“Next Generation” Strategies Challenging Abuse in Transnational Counterterrorism Practices Conference Notes: Recent Developments in Counterterrorism Practices, Litigation & Advocacy To set up the advanced discussions intended for the October 1‐2 meeting, these notes describe recent developments in several countries regarding counterterrorism practices, litigation and advocacy. The notes consist of summaries and excerpts of documents: litigation filings, advocacy letters, legal analyses and documentary reports. A background paper on recent developments in U.S. litigation prepared by the Human Rights Institute is also included. The summaries and excerpts provide a quick orientation to the specific issues and cases our presenters will discuss at the meeting, while the full documents are available online as a resource for further study. The summaries and excerpts are organized by session, in the same order we expect the meeting’s short presentations to occur. List of Summarized and Excerpted Materials Conference Notes: Recent Developments in Counterterrorism Practices, Litigation & Advocacy SESSION 1: COMPARING APPROACHES TO SHARED CHALLENGES 1. “Human Rights Litigation and the ‘War on Terror’” Canada: Developments on Transfer Case study: Maher Arar – Accountability Developments 2. “Arar working with RCMP as it probes his overseas torture” 3. Additional Readings on Arar Accountability Case study: Accountability for Torture in Afghan Detainee Transfers 4. Remarks of Alex Neve, AI Canada at Special Forum on the Canadian Mission in Afghanistan 5. Complaint to Military Police Complaints Commission 6. “Standard of Conduct” (Written submissions in “Matter of a public interest hearing before the Military Police Complaints Commission”) Additional Readings on Canadian Developments 7. Abdelrazik v. Canada United Kingdom: Commission of Inquiry on Torture and Related Litigation 8. Letter: “Inquiry into alleged UK involvement in the mistreatment of detainees held abroad,” 9. “The Case of Binyam Mohamed” 10. Al Rawi & Ors v the Security Service & Ors SESSION 2: ACCOUNTABILITY LITIGATION OUTSIDE THE UNITED STATES Europe: Inquiries into Complicity, Rendition and Secret Detention 11. “CIA 'Extraordinary Rendition' Flights, Torture and Accountability – A European Approach” 1 12. “CIA Secret Detention Places in Poland – Current Legal Developments” 13. “Poles urged to probe CIA prison acts” European Court of Human Rights: Barriers to Litigation and Recent Cases 14. Written Comments, Jones v. United Kingdom Mitchell & Ors. V. UK 15. Application: El‐Masri v.Macedonia SESSION 3: ROUNDTABLE DISCUSSION – CHALLENGES IN THE U.S.: LITIGATION BARRIERS, EMERGING ISSUES AND NEW STRATEGIES Overview 16. HRI Background Paper 17. “Establishing a New Normal: National Security, Civil Liberties and Human Rights Under the Obama Administration” Executive Detention 18. “Tackling Prisons Beyond the Law: Guantánamo Revisited” 19. “Habeas Works: Federal Courts’ Proven Capacity to Handle Guantanamo Cases” 20. “A Trial Within A Trial: Justice, Guantanamo‐Style” Accountability for Torture 21. “Counter‐Counter‐Terrorism Via Lawsuit: The Bivens Impasse” 22. “‘Rendition’ challenge scuttled” Emerging Litigation Issues 23. “Final Report: Guantanamo Review Task Force” 24. “U.S. Debates Response to Targeted Killing Lawsuit” 25. “CUNY CLEAR – Creating Law Enforcement Accountability & Responsibility” SESSION 4A: CHALLENGING U.S. DETENTION & TRANSFER DECISIONS THROUGH TRANSNATIONAL LITIGATION & ADVOCACY Canada and the U.S.: Omar Khadr 26. “Comment: Canada (Prime Minister) v. Khadr, 2010 SCC 3” 27. “Are Declaratory Orders Appropriate for Continuing Human Rights Violations? The Case of Khadr v Canada” 28. Additional Readings on Khadr Afghanistan and the U.S. : U.S. v. Jawad 29. US v. Jawad press release SESSION 4B: CHALLENGING INTER‐STATE COOPERATION: DETENTION BY PROXY, RENDITIONS AND DRONE KILLINGS IN PAKISTAN Yemen: Sharif Mobley Case 30. “The post‐9/11 life of an American charged with murder” 31. “Re: FOIA/Privacy Act Request of Sharif Mobley” East Africa: Secret Detention and Renditions 32. “Blindfolded, Handcuffed and Carted Off: An Appraisal of Unlawful Transfers as a Response to Security Threats in Africa” 33. Additional Reading: “Kenya and Counter‐terrorism: A Time for Change” Pakistan: Drone Killings and Secret Detention Drone Killings 34. “Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004‐2009” 35. Study on Targeted Killings, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions Secret Detention and Torture in Pakistan 36. UN Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism 37. “Cruel Brittania: British Complicity in the Torture and Ill‐treatment of Terror Suspects in Pakistan” 2 Session One: Comparing