Here is message from UN human rights chief Navi Pillay.
25/01/2013
"Torturers, and their superiors, need to hear the following message loud and clear: however powerful you are today, there is a strong chance that sooner or later you will be held to account for your inhumanity," Pillay said.
"Torture is an extremely serious crime, and in certain circumstances can amount to a war crime, a crime against humanity or genocide," she added in a statement to mark Saturday's International Day for the Victims of Torture.
The High Commissioner for Human Rights urged governments, the United Nations and campaign groups "to ensure that this message is backed by firm action."
"No one suspected of committing torture can benefit from an amnesty. That is a basic principle of international justice and a vital one," Pillay added.
http://news.yahoo.com/s/afp/20090115/wl_afp/usattacksguantanamotorture
Tortured 9/11 suspect may never be prosecuted: Pentagon official
by Lucile Malandain
WASHINGTON (AFP) – The United States may never be able to prosecute an alleged plotter of the September 11, 2001 attacks because he was tortured, a top Pentagon official said in an interview.
Susan Crawford, who is charged with deciding whether to bring Guantanamo detainees to trial, told The Washington Post that US interrogators had tortured Saudi terror suspect Mohammed al-Qahtani.
"We tortured Qahtani," she said, thus becoming the first senior Bush administration official to publicly state that a detainee was tortured.
"His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution said Crawford, who is the convening authority of military commissions, a system established by the administration of President George W. Bush to try unlawful enemy combatants.
Crawford said US military interrogators repeatedly subjected Qahtani, 30, to sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."
"The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent," she said.
"This was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture.
Qahtani, alleged to be the 20th hijacker in the September 11 attacks, was denied entry to the United States one month before the attacks but was captured in Afghanistan and flown to Guantanamo in January 2002.
"There is credible evidence the FBI has had that Qahtani was calling (lead 9/11 hijacker) Mohammed Atta when he arrived in Miami," security analyst Sarah Mendelson told AFP, adding that he could still be brought to trial under such evidence.
"I think it is important to understand that evidence gathered completely separately from harsh interrogation, torture, is the base for bringing a trial against Qahtani," added Mendelson, who directs the human rights and national security project at the Center for Strategic and International Studies.
Qahtani was interrogated over 50 days from November 2002 to January 2003, although he was held in isolation until April 2003, according to the Post.
A Pentagon spokesman said the interrogation techniques used on Qahtani were authorized by former defense secretary Donald Rumsfeld and subsequent reviews found them to be lawful.
"However, the department did adopt a new and more restrictive policy, as well as improved oversight procedures for interrogations and detention operations," said Bryan Whitman.
"While some of the aggressive questioning techniques used on Qahtani were permissible at the time, they are no longer allowed in accordance with the updated army field manual."
Meanwhile, White House spokeswoman Dana Perino reiterated the Bush administration's position that "it has never been the policy of this president or this administration to torture."
The timing of the comments by Crawford, just days before president-elect Barack Obama will be sworn in on January 20, also raised some questions. Obama has vowed to close the controversial detention facility.
"Is she making an argument now because she's worried about a future prosecution of US officials? The timing of the article is hot. The timing of the admission is hot," Mendelson said.
Crawford, a retired judge who previously served as Pentagon inspector general, dismissed war crimes charges against Qahtani in May 2008.
She said she was unaware of whether the other five alleged 9/11 co-conspirators detained at Guantanamo were tortured. "I assume torture," she acknowledged.
Outgoing Vice President Dick Cheney has acknowledged that alleged 9/11 mastermind Khalid Sheikh Mohammed and two other Guantanamo detainees were subjected to waterboarding, or simulated drowning. But Cheney said he did not believe the interrogation techniques amounted to torture.
Despite Crawford having allowed capital murder charges to go forward against the five detainees, the torture allegations cast doubt over whether the United States will ever prosecute the alleged plotters.
Of the 250 inmates still held at the US naval base at Guantanamo Bay, Cuba, only about 20 have been charged, including the five men accused of helping organize the 9/11 attacks.
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http://www.thestar.com/News/Canada/article/611540
Spy agency says it uses intelligence extracted that way 'if lives are at stake,' despite federal ban
Apr 01, 2009 04:30 AM
Tonda MacCharles
OTTAWA BUREAU
OTTAWA – In stunning testimony that flatly contradicts stated Conservative government policy, a senior CSIS official admitted the spy agency still uses information that might have been obtained by torture in national security investigations "if lives are at stake."
