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August 31, 2015
Posted by Gerald L. Neuman
This post was originally published July 29, 2015 on Just Security
Last week the UN Human Rights Committee, the independent body created by the International Covenant on Civil and Political Rights (ICCPR) to monitor states’ compliance, issued its Concluding Observations (COBs) on the periodic reports of seven states, including Canada, France, and the United Kingdom. These most recent statements of concern and recommendations to those states may exhibit an innovation in the committee’s approach to the perennial debate over extraterritorial application of the ICCPR. They suggest a broadened understanding of the concept of “jurisdiction” that links an individual overseas to a state and triggers the state’s ICCPR obligations, although the committee has not clearly articulated or explained the change.
The COBs on France and the United Kingdom both address issues of surveillance of communication, within and outside national territory. The observations on the UK (and a March 2014 COB on the USA) seem to assume that extraterritorial communications surveillance raises privacy issues under article 17 of the Covenant, regardless of the nationality of the parties to the communication. (The COBs for France are less explicit on the latter point.) The committee therefore expresses concern about overbroad and unchecked surveillance practices, and makes a series of recommendations for reform.
If one probes the committee’s assumption that extraterritorial communications surveillance always raises privacy issues under the Covenant, the following question arises: How does the committee explain the relationship between extraterritorial surveillance of foreign nationals and the undertaking of each state party to the ICCPR “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,” as article 2(1) of the treaty provides?
August 24, 2015
Posted by Deborah Popowski
This post was originally published on Just Security
The image of torture in US popular culture is an intimate one: a government agent and a suspect in a dark cell, usually alone. But the reality of our state-sanctioned torture program is that it took a village, working in broad daylight, to pull it off.
This summer, all eyes are on the American Psychological Association, as they should be. An independent investigation commissioned by the APA found that the organization had, as David Luban describes here, engaged “in a decade of duplicity to permit its members to participate in abusive interrogations while seeming to forbid it.” The report, lead-authored by former prosecutor David Hoffman, tells a tale of wholesale corruption and cooptation. Among its explosive findings is that APA officials refused to act on ethics complaints against military and CIA psychologists so as to shield them from sanction.
But the APA was not the only institution asked to investigate these matters. State licensing boards in Ohio, New York, Texas, Louisiana, and Alabama also received credible, well-documented complaints against implicated psychologists, including many of the same subjects of the improperly dismissed APA complaints. As lawyer and advisor for Dr. Trudy Bond and other courageous complainants in many of these cases, I witnessed how the licensing boards, like the APA, stonewalled and refused to bring formal charges, offering opaque, implausible, or seemingly pretextual justifications for their decisions.
According to the Hoffman report, ethics director Stephen Behnke told investigators that the duty to protect the public fell not on the APA, but on the state licensing boards. The truth is that the responsibility is shared — and so is their failure.
Licensing boards are legally mandated to protect people from the unsafe practice of psychology. This includes patients, all people with whom psychologists work, and the broader public. Yet, presented with evidence that their licensees had participated in or enabled torture, these state boards seemed to turn a blind eye. To truly understand how a profession dedicated to healing came to sanction brutality, we need a full investigation into how and why these boards dismissed misconduct complaints against psychologists James Mitchell, John Leso, Larry James, and Diane Zierhoffer. Did the state boards handle these complaints properly and in good faith, or did they, like the APA, strain their reading of the law to reach conclusions that would not restrict the government’s interrogation program — even if it included torture and cruelty? To what extent did they rely on compromised APA ethics policies and the now-discredited officials responsible for them?
August 20, 2015
Posted by Deborah Popowski
This post was originally published on the Human Rights at Home Blog
The Inter-American Commission on Human Rights released on August 5th a report denouncing the United States government for unlawfully detaining men in Guantánamo in violation of their human rights and offering recommendations for how the Obama administration should hasten the prison’s closure. It calls for the immediate release of all detainees who will not be charged or tried, and for the use of federal courts instead of military commissions to prosecute those not released.
Personal Integrity and Access to Justice
The 136-page report, “Towards the Closure of Guantánamo,” provides the most recent holistic and independent account of conditions in the prison. The Commission expresses particular concerns about indefinite detention; the use of torture and other cruel, inhuman, or degrading treatment; a discriminatory detention regime; limited or no access to judicial protection; lack of due process; and lack of an adequate defense.
