Litigating the counterterrorism activities of the United States in foreign courts.

Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World - Discussion
 
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The panel was convened at 2:45 p.m., Thursday, April 9 by its moderator Alka Pradhan of Reprieve, who introduced the panelists: Julia Hall of Amnesty International; Sandra Hodgkinson of DSR Technologies and a former official in the U.S. Departments of State and Defense; Wolfgang Kaleck of the European Center for Constitutional and Human Rights; and Amrit Singh of the Open Society Justice Initiative.

INTRODUCTORY REMARKS BY ALKA PRADHAN *

Thank you for coming to our panel this afternoon entitled "Litigating the Counterterrorism Activities of the United States in Foreign Courts." My name is Alka Pradhan. I am a lawyer here in Washington for Reprieve U.S. Reprieve is a UK-based organization that represents a wide variety of clients, including individuals on death row, Guantanamo Bay detainees, civilian drone strike victims, et cetera. So I have a little bit of experience with this subject matter.

We will do a very brief overview of the kinds of issues we are going to discuss over the course of the next hour and a half. I will introduce our very accomplished panel, and then we will get right to the discussion.

In the years since September 11, U.S. counterterrorism activities have challenged the existing international and domestic legal regimes. The capture of men and deaths in custody in Afghanistan, the prison camp at Guantanamo, the CIA's rendition, detention, and interrogation program, and the drone program, among others, have all raised complicated legal questions along with a good measure of outrage.

It is not disputed that transgressions to U.S. values and U.S. and international law took place.

What is not so clear regarding the violations committed during the nearly fourteen years since September 11 is whether proper accountability has been served, or even what that might look like or what shape that might take. Here at home, a number of lawsuits have been filed by both current and former detainees, but detainee counsel will tell you that legal recourse for detainees here in the United States is extremely limited. Just to give you a couple of examples, when constitutional violations by U.S. officials are alleged in damages suits, what is called a Bivens claim under U.S. law, courts have dismissed them on the basis that allowing them to go forward would constitute undue interference with the executive branch's military and national security affairs. Also, a number of courts here in the United States have dismissed detainee suits after the executive has invoked the state secrets privilege, saying that continuing the case posed an unreasonable risk of exposing state secrets. The state secrets privilege is viewed by some as a catch-all. There is a debate over whether it is being employed judiciously or as a tactic to avoid public scrutiny of counterterrorism measures, and I am hoping that Sandy Hodgkinson can speak a little bit about the government's view on that.

So we have seen, beginning about ten years ago, more and more calls for investigation and claims being filed abroad, and I am going to do a very quick, very broad overview of what that has looked like. Perhaps the aspect of U.S. counterterrorism measures that has been most challenged abroad is the CIA's rendition program, which, of course, involved and implicated a large number of countries.

Now, the flip side of the concern that so many countries were involved is that it has provided a number of forums abroad in which to pursue remedies that are not available here at home. There have been investigations of varying durations and quality conducted or at least embarked upon, and to give you a few examples, Germany, Spain, Italy, Poland, Lithuania, Finland, and other countries. A couple of those countries have taken steps towards holding individuals responsible for their actions. For instance, Poland indicted the former interior minister who signed off on the CIA's black site there, although that may have stagnated since then. And in France, on a slightly different note, General Geoffrey Miller, who was the commander of Guantanamo Bay during a period of particular brutality at Guantanamo, has been summoned for a criminal probe, and I am hoping Wolfgang can speak a little bit about that and expand on the issues with trying U.S. officials abroad.

On the note of trying U.S. officials abroad, a few years ago in Italy, twenty- three CIA officials were convicted in absentia for their roles in the rendition and torture of a Muslim cleric, and both the European Parliament and the Council of Europe have conducted several investigations on European complicity with rendition. And following the release of the Senate Select Committee on Intelligence (SSCI) report in December, which essentially confirmed the roles of several countries in Eastern Europe, the European Parliament has announced its intention to conduct another inquiry. Julia Hall has been very involved in calling for a number of those investigations, and she has a great deal of experience with dealing with both the campaigns on those and some of the political considerations.