Geoffrey O'Brian, a lawyer and CSIS adviser on operations and legislation, told the Commons public safety committee there is no absolute ban on using intelligence that may have been obtained from countries with sketchy human rights records on torture.
"Do we use information that comes from torture? The answer is we only do so if lives are at stake," O'Brian said.
The admission appeared to fly in the face of clear recommendations from Justice Dennis O'Connor in the Maher Arar inquiry against receiving or distributing information when there is "a credible risk" it stemmed from torture.
It also contradicted assertions by the Conservative government, which has long argued the practices that led to the detention and torture of four Canadian citizens – which were condemned in two public inquiries – happened under the previous Liberal government. The Conservatives insist policies under its watch have changed.
The office of Peter Van Loan, minister of public safety, moved to clarify the Conservative government's policy late in the day by email: "The Government of Canada does not condone torture. Period."
O'Brian said there are "unusual" and "almost once-in-a-lifetime situations" where information obtained through torture "can be of value to the national security of the country."
He argued the executive branch is "bound" to protect the security of its citizens, even if such information can "never" be used in a court proceeding.
"The simple truth is, if we get information which can prevent something like the Air India bombing, the Twin Towers – whatever, frankly – that is the time when we will use it despite the provenance of that information," he said.
In contrast, the RCMP told MPs it considers intelligence extracted through torture to be automatically "unreliable."
"I would like to be clear there is no absolute ban on the use of any information received by the RCMP," said Gilles Michaud, director general of the RCMP's national security and criminal operations. "However, we do not use information whose reliability, accuracy and relevance is suspect. Information knowingly extracted under torture would, by definition, be unreliable."
Incredulous Liberal and Bloc Québécois MPs said the CSIS approach "creates a market for torture."
Liberal Mark Holland said it shows the findings of the public inquiries "have fallen on deaf ears."
He did not accept the CSIS explanation that information stemming from torture would be used only to prevent an imminent catastrophic attack.
"This is not an episode of 24, okay?"
The admission came as officials from CSIS, the RCMP and the Canada Border Services Agency testified they have responded to recommendations and findings by the two judge-led inquiries into the Mideast torture ordeals of Maher Arar, Ahmad El-Maati, Abdullah Almalki and Muayyed Nureddin.
All said their agencies have improved the information-sharing practices that were criticized.
But the RCMP and CSIS stopped well short of apologizing to the other three Canadian men who were tortured, even though they apologized to Arar at the same committee long before his civil lawsuit was settled out of court.
O'Brian said they were instructed not to say anything to jeopardize the government's position in civil lawsuits filed by the other three.
He was blunt: CSIS shares information with agencies in 147 countries, and the "vast majority of those countries have human rights records that are not as glowing as ours." CSIS tries to assess the reliability of "every bit of information it gets," but O'Brian conceded the agency "normally" doesn't know how information was obtained.
CSIS has developed a new "caveat" or caution on information to be shared when there is a risk someone may be detained abroad, and developed a new agreement under which it shares information with the RCMP, which shouldered most of the blame for the Arar scandal.
But O'Brian revealed CSIS has not ceased using inflammatory terms such as "jihadist" and "Islamic extremist" that both public inquiries had condemned.
"It depends on the status of the investigation. If it's early in the investigation, we may be simply seeking information.
"Later in an investigation, we may be able to come up with an assessment."
O'Brian assured Canadians CSIS is subject to ministerial control, and to review by the Inspector General and the civilian watchdog agency, Security Intelligence Review Committee, and that "mistakes" can be addressed.
The Liberals argued there should be an outright prohibition against accepting information from countries known to practise torture.
Anything less risks sending the message to other countries and shadowy agencies that Canada will use "worthwhile" information "if you torture them well enough," said Holland.
"It creates a market for torture," he said. "We're essentially condoning that torture ... That's a dangerous message to be sending out there."
Holland said although CSIS is subject to oversight, it shares information with other agencies like the RCMP or the CBSA that do not have similar watchdogs.
"It's quite disturbing," said NDP MP Jack Harris. But he added: "If someone says we have information that someone is about to blow up a building, to say that you wouldn't check it out would be silly. But I don't know if that's what he's talking about."
http://www.democrats.com/no-amnesty-for-torturers
On April 16, President Obama said he would not prosecute CIA agents who engaged in torture, because George Bush's lawyers told them it was "legal." President Obama also said Attorney General Eric Holder would use taxpayer dollars to defend torturers against lawsuits by torture victims, and to pay all judgments if they lost.