Approaches to Shared Challenges 1. “Human Rights Litigation and the ‘War on Terror’” Helen Duffy, International Review of the Red Cross, 90:871 (September 2008) Journal Article: Duffy (Interights) assesses the willingness of the judiciary, across diverse systems, to question counterterrorism measures. She describes the positive effects of human rights litigation, including: framing the issues as a matter of law, not only politics; serving as a catalyst to change law or practice; securing access to information in the face of a wall of state secrecy; and impacting practice transnationally. In the full article, Duffy traces recent litigation across countries on issues including arbitrary detention; the exterritorial application of human rights obligations; torture; renditions; and terrorism “lists.” Canada: Developments on Transfer Case study: Maher Arar – Accountability Developments 2. “Arar working with RCMP as it probes his overseas torture” Colin Freeze and Steven Chase, Globe and Mail (June 2010) Media account: The article describes an investigation by Canada’s federal police into the rendition of Canadian national Maher Arar to Syria. While long believed to be complicit in Arar’s rendition, the RCMP is now gathering evidence in support of a possible prosecution of Syrian officials. 3. Additional Readings on Arar Accountability Review of the Findings and Recommendations Arising from the Iacobucci and O’Connor Inquiries,” Report of the Standing Committee on Public Safety and National Security (June 2009) Case study: Accountability for Torture in Afghan Detainee Transfers 4. Remarks of Alex Neve, AI Canada at Special Forum on the Canadian Mission in Afghanistan Osgoode Hall Law School, York University (February 2010) Speech: Alex Neve (Amnesty International Canada) describes the human rights community’s evolving response to revelations, beginning in 2002, that prisoners captured by Canadian forces’ in Afghanistan were tortured at the hands of U.S. personnel and the Afghan National Directorate of Security (NDS). He charts litigation efforts, political developments in Canada and changes in detainee transfer policy. Finally, he describes the Afghan transfer cases in the context of a “much wider erosion” of the effectiveness of international human rights and humanitarian law. 5. Complaint to Military Police Complaints Commission Paul Champ (June 2008) Filing: This update to a complaint to Canada’s military police complaints commission challenges the military police’s failure to investigate possible crimes committed by senior Canadian officers who ordered the transfer of detainees to the custody of the Afghan secret police despite first‐hand reports that previous detainees were tortured. 3 6. “Standard of Conduct” (Written submissions in “Matter of a public interest hearing before the Military Police Complaints Commission”) Amnesty International and British Columbia Civil Liberties Association (March 2010) Filing: The brief applies international legal standards on the duty to investigate potential crimes and breaches of international law to military police charged with investigating Afghan detainee transfer abuses. Additional Readings on Canadian Developments 7. Abdelrazik v. Canada Minister of Foreign Affairs (June 2009) A Canadian federal court permitted an application for judicial review of the Canadian government’s conduct allegedly thwarting a Canadian national’s return to Canada. In 2003, Abdelrazik was detained and allegedly tortured by Sudanese officials based on the recommendation, “directly or indirectly,” of Canadian intelligence. After being released, he was put on a terrorist list and refused a passport or travel document. United Kingdom: Commission of Inquiry on Torture and Related Litigation 8. Letter: “Inquiry into alleged UK involvement in the mistreatment of detainees held abroad,” AIRE Centre, Amnesty International, et al. (September 2010) Open letter to government official: Addressing the head of the newly announced UK commission of inquiry into torture, leading UK human rights organizations describe basic human standards with which the inquiry should comply. The letter recommends particular terms of reference and measures to ensure that the inquiry provides “effective redress” for victims. 9. “The Case of Binyam Mohamed” Rachel Fleetwood, Interights Bulletin 16:1 (November 2010) Legal Article: The article provides an overview of legal proceedings in the UK concerning Binyam Mohamed, a British national returned to the UK in February 2009 after having spent almost seven years in custody in Pakistan, Morocco and Guantanamo Bay. UK lawyers claimed that British intelligence sources had been involved in Mohamed’s extraordinary rendition, and sought release of documents