Indefensible: a Reference for Prosecuting Torture and Other Felonies
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INDEFENSIBLE A Reference for Prosecuting Torture and Other Felonies Committed By U.S. Officials Following September 11th About the World Organization for Human Rights USA Human Rights USA is a Washington, DC based non-profit organization that works to interpret, effectuate, and enforce human rights responsibilities in the U.S. legal system. Using impact litigation and other legal strategies, Human Rights USA seeks to obtain justice for victims of human rights violations, hold those responsible for violations accountable, deter future violations, and ensure that U.S. laws uphold internationally recognized human rights. About the American University Washington College of Law International Human Rights Law Clinic The International Human Rights Law Clinic at American University’s Washington College of Law is one of the oldest human rights clinics in the United States. The clinic carries out its mission of client representation in a broad range of cases and projects, often with local partners, all of which share a common commitment to justice through the advancement of international human rights law, both domestically and internationally. Acknowledgments This report is the result of a multi-year collaborative effort by attorneys, law professors, clinical students, and law students including: • Human Rights USA staff, current and former: Colleen Costello (author and editor), and Allison Lefrak, Theresa Harris, Piper Hendricks, and Meredith Owen (editors). • Human Rights USA legal interns: Ari Levin (American University Washington College of Law), Charles Mark VanKirk (George Washington University Law School), Christiaan Segura (Pennsylvania State University Dickerson School of Law), Danielle Goldstone (Emory University School of Law), Denise Marie Hunter (George Washington University Law School), Ely Ross (Pennsylvania State University Dickerson School of Law), Flora Manship (Emory University International Humanitarian Law Clinic), Greg Coordes (University of Chicago Law School), Shannon Kyle (Emory University School of Law), Molly Wessel (Pepperdine University School of Law), Mustafa Ünlü (Michigan University Law School), Nadia Ben-Youssef (Boston College Law School), Nandini Rao (Emory University School of Law), Rahel Jerusalem Kifle (American University Washington College of Law), Shannon Kyle (Emory University School of Law), Stacy Tolos (Emory University School of Law), Karl Timbers (University of Toledo College of Law), Stacy Cammarano (University of Texas School of Law), Amanda Lee (University of Michigan Law School), Brenna Daugherty (American University Washington College of Law), Shaun Bokhari (Indiana University Maurer School of Law); Ilissa Mira (University of California Davis School of Law); • Student Attorneys at the American University Washington College of Law International Human Rights Law Clinic, supervised by Professor Richard J. Wilson: Michael Orlando, Nina Elisseou, Eman Hammoud, and Whitney Hayes; • Students at University of Toledo College of Law, supervised by Professor Benjamin G. Davis; Scott Aaronson, Chungjin Chung, Tracy L. Beighley, Kathleen Davis, Holly L. Hillyer, Fatema Fathnezhad, Zachary Hillyer, Jeffrey Knight, Christine Kimberly Karl Timbers; and January 2012 • The legal librarians at Michigan State University for their valuable support in research. The authors are grateful for the additional assistance of The Torture Abolition and Survivors Support Coalition (TASSC); Lawrence Velvel, Dean, Massachusetts School of Law; Meetali Jain, Project Director, South African Youth Constitutional Literacy and Service Project, Democratic Governance and Research Unit in the Faculty of Law, University of Cape Town; and Hazel Weiser, Executive Director, SALT (Society of American Law Teachers), and Laurie Blank, Director, Emory University, International Humanitarian Law Clinic; and Brian Evans for his assistance in the final compilation of this report. Human Rights USA would also like to thank Marjorie Cohn, Professor, Thomas Jefferson School of Law; Jill Flores, Psychologists for Social Responsibility; Peter Weiss, President, Lawyers Committee on Nuclear Policy and Vice President of the Board of Directors for the Center for Constitutional Rights; Kristina Borjesson, Investigative journalist and author; and Valeria Gheorghiu, attorney, for their contributions to this report and helping to get this project off the ground. The authors are particularly grateful to David Crane, Professor of Practice, Syracuse University College of Law and Robert Goldman, Professor, American University Washington College of Law for reviewing the report and providing valuable insight and feedback that helped to shape the final drafting of this report; and Benjamin G. Davis, Associate Professor, University of Toledo College of Law and Catherine Grosso, Associate Professor, Michigan State University College of Law for their individual contributions to the report, reviewing the report and providing valuable feedback, and overseeing the students as they researched and drafted the report. DISCLAIMER This guide is intended to provide the public with a better understanding of the legal framework that prohibits torture, cruel, inhuman or degrading treatment, and related human rights violations and that also demands thorough investigation and prosecution when viable allegations of these prohibited acts come to light. The report applies this legal framework to publicly available information regarding detentions and interrogations related to national security efforts following September 11, 2001. However, the legal strategies, arguments, and authority included in this guide are not exhaustive and are not broken down for each individual federal circuit. This guide should not be used as a substitute for independent legal research or in place of an individualized strategy suited to the circumstances of each case. January 2012 COPYRIGHT NOTICE All materials contained in this document are protected by United States copyright law. The right to download and store or output the materials in this document/on this site is granted for the user’s personal, noncommercial use only, and materials may not be reproduced or edited in any form. Users must preserve any copyright or other notices contained in or associated with these materials. Any other reproduction, transmission, performance, display, or editing of these materials by any means mechanical or electronic without express written permission of the copyright holder is strictly prohibited. January 2012 Indefensible: A reference for prosecuting torture and other felonies Executive Summary.........................................................................................................................1 I. Introduction ............................................................................................................................7 II. The Attorney General Has the Authority to Appoint Special Counsel to Investigate and, Where Warranted, Prosecute Crimes Committed by United States Government Officials. ........ 20 A. Department of Justice Regulations grant the Attorney General authority to appoint Special Counsel ......................................................................................................................... 20 B. The Attorney General also has the power to delegate broad authority to a special prosecutor pursuant to the U.S. Code. ...................................................................................... 32 C. Where the subject matter of the investigation could raise serious conflict of interest issues pertaining to the DOJ, the DOJ regulations should be invoked as the appropriate source of authority for appointing Special Counsel ................................................................................. 36 III. The Orchestrated Effort by Former Top-Level Administration Officials to Implement a Detainee Interrogation Program Resulted in the Widespread, Systematic, and Unlawful Abuse and Torture of Detainees ............................................................................................................... 38 A. High-ranking members of the Bush Administration issued policies or directives authorizing detainee abuse ........................................................................................................ 39 B. Senior-level U.S. government officials set out to create a legal framework that would justify the use of unlawful interrogation tactics against detainees. .......................................... 48 C. The policies and directives issued by top U.S. government officials authorizing specific interrogation tactics were the direct cause of detainee torture, and cruel, inhuman, or degrading treatment...................................................................................................................82 IV. High-Ranking U.S. Government Officials Violated U.S. Domestic and International Law by Approving or Facilitating the Use of Torture and Other Forms of Human Rights Violations Against Terror Suspects ..............................................................................................................114 A. Top U.S. officials unlawfully conspired, facilitated, and directed the commission of torture and other human rights violations in violation of international law......................114 B. Top U.S. officials may also be held criminally accountable for contributing to, or conspiring to commit, crimes in violation of other U.S. federal criminal laws ...................... 117 C. Bush Administration