These decisions are intolerable and unacceptable. Torture is utterly immoral and un-American. It produced absolutely no useful intelligence. It recruited terrorists responsible for at least half the U.S. deaths in Iraq. And it endangered every U.S. soldier who may be captured in the future.
And torture is absolutely illegal. The U.S. ratified the United Nations Convention Against Torture, which prohibits torture and requires prosecution of torturers. In 1947, the U.S. prosecuted a Japanese officer for waterboarding. No lawyer can "legalize" what is illegal.
Congress must take the following actions:
1. Demand the appointment of a Special Prosecutor by Attorney General Eric Holder for torture, warrantless wiretapping, and other heinous crimes of the Bush Administration. (Thanks to Rep. Jerrold Nadler for leading the way!)
2. Prohibit the use of any taxpayer dollars to defend government officials who committed such crimes against lawsuits, or to pay for judgments against them.
3. Impeach Judge Jay Bybee, the torture memo author who serves on the Court of Appeals for the Ninth Circuit in California.
4. Protect human rights by restoring Habeas Corpus and the Fourth Amendment (search and seizure), including repeal of the Orwellian-named Protect America Act, U.S.A. Patriot Act, the FISA Amendments, and Military Commissions Act.
5. End secret government by prohibiting use of "State Secrets," "Sovereign Immunity" and "Signing Statements."
By NICHOLAS D. KRISTOF
http://www.nytimes.com/2009/04/26/opinion/26kristof.html?ref=opinion
Published: April 25, 2009
If, God forbid, terrorists release nerve gas in movie theaters from Los Angeles to Washington tomorrow, the debate about torture will change 180 degrees. The public will turn on President Obama for having “coddled” terrorists.
In short, today’s revulsion at waterboarding is broad but fragile. And that makes it essential that the United States proceed with an independent commission to investigate harsh treatment and tally its costs and benefits.
President Obama worries that the commission will be a distraction, but the truth is the opposite. Revelations will continue to trickle out — including a new hoard of photos of abuses scheduled to be released by May 28 — creating a constant roar of charges and counter-charges. Liberals will jab Mr. Obama from the left, and Dick Cheney from the right, until the president resembles St. Sebastian (the human pincushion). Mr. Obama won’t be able to escape torture.
“He’s trying to get it off the news cycle, and that’s not going to happen,” said Elisa Massimino, chief executive of Human Rights First. “You can’t say you’re going to follow the evidence and then not look for any.”
Morton Halperin of the Open Society Institute, a leader in the coalition supporting a commission, said: “He’s better off saying, ‘there’ll be a commission report, and I’ll deal with it when it’s over.’ It’s a much more credible way to get it off the table.”
There are three solid reasons for a national commission:
First, it could help forge a consensus against torture, for almost everyone in the national security world believes that the result would be a ringing affirmation that we should not torture.
It’s in Mr. Obama’s interest to reach such a consensus, because otherwise the next major terror attack — and there will be one — will be followed by Republican claims that the president’s wimpishness left America vulnerable. His agenda on health care, climate change and education will then risk a collapse into dream dust. The way to inoculate his agenda is to seek common ground through a nonpartisan commission.
Second, a commission could help restore America’s standing by distancing ourselves from past abuses. Alberto Mora, a former general counsel for the Navy, has said that some flag-rank officers believe that Abu Ghraib and Guantánamo constitute “the first and second identifiable causes of U.S. combat deaths in Iraq,” because they galvanized jihadis. An Air Force major and interrogator of prisoners who goes by the pseudonym Matthew Alexander told Harper’s Magazine that “hundreds but more likely thousands of American lives” were lost because of “the policy decision to introduce the torture and abuse of prisoners.”
Third, a commission could help counterterrorism efforts. Foreign governments have been wary of cooperating with us for fear of being tarnished by scandal. At home, Arab-American and Somali-American communities have been leery of reporting tips because they see the authorities as unjust and hostile to Muslims.
“Oftentimes, the communities from which we need the most help are those who trust us the least,” Robert Mueller, the F.B.I. director, told the Council on Foreign Relations recently. Last fall, a Somali-American was among a group of suicide bombers who killed more than 20 people in the northern Somalia; he may have been the first American citizen to commit such a suicide attack.
There’s no magic bullet to prevent that from happening in Minneapolis next time, but a truth commission would perhaps be one way to clear the air, build trust among American Muslims and improve counterterrorism.
