hink tank plans study of how US treats detainees

A nonpartisan legal think tank plans to study U.S. treatment of terrorism detainees, partly out of concern that the country’s policies lack clarity and can be manipulated to permit abuse or torture in dangerous times, members of a task force appointed to conduct the study said.

Eleanor J. Hill, one of three chairpersons on The Constitution Project’s new panel, said events after the Sept. 11 terrorist attacks such as the abuse by American troops of inmates at Abu Ghraib prison in Iraq and complaints of detainee torture will be one focus of the study.

She said it was important in fighting terrorism to project an image of the United States that is consistent with the principles the country was founded upon so that terrorists are not viewed more favorably than Americans in some parts of the world.

“When you see stories of Abu Ghraib and stories of torture, it’s not the kind of America we want the rest of the world to see and the kind of country we want to be,” said Hill, who was a Department of Defense inspector general under President Bill Clinton. “America is not what terrorists say we are, an evil country to be hated.”

Former FBI Director William Sessions, former Arkansas U.S. Rep. Asa Hutchinson, a retired Army general and a retired appeals court judge in Washington are among 11 people selected for a task force that will meet for the first time in early January, said Virginia Sloan, a lawyer and president of The Constitution Project.

Sloan said the task force will try to reconcile the lack of clarity and consistency in U.S. detainee treatment policies to ensure public confidence in future policy decisions. Its work should produce a final report in a year to 18 months, she said.

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Supreme Court asks US government to offer views in Saleh et al v CACI International

The Supreme Court opened a new Term on Monday by asking the federal government to offer its views on  lawsuits against private contractors who work overseas for the U.S. military.  The new case involves former Iraqi civilian detainees who had been held at the notorious Abu Ghraib prison that the U.S. military operated in Baghdad during combat operations there. Scotus blog reports:

The petition in the case — Saleh, et al., v. CACI International and Titan Corp  — argued, with the support of international law scholars, retired military officers, and human rights activitists, that there is a sharp split among federal appeals courts on whether the U.S. Alien Tort Statute applied to private, non-state actors.  The former Abu Ghraib prisoners also argued that the D.C. Circuit Court has created an entirely unprecedented “battlefield preemption” doctrine that effectively insulates more than 200,000 employees of military contractors in Iraq from any form of legal accountability for wrongdoing.

The detainees’ lawsuit targeted CACI because it provided interrogators to the U.S. military, and Titan because it provided interpreters.   Two groups initially filed the lawsuit — seven Iraqis who claimed that they or their late husbands had been tortured at Abu Ghraib, and 12 Iraqis, the estate of one other, and 1,050 “John Does” representing other former detainees.  All of those still living remain residents of Iraq.

There is no deadline for the Solicitor General to response to any of Monday’s invitations for its views.

Title: Saleh v. Titan Corp.
Docket: 09-1313
Issue(s): 1)
Whether the court of appeals erred by finding that claims for torture
and other war crimes cannot be brought against private actors under the
Alien Tort Statute; and 2) whether the court of appeals erred by
creating a “battle-field preemption” doctrine that extends derivative
sovereign immunity to contractors.

Certiorari-Stage Documents:

Judge Denies Motion to Dismiss Abu Ghraib Torture Case in Wissam Abdullateff Sa’eed Al-Quraishi, et al., v. Adel Nakhla, et al.

A group of 72 Iraqi citizens who allege they were tortured while imprisoned at detention facilities across Iraq can continue with their lawsuit against military contractor L-3 Services, Inc. and a former employee, a federal judge in Maryland ruled.

In a 92-page opinion, U.S. District Court Judge Peter J. Messitte denied the defendants’ motions to dismiss the Iraqis’ federal and state court claims. He wrote,

“On the facts alleged, Defendants’ actions arguably violated the laws of war such that they are not immune from suit under the laws of war.”

The court also rejected claims of government contractor immunity defense.

“During wartime,” the court wrote, “‘many things are lawful in that season, which would not be permitted in a time of peace.’ Some actions, however, have been deemed so repulsive to mankind, or so disconnected from prosecuting and winning a war, that they are universally condemned. The law of war attempts to rein in these behaviors. …One such universally recognized rule is that torture is prohibited.”

The lawsuit alleges that L-3 employees, including Adel Nakhla, a U.S. citizen born in Egypt, tortured and otherwise physically and mentally abused the detainees who were arrested by coalition forces and held for up to four years between July 2003 and May 2008 at various detention facilities in Iraq, including Abu Ghraib.

The detainees assert 20 causes of action, including war crimes including the war crime of torture, cruel, inhuman and degrading treatment, sexual assault and battery, and intentional infliction of emotional distress, pursuant to the federal Alien Tort Statute and under state law. The abuses they allege include beatings, hanging by the hands and feet, electrical shocks, mock executions, threats of death and rape, sleep deprivation, stress positions, sexual assault, and sensory deprivation.

Nakhla worked as an Arabic translator from June 2003 through May 2004 at Abu Ghraib. According to the lawsuit, Mr. Nakhla was photographed participating in the torture of prisoners at Abu Ghraib, and confessed his involvement in acts of torture and abuse to military investigators.

The case is “Wissam Abdullateff Sa’eed Al-Quraishi, et al., v. Adel Nakhla, et al.,” Civil No. PJM 08-1696 in the U.S. District Court for the District of Maryland, Greenbelt Division.

Military court hearing Graner’s Abu Ghraib appeal

The Associated Press reports that the U.S. military’s highest court is set to hear the appeal of the alleged ringleader of assaults on detainees at Abu Ghraib (grayb) prison in Iraq in 2003.

Spc. Charles Graner, of Uniontown, Pa., is serving a 10-year sentence for stacking naked prisoners into a pyramid, knocking one of them out with a punch and ordering prisoners to masturbate while other soldiers took pictures.

