Commentary

Civil Liberties, Human Rights Organizations Press Forward With Lawsuit Despite Setbacks

It would be a slam dunk.

If there were a Nobel Prize for Tenacity, I would nominate half a dozen organizations that, in the face of years of lost court cases and rapidly graying hair, continue to seek justice for some of the most egregious victims of the Bush/Obama “war on terror.”

These legal bulldogs keep getting their lawsuits bounced out of one federal court after another – and keep coming back for more. They have names like the American Civil Liberties Union, Human Rights First, Human Rights Watch, Amnesty USA, and literally hundreds of others.

Consider this: The despicable practice of “extraordinary rendition” began in the Clinton Administration, expanded during the eight years of George W. Bush, and remains alive and well under President Obama.

At its most fundamental level, extraordinary rendition means the CIA kidnaps people it believes are terrorism suspects and ships them off, drugged and blindfolded, to the CIA’S own secret prisons or those operated by allied countries who have long and well-documented histories of systematically torturing prisoners.

For years, small groups of people who have survived the waterboarding and the electric shocks and the sleep deprivation have, with the help of human rights organizations, filed lawsuits against the US government, seeking to hold top American policy-makers accountable for their years of pain.

And each time the survivors bring such an action, the courthouse doors are slammed in their faces. Typically, the government invokes what is known as the “State Secrets Privilege.” This once-little-used legal quirk holds that disclosure of any of the secret evidence would compromise national security.

Some lawmakers have been discussing in committees revisions to this statute since the beginning of the Obama Administration, but no one has taken any action despositive whatever.

Consequently, not a single victim of the “war on terror” has had the opportunity to tell his story in a court of law and not a single senior US official has been held accountable.

Who are these victims who keep banging on the courthouse doors?

Here are three of the most prominent:

Jeppesen DataPlan is a subsidiary of The Boeing Company, and specializes in flight planning and logistical support services for aircraft and crews, including those used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.

In the Jeppesen case, five British residents – all of whom were imprisoned at Guantanamo Bay – sued Jeppesen for assisting the Central Intelligence Agency (CIA) with logistics for the flights to Afghanistan and CIA secrets prisons where they were held incommunicado and tortured. The men claim they were victims of the U.S. “extraordinary rendition” program – and that Jeppesen was complicit in the process.

The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement.

The ACLU appealed the case all the way to the Supreme Court, which declined to hear it.

Maher Arar: A Canadian citizen born in Syria, Arar was passing through Kennedy International Airport in New York on his way home in 2002 when he was detained by Customs officials. He was suspected of being a terrorist.

Subsequently he was flown against his will, first, to Jordan, then to Syria, where he was jailed by Syrian intelligence. In the year following, he was tortured, forced to falsely confess to attending an al Qaeda training camp in Afghanistan, and then released after a year without ever being charged with anything.

With the help of the Center for Constitutional Rights and renowned Constitutional lawyer David Cole, Arar sued former Attorney General John Ashcroft, FBI Director Robert Mueller, and then Secretary of Homeland Security Tom Ridge, as well as numerous US immigration officials, challenging the rendition of a Canadian citizen to Syria, by the US government.

In his suit, Arar accused the government of violating his constitutional right to due process, as well as his right to choose a country of removal other than one in which he would be tortured. That particular right, as well as his rights under international law, are guaranteed under the Torture Victims Protection Act.

Arar’s lawyers, the Center for Constitutional Rights (CCR), charged that Arar’s Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S.

Additionally, CCR claimed the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.

Arar also filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. Court.

Arar’s claim under the Act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered.

But the Canadian Government took a very different approach. It convened a blue-ribbon panel to investigate the Arar incident. After a two-year probe, the Canadian government admitted it had made a serious mistake in the information it had supplied to the US on Arar. The head of the Canadian Royal Mounted Police was forced to resign, and Canada issues a formal apology to Arar and awarded him $10 million.

The US Government has steadfastly refused to even discuss the case, much less apologize. At a Congressional hearing soon after 9/11, then Secretary of State Condoleezza Rice acknowledged that the Arar case “wasn’t handled very well,” but came nowhere close to apologizing to anyone for anything.

Well, the human rights lawyers who bring these cases to court are, as one told me, “frustrated but ever-hopeful.”

