Blog: U.S. Health Professionals and Torture

February 11, 2015

Tomorrow: The Role of Lawyers in Enabling and Justifying Torture

February 12, 2014

“The Role of Lawyers in Enabling and Justifying Torture”

7:30 – 9:00 p.m.
WCC 1010

Dinner will be served

Please join Alex Whiting, Deborah Popowski, and Wells Dixon as they discuss the role of lawyers in authorizing the post-9/11 US torture program. The panelists will speak about their experiences litigating torture cases, explore ways in which individuals implicated in torture can be held accountable, and discuss possible institutional reforms in legal pedagogy and curriculum at HLS aimed at producing more morally-conscious and ethical leaders.

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November 13, 2014

U.S. Dodges Questions on Senior-Level Prosecutions at CAT Review

Posted by Deborah Popowski, Morgan Davis, JD '15, Pete Barnett, LLM '15, Lauren Blodgett, JD '16, Darren Bartlette, JD '16

Just a few hours ago, the U.N. Committee Against Torture concluded its formal review of the United States. As members of Advocates for U.S. Torture Prosecutions, our clinical team has been in Geneva all week advocating for senior-level prosecutions of those responsible for the U.S. program of torture of detainees post-9/11.

Here’s our group’s statement:

In its response to the Committee’s questioning, the U.S. government failed to answer whether the Durham investigation looked up the chain of command at those who authorized, ordered, and justified the torture. The government did not address how any such investigation could have failed for lack of evidence when former President George W. Bush and other senior officials have acknowledged authorizing torture, including waterboarding, in public statements. The elephant in the room is the legal architecture that senior officials and lawyers put in place to shield themselves from criminal responsibility for torture in the first place. The Committee’s clear concern with U.S. failures of accountability is another important sign that “get out of court free” cards will not last forever.

Advocates for U.S. Torture Prosecutions is a group composed of concerned U.S. citizens, residents, and students—scholars, legal and health care professionals, and law students—who have sought for years to use what modest levers we have to end the U.S. program of torture put in place post-9/11, to obtain justice and redress for those harmed, and to seek accountability for those responsible. We were joined in our shadow report by nearly 300 supporting organizations and individuals from across civil society.

Read the shadow report we submitted to the UN Committee Against Torture

Read our briefer, “Dismantling the Legal Architecture of Impunity: A Necessary Step Towards Torture Accountability in the United States”

 

November 13, 2014

Dismantling the Legal Architecture of Impunity: A Necessary Step Towards Torture Accountability in the U.S.

As the UN Committee Against Torture continues its review of the United States today, the Clinic and its partners in Advocates for U.S. Torture Prosecutions have released the following briefer, with possible questions and suggested recommendations for the Committee.

 

Dismantling the Legal Architecture of Impunity:
A Necessary Step Towards Torture Accountability in the United States

 

Today, the prospect of prosecuting senior officials for torture is considered politically unimaginable in the United States. Our job is to make it imaginable. The Committee Against Torture, in its role as treaty monitor, is uniquely placed to help in this effort by making clear that torture authorizing leaders cannot declare themselves to be above the law.

A Head of State Authorized Torture.

U.S. civilian and military leaders, including former head of state, President George W. Bush, created a program of torture breathtaking in scope, drawing in the people and governments of at least 54 other nations—including Denmark, Georgia, Italy, and Morocco.

The Program Relied on Legal Architecture to Shield Torturers from Liability.

The fear of prosecution was pervasive among both senior-level officials and those responsible for implementing the torture program. To address this, political leaders worked with lawyers and doctors to create a sophisticated system of legal cover aimed at shielding people at all levels from criminal responsibility for authorizing or committing acts of torture.

The Golden Shield: Lawyers and Doctors in Collusion

Government lawyers authored legal opinions that distorted beyond recognition the laws against torture to produce the result desired by those at the top: a legal stamp of approval on waterboarding, prolonged sleep deprivation, forced nudity, and other techniques clearly prohibited by the Convention Against Torture.

