International Center for Transitional Justice CRIMINAL JUSTICE FOR CRIMINAL POLICY: Prosecuting Abuses of Detainees in U.S. Counter- terrorism Operations An ICTJ Policy Paper November 2009 Carolyn Patty Blum, Lisa Magarrell, Marieke Wierda Cover Image: Redacted page (52) from Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), a May 2004 Special Review by the CIA’s Office of the Inspector General. Portions of that report have been declassified through litigation by the American Civil Liberties Union and other organizations under the Freedom of Information Act. The Bush administration released a few paragraphs and lines of the report in May 2008 and the Obama administration went considerably further in an August 2009 reclassification. Regardless, this page and many others, including all of the In- spector General’s recommendations, remain classified as of this writing. Ques- tions persist about the full scope of abuses under U.S. policies on rendition, de- tention and interrogation. ICTJ’s policy paper relies on declassified information and other reporting to make the case for a thorough criminal investigation of abuses in counterterrorism policy and operations. Such an investigation must include those parts of the “dark side” still hidden from public view. CRIMINAL JUSTICE FOR CRIMINAL POLICY: Prosecuting Abuses of Detainees in U.S. Counter- terrorism Operations November 2009 An ICTJ Policy Paper Carolyn Patty Blum, Lisa Magarrell, Marieke Wierda International Center for Transitional Justice ICTJ New York 5 Hanover Square, 24th Floor New York, NY 10004 Tel + 1 917 637 3800 Fax + 1 917 637 3900 About ICTJ About the U.S. Accountability Project The International Center for Transitional Justice works The U.S. Accountability Project develops realistic policy to redress and prevent the most severe violations of hu- options for addressing the serious and systematic man rights by confronting legacies of mass abuse. ICTJ violations of human rights incurred through U.S. coun- seeks holistic solutions to promote accountability and terterrorism operations after September 2001. It makes create just and peaceful societies. For more information, informed analysis and technical assistance available to go to: www.ictj.org. advocates and policy-makers on accountability issues. In undertaking this work, the Project applies ICTJ’s in-depth international experience and draws comparative lessons appropriate to the U.S. context. For more information, go to: www.ictj.org/en/where/region2/2260.html. An electronic edition of this report is available at www.ictj.org ISBN: 978-1-936064-04-5 © International Center for Transitional Justice 2009. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without full attribution. Prosecuting Abuses of Detainees in U.S. Counterterroism Operations About the Authors Carolyn Patty Blum is Senior Project Consultant to justice topics. She earned her U.S. law degree in 1979 ICTJ’s U.S. Accountability Project. She also has served and has an LLM from Columbia University. Her human as a consultant to the Center for Constitutional Rights, rights work prior to joining the ICTJ includes representa- Guantanamo Global Justice Initiative and the Center for tion of asylum seekers and migrant farm-workers in the Justice and Accountability. She is an Adjunct Professor United States, human rights documentation and advo- of Law at Columbia University Law School where she cacy work with the non-governmental Human Rights teaches Refugee Law. She was previously a Clinical Commission of El Salvador and verification of peace Professor of Law at the University of California, Berke- agreements in Guatemala as a UN political affairs officer. ley, where she founded Boalt Hall Law School’s Inter- national Human Rights Law Clinic. She has written Marieke Wierda is Director of the Prosecutions extensively on refugee law and human rights and has Program at ICTJ. She is a Dutch citizen born and raised assisted in the litigation of major asylum and human in Yemen. She studied law at Edinburgh and New York rights cases in the United States. Blum is a 1976 University and is a member of the New York Bar. As a graduate of the Northeastern University School of Law. staff member of the International Criminal Tribunal for the former Yugoslavia, she worked with the judges in Lisa Magarrell directs ICTJ’s U.S. Accountability Project. Chamber. Since joining ICTJ in 2001, she has worked on Since joining ICTJ in 2001 she has worked on truth prosecutions-related issues and transitional justice in commission processes, reparations and justice issues many countries, including extensive engagements in around the world, including in Peru, Ghana, Sierra Le- Sierra Leone, Uganda, Afghanistan, Iraq and Lebanon, one, Canada and the United States. She is the co-editor as well as in Colombia, Israel/Occupied Palestinian of The Legacy of Truth—Criminal Justice in the Peruvian Territory, Kenya, Liberia and Sudan. She is the author Transition and has written widely on other transitional or co-author of numerous publications including on the International Criminal Court in Uganda, hybrid tribunals, the trial of Saddam Hussein, and peace and justice issues, including a book on International Criminal Evidence. International Center for Transitional Justice Acknowledgments The authors would like to thank ICTJ law fellows Anh- Clemens, Young Lee, Anik Guha, Geoffrey Moss, Thu Nguyen and Lorna Peterson for their significant Ben Davidson, Russell Zwerin, Tracey Lesetar, Emilie contribution to this paper through research and edito- Mathieu, Barrington Dyer, former associates Matthew rial support. Laura M. Olson, President of Blackletter Hogg and Mariko Miki, and research specialist Wilson Consulting, LLC; Melissa Bullen, and Lise Johnson were Addo. Likewise, we extend our thanks to Jennifer L. of particular assistance through their extensive early Hobbs and Collette M. Pollitt, of Simpson Thacher & research. We are very grateful to colleagues including Bartlett, LLP, who were aided by associates Charlene Devon Chaffee; Juan E. Méndez, ICTJ’s President Emeri- Caprio, Kristin Marvin, Jiyoung Sohn and Jodie Sopher. tus; Tom Parker, Amnesty International USA; Claire Tixeire, Fédération Internationale des Droits de l’Homme We also thank the Open Society Institute, the John (FIDH) and Center for Constitutional Rights (CCR); and Merck Fund and the individual donors whose support Jonathan Tracy, National Institute of Military Justice of ICTJ’s U.S. Accountability Project made the research (NIMJ), who generously read and provided comments and publication of this paper possible. We note that the on earlier drafts. individuals and institutions referenced here are not in any way responsible for—or necessarily in agreement At ICTJ, Leonardo Filippini and Cristián Correa provided with—the contents of the final paper. helpful information regarding Latin American experi- ences. We were also ably assisted on background issues and discrete research questions by the work of pro bono firms and their dedicated attorneys. We thank associate Scott Roehm of Orrick, Herrington & Sutcliffe, LLP, and his colleagues Lisa Cirando, Natasha Cupp, Yas Raouf, Leah Somoano, Julianne Spears, Tabitha Lundberg, Jenna Prosecuting Abuses of Detainees in U.S. Counterterroism Operations CONTENTS Executive Summary ................................................................................................................................................................................................................................................................................................................................................................................................... 3 1. Introduction ............................................................................................................................................................................................................................................................................................................................................................................................................................. 6 2. The Abuse of Detainees as a System Crime .................................................................................................................................................................................................................................................................................................... 8 The Crime Base: Effects of the Policy in Various Locations .......................................................................................................................................................................................................................................................... 8 Official Knowledge and Responsibility for “Enhanced Interrogation” Policy and Torture ........................................................................................................................................... 10 Principals Committee .............................................................................................................................................................................................................................................................................................................................................................................