South Carolina judge rules that Padilla has no right to pursue torture charges in Padilla v. Rumsfeld

[ASIL] The U.S. District Court for the District of South Carolina has dismissed all claims of torture and abuse by Jose Padilla against several current and former government officials stemming from his capture, interrogation, and subsequent classification as enemy combatant. The judge also ruled that, even if Padilla were allowed to sue, the current and former Pentagon officials he sued would be legally immune to all such charges, since the law governing detention was so uncertain at the time he was held.

Padilla, a U.S. citizen currently serving a prison sentence on various federal charges in connection with his support of Al Qaeda, sued numerous government officials, including former Secretary of Defense Donald Rumsfeld, alleging that his detention as an enemy combatant and the treatment experienced during his detention violated his federal statutory and constitutional rights. The government defendants claimed, inter alia, that there exists no private right of action against them and that they are entitled to qualified immunity. 

Padilla was arrested in 2002 at O’Hare International Airport and held thereafter for several years without access to counsel. His case then traveled through the various federal courts, including the U.S. Supreme Court. He was eventually sentenced to seventeen years and four months imprisonment, a sentence he is currently appealing. Padilla is claiming that his detention and designation as an enemy combatant violated his rights to counsel, access to the courts, freedom of religion, freedom of association, due process, and his right against cruel and unusual punishment. 

The district court first recognized that Congress “never created a private right of action against federal officials based upon a deprivation of constitutional rights;” however, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the U.S. Supreme Court ruled that a private civil cause of action for money damages was implied in the U.S. Constitution. This ruling was later broadened to include civil claims against other federal agencies. Padilla claimed that Bivens and its progeny encompass his claims against the government officials for the alleged treatment he suffered at their hands.  The district court disagreed, ruling that subsequent jurisprudence by numerous federal circuits and the U.S. Supreme Court clearly demonstrated that Bivens is to be construed narrowly, thus excluding Padilla’s claims. 

The district court then went on to discuss the qualified immunity defense espoused by the government officials, concluding that all defendants were protected by the immunity because at the time the challenged governmental actions occurred, there were no “clearly established statutory or constitutional rights which a reasonable person would have known.”

As Lyle Deniston notes:

The decision by U.S. District Judge Richard Mark Gergel of Charleston conflicts directly with a ruling nearly two years ago by U.S. District Judge Jeffrey S. White of San Francisco, in a nearly identical case also brought by Padilla. White allowed a lawsuit against former Justice Department official John Yoo to go forward, on the theory that Yoo wrote official memoes justifying “coercive interrogation” of detainees. including Padilla.  The White decision is now under review in the Ninth Circuit Court; Judge Gergel’s ruling is expected to be appealed to the Fourth Circuit Court.

Lawfare blog provides the transcript of the hearing here.

ACLU page on the case: here.

UN report confirms gap between law and reality, torture, secret detentions and police harassment in Tunisia under Ben Ali

The United Nations just published a report on its website which describes the fact-finding mission of the United Nations Special Rapporteur on the protection of human rights while countering terrorism in January 2010. On the basis of the evidence he gathered, he observed a pattern of unacknowledged detention being used vis-à-vis terrorist suspects. During the period of secret detention, terrorism suspects are at high risk of being subjected to torture and ill-treatment. The secrecy that surrounds custody and interrogations by the unit of the “Police Judiciare”, which is in charge of interrogating terrorism suspects (commonly referred to under its previous name “Directorate for State Security”, DSS), renders investigations into abuses improbable and, consequently, leads to a lack of accountability and to impunity. The Special Rapporteur further concludes that the judiciary does not effectively act as a safeguard against these practices, and that the restrictions on access to lawyer during police custody aggravate his concerns. The report will be discussed by the United Nationas Human Rights Council around the 7th of March 2011.

The report is the last official UN report to describe practices under the Ben Ali regime, and it was the first time in more than 15 years that the UN’s special procedures mechanisms visited the country for a fact finding mission.

Mission: no access to Ministry of Interior interrogation facilities
The Special Rapporteur met with the former Minister of Foreign Affairs, the Minister for Justice and Human Rights, Ministry of Interior officials, judges, parliamentarians, lawyers, academics and non-governmental organizations, in addition, he visited the Bouchoucha police detention facility and the Mornaguia Prison, where he interviewed several persons suspected of, or convicted for, terrorist crimes. More significant the Special Rapporteur was denied access to the interrogation facilities of the Sub-directorate for Criminal Affairs of the “Police Judiciaire”, also known as “Directorate of State Security”, DSS, where the overwhelming majority of the allegations of torture or ill-treatment took place.