The Commission calls on the US to end the inhumane practice of force-feeding detainees and to ensure that all men receive “adequate medical, psychiatric and psychological care” that respects principles of confidentiality, patient autonomy, and informed consent.
The report also takes on the conditions that contribute to these grave health problems, including prolonged isolation, incommunicado detention, and indefinite detention. On the latter, it notes having “received specialized information on the severe and lasting physiological and psychological damage caused by the detainees’ high degree of uncertainty over whether they will be released and when; or whether they will see their family members again.” It adds that the “continuing state of suffering and uncertainty creates grave consequences such as stress, fear, depression, and anxiety, and affects the central nervous system as well as the cardiovascular and immunological systems” and concludes that the continued, indefinite detention of men in Guantánamo violates their right to humane treatment.
The Commission’s analysis of personal integrity violations underscores that the fulfillment of this right requires providing detainees with meaningful avenues to monitor, challenge, and remedy their treatment and conditions. To this end, it asks the US government to declassify evidence of torture and ill-treatment, disclose conditions in Camp 7, ensure accessible and effective judicial review, and grant access to an independent monitoring body to investigate detention conditions. Additionally, it urges compliance with the UN Committee Against Torture’s recommendations to investigate all abuse allegations, prosecute those responsible, and ensure effective redress for victims of torture and ill-treatment.
An entire chapter is devoted to detailed analysis of the judicial remedies available to detainees post-Boumediene, which the Commission concludes are neither adequate nor effective, citing concerns with the operation of presumptions and burdens of proof. While the report credits the US with positive changes made via the Military Commissions Act of 2009, it ultimately finds that the military commissions system fails to meet the government’s human rights obligations. Its main areas of concern include their “independence and impartiality …, the uncertainty regarding the application of the US Constitution; respect for the right of equality before the law, to confrontation and to a speedy trial; respect for the principle of legality, and the retroactive prosecution of crimes.”
“A Prison for Foreign Muslim Men”
The Commission notes that Guantánamo’s exceptional regime is rendered even more problematic because of its exclusive application to Muslim men of non-U.S. nationalities, “which creates the appearance that it is targeting individuals based on their nationality, ethnicity, and religion.” Reports of religious-related abuse also played a role in the Commission’s personal integrity analysis. The report’s conclusions and recommendations remind the US government of its obligations to respect detainees’ rights to freedom of conscience and religion, and specify that these include guaranteeing access both to communal prayer and a Muslim chaplain.
The Commission calls on the US to allow transfers for trial, emergency medical treatment, and also for release and settlement in the cases of cleared men who cannot return to their home countries and are unwilling or unable to settle elsewhere. To that end, it asks Congress to repeal the National Defense Authorization Act provisions that restrict transfers of Guantánamo detainees to the United States, and urges the executive to interpret the NDAA requirements “in a flexible manner” so as to meet its rights obligations. The report also highlights other necessary measures within the executive’s power, such as expediting the Periodic Review process, stepping up diplomatic negotiations, accelerating transfers to countries of origin or third countries, and ensuring that Yemeni detainees cases receive individualized reviews.
Finally, it calls upon other member states to accept detainees for resettlement. Given the Commission’s influence in the region, advocates are hopeful that this report, with its detailed and unequivocal critique of the regime’s unlawfulness, will significantly help efforts to resettle some of the cleared men in Latin America.
August 19, 2015
Posted by Tyler Giannini and Susan Farbstein
Last week, the Clinic and co-counsel filed a petition for rehearing en banc, asking the Second Circuit to allow Plaintiffs’ claims to go forward against Defendants Ford and IBM in In re South African Apartheid Litigation. The petition responds to a Second Circuit panel decision that denied Plaintiffs the ability to proceed. The panel ruling found the allegations were not sufficient to show that Ford and IBM had “purposefully” aided and abetted the South African state in committing international law violations.
The petition, however, argues:
The ramifications of the panel’s decision are brought into stark relief when measured against the Nuremberg tribunal. If the Nazi industrialists convicted at Nuremburg had operated in the United States, rather than Germany, when they sold Zyklon B gas to support and facilitate the Holocaust, the panel’s opinion would foreclose claims against them.