Medical professionals were brought in to calibrate the suffering of prisoners, and more importantly, to inoculate the torture program authors and actors from liability. The lawyers argued that the doctors’ mere presence would prove the lack of intent required to constitute torture. The system in turn would then allow the doctors to invoke the lawyers’ guidance in their own defense.

According to a former Justice Department attorney, the CIA called these memos the Golden Shield.

Retroactive Immunity: Congress

The executive branch worked with Congress to erect the second pillar of this legal architecture of impunity: the Military Commissions Act of 2006, which retroactively redefined war crimes so as to impede the prosecution of those responsible for them.

The United States Continues to Legitimize Impunity.

Although President Obama withdrew the Bush-era legal advice in 2009, his administration has legitimized this legal architecture of impunity:

– by declining to prosecute anyone who acted within the confines of what the lawyers purportedly authorized—despite President Obama’s recent admission that these constituted techniques that “any fair-minded person would believe were torture” and

– by failing to prosecute and thereby effectively immunizing those responsible for authorizing and enabling manifestly illegal acts of torture.

The result is impunity for torture on a global scale and a massive derogation from the absolute prohibition on torture. It was recognized as early as Nuremberg that such legal maneuvering cannot excuse torture and other war crimes.

SUGGESTED RECOMMENDATIONS:

The Committee is concerned that despite significant evidence that senior civilian and military officials authorized torture, the State party appears not to have impartially investigated those acts. The Committee is further concerned that the State party is setting a dangerous precedent by shielding from investigation and prosecution officials who authorized torture and officials who issued legal advice that justified torture. In the Committee’s view, this amounts to the State party recognizing a defense to torture that is inconsistent with the absolute prohibition in Article 2. The Committee is also concerned that the State party has shielded officials from liability through jurisdiction-stripping mechanisms such as the Military Commissions Act of 2006.

The State party should promptly and impartially investigate senior officials for their authorization of acts amounting to torture without regard to whether those acts fell within the scope of legal advice, consistent with the absolute prohibition on torture. The State party should also investigate the responsibility of lawyers who gave legal pretexts for manifestly illegal conduct. Finally, the State party should stop using mechanisms to actively shield liability for these crimes, and revoke any statutes, such as the MCA, that prevent torture victims and survivors from obtaining redress.

POSSIBLE QUESTIONS:

1. Does the State party rely on Justice Department legal advice as a basis for not investigating the criminal responsibility of the senior-level officials who authorized acts of torture, including waterboarding? If so, how does the State party reconcile this position with the absolute nature of the prohibition against torture in Article 2 of the Convention?

2. Does the State party rely on the Military Commissions Act of 2006 as a basis for not investigating the criminal responsibility of the senior-level officials who authorized acts of torture, including waterboarding? If so, how does the State party reconcile this position with the absolute nature of the prohibition against torture in Article 2 of the Convention?

3. Does the United States consider there to be obstacles under U.S. law to prosecuting a former president under the federal extraterritorial torture statute (18 USC § 2430A)?

Read the shadow report submitted by Advocates for U.S. Torture Prosecutions

CONTACT: Deborah Popowski, Clinical Instructor, International Human Rights Clinic, dpopowski@law.harvard.edu

November 12, 2014

Update from Geneva: UN Committee Against Torture’s Review of the United States

Posted by Cara Solomon

Earlier today in Geneva, in advance of the UN Committee Against Torture’s formal review of the United States, Morgan Davis, JD ’15, spoke to the U.S. delegation, pointing to its lack of engagement with the issue of senior-level accountability for post-9/11 torture. She spoke on behalf of Advocates for U.S. Torture Prosecutions, a civil society group that includes the International Human Rights Clinic, drawing from the group’s prepared comments, reprinted below.

Morgan

Morgan Davis, JD ’15, addressed the U.S. delegation on behalf of Advocates for U.S. Torture Prosecutions, a civil society group that includes the Clinic.

“To truly move forward, we have to start by being honest,” she said. “The decision to shield senior-level government officials is not about law or justice; it’s about politics.”