Finally, the European Court of Human Rights (ECHR), which adjudicates violations of the European Convention on Human Rights, has ruled on behalf of detainees in two cases, finding Macedonia responsible for the rendition and torture of Khalid El-Masri, and more recently finding Poland responsible for the torture of two detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri at the CIA black site there. Amrit Singh was very involved and actually headed both of those cases on behalf of the Open Society Justice Initiative. There are, I believe, two more cases currently pending at the ECHR. So that is a very quick and dirty overview. I think any one of those cases could merit its own panel here.

My own organization has been involved in this sort of litigation from former Libyan rendition victims filing suit in the UK over renditions to torture to, on a slightly different note, representing civilian drone strike victims filing suit for wrongful death in Germany from where certain drones are controlled.

I would like to tell you a little bit about our panelists, and then we will open up the discussion. To my immediate right, Mr. Wolfgang Kaleck founded the European Center for Constitutional and Human Rights (ECCHR) together with other lawyers in Berlin in 2007. The ECCHR works with lawyers and groups around the world to take legal proceedings against state and non-state actors for their roles in crimes against international law. They have notably worked with a number of organizations, including the Center for Constitutional Rights based in New York, to pursue criminal proceedings against members of the U.S. military in Europe, including former Secretary of Defense Donald Rumsfeld. I should say they also work with Reprieve in Europe. Mr. Kaleck also lectures extensively all over the world.

To Mr. Kaleck's right, Amrit Singh is the senior legal officer for National Security and Counterterrorism at the Open Society Justice Initiative. She conducts strategic litigation, documentation, and advocacy on a range of counterterrorism-related human rights issues, including rendition, torture, arbitrary detention, drone killings, and surveillance. As I mentioned, among other cases, she has litigated Al-Nashiri v. Poland, which was the challenge before the European Court of Human Rights to Poland's hosting of a CIA black site.

Julia Hall is Amnesty International's expert on criminal justice, counterterrorism, and human rights in Europe. Her current work focuses on accountability for human rights violations in countries with a history of political violence, including Northern Ireland, and for violations committed in the course of the so-called Global War on Terror. She has been involved in the calls for investigation, as I mentioned, of the CIA rendition program and black sites in multiple countries in Europe and elsewhere.

And finally, Sandy Hodgkinson is a vice president at Finmeccanica and DRS Technologies, which is a defense technology firm. She previously served as a career civil servant up through the rank of senior executive service at the Departments of Defense, State, and at the White House. Among her many assignments during her very accomplished career in government was--just a sampling--Chief of Staff to Deputy Assistant Secretary William Lynn, Deputy to the Ambassador-at-Large for War Crimes Issues, Director for International Justice at the National Security Council, and as Senior Advisor at the Coalition Provisional Authority in Baghdad. Prior to civil service, she spent six years as a U.S. Navy judge advocate general, and she is a captain in the JAG Corps Reserves.

So, with that, I would like to start out by asking Amrit, Wolfgang, and Julia, perhaps in turn, to give a bit of background on how the push for accountability abroad began and the logistics in taking these claims. For instance, what are the advantages of bringing litigation abroad as opposed to here in the United States, and what are the procedural, political, and economic challenges of bringing such litigation? If you can go into what you see as the pros and cons in this type of litigation and comment on the tension with national security considerations, that would be helpful. Wolfgang?

* Lecturer in Law at the University of Pennsylvania Law School and Human Rights Counsel at the Guantanamo Bay Military Commissions, representing one of the 9/11 accused. She was previously Counter-Terrorism Counsel at Reprieve US.

REMARKS BY WOLFGANG KALECK *

Thanks, Alka, for the introduction, and good afternoon to everybody. It is a pleasure to speak here again, and when I say again, I remember the last time at the ASIL meeting in 2008 where we had to explain the first wave of defeats in judicial courts in Europe and were upholding the hope. We were kind of treated as "Yes, you are nice guys, and it is okay to have people like you who rely on law and also have a certain hope."

When I...

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