The truth commission shouldn’t be bipartisan. Rather, it should be nonpartisan, led by prominent legal figures and national security experts who are not strongly associated with a political party. Among those often mentioned are Sandra Day O’Connor, Thomas Kean and Lee Hamilton, along with retired generals and intelligence experts. Such a panel could not be accused of a witch hunt.
It could explore whether there should be criminal responsibility, and whether health professionals should lose licenses for participating in torture.
Conversely, I hope the commission would also recognize some of the most heroic figures since 9/11: those brave military officers, especially military lawyers, who defied the Pentagon to stand up for terrorism suspects — or, more accurately, for principles of justice.
At a time when we in the news media became lapdogs rather than watchdogs, when Congress and the courts dozed, those military lawyers sacrificed their careers to defend American values. They deserve medals.
Mr. Obama is right that we have to focus on the economy and move ahead. But one of our most precious possessions is our moral core, our value system, and when you’ve lost your way it’s important to retrace your steps to understand where you went astray. Come on, Mr. Obama, let’s not delay that process.
By LARRY MARGASAK, Associated Press Writer 28 Apr 2009
http://news.yahoo.com/s/ap/20090428/ap_on_go_co/us_interrogations_p...
WASHINGTON – Congressional Democrats turned up the pressure on the Obama administration Tuesday to start a criminal investigation by a special counsel into harsh interrogations of terrorism suspects.
It would be a conflict of interest for President Barack Obama's Justice Department to investigate lawyers from the Bush administration, even though they no longer work for the government, Democrats on the House Judiciary Committee said.
In a letter to Attorney General Eric Holder, the Democrats wrote, "It is impossible to determine at this stage, and before conclusion of the necessary investigation, whether additional conflicts of interest might exist or arise."
The letter said a special counsel's investigation would insulate the department from accusations that the investigation was politically inspired.
Most of the 16 signers were Democratic liberals. Seven committee Democrats did not sign the letter, nor did any of the 16 Republicans.
Justice Department spokesman Dean Boyd said the letter will be reviewed, but he pointed out the department's Office of Professional Responsibility is investigating whether the memos are consistent with professional standards required of department lawyers.
"As with any issue, we will follow the facts where they lead," Boyd said. "As the attorney general has said, it would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department."
Obama has said it would be up to Holder to determine whether "those who formulated those legal decisions" should be prosecuted. The methods, described in the Bush-era memos, included slamming detainees against walls and subjecting them to simulated drowning known as waterboarding.
The president said he would not seek to punish CIA officers and others who carried out interrogations.
Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, also has proposed that independent investigators determine whether Bush administration officials ought to face charges.
Conservative Republican senators have characterized the Democratic effort as counterproductive and politically motivated at the least and, at worst, damaging to national security.
Levin recommended that the Justice Department select up to three people outside the department, such as retired federal judges, to recommend any charges or other actions against lawyers and others who developed the policies.
In addition to lawmakers, a coalition of liberal groups delivered petitions to Holder demanding that he name an independent counsel. The groups included the American Civil Liberties Union, MoveOn.org, and the Center or Constitutional Rights.
The ACLU obtained four of the Justice Department memos that provided the legal framework for the interrogation policies.
http://www.reuters.com/article/email/idUSLE883985
Thu May 14, 2009 6:00am EDT
By Stephanie Nebehay
GENEVA, May 14 (Reuters) - The U.N. High Commissioner for Human Rights on Thursday welcomed the election of the United States to the top United Nations rights forum and urged it to prosecute those accused of torture and other abuses.
Navi Pillay said Washington should investigate all U.S. renditions of terrorism suspects and ensure any interrogators who mistreated them are brought to justice for violating an international ban on torture.
Her appeal, in an opinion piece in the International Herald Tribune, came a day after President Barack Obama said he would fight the release of dozens of photographs showing the abuse of terrorism suspects over concern the images could ignite a backlash against U.S. troops deployed abroad.
The United States' election on Tuesday to the United Nations Human Rights Council could help the cause of human rights and America's standing in the international community, Pillay said.
She described Washington's decision to seek a seat for the first time at the 47-member forum as a "welcome step in restoring international trust in U.S. support for human rights".
"Although much more needs to be done, President Obama's determination to resolve the untenable situation of detainees at Guantanamo Bay, ban CIA prisons and implement the prohibition on torture in compliance with international standards is highly welcome," the former U.N. war crimes judge said.
She was referring to executive orders signed by Obama in his first days in office in January to close the Guantanamo military prison in Cuba and overseas CIA jails.