The Committee will have the chance to raise this question with the U.S. government at tomorrow’s formal review.

Full text of the group’s prepared comments below:

 

My name is Morgan Davis, and I am a student at Harvard Law School. I will be speaking on behalf of the group “Advocates for US Torture Prosecutions,” a group of legal and health professionals and scholars in the United States. We are supported by 291 organizations and individuals who have joined our call for accountability for senior-level civilian and military officials for their central role in the post-9/11 torture program.

For years, these officials—including George Bush, Dick Cheney, George Tenet, Condoleeza Rice, Donald Rumsfeld, John Ashcroft, and former State Department Legal Adviser John Bellinger—have lived with impunity for their role in authorizing and enabling acts that President Obama has publicly called torture.

The Convention Against Torture requires states to investigate and prosecute crimes of torture, including up the chain of command. This is not a hollow aspirational principle; accountability for unconscionable crimes is a basic tenet of justice and rule of law.

Just this summer, President Obama told a gathering of young international leaders, “a country without the rule of law will not succeed.”

It doesn’t serve the rule of law to court martial lower-level service members while those that authorized and justified brutal tactics including near-drowning, sleep deprivation, and forced nudity have enjoyed impunity.

Nor does it serve the rule of law to shield senior officials on the basis that they “acted within the scope” of a legal standard justifying conduct that the US government has unequivocally called torture.

President Obama and Attorney General Holder justified this shielding by saying that “we must look forward, not backward.” No competent defense attorney would make such an argument in court. To truly move forward, we have to start by being honest. The decision to shield senior-level government officials is not about law or justice; it’s about politics.

By placing some powerful individuals above the law in the service of political expediency, we make a mockery of our national values and set a dangerous precedent for future generations in countries around the world.

At the last civil society consultation in D.C., the government representatives in the room ignored our demand for answers and gave us canned talking points that dodged any real acknowledgement of this problem that has left thousands of human beings without redress and tainted the reputation of the United States throughout the world.

We can only hope that this week, when confronted by the Committee Against Torture, you will have the courage to give real answers, accept real responsibility, and take some real steps towards accountability, thereby upholding the universal protection against torture that all human beings deserve.

October 22, 2014

Failure to Prosecute Senior U.S. Government Officials for Torture Violates International Law

Posted by Peter Barnett, LLM '15, Morgan Davis, JD '15, and Deborah Popowski

In preparation for the UN Committee Against Torture’s review of the United States, the International Human Rights Clinic has joined fellow members of the group Advocates for U.S. Torture Prosecutions in submitting a shadow report to the UN Committee. The report documents how the Obama administration is in clear violation of the law by shielding from criminal liability the senior government officials responsible for the post-9/11 US torture program.

It calls on the UN Committee to ask the United States specifically why it has not prosecuted President George Bush (who admitted in his memoir to authorizing the waterboarding of Khalid Sheikh Mohammed); former Justice Department lawyer John Yoo (author of an opinion that purported to legally authorize the waterboarding of a prisoner known as Abu Zubaydah); and former CIA contract psychologist Dr. James Mitchell (reported to have personally waterboarded the prisoner known as Abu Zubaydah).

The report also urges the UN Committee to renew its calls for criminal investigations and prosecution of officials at the highest levels of the chain of command.

More than 100 organizations and individuals across civil society have already signed on to the report. Advocates for US Torture Prosecutions will continue to gather signatures from individuals and organizations to submit to the UN Committee in Geneva; you can sign on here until November 6.

The fact that US officials designed, authorized and implemented an international torture program is beyond credible dispute. President Obama himself has acknowledged that the United States had “tortured some folks.” This torture included near-drowning (“waterboarding”), stress positions, and sleep deprivation. It caused many people intense suffering, including severe mental harm and, in some cases, led to death.

As far back as 2006, when the United States was last under review, the Committee was already urging it to “promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to acts of torture committed by their subordinates.”

In its August 2013 report to the UN Committee, the United States effectively ducked the question of senior-level accountability by providing vague and misleading information about investigations and prosecutions at lower levels of the chain of command.

