Redress for 'some Folks': Pursuing Justice for Victims of Torture Through Traditional Grounds of Jurisdiction

• Publication year: 2017

REDRESS FOR 'SOME FOLKS': PURSUING JUSTICE FOR VICTIMS OF TORTURE THROUGH TRADITIONAL GROUNDS OF JURISDICTION

Karen Hoffmann, Esq.^*

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Table of Contents

I. Introduction.................................................................................98

II. The Need For Redress And Accountability...........................104

III. Possible Venues For Prosecution............................................107

A. United States............................................................................107
B. International Courts.................................................................112
C. The Unbearable Lightness of Universal Jurisdiction...............114
D. Alternatives: 'Traditional' Grounds of Jurisdiction................123

IV. Vonclusion...................................................................................127

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I. Introduction

This is not C.I.A.'s program. This is not the President's program. This is America's program.

-Former CIA Director Michael Hayden¹

After learning the news [of the Senate Torture Report], Mr. Bashmilah pressed Ms. Satterthwaite, who heads the global justice program at New York University Law School, to tell him what might follow from the Senate's recognition. Would there be an apology? Would there be some kind of compensation?²

It has now been nearly three years since the release of the summary of the U.S. Senate Select Committee on Intelligence report on CIA abuses, known as the "Torture Report."³ In that time, the U.S. has still refused to prosecute any participants in the torture program. Moreover, the new administration has explicitly threatened to reopen the CIA's secret overseas "black site" prisons and bring back torture of detainees.⁴

On its publication in December 2014, the Torture Report reminded the world that after September 11, 2001, the CIA tortured at least 119 people at secret prisons around the globe.⁵ Through its "Rendition, Detention, and Interrogation" (RDI) program, the CIA kidnapped, held at dark sites, and systematically tortured detainees in what has been described as an American gulag.⁶ According to the report, the CIA's "enhanced interrogation

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techniques" included waterboarding, slamming detainees against a wall, sleep deprivation, nudity, rectal feeding without documented medical necessity, ice baths, death threats to the detainees, and threats to kill or sexually assault their family members.⁷ The Report also refers to the effects of such treatment on the detainees, including "hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation."⁸

While the report shocked many, most of the information it contained was not new. In 2006, the Council of Europe reported that "across the world, the United States has progressively woven a clandestine 'spiderweb' of disappearances, secret detentions and unlawful inter-state transfers, often encompassing countries notorious for their use of torture."⁹ In 2005, a confidential International Committee of the Red Cross (ICRC) report to the CIA described detainees being subjected "to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information."¹⁰ Detainees were transferred to multiple locations, maintained in continuous solitary confinement and incommunicado detention, and subjected to the abuses detailed above.¹¹

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Yet the Senate's Torture Report actually covered a small subset of U.S. torture.¹² The images of prisoners tortured at Abu Ghraib remain seared into memory.¹³ But still more chilling is the fact that, as part of the RDI program, the CIA conducted "extraordinary renditions" of hundreds, or even thousands, of people to other countries to be tortured.¹⁴ A senior counterterrorism official defined such renditions as "operations to apprehend terrorists abroad, usually without the knowledge of and almost always without public acknowledgment of the host government."¹⁵ The CIA conducted 1,245 flights, according one report.¹⁶ As of 2006, an estimated 100 people had been kidnapped by the CIA on European Union territory alone (with the cooperation of Council of Europe members) and rendered to other countries, often after having passed through secret detention centers used by the CIA, some located in Europe.¹⁷ As will be described below,

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some fifty-four countries, from Albania to Zimbabwe, participated in the RDI program, including many EU member states.¹⁸

In Romania, for example, Mihail Kogälniceanu Airbase served as a location for the CIA to interrogate Iraqi and Afghani captives. Senator Dick Marty of the Council of Europe reported detainees were subjected to "interrogation techniques tantamount to torture"; he also underscored "a permissive attitude on the part of the Romanian authorities."¹⁹