"The U.S. should also shed light into the still opaque areas that surround capture, interrogation methods, rendition and detention conditions of those alleged to have been involved in terrorism, and ensure that perpetrators of torture and abuse are held to account," Pillay said.
Under President George W. Bush, the United States confirmed it had used "rendition" to apprehend terrorism suspects around the world and deliver them for interrogation in third countries.
It also acknowledged that the CIA had run secret interrogation centres abroad, but denied employing torture.
The system was put in place after the Sept. 11, 2001 attacks in the United States, which killed nearly 3,000 people.
U.N. human rights investigators launched a global inquiry into secret detentions last March and said they would not relax scrutiny of U.S. counter-terrorism policies under Obama.
The investigation will look at CIA "rendition" flights that secretly transferred suspects for interrogation, mainly in North Africa and the Middle East, but will also investigate countries' use of torture in secret prisons anywhere in the world.
Martin Scheinin, U.N. special rapporteur on protecting human rights while countering terrorism, and Manfred Nowak, the U.N. investigator on torture worldwide, are conducting the investigation. The independent experts report to the U.N. Human Rights Council. (Editing by Janet Lawrence)
Report Provides New Details on C.I.A. Prisoner Abuse
By MARK MAZZETTI
Published: August 22, 2009
WASHINGTON — A Central Intelligence Agency inspector general’s report set to be released Monday provides new details about abuses that took place inside the agency’s secret prisons, including details of how C.I.A. officers carried out mock executions and threatened at least one prisoner with a gun and a power drill.
C.I.A. jailers at different times held the handgun and the drill close to the detainee, Abd al-Rahim al-Nashiri, threatening to harm him if he did not cooperate with his interrogators, a government official familiar with the contents of the report said.
Mr. Nashiri, who was implicated in the bombing of the Navy destroyer Cole in 2000, was one of two C.I.A. detainees whose interrogation sessions were videotaped — tapes that were destroyed by C.I.A. officers in 2005. It is unclear whether the threats with the gun and the power drill were documented on the tapes.
In a separate episode detailed in the report — completed in 2004 by the inspector general, John L. Helgerson, but emerging now after a lawsuit by the American Civil Liberties Union forced its release — C.I.A. officers fired a gunshot in a room next to a detainee, leading the prisoner to believe that a second detainee had been killed.
It is a violation of the federal torture statute to threaten a detainee with imminent death.
The C.I.A. declined to comment on specifics of the report, which were first reported Friday evening by Newsweek.
Paul Gimigliano, a C.I.A. spokesman, said: “The C.I.A. in no way endorsed behavior — no matter how infrequent — that went beyond the formal guidance. This has all been looked at; professionals in the Department of Justice decided if and when to pursue prosecution.”
A federal prosecutor is now investigating the destruction of the C.I.A. tapes, but the Justice Department has thus far declined to open a formal investigation into the abuses in C.I.A. prisons.
That may be about to change, as Attorney General Eric H. Holder Jr. is considering whether to appoint a prosecutor to examine the allegations in Mr. Helgerson’s report, and to investigate a number of cases where detainees died in C.I.A. custody.
President Obama has insisted that C.I.A. officers who adhered to Justice Department interrogation guidelines should escape prosecution, and Mr. Holder is not expected to single out Justice Department lawyers who approved the brutal interrogation techniques.
This would give any future investigation a somewhat narrow mandate: aiming only at C.I.A. officers who carried out abuses that exceed the interrogation guidelines.
Mr. Helgerson’s report is said to document in grim detail a number of abuse cases, and its release on Monday is likely to reinvigorate a partisan debate on Capitol Hill.
Even as White House officials say that they are hesitant to dwell on the detainee abuse during the Bush administration, the A.C.L.U. lawsuit has forced officials to make public a number of classified documents from that era.
Besides the inspector general’s report, other documents expected to be released Monday are a 2007 Justice Department memo reauthorizing the C.I.A.’s “enhanced” interrogation techniques, documents that former Vice President Dick Cheney has said provide evidence that the interrogation methods produced valuable information about Al Qaeda; and Justice Department memos from 2006 concerning conditions of confinement in C.I.A. jails.
In Mr. Nashiri’s case, military prosecutors announced in July 2008 that they would seek the death penalty as they brought war crimes charges against him. He has been held at the prison camp in Guantánamo Bay, Cuba, and is suspected of helping to plan the bombing of the Cole, an attack that killed 17 sailors.
Mr. Nashiri is a Saudi who has long been described by American officials as Al Qaeda’s operations chief in the Persian Gulf and the primary planner of the October 2000 attack on the Cole.