However, on other occasions, the US government has justified its failure to prosecute brutal tactics by claiming reliance on fundamentally flawed legal advice from Justice Department lawyers. This excuse fails on all fronts. The prohibition against torture is absolute and allows for no such defense. As our report makes clear, the record strongly suggests that the torture began before the legal memos were even written, and that in fact these memos were written to justify a predetermined result – to provide legal cover for conduct that no reasonable human being (let alone a reasonable lawyer) could conclude was lawful.

Meanwhile, both the Bush and Obama administrations have blocked or refused to cooperate with criminal proceedings in foreign courts, and vigorously thwarted attempts at redress in civil courts—arguing, among other things, that detainees did not enjoy the right to be free from torture, and that government employees accused of torture had been acting within the scope of their employment.

The bottom line is no accountability for the US program of torture, no redress or justice for survivors, and an invitation for current and future administrations, in the U.S. and around the world, to torture with impunity.

We urge you to make your voices heard on this critical issue in advance of the Committee’s review on November 13 and 14. Add your signature to our report. Like our Facebook page. Follow the progress of the campaign on Twitter through the hashtag #EndTorture.

Read other shadow reports collected by the US Human Rights Network and submitted to the UN Committee Against Torture here.

 

The shadow report was co-authored by Prof. Ben Davis of the University of Toledo College of Law, psychologist Dr. Trudy Bond, human rights lawyer Curtis Doebbler, and the International Human Rights Clinic at Harvard Law School.

December 23, 2013

A Flurry of Activity to Wrap Up the Semester

Posted by Tyler Giannini and Susan Farbstein

A busy couple of days on the Alien Tort Statute (ATS) front had our International Human Rights Clinic in full swing right up to the end of the semester today.

First, along with co-counsel, we filed an opposition to a motion dismiss in our Mamani case last Wednesday with the district court in Florida. The ATS case, against the former Bolivian president and minister of defense, alleges that they devised a plan to kill civilians in order to quash popular protests against their government’s economic policies. In urging the Court to allow the case to proceed, the brief argues the Defendants executed their plan by agreeing to use military force to kill thousands of civilians until the population was terrorized enough to abandon demonstrations. The deaths that followed, including those of Plaintiffs’ family members in late 2003, were, according to the brief, “the intended result of a systematic plan in which military sharpshooters repeatedly shot and killed or injured civilians, in multiple locations over many weeks.” Defendants fled to the United States to escape criminal prosecution in Bolivia and have sought safe haven here for more than ten years, refusing to return to Bolivia to face trial.

We also filed our second and third amicus curiae briefs of the term in key ATS cases, on Thursday in D.C.  (Doe v. Exxon), and today in California (Doe v. Cisco). These briefs were similar to the amicus curiae brief on behalf legal historians that we filed in November with the Fourth Circuit in Al Shimari v. CACI. The briefs make it clear that when the Founders enacted the statute in 1789, they would have expected the ATS to apply to U.S. defendants. The Exxon and Cisco cases, both currently before district courts, center on allegations that U.S. corporations aided and abetted human rights violations abroad—in Indonesia and in China, respectively.

Last Thursday, the Ninth Circuit also came down with a significant decision in Doe v. Nestle. Those who follow the ATS know that it has been a busy year, ever since the U.S. Supreme Court’s ruling in Kiobel last April established a new presumption against extraterritoriality for ATS claims; dozens of cases that were previously on hold are again moving through the courts. The Nestle decision is important because it affirms that corporate liability still exists under the ATS even after Kiobel, thereby rejecting an extreme and categorical position that would bar all ATS claims against corporations. Continue Reading…

November 4, 2013

Clinic Contributes to Independent Task Force Report on Medical Professionalism and Detainee Abuse in the ‘War on Terror’

Posted by Cara Solomon

An independent panel of military, ethics, medical, public health, and legal experts released a report today, “Ethics Abandoned: Medical Professionalism and Detainee Abuse in the ‘War on Terror,'” examining how doctors and psychologists, as well as U.S. military officials and intelligence agencies, were involved in the cruel, inhumane, and degrading treatment of detainees.

ethics3Deborah Popowski, Clinical Instructor at the Human Rights Program and Lecturer on Law at Harvard Law School, co-authored a chapter in the report, “Health Professional Accountability for Acts of Torture Through State Licensing and Discipline,” along with Kate Nicholson, Shuenn (Patrick) Ho, and Pooja Nair.

