil liberties was dealt a strong blow by the Court.

Supreme Court Denies Cert Mohamed v. Jeppesen in a Blow to Torture Accountability

The Supreme Court today denied certiorari in Mohamed v. Jeppesen Dataplan, a Ninth Circuit Court of Appeals decision that kicked out of court a lawsuit claiming that the victim had been tortured. The Ninth Circuit en banc panel voted 6-5 to dismiss the case, upholding an assertion of the state secrets privilege, first raised by the Bush Administration and now by the Obama Administration, that the need to protect state secrets trumps the ability of former prisoners to sue over alleged torture.

The ruling is another blow to accountability for torture that took place under the Bush Administration. According to the New York Times,

“The lawsuit was brought in 2007 against a Boeing subsidiary, Jeppesen Dataplan,
that the plaintiffs said had arranged the rendition flights that took them to
Morocco, Egypt and Afghanistan to be tortured. One of the men, Binyam Mohamed,
had his bones broken in Morocco, where security agents also cut his skin with a
scalpel and poured a stinging liquid into his wounds.”

The 9th Circuit opinion, which will remain in effect now that the Supreme Court has denied cert, “reluctantly” concluded that state secrets trump the “fundamental principles of our liberty, including justice, transparency, and accountability” in this case. Notably, the 9th Circuit’s decision held that the claims could not proceed “even assuming plaintiffs could establish their case solely through nonprivileged evidence.”

Alliance for Justice joined a letter signed by 20 other groups calling on the Department of Justice to implement a policy, as it promised, to ensure that there is transparency and accountability in cases like this where credible assertions of government wrongdoing have been raised. The Attorney General announced a policy in 2009 whereby DOJ would make referrals to the inspectors general of the CIA, DOJ, Defense Department, or other appropriate agency, when a civil complaint dismissed on state secrets grounds raised credible allegations of wrongdoing. When the judicial system fails to provide accountability and transparency by allowing cases to be dismissed on state secrets grounds, requiring an inspector general to investigate the allegations would provide some modicum of accountability.

Is Osama bin Laden's Death a Reason to Endorse Torture?

Of course not. Torture is wrong on so many levels, and often produces false, unreliable information.

In addition, according to former Bush Secretary of Defense Donald Rumsfeld, torture apparently played no role in the intelligence that led to Osama bin Laden's death. In an interview yesterday, Rumsfeld made clear that the information that led to bin Laden’s death was obtained through “normal interrogation approaches,” and not through “harsh treatment" or waterboarding.

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.

Detaining American Citizens Under False Pretenses

Today’s Washington Post features an editorial urging the Supreme Court to side with the former Attorney General in the case of Ashcroft vs. al-Kidd. Abdullah al-Kidd, a natural-born American citizen, was detained for more than two weeks under false pretenses as a “material witness,” without access to legal counsel. He was never charged with a crime, or called to testify as a witness against anyone else.

The Post and others have said that Ashcroft was justified in ordering the detention of an American citizen under a “material witness” warrant, and then holding and interrogating him for more than two weeks without counsel.

Here's how the government treated this "material witness:"

• Mr. Kidd was detained as a "witness" in a case a month after the indictment was issued, and a full year before the trial was to begin.
• He was released from detention long before the trial began, and was never called as a witness.
• During his detention, he was repeatedly strip-searched, interrogated, and kept in a lighted cell to interfere with his sleep.
• During his previous -- cooperative -- interviews with the FBI, Mr. Kidd was never asked or told to be available as a witness.

It's hard to see how the Washington Post could examine those facts and come to any conclusion other than the one reached by Mr. Kidd: that the government never intended to use him as a witness, and so detained him under false pretenses.

For more on this case, see AFJ’s analysis here.

Supreme Court to Hear Oral Arguments on Accountability for Detaining Citizens on Phony Grounds

The Supreme Court will hear oral arguments this week in Ashcroft v. Al-Kidd, a case concerning an American citizen detained for more than two weeks in harsh conditions on the specious grounds that he was a material witness.

Abdullah Al-Kidd is an American-born United States citizen and convert to Islam who lives in Idaho. The FBI targeted Al-Kidd and his wife for surveillance and interviews during a broad terrorism investigation in the state following the attacks of September 11, 2001. The investigation revealed no evidence of wrongdoing by Al-Kidd or his wife. However, FBI agents arrested him on a material witness warrant related to an investigation of another person, and took him into custody. Following several interrogations without counsel, Al-Kidd was held for 15 nights in jails in three states with hardened criminals, and transported aboard a “Con Air” flight in which he was held in full shackles. He was never used as a material witness – the pretext under which he was originally arrested.

Al-Kidd sued former Attorney General John Ashcroft for ordering his wrongful detention. He argues that neither the absolute nor qualified immunity sometimes afforded government officials is appropriate in this case because Ashcroft’s use of a material witness warrant was merely a pretext to submit Al-Kidd to preventative detention. The Ninth Circuit ruled in favor of Al-Kidd and Ashcroft appealed the decision.

If the Supreme Court rules in Ashcroft’s favor, it will enable government officials to circumvent fundamental constitutional protections by detaining individuals indefinitely without access to an attorney simply by claiming they are needed as material witnesses.

Oral arguments are scheduled for Wednesday, March 2.

CCR Files Indictment Against Bush Under International Anti-Torture Law

The Center for Constitutional Rights (CCR), an Alliance for Justice member organization, and the European Center for Constitutional and Human Rights (ECCHR) yesterday released a 42-page indictment [PDF link] against President Bush, making the case for his indictment under the Convention Against Torture (CAT).

The groups had planned to file the document as an individual criminal complaint with the Swiss authorities in anticipation of the former president’s trip to Switzerland, but did not do so due to Bush canceling his trip the night before the complaint was to be filed. Instead, the groups released the document as an “indictment,” modifiable for future use in other countries. The document sets forth the “fundamental aspects of the case against him, and a preliminary legal analysis of liability for torture, and a response to anticipated defenses.”

Alliance for Justice applauds and supports these groups’ efforts to achieve accountability for torture.

President Bush Cancels Trip to Switzerland in Face of Possible Prosecution for Torture

It was recently announced that President Bush has canceled his upcoming trip February 12 trip to Switzerland, following a request by human rights organizations that the Swiss Justice Ministry open a criminal investigation into the former president based on his recent admission that he ordered the waterboarding of terrorist suspects. The groups argued that under the UN Convention Against Torture and domestic law, Swiss authorities were obligated to undertake investigation into acts of torture ordered by any individual on Swiss territory – including heads of state.

The Washington Post has more on the story here.

Despite the extensive documentation that senior Bush administration orchestrated, ordered, and justified torture - including President Bush’s admission in his recent memoir, the United States has yet to undertake any effort to hold these officials accountable. AFJ’s short film, Tortured Law, examines the role that Office of Legal Counsel lawyers played in authorizing torture and calls for a full-scale investigation into their actions by the Department of Justice. The Alliance for Justice believes that accountability is essential to regaining our nation’s stature as a leader in promoting human rights and the rule of law, as well as to ensuring that this sort of miscarriage of justice never recurs.