The abuse of the definition of terrorism

In his assesment of Tunisia’s revised anti-terrorism law, the Special Rapporteur says clearly that the definition of terrorism does not fulfil the legality requirement contained in article 15 of the International Covenant on Civil and Political Rights or article 13 of the Tunisian Constitution. The Rapporteur concludes:

The current wide definition clearly carries the risk of broad application of counterterrorism legislation, which in turn means that the term “terrorism” may become diluted and lose its distinguishing stigma. This may have possibly far-reaching consequences for the rights to freedoms of expression, association and assembly.

According to the SR, the combination of the wide definition of terrorism, combined with the criminalization of preparatory acts of terrorism “allow for targeting as “terrorists” people who simply hold radical and unpalatable views without posing a real danger in terms of planning any violent acts.”

In the view of the Special Rapporteur, it appears that the scope of application of the terrorism provisions in the law has grown too wide and should be reduced. Any anti-terrorism law that is not properly confined to the countering of terrorism within the limits of human rights law is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition through legitimate associations. The Special
Rapporteur identified the danger of a ”slippery slope” which not only results in persons being convicted of “terrorism” who do not deserve that stigma, but also endangers the effectiveness of the fight against terrorism by trivializing the phenomenon.

First clear indication of number of persons detained under Tunisia’s anti-terrorism law, and Tunisia’s structure of the internal security forces under the Ministry of Interior

The Special Rapporteur indicates that perhaps one person per day was arrested and/or detained on the basis of the anti-terrorism law. The official statistics that the Special Rapporteur received showed that overall 214 cases have been brought before a court in the seven years since its adoption, in which 1,123 individuals were involved. (So this number does not include people who were never tried.)

Furthermore, the Special Rapporteur received information about a number of cases, where the main “crime” seems to have been to have visited certain countries or even mosques, downloaded or watched certain programmes online, having held prayers together, or having met with others to discuss religious issues.

Regarding the structure of the security forces of the Ministry of the Interior, the Special Rapporteur was expressed concerns about the myriad of agencies that were responsible for countering terrorism.

Elements rendering the practical operation of counter-terrorism policing opaque are the use of several common names for what appears to be the same entity, namely the Subdirectorate of Criminal Affairs, formerly known as “DSS”, standing for the “Directorate of State Security” and the lack of publicly available information on its status and organization.

Back-dating of arrest dates resulting in a pattern of secret detention

Numerous testimonies collected by the SR indicated – and it was admitted by the authorities – that dates of arrest are routinely post-dated, thereby circumventing the rules about the allowed length of police detention and taking detainees out of the protection framework.

When the Special Rapporteur visited Bouchoucha, the police station in Tunis through which terrorism suspects pass before being transferred to pretrial detention, he discovered that all of the 25 detainees whose names were contained in the custody record in relation to terrorist crimes had been brought there by members of the “Police Judiciaire” in the late afternoon or evening and taken out once during the following night for an unspecified period (the officials present during the visit explained that such temporary transfers were indicated in pencil only and erased once the person returned) before finally being transferred before a judge in the morning of the next day. The recorded practice of very short official police custody in terrorism cases is in stark contradiction with reports by detainees and families about interrogations ranging from several days to a number of weeksbefore being brought before a judge. The police officers in Bouchoucha also denied
knowing where the “Police Judiciaire” holds the suspects before bringing them to Bouchoucha for registration into official detention. This pattern appears to be compatible with the many allegations received by the Special Rapporteur that people under investigation are typically in terrorism cases first held in unacknowledged police custody.

In a damning paragraph, the Special Rapporteur highlights that evidence brought to the attention of the Special Rapporteur indicated that suspected terrorists are routinely held in secret in a building of the Ministry of Interior in Tunis.

Detainees allegedly sleep either on the ground floor in rudimentary conditions in a number of cells grouped around a larger room, or in smaller cells in the basement. Interrogations also take place on upper floors. No person from the outside has access to these premises, so detainees are at the mercy of their custodians, which, in itself, puts pressure on them and may constitute inhuman treatment. The authorities, however, continue to deny that the Ministry of Interior detains persons within or close to its official premises. Despite repeated requests, they did not allow the Special Rapporteur access to the interrogation facilities of the Ministry.

The Rapporteur concludes:

On the basis of the evidence gathered, he observed a pattern of unacknowledged detention, operating in the city of Tunis under the interrogation authority of the Ministry of Interior, being used to detain terrorist suspects. During this period that precedes detainees’ official registration in police custody, they are also routinely subjected to torture and ill-treatment and denied access to a lawyer.