One example of United Kingdom (UK) involvement was in 2002 when a British MI6 officer interrogating a detainee held by the U.S. military reported back to London that the person had been mistreated.²⁰ He asked for advice and received this response:

HMG's [Her Majesty's Government] stated commitment to human rights makes it important that the Americans understand that we cannot be party to such ill treatment nor can we be seen to condone it. In no case should [detainees] be coerced during or in conjunction with an SIS [British intelligence] interview of them.²¹

In 2004, the UK's MI6 conducted multiple rendition operations in conjunction with the CIA, in which they abducted two Libyan dissidents and

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their families, including children between six and twelve years old and flew them to Gaddafi's prisons.²²

Other European countries participated as well. In Poland, a former Soviet-era military compound called Szymany served as the main base for CIA interrogations in Europe. At this site, according to Senator Marty, the CIA used " 'enhanced methods' of interrogation, such as extreme sleep deprivation and waterboarding."²³ In Italy, United States and Italian operatives abducted Egyptian cleric Abu Omar and illegally transferred him via Germany to Cairo, where he was held incommunicado and reported that he was tortured in Egyptian custody.²⁴

At least some of the renditions were conducted based on mistaken identity. For instance, Laid Saidi, an Algerian detained and tortured along with German citizen Khaled El-Masri, was apprehended because of a taped telephone conversation in which the word tirat, meaning 'tires' in Arabic, was mistaken for the word tayarat, meaning "airplanes."²⁵ In another such case, German citizen Khaled El-Masri was abducted in the Balkans, taken to Afghanistan, and tortured.²⁶ One former Guantánamo commander, Brigadier

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General Jay Hood, told a reporter, "[s]ometimes, we just didn't get the right folks."²⁷

And since the report's release, even more disturbing details have emerged about the program. In 2016, in response to a Freedom of Information Act (FOIA) lawsuit by the American Civil Liberties Union (ACLU), "[n]early 900 pages of previously classified CIA emails, interrogation reports and internal investigations" revealed new information, including verifying that some CIA prisoners were snatched in error.²⁸ Abu Zubaydah, who was waterboarded at least eighty-three times in CIA custody, was a particular focus. "Senior CIA officials uniformly believed he should be hidden away in isolation [forever], according to a heavily redacted memo from 2002," which went on to say: "All major players are in concurrence that AZ should remain incommunicado for the remainder of his life."²⁹

This paper argues that it is important to have accountability and redress for the torture perpetrated by U.S. officials and their foreign counterparts for the following reasons: (1) international and U.S. law requires it; (2) impunity for such crimes will encourage their future perpetration; and (3) the victims deserve redress. In Part II, the importance of redress and accountability is analyzed. Part III explains that, although the optimal place to prosecute these crimes would be U.S. courts, such prosecution is unlikely to happen; therefore, it is important that prosecutions take place internationally. Because of the heinousness of the crimes, many legal scholars have called on states to invoke universal jurisdiction (UJ) as a legal basis for such prosecutions. However, UJ remains controversial. This paper argues that because of UJ's weaknesses it should be used only as a last resort, and that the best option for prosecuting these crimes is using traditional bases of jurisdiction like territorial and personality jurisdiction. The global nature of the RDI program, which involved fifty-four countries, means there are global opportunities to prosecute—indeed, many countries outside the United States have already demonstrated their willingness to do so. The paper concludes that these international venues are where advocates should focus their efforts, as the most practical options for achieving the redress and accountability torture victims deserve.

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II. The Need for Redress and Accountability

Accountability and redress for the torture U.S. officials committed and endorsed is required by U.S. and international law. The Convention Against Torture (CAT), to which the U.S. is a High Contracting Party, describes and defines torture³⁰ and contains this absolute prohibition: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."³¹ The CAT contains a mandatory "try or extradite" provision that requires a State to establish jurisdiction over alleged offenders when the offense is committed within the territory under that State's jurisdiction, or aboard "a ship or aircraft registered in that State," or "[w]hen the alleged offender is a national of that State."³² The CAT also permits the exercise of jurisdiction in...