The chapter begins:

“No health professionals employed by or contracted with military and intelligence agencies have been held accountable for any acts of torture and other forms of mistreatment of post-9/11 detainees, either by those agencies or by civilian disciplinary boards. The costs of non-enforcement are great: non-enforcement undermines professional standards, erodes public trust, and undercuts deterrence of future misconduct. Lack of consistent enforcement also compromises protection of health professionals who face institutional pressure to violate their ethical obligations. By contrast, attention to accountability signals to licensees and those who employ them that the profession and institutions designed to ensure adherence to ethical obligations take violations seriously. Moreover, it empowers health professionals to resist demands by commanders to engage in acts that violate their professional responsibilities and to report abuse when they believe it has occurred.”

In addition to being a contributor, Deborah is also a member of the 19-member task force that brought together a range of perspectives to produce the report. The Institute on Medicine as a Profession along with the Open Society Foundations supported the initiative.

The Human Rights Program has been working for several years on the issue of accountability for health professionals involved in torture. Learn more about our focus on professional misconduct complaints here.

More coverage of the report:

The BBC

The Washington Post

The Guardian

Press release from the Institute on Medicine as a Profession

September 3, 2013

Ohio Court Rules Licensing Board Need Not Investigate Torture Allegations Against Local Psychologist

Posted by Deborah Popowski

This summer, the Franklin County Court of Common Pleas in Ohio ruled that the state’s psychology licensing board did not have a legal obligation to conduct a meaningful investigation into whether Dr. Larry James had committed grave violations of professional ethics in his role as Guantánamo senior interrogation psychologist.

The state court dismissed the case on procedural grounds, meaning that, like the Ohio Psychology Board, it did not engage with the evidence of abuse and made no finding as to Dr. James’s conduct. After almost 18 months of silence, the court issued a decision that is three pages long, and, for reasons not explained or reflected in the docket, was not written by the judge to whom the case was assigned. It offers virtually no legal or factual reasoning to support its conclusion that the people of Ohio were insufficiently harmed by torture left unexamined and unaccounted for, and that they therefore lack standing to challenge the Board’s inaction.

Our clients have decided not to appeal the decision. They made this choice not because they agree with the ruling, but because this latest chapter in their legal fight has convinced them that the courts are not where justice, accountability and truth will be found—not on this issue, not at this time. As a lawyer and teacher of law, this saddens me. But, like them, I am not surprised. In the seven years that I’ve worked on human rights violations in the U.S. counterterrorism context, the greatest victories and examples of moral courage that I’ve seen have taken place far from the courtroom, thanks to people like Trudy and Josie, Colin and Michael, whose consciences move them to action when officials charged with accountability choose to remain silent. Continue Reading…

March 11, 2013

SAVE THE DATE: Special Event to Mark the 10th Anniversary of the U.S. Invasion of Iraq

March 26, 2013

“For Us, The Wars Aren’t Over: The Right to Heal Initiative”

7:00 – 9:00 p.m.

Wasserstein 2012

Food will be served

Ten years after the U.S. invasion of Iraq, the Human Rights Program and organizations from across the Harvard and Boston communities mark the anniversary with speakers from two groups still living with the consequences of the last decade of U.S.-led wars: Iraqis and U.S. veterans and service members.  Members of the Organisation of Women’s Freedom in Iraq and Iraq Veterans Against the War will speak about the costs of war they share.  Together with attorneys from the Center for Constitutional Rights and Harvard Law School, they will discuss the Right to Heal Initiative, the partnership they have formed to fight for redress.