Torture and the use of confessions obtained under torture

Numerous cases of terrorism suspects brought to the Special Rapporteur’s attention indicate that ill-treatment and/or torture is perpetrated during initial, unacknowledged police custody or interrogations by what is commonly referred to as “DSS”, in particular if the suspects refuse to confess.

The details of these accounts suggest that these practices occur under the direct control of the Ministry of Interior and possibly even within or next to the premises of the Ministry. According to consistent allegations, suspects are regularly subjected to severe beatings on different parts of the body, including genitals, with fists, cables and batons, kicking, slapping, often combined with stripping of their clothes and suspensions (including in the so-called poulet rôti (“roast chicken”) position), even in ordinary offices of the Ministry. Some reports also described electroshocks and mock-drowning taking place in one particular room in the basement, especially in cases, where suspects resisted to making confessions. Other methods used included extended periods of sleep deprivation, burning with cigarettes, threats with rape, threats to family members and anal rape. The treatment was allegedly perpetrated by plainclothes officers of DSS.

The main purpose of the torture was to extract confessions, and sometimes testimonies about third persons. It normally stopped with the signing of papers that most suspects had not been allowed to read. However, the Special Rapporteur received allegations about instances of reprisals occurring in official places of detention in terms of beatings, threats and solitary confinement, for instance, for prisoners that had made calls for prayer or submitted complaints. In several cases, detainees were transferred from prisons back to the premises of the Ministry of Interior for interrogation and ill-treatment.

The testimonies also indicated that existing safeguards are ineffective in practice. Apart from the fact that the ill-treatment normally happens prior to the registration of police arrest, access to independent medical examinations, although provided for by law upon authorization by a judge, is practically never granted, and can therefore not be considered an effective safeguard. If at all, medical examinations take place months after the illtreatment was perpetrated, and therefore fail to produce evidence that can be used in court. The resulting “lack of proof” is then used by prosecutors and judges to ignore claims about torture and ill-treatment and, on that basis to reject requests for investigations.

No real accountability for torture

While noting the importance of at least some trials and convictions, the Special Rapporteur considers that the number of prosecutions or other clear findings related to torture remains disturbingly low when compared to the frequency and severity of the allegations he received. He is concerned that there are remnants of a climate of impunity within law-enforcement structures. This is all the more troubling in light of allegations that confessions are frequently used as evidence in court. He is therefore concerned that the lack of effective investigations into allegations of torture may have led and continue to lead to unfair trials and illegitimate court judgements, on the basis of which persons may be deprived of their liberty – one of the most severe interferences with fundamental freedoms – for years, sometimes decades. He therefore calls upon the authorities to reopen.

Overall, the Special Rapporteur is concerned that the judiciary appears to fail to act as an effective remedy when it comes to allegations of torture or ill-treatment. Numerous persons indicated that raising such allegations during trial practically never leads to any action by the judges. Unfortunately, the Special Rapporteur’s meetings with judges of the Appeals Court in Tunis did not take away his concern of that protocols that mention torture allegations and other written submissions on the issue are routinely ignored by the court.

This raises serious concerns in terms of the independence of the judiciary, guaranteed by article 65 of the Constitution and the Law No. 29 of 1967, exacerbated by indications thatthe Executive Branch, through the Supreme Council of the Judiciary (which is composed of the President, who is the Chairman, and the Minister of Justice as Vice-chairman, plus a majority of members either representing or appointed by the Executive Branch) controls many aspects of the judiciary, including appointments, promotions, transfers and disciplinary measures.

Clarification of rendition case of Laid Saidi

Concerning Tunisia’s participation in illegal forms of cooperation in counterterrorism, the Special Rapporteur has received allegations that Tunisian authorities were involved in holding a detainee sent to Tunisia by the United States’ Central Intelligence Agency, who was then transferred to other countries. Laid Saidi was reportedly seized in the United Republic of Tanzania, transferred to Malawi, then rendered to Afghanistan and further to Tunisia, where he was held for 75 days before being returned to his home country Algeria (see A/HRC/13/42, para. 133). According to the Government however Laid Saidi had arrived with a “special flight” on the 9 June 2004, where he was presented by four foreign security officials to Tunisian authorities at the airport of Tunis Carthage under the name of Ramzi Ben Fredj. The Tunisian security services conducted an audit and concluded that the person had usurped the identity of the real Ramzi Ben Fredj.

The person then acknowledged that he was actually Laid Saidi. The next day, on the 10 June 2004, Said was sent back with the same special flight to a “foreign country”; he was then still accompanied by the same foreign agents. Similarly, it has been alleged that Tunisian intelligence officials participated in interrogations of terrorist suspects in Afghanistan (see interview with Bisher Al-Rawi, A/HRC/13/42, annex II, case 4). The
Special Rapporteur regrets that, according to his information, the Government of Tunisia has not started any investigation into these allegations.