The brief argues that goes further than the Supreme Court intended with its decision in Kiobel vs. Royal Dutch Petroleum Co. in 2013, which requires that claims must “touch and concern” the United States to proceed. In addition to being at odds with Kiobel, the panel decision raises fundamental questions about aiding and abetting standards as well as corporate liability under the ATS. Indeed, the petition asserts that “the panel has essentially re-written the terms of the ATS, and asks whether this entire Second Circuit “endorses the wholesale reversal of this Court’s ATS jurisprudence” dating to the landmark Filártiga v. Peña-Irala decision in 1980.
August 17, 2015
Posted by Cara Solomon
We have some pretty fantastic news to report today: Susan Farbstein has been named to Massachusetts Lawyers Weekly’s “Top Women of Law” list for 2015.
It’s no surprise to us, given the criteria for making the list. The honor goes to “women who have made tremendous professional strides and demonstrated great accomplishments in the legal field, which includes: pro bono, social justice, advocacy, and business. The awards highlight women who are pioneers, educators, trailblazers, and role models.”
We are thrilled to see Susan honored in this way, and look forward to celebrating with her at the official ceremony in October.
August 11, 2015
Posted by Cara Solomon
Up today on the Just Security blog, Deborah Popowski gives her initial reflections on the substantive provisions of the APA’s new policy, adopted last Friday, to ban psychologists from national security interrogations. She writes, in part:
“It was a stunning about-face for the APA. Having spent the better part of the last eight years supporting the “dissident psychologists” in their battle against the organized profession, I had trouble believing my ears as the steady wave of yesses rolled through that Toronto conference room last week. It was as if we had stepped into an alternate reality.
I predict that ultimately, this resolution will be more powerful than its AMA and American Psychiatric Association counterparts precisely because it took years of dogged advocacy to achieve. The APA’s bad behavior was a mobilizing force for psychologists of conscience. The organization now faces a savvy group of reformers that understand its playbook and will keep pressing for enforcement. I look forward to seeing how they ride this wave of momentum.”
You can read her analysis on Just Security here.
August 10, 2015
Posted by Susan Farbstein
Back in 2009, when our Clinic published a book about the prosecution of apartheid-era crimes in South Africa, we knew that state prosecutors had brought shockingly few charges since the Truth and Reconciliation Commission (TRC) concluded its work—but we didn’t know why. Now, thanks to a recently-filed case in the Pretoria High Court, we’re starting to get an answer. And it isn’t pretty. The new case alleges that South Africa’s ruling ANC government sought to protect apartheid-era security forces from prosecution, in order to protect itself.
The case was filed by the family of Nokuthula Simelane, who was 23 years old in 1983 when, while acting as a courier for the armed wing of the ANC, she was abducted, tortured, and disappeared by the Security Branch of the former South African Police. Her remains were never found. Although the TRC granted amnesty to some of the perpetrators in Simelane’s case in 2001, it also recommended that the National Prosecuting Authority (NPA) investigate further with an eye towards prosecuting those not granted amnesty. No such investigation or prosecution occurred.
The lack of progress in Simelane’s case is representative of numerous others. Under the terms of the TRC, any perpetrator who did not apply for and receive amnesty could be prosecuted. In its final report, the TRC recommended that the state pursue a bold prosecution policy, and in 2003 referred approximately 300 cases to the NPA for investigation and potential prosecution (as well as an additional 500 missing persons cases). The prosecutions never materialized.
New court filings now allege that the South African state “put in place measures to manipulate, control or obstruct prosecutorial decisions dealing with political cases of the past.” In particular, supporting affidavits—from extremely important public figures including the former director of the NPA and the head of its Priority Crimes Litigation Unit (PCLU)—provide detailed accounts of high-level interference by ministers and senior government officials to block post-TRC prosecutions.
It appears that those efforts were grounded in fears that cases against security forces perpetrators would open the door to charges against ANC leaders and members as well. The result, as explained by Anton Ackermann, the former head of the PCLU, was that the NPA was “effectively stopped from pursuing the investigation and prosecution of the so-called political cases arising from South Africa’s past.”
On the day in 2004 when three policeman were to be arrested for the attempted murder of Frank Chikane, the former head of the South African Council of Churches, Ackermann received a call from an official in the Ministry of Justice stating that “a decision had been taken that the Chikane matter should be put on hold pending the development of guidelines to deal with the TRC cases.” After Ackermann responded that only Vusi Pikoli, the NPA’s director, could give such an instruction, he was told by Pikoli not to proceed. Ackermann concludes “that it can safely be assumed that [Pikoli] was instructed at a political level to suspend these cases.” Investigations and prosecutions of TRC cases were placed on hold until new guidelines could be formulated.