Speakers:

Yanar Mohammed, President, Organisation of Women’s Freedom in Iraq
Ms. Mohammed is the founder of OWFI, a nongovernmental organization that promotes women’s rights and interests in Iraq.  She will speak about OWFI’s work in an Iraqi town near a U.S. military base that has seen dramatic increases in the incidence of birth defects, cancers, and other severe health ailments.

Matt Howard, Member, Iraq Veterans Against the War
Mr. Howard served two tours in Iraq with the Marine Corps.  He will discuss the costs of war for U.S. service members and veterans, particularly the obstacles that prevent too many from receiving proper medical and mental health care.  IVAW and its subcommittee, Afghan Veterans Against the War, have advocated for the withdrawal of U.S. troops from Iraq and Afghanistan, and for reparations to Iraqis for the costs of war.

Pamela Spees, Senior Staff Attorney, Center for Constitutional Rights

Ms. Spees will discuss CCR’s role as a support player in the Right to Heal’s collaborative project to ensure the U.S. takes concrete steps for health care, accountability, and reparations.

Moderator: Deborah Alejandra Popowski, Lecturer on Law, Harvard Law School

This event is being co-sponsored by: HLS Advocates for Human Rights, Harvard National Security and Law Association, Islamic Society of Boston, National Lawyers Guild (Mass. Chapter), Veterans for Peace (Ch. 9, Smedley D. Butler Brigade), BC Law Holocaust/Human Rights Project, HKS Human Rights Professional Interest Council, HLS American Constitution Society, HLS Democrats, HLS Human Rights Journal, Harvard International Law Journal, HLS Muslim Law Students Association, Harvard Women’s Law Association, HSPH Muslim Student Group, MIT Amnesty International, MIT Center for International Studies, MIT Muslim Student Association, Northeastern Univ. Arab Student Association, Human Rights Caucus at Northeastern Univ. School of Law, Tufts Univ. New Initiative for Middle East Peace, Tufts Univ. Fletcher School Human Rights Project

October 26, 2012

Announced at HRP Event: UN to Investigate Civilian Deaths from Drone Strikes

Posted by Cara Solomon

At a packed event co-sponsored by HRP and the Harvard National Security and Law Association, Ben Emmerson, the UN Special Rapporteur on Human Rights and Counter-terrorism, announced a UN investigation yesterday into civilian deaths from drone attacks, as well as other forms of targeted killings conducted during counter-terrorism operations.

In his remarks, which you can read here, Emmerson took aim at the Obama administration for neither confirming nor denying the existence of the U.S. drone program- while publicly trying to justify the legality of drone strikes.

“In reality the administration is holding its finger in the dam of public accountability,” he said, according to the prepared remarks. “There are now a large number of law suits, in different parts of the world, including in the UK, Pakistan and in the US itself, through which pressure for investigation and accountability is building.”

He pointed to figures from the London-based Bureau of Investigative Journalism that suggest at least 474 civilians have been killed in Pakistan alone, and that 176 children are reported among the deaths. (For more on civilian deaths from drones, here is a joint report recently released from Stanford University and New York University, “Living Under Drones.”)

Emmerson also delved into the U.S. presidential elections, particularly around the issue of waterboarding, which Obama believes is torture. Mitt Romney has said he does not believe it is torture.

“Let us be clear on this,” Emmerson said. “Secret detention is unlawful as a matter of international law.  Water-boarding is always torture.  Torture is an international crime of universal jurisdiction. The torturer, like the pirate before him, is regarded in international law as the enemy of all mankind.  There is, therefore, a duty on States to investigate and to prosecute acts of torture.”

Mindy Roseman, Academic Director for HRP, said she was struck by the substance of his speech. The event has already made international news.

“Emmerson’s announcement is bold and courageous, and at the very least should renew interest in holding the US government accountable for military actions, such as drone strikes, ostensibly undertaken to stop terrorism,” she said.

For those with particularly sharp eyes, here is a classroom video of the event. And here is a selection of media coverage of Emmerson’s speech:

The Guardian
The Washington Post
The Harvard Crimson
Common Dreams