Harassment of defence lawyers

The Special Rapporteur received a number of allegations regarding obstruction of the work of defence lawyers, e.g. concerning restrictions on access to their clients and their clients’ files, but also about harassment in more general terms, in particular vis-à-vis those who defend terrorism suspects. This can take the form of interference with their correspondence, non-issuance of passports for international travel, but also go further to not allowing them to enter certain places, pressuring family members, etc.

UK training Bangladesh ‘death squad’

The BBC reports that British officials in Bangladesh have confirmed Wikileaks reports that the UK is training a police force in the country accused of being a death squad.Rapid Action Battalion members have been taught “interviewing techniques” and “rules of engagement” by the UK authorities, said the leaked cables. One message says the US would not offer tactical training to the RAB because of its alleged human rights violations.

Al-Qaida terrorist’s appeal argues that Britain was complicit in his torture

The Guardian reports that a man convicted of serious terrorism offences is to launch an appeal against his conviction today on the grounds that the British government was complicit in the torture he suffered before being put on trial. Rangzieb Ahmed, 35, from Rochdale, Greater Manchester, was convicted two years ago of directing a terrorist organisation and membership of al-Qaida. He was sentenced to life imprisonment.

He was convicted largely on the basis of evidence that was collected while he was under surveillance in Dubai and the UK in 2005. He was not arrested at that time, however; instead, he was permitted to travel to Pakistan where he was detained by an intelligence agency, the Inter Services Intelligence, notorious for its use of torture.

The courts have heard that Manchester police and MI5 officers then drew up a list of questions to be put to Ahmed by the Pakistani agents. By the time he was deported to the UK, three fingernails were missing from his left hand. Ahmed also alleges he was beaten, whipped and deprived of sleep.

UK Lord Justice Gross speech on National Security and the Courts

Interesting speech by Lord Justice Gross at the Royal United Services Institute Intelligence Oversight Conference 2010, in which he outlined a variety of areas where national security impacts on the courts. He said that both the security agencies and the courts must come to a mutual understanding which helps them to perform their vital roles and preserving intelligence secrecy operating within a legal framework.

Mitchell complaint before Board of Psychologists for helping develop and participating in CIA interrogation techniques

The New York Times reports that a complaint against Dr. James E. Mitchell is now before the Texas State Board of Psychologists, alleging that he violated the profession’s rules of practice in helping the C.I.A. develop “enhanced interrogation techniques” for use in its so-called black prison sites during the Bush administration’s war on terror. Along with Dr. Bruce Jessen, a fellow military psychologist, Dr. Mitchell was a primary developer of post-Sept. 11 C.I.A. interrogation methods that are currently under a criminal torture investigation by the Department of Justice. Andrew Sullivan comments at the Atlantic: “If we cannot get legal accountability for war crimes, we can at least aim for professional ethics being upheld.”

Bush Addresses 9/11 Policy Controversies in Memoir

In the NY Times Charlie Savage describes how Bush’s forthcoming memoir covers, among other topics, five areas that address Mr. Bush’s use of presidential powers and his view of executive authority, including the 9/11 shoot down order, approving enhanced interrogation techniques and warrantless wiretapping.

On interrogations and accountability Bush wrote:

I knew that an interrogation program this sensitive and controversial would one day become public. When it did, we would open ourselves up to criticism that America had compromised its moral values. I would have preferred that we get the information another way. But the choice between security and values was real.

I have been troubled by the blowback against the intelligence community  and Justice Department for their role in the surveillance and  interrogation programs. … Legal officials in my administration did  their best to resolve complex issues in a time of extraordinary danger  to our country. Their successors are entitled to disagree with their  conclusions. But criminalizing differences of legal opinion would set a  terrible precedent for our democracy.

In retrospect, I probably could have avoided some of the controversy and legal setbacks by seeking legislation” regarding military tribunals,  the wireless wiretapping program and interrogation techniques at the  time those programs and policies were put in place, Mr. Bush wrote. “If  members of Congress had been required to make their decision at the same time I did – in the immediate aftermath of 9/11 – I am confident they  would have overwhelmingly approved everything we requested,” he wrote,  adding, however, that in some cases he would not have wanted to risk  exposure of operational details “until we had a better handle on the  security situation.