It is that ever-hopeful quality that is now pressing ACLU lawyers to try yet another legal step. Denied their day in court by US Federal Judges, three Afghans and three Iraqis who say they were tortured while held by the American military at detention centers in Iraq and Afghanistan have filed a petition against the US with the Inter-American Commission on Human Rights (IAHCR).

The men were part of a group who in 2005 sued then-Defense Secretary Donald Rumsfeld and three senior military officials in federal court for torture and abuse. That case was summarily dismissed on immunity grounds before reaching the merits.

The current petition is equivalent to an international legal complaint. It asks the commission, which is an independent human rights body of the Organization of American States, to conduct a full investigation into the human rights violations and seeks an apology on behalf of the six men from the US government.

The ACLU claims that between 2003 and 2004, the men were detained in U.S.-run detention facilities in Afghanistan and Iraq, where they were subjected to torture and other cruel, inhuman and degrading treatment including severe and repeated beatings, cutting with knives, sexual humiliation and assault, mock executions and prolonged restraint in excruciating positions the petition charges. None of the men were ever charged with a crime.

“I think that I and the many others who suffered unfairly at the hands of the American government deserve justice,” said petitioner Ali Hussein, an Iraqi who was a 17-year-old high school student when he was detained and abused by American soldiers. “We want America to admit that what happened to us was wrong and should never be allowed to happen again to anyone anywhere.”

Hussein, who is now a law student, was shot in the neck and back before being arrested. He said that military personnel refused to provide him medical care for several hours, and when the bullets were eventually removed the procedure was done without anesthetic. He was then denied food, water and pain medication for almost two days after he was shot.

The petition states, “The US government’s own reports document that the torture and inhumane treatment that Petitioners were subjected to was not aberrational; on the contrary, it was widespread and systemic throughout the US-run detention facilities in the two countries. These same reports also document that the torture and inhumane treatment of detainees were the direct result of policies and practices promulgated and implemented at the highest levels of the US government.

The ACLU charged that “despite these reports and Petitioners’ and other detainees’ credible allegations of torture and inhumane treatment, the US government has failed to conduct any comprehensive criminal investigation, has not held accountable those responsible, and has not provided any form of redress to Petitioners and the many other victims and survivors of US torture and abuse.”

It added: “Since a remedy for these men has been denied in American courts, these six courageous men are seeking to hold the US government accountable on the world stage,” said Steven Watt, senior staff attorney with the ACLU Human Rights Program.

“No high-ranking government officials have yet been held to account for their actions, and this petition seeks to do just that and to ensure that the government respects basic human rights, including the right of everyone to be free from torture and inhumane treatment.”

William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now writes on subjects ranging from human rights to foreign affairs for a number of newspapers and online journals.

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3 Responses for “Civil Liberties, Human Rights Organizations Press Forward With Lawsuit Despite Setbacks”

  1. Rob Quan says:

    A small note, this article refers to the need to revise statutes on the state secrets privilege. However I’m almost certain there are no statutes on it. The privilege is judicially created (US v. Reynolds) and the minor (and almost trivial reforms) that have come to it under this presidency (Attorney general must approve of agency claim to privilege), have been solely at his own discretion, not through statute.

    This highlights the problem, and explains it to a degree. The branch which is most deferential in handling national security issues has created our safeguard, which is why it is so minimal in its intrusion upon executive prerogative.

  2. Rob Quan is correct. There have been efforts to create a statute, notably in Sen. Leahy’s Judiciary Committee, but these have so far produced nothing that has enough votes to pass. Obama has pledged to regularize the use of the privilege, but appears to have taken zero action to do so. Ironically, the first use of the privilege was not to protect national security, but rather to conceal an embarrassing government falsehood from the family it affected most. In any event, many legal scholars feel that the privilege should be used to bar particular pieces of evidence, but not entire lawsuits.

  3. What about the internal court? Is it possible that Bush/Obama could be charged with War Crimes? It might seem like a “toothless” bite, but maybe some “sanctions” could be imposed against the USA. It would be great if the Administration could not travel to certain European countries for fear that they would be apprehended as “criminals”. It would also serve to wake up many Americans of how illegal the Bush and Obama administration have been. Charles Taylor, Knony, Bush and Obama all being tried at the Hague.

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