Mr. Nashiri is one of three detainees who the C.I.A. has acknowledged were subjected to waterboarding. Mr. Nashiri was interrogated in the agency’s secret prisons before he was transferred to Guantánamo in 2006.
In announcing the charges, which will be heard by the Bush administration’s military commission tribunals at Guantánamo, the Pentagon official, Brig. Gen. Thomas W. Hartmann, appeared to back away from years of assertions by American officials about Mr. Nashiri when he was asked at a news conference if Mr. Nashiri was suspected of being the primary planner or mastermind of the Cole attack.
“I’m not going to say either of those,” General Hartmann said. “I’m going to say he helped to plan and organize and direct the attacks.”
By Daphne Eviatar 11/11/09 11:52 AM
http://washingtonindependent.com/67419/nyt-slams-federal-appeals-co...
Praising an Italian court’s recent ruling that CIA agents broke the law in an extraordinary rendition case, The New York Times today highlights a growing phenomenon that hasn’t received sufficient attention: European courts appear more willing than their American counterparts to enforce the laws protecting basic human and civil rights.
The Italian court convicted in absentia a CIA station chief and 22 other agents for abducting a Muslim cleric and sending him to Egypt, where he was tortured. Similarly, a British court recently ruled that a former detainee and torture victim has the right to obtain documents to prove he was mistreated — despite U.S. objections.
In contrast, in a recent case here in the United States, involving the abduction and extraordinary rendition of Canadian citizen Maher Arar to Syria by U.S. authorities, a federal appeals court ruled that Arar — who turned out to be innocent — has no right to redress.
Arar, as we now know, was arrested based on faulty intelligence at John F. Kennedy airport in New York, denied access to a lawyer, and shipped off to Syria for interrogation under torture. Both the Syrian and Canadian governments have since confirmed that Arar had done nothing wrong, and Arar sued U.S. officials for his unlawful treatment. Yet the Second Circuit Court of Appeals in New York recently ruled that the courts should not interfere in cases involving national security and foreign affairs — that’s for the executive and legislative branches alone.
As The Times notes today in an editorial, the ruling was an abdication of the role of the federal judiciary, which, after all, is the branch of government charged with upholding the rights granted in the U.S. Constitution. Surely the right to be free from groundless abduction, rendition and torture is among them. As The Times’ editorial board puts it: “The ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct.”
What The Times neglects to mention is that another case, filed just yesterday on behalf of a U.S. citizen, raises precisely the same issues — and could meet the same fate. This time, however, as I explained yesterday, the plaintiff is a U.S. citizen, born and raised in New Jersey, abducted by U.S. authorities and held in three different African prisons where, he says, he was tortured and threatened by FBI agents, among others. He was eventually returned home without charge.
The judges who decided the Arar case earlier this month didn’t uniformly agree that he ought not be allowed to make his case in court. In fact, the 7-4 opinion spawned four dissenting opinions that are among the most eloquent statements on the role of the judiciary in upholding the U.S. Constitution that I’ve ever read.
As Judge Barrington Parker wrote, the court’s decision “risks a government that can interpret the law to suits its own ends, without scrutiny.” Parker cited a memo from former Deputy Assistant Attorneys General John Yoo and Robert Delahunty in the Bush Justice Department’s Office of Legal Counsel advising the top lawyer at the Pentagon in 2002 that the President enjoys “complete discretion” in conducting operations overseas, and that the Constitution’s Bill of Rights — such as the Fifth Amendment right to due process and the Eighth Amendment’s prohibition on “cruel and unusual punishment” — do not apply to overseas interrogations.
DEFINITION OF TORTURE UNDER INTERNATIONAL LAW ( part 1)
International Covenant on Civil and Political Rights, 1966[1]
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984[2]
Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment
American Convention on Human Rights (Pact of San José, Costa Rica, 1969)
Article 5 Right to Humane Treatment
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
3. Punishment shall not be extended to any person other than the criminal.
4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.
5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialised tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.
6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
Rome statute of the International Criminal Court, 1998[3]
Article 7 Crimes against humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(…)
(f) Torture;
(…)
2. For the purpose of paragraph 1:
(…)
(e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
Article 8 War crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(…)
(ii) Torture or inhuman treatment, including biological experiments;
(…)
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(…)
(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(…)
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(…)
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(…)
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
Elements of Crime as contained in the finalised draft prepared by the fifth session of the Preparatