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.

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