His defense will argue Monday before the U.S. Court of Appeals for the Armed Forces in Washington that it was wrongly denied access to then-classified documents showing that some of the detainee treatment reflected “enhanced interrogation techniques” approved by Defense Secretary Donald Rumsfeld.

The government maintains there was no error and that any relevant information was already publicly available.

Alkarama submits Iraqi torture case to UN

Abdenasser Hassan, a Palestinian from Lebanon, was arrested in Iraq by U.S. military forces in 2003 and eventually released in August 2009 without ever having been tried. He claims to be severely tortured throughout his detention. On 8 March 2010, Alkarama submitted his case to the Special Rapporteur on Torture, requesting his intervention with the U.S. and Iraq. According to Alkarama:

Abdenasser Ahmed Hassan (عبد الناصر أحمد حسن), was born in 1968 and is a Palestinian merchant living in Lebanon. He was arrested on 1 August 2003 in Karah, Iraq by U.S. section #101 of the coalition forces, and led directly to a detention camp on the U.S. military base near Baghdad International Airport and then transferred three days later to Abu Ghraib prison.

During his detention at Abu Ghraib, Abdenasser Hassan was repeatedly tortured by the U.S. forces, and then released on 25 January 2004 when they admitted that he had been “accidentally arrested”.

He was once again arrested on 18 February 2005 by U.S. forces in Iraq and detained in Badush prison, Mosul. Throughout his detention he never underwent any legal proceedings. He then was transferred between Kal’et Souah prison, northern Iraq and Arrassafi prison before being released on 6 August 2009. Two weeks later, on 22 August 2009, Abdenasser Hassan managed to return to Lebanon with the help of the International Federation of the Red Cross and Red Crescent Societies.

Not only during his detention in Abu Ghraib, but elsewhere, Abdenasser Hassan was subject to severe torture by U.S. forces, as well as other inhuman and degrading treatment. He is reported to have been beaten in front of other prisoners and to have electrocuted on several occasions. He was in fact systematically tortured with pepper spray; hooded and deprived of sleep of long periods; exposed to sunlight until his collapse; and held in a freezing cold cell. His torturers are code named “Coungar 5” and “Cougar 6”.

Due to the torture inflicted upon him during his detention, Abdenasser Hassan not only suffers from post-dramatic stress disorder, but also has constant and excruciating physical pains caused by a fracture to his right shoulder and the loss of many of his teeth due to blows to the face; and as a consequence of long periods in handcuff, he now suffers from an acute pain to his right wrist, where his veins were cut by the cuffs.

DOJ clears Bush administration lawyers of professional misconduct allegations

(Jurist) The US Department of Justice (DOJ) has overruled the findings of a report released Friday 19 February concluding that two Bush administration lawyers committed professional misconduct when they wrote memos  authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo and Jay Bybee were only guilty of “poor judgment” in writing the memos.

An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” The report also found that Bybee had committed professional misconduct when he acted in “reckless disregard” of his duty to exercise independent legal advice.

However, David Margolis, an associate deputy attorney general, released a separate memo overruling the OPR’s report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct. Margolis said:

This decision should not be viewed as an endorsement of the legal work that underlies those memoranda. However, OPR’s own analytical framework defines “professional misconduct” such that a finding of misconduct depends on application of an known or unambiguous obligation or standard to the attorney’s conduct. I am unpersuaded that OPR has identified such a standard.

Analysts divided bitterly on the decision. At issue are the sometimes vague standards for professional competence that lawyers must meet. Watchdogs generally focus on basic concepts, such as meeting deadlines and protecting clients’ money, four experts said.

Rarely, the experts said, are lawyers scrutinized for judgment calls, such as how broadly the constitution and legal precedent inhibit presidential authority, a question that was at the heart of the Yoo and Bybee memos.

The most controversial issue at stake of course is the definition of torture adopted in the Memos.

Stuart Taylor makes a sustained effort to defend Jay Bybee and John Yoo. He expresses his support for the “analytical approach” that Yoo pioneered in the memos, starting with the idea that while techniques like waterboarding may well be “torture” as the term is commonly used, it is not “torture” within the specific definition that Congress put forward.

David Luban replied to Taylor in a recent post:

The core definition of torture in both the U.S. torture statute and the Convention Against Torture is intentional infliction of “severe physical or mental pain or suffering.” That’s not a narrow or technical definition (although Congress went on to give a narrow definition to the mental pain or suffering part). In other words: the colloquial meaning of ‘torture’ is virtually the same as the legal definition. The OED definition, by the way, is so similar to the CAT definition that it seems likely that whoever drafted article 1 of CAT may have drawn on the OED.

The torture memo’s were an issue in a recent decision of the U.S military’s highest court on 16 February to review the conviction of an Army reservist who prosecutors said was the ringleader of detainee abuse at Abu Ghraib prison in Iraq.

The United States Court of Appeals for the Armed Forces said it would consider whether the trial judge erred by refusing to let jurors see memorandums approving “enhanced interrogation tactics” for detainees.

US military appeals court upheld Abu Ghraib guards convictions

(Jurist) On Friday 5 February 2010, the US Court of Appeals for the Armed Forces upheld the convictions of two soldiers found guilty of offenses committed as guards at Abu Ghraib prison.

Army Spc. Sabrina Harman had been convicted of conspiracy, dereliction of duty and maltreatment of prisoners dating back to November 2003. Sgt. Michael Smith, similarly, was found guilty of conspiracy to maltreat prisoners, dereliction of duty and indecent acts.

The appeals court upheld the convictions, finding no reversible error in the decision of the lower court, the Army Court of Criminal Appeals. The convictions recognized limited rights on the part of detainees outside the US.