Once new guidelines regarding TRC cases were put into place at the end of 2005—guidelines authorizing use of the same amnesty criteria applied by the TRC while granting prosecutors wide latitude to decline to prosecute even when adequate evidence existed, and which were eventually struck down as unconstitutional—Ackermann again sought to proceed with cases previously identified for prosecution. He was prevented from doing so by a lack of investigative capacity and the unwillingness of an inter-departmental committee to meet and move the cases ahead. He was later relieved of his duties in relation to the TRC cases. Ackermann states, in his affidavit, that a political instruction came from above to remove him from these cases to thwart prosecutions. “It is no coincidence,” he asserts, “that there has not been a single further prosecution since I was relieved of my duties in this regard.”
Pikoli’s affidavit confirms that political interference effectively barred the investigation and prosecution of TRC cases, and characterizes the Chikane case as the “unraveling” of the NPA’s efforts. Pikoli describes a meeting called by the Acting Minister of Justice and Constitutional Development, and attended by multiple other ministers, at which “it became clear that there was a fear that cases like the Chikane matter could open up the door to prosecutions of ANC members.” He also details how “powerful elements within government structures were determined to impose their will on my prosecutorial decisions.” Like Ackermann, Pikoli was suspended from his duties as director of the NPA and believes that the decision to pursue prosecutions of apartheid-era perpetrators contributed to his suspension and eventual dismissal.
Other affidavits speak to the impact of the absence of prosecutions on South African society and the TRC’s legacy. Alex Boraine, the Vice Chair of the TRC, states that political inference with the NPA’s mandate and the resulting abandonment of TRC cases has seriously eroded the human rights culture established by South Africa’s constitution, violated the rights of apartheid-era victims to a remedy, and allowed perpetrators to escape justice. Dumisa Ntsebeza, the head of the TRC’s Investigation Unit, asserts that the failure to prosecute those who never applied for amnesty undermined those who did, and that a tardy justice in the form of limited reparations to survivors has compromised the dignity that the TRC sought to build.
Together, the affidavits offer compelling evidence of political interference by the government into the work of the NPA, which effectively blocked the investigation of cases recommended for prosecution by the TRC. Now that the truth has come out, it’s time for the NPA to get back to work, without additional political meddling. Justice, delayed far too long, must no longer be denied.
August 7, 2015
Posted by Deborah Popowski
The American Psychological Association Council of Representatives passed a resolution today that forbids psychologists from participating in national security interrogations and aligns its policies with international law. This is a watershed moment for the movement against U.S. torture, and we owe tremendous gratitude to our partners at the Coalition for an Ethical Psychology and the many others who brought about this remarkable turnaround from the APA.
BE IT FURTHER RESOLVED that, in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to “take care to do no harm,” not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation enforcement interrogations or domestic detention settings where detainees are afforded all of the protections of the United States Constitution, including the 5th Amendment rights against self-incrimination (“Miranda” rights) and 6th Amendment rights to “effective assistance” of legal counsel.
BE IT FURTHER RESOLVED, that … APA shall send official correspondence to the appropriate officers of the U.S. government, including the President, Secretary of Defense, Attorney General, CIA Director, and Congress, to inform them that APA has adopted policy changes to expand its human rights protections to safeguard detainees in national security settings against torture and cruel, inhuman, or degrading treatment or punishment.
1) The first of these communications will be sent as soon as possible after this amended policy is passed, and will state – It is a violation of APA policy for psychologists to conduct, supervise, be in the presence of, or otherwise assist any individual national security interrogation, nor may a psychologist advise on conditions of confinement insofar as those might facilitate such an interrogation. Furthermore, based on current reports of the UN Committee Against Torture and the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, it is also a violation of APA policy for psychologists to work at the Guantánamo Bay detention facility, “black sites,” vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction “unless they are working directly for the persons being detained or for an independent third party working to protect human rights” or providing treatment to military personnel. To protect these psychologists from the consequences of violating their obligations under the APA Ethics Code, APA requests that psychologists be withdrawn from any role in individual national security interrogations or conditions of confinement that might facilitate such an interrogation. Furthermore, APA requests that psychologists working at prohibited sites, as described above, be offered deployment elsewhere.
Full text of the resolution here.
Stay tuned for more coverage next week.
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