British Troops Accused of Abusing Iraqi Detainees

The NY Times reports that a lawyer for 200 Iraqis demanding a public inquiry into what they have described as brutal mistreatment by British soldiers in a secret detention center near Basra told the High Court in London on Friday that the abuse amounted to “Britain’s Abu Ghraib.” The assertion was buttressed with video recordings that appeared to show British interrogators bullying, humiliating and threatening a detainee. At least nine detainees are said to have died as a result of their mistreatment.

Michael Fordham, the lawyer for the former detainees, said they had been subjected to beatings, starvation, sleep deprivation, electric shocks, prolonged periods of nakedness and sexual humiliation by female soldiers, sensory deprivation through the enforced use of hoods, earmuffs and blackened goggles, and exposure to pornographic DVDs.

The Ministry of Defence (MOD) opposes a public inquiry, arguing in a blog post that a public inquiry would be too expensive and less effective than the MOD investigation, especially since the MOD has already assembled a team to investigate the claims.

France high court rules terror suspects have right to lawyer

[JURIST] The French Court of Cassation [official website, in French] ruled [judgment text, in French; press release, in French] Tuesday that all persons in custody of French law enforcement, including terrorism suspects, are entitled to consult with lawyers from the outset of criminal proceedings. Sitting en banc, the court ruled that France’s current rules regarding custody contravene the Article 6 right to a fair trial of the European Convention on Human Rights  [text, PDF]. Law enforcement officials must now comport with three new principles when dealing with people in custody: the right to a lawyer from the outset of criminal proceeding except for a compelling reason, the obligation to inform the person in custody of their right to remain silent and the right to assistance of counsel in interrogations. This decision expands on a July 30 decision [text, in French] issued by France’s Constitutional Court  [official website, in French] according to which all persons in custody are entitled to a lawyer from the outset except for people suspected of engaging in terrorism, drug trafficking or organized crime. In the past, French police were interrogating terrorism suspects  [WP report] for as long as 72 hours without a lawyer and threatening them to elicit information and gain their cooperation. France’s Minister of Justice Michele Alliot-Marie [official profile, in French] reacted  [statement, in French] to the court’s decision, saying “the government will of course take into account these decisions and the complete text of the bill by amendment.”

Confinement Conditions at a U.S. Screening Facility on Bagram Air Base

This Open Society Foundations report provides the first detailed account of mistreatment at a classified U.S. screening facility on Bagram Air Base in Afghanistan that was physically distinct from the Bagram Theater Internment Facility or the Detention Facility in Parwan. Detainees state that they were held in excessively cold isolation cells; supplied inappropriate or inadequate food, bedding, and blanketing; denied exposure to natural light; unable to carry out their religious duties; restricted from exercise; and kept from meeting with the International Committee of the Red Cross.

The information in this report is based on interviews conducted in July 2010 with over 20 former U.S. detainees, 18 of whom stated they were detained at Tor Jail. Half of those 18 stated that they passed through the facility in 2009 or 2010.

According to the report:

In many cases the former detainees stated that after being held for a few days in isolation cells near their initial point of capture they were placed on a plane or helicopter and brought to a second detention facility. Most interviewees said that after being held for differing time spans at this second facility they were then driven a short distance to the BTIF, indicating that their previous location was located on Bagram Air Base.
The interviewees consistently described being held in a location where they were interrogated and held in small single person cells that prohibited verbal and visual communication with other detainees. This strongly suggests that the detainees were “screened” and subjected to interrogation methods described in Appendix M of the U.S. Army’s Human Intelligence Collector Operations Field Manual 2-22.3,

On the secrecy of the site:

Our research found that, although the specific details about the facility have remained largely unknown to the media and international human rights groups, the facility is well-known and discussed among Afghans. As such, much of the secrecy surrounding operational aspects of the screening facility on Bagram Air Base is uncontainable due to the fact that Afghan detainees who pass through the facility routinely share their experiences “downstream” at DFIP with other detainees, and with their friends and relatives once released. In other words, the cat is out of the bag, while the insistence on secrecy is doing considerable harm to the reputation of the United States.

Impact on the Detainee Review Boards in Bagram:

The importance of ensuring that the United States is respecting this prohibition is not only a matter of legal deference. The Detainee Review Boards taking place at the DFIP prohibit the submission of information and evidence obtained through the use of torture and cruel, inhuman, and degrading treatment. If detainees are being held in conditions at an interrogation facility that rises to this level of abuse, the information obtained from those detainees should be rejected by the Detainee Review Boards.

Based on the interviews conducted by the researchers for this report, the totality of the conditions of confinement at the facility raise serious concerns about a disconnect between detainee treatment at this facility and the United States’ stated commitment to the humane treatment of detainees, be it under U.S. or international law.