USA CHRONICLE OF IMMUNITY FORETOLD TIME FOR CHANGE ON COUNTER-TERRORISM VIOLATIONS AFTER ANOTHER YEAR OF BLOCKING TRUTH, REMEDY AND ACCOUNTABILITY Amnesty International Publications First published in January 2013 by Amnesty International Publications International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom www.amnesty.org Copyright Amnesty International Publications 2013 Index: AMR 51/003/2013 Original Language: English Printed by Amnesty International, International Secretariat, United Kingdom 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 the prior permission of the publishers. Amnesty International is a global movement of 3 million people in more than 150 countries and territories, who campaign on human rights. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments. We research, campaign, advocate and mobilize to end abuses of human rights. Amnesty International is independent of any government, political ideology, economic interest or religion. Our work is largely financed by contributions from our membership and donations Table of Contents Introduction – Of laws and men ..................................................................................... 1 International law and being economical with the truth...................................................... 3 Vance v. Rumsfeld ........................................................................................................ 7 District Court and Seventh Circuit panel allow lawsuit to proceed ................................. 10 Full Seventh Circuit court of Appeals urged to rehear the case ..................................... 11 The lawsuit blocked................................................................................................. 12 Doe v. Rumsfeld ......................................................................................................... 13 District Court allows lawsuit to proceed ..................................................................... 14 DC Circuit Court of Appeals dismisses lawsuit ............................................................ 15 Lebron v. Rumsfeld .................................................................................................... 15 US District Court blocks lawsuit................................................................................ 17 Fourth Circuit affirms lawsuit dismissal ..................................................................... 18 Padilla v. Yoo ............................................................................................................. 19 District Court allows lawsuit to proceed ..................................................................... 19 Ninth Circuit blocks the lawsuit ................................................................................ 22 Conclusion – Ends and human rights means.................................................................. 24 Postscript – Chronicle of immunity foretold ................................................................... 25 An illustrative chronology ......................................................................................... 27 Endnotes................................................................................................................... 50 USA: Chronicle of immunity foretold. Time for change on counter-terrorism violations after another year of blocking truth, remedy and accountability INTRODUCTION – OF LAWS AND MEN The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right US Supreme Court, Marbury v. Madison , 1803 It was a federal court opinion which left three dissenting judges accusing their colleagues of failing in the “judiciary’s responsibility to protect individual rights under the Constitution, including a right so basic as not to be tortured by our government”. 1 The majority decision of the US Court of Appeals for the Seventh Circuit, in Vance v. Rumsfeld on 7 November 2012, blocked a lawsuit brought by two men who alleged they were unlawfully detained and tortured in US military custody in Iraq in 2006. This decision was the latest in a series in which US courts have resolutely blocked access to a remedy by alleged victims of torture and other ill- treatment, a remedy to which victims are entitled under international law. 2 The named defendant in this case was Donald Rumsfeld, who served as US Secretary of Defense from 2001 to 2006 under President George W. Bush. During that time, he oversaw a system under which thousands of detainees were held in indefinite military detention without charge or trial in Afghanistan, the US naval base at Guantánamo Bay in Cuba, as well as in Iraq. He approved interrogation techniques which violated the international prohibition of torture and other cruel, inhuman or degrading treatment. His lawyers nevertheless asserted that the Seventh Circuit’s ruling was a “major win” which “completely vindicates Secretary Rumsfeld’s leadership of the Department of Defense, while providing important protections for the national security officials charged with keeping America safe”. 3 Six months earlier, a former member of the Bush administration and now a law professor at the University of California had reacted in a similar vein to the dismissal of another lawsuit when he expressed the hope that the decision in that case would save the USA from a future in which litigation cramped “the nation’s ability to fight and win the war against al Qaeda – and other enemies”. 4 The plaintiff in that case, José Padilla, was seeking redress for the unlawful detention, torture and other abuse he said he suffered in custody in a military facility on the US mainland between 2002 and 2005. 5 This earlier ruling was Padilla v. Yoo , issued by the US Court of Appeals for the Ninth Circuit on 2 May 2012. “That Yoo is me”, wrote the Berkeley professor. 6 He is John Yoo, who served as Deputy Assistant Attorney General at the Office of Legal Counsel (OLC) of the US Department of Justice from 2001 to 2003. During that time, John Yoo worked on numerous legal opinions, including one that gave OLC approval for interrogation techniques that amounted to torture or other ill-treatment under international law for use by the Central Intelligence Agency (CIA) against detainees held in secret custody at undisclosed locations. 7 In between these two rulings, there had been a third. In June 2012, in Doe v. Rumsfeld , the Court of Appeals for the District of Columbia (DC) Circuit blocked a lawsuit brought by another man alleging unlawful detention and treatment by the US military in Iraq in 2005 and 2006. Donald Rumsfeld was again the defendant. And in January 2012, in Lebron v. Rumsfeld , the Fourth Circuit Court of Appeals had blocked another lawsuit brought against Donald Rumsfeld and other former and current officials by José Padilla and his mother. An unusual aspect of these lawsuits was that the four plaintiffs were US citizens. In that regard, while undoubtedly raising serious allegations, they could be said to be the exceptions to the more general rule – namely that most of those subjected by US forces since 11 September 2001 to the types of abuses alleged by these three plaintiffs have been foreign nationals. As with the US citizen lawsuits, efforts to obtain redress and accountability for human rights violations against foreign nationals have been systematically blocked, in breach Index: AMR 51/003/2013 1 Amnesty International 17 January 2013 USA: Chronicle of immunity foretold. Time for change on counter-terrorism violations after another year of blocking truth, remedy and accountability of the USA’s international legal obligations.8 A recent partial exception to this rule was the out-of-court monetary settlement reached in October 2012 in a case involving more than 70 Iraqi nationals who sued a US company which had provided interpreters for the US military in Iraq. The lawsuit, one of several that have been brought against private contractors, alleged that the company’s personnel were involved in war crimes, torture and other abuses against the detainees when held in Abu Ghraib and other facilities. The settlement was reached after the US Court of Appeals for the Fourth Circuit declined to block the lawsuit from proceeding. After the administration directly responsible for putting the USA on a slippery slope of unlawful detention and interrogation policies in the post 9/11 counter-terrorism context left office in January 2009, there was hope that things would change on the accountability front. However, President Barack Obama took up not only the flawed “global war” framework developed under his predecessor to the detriment of human rights, 9 but also adopted a forward-looking orientation to the exclusion of remedy, truth and accountability for the human rights violations committed in the context of counter-terrorism. President Obama suggested that to do otherwise would “distract us from focusing our time, our efforts, and our politics on the challenges of the future”. He said that he opposed the creation of an independent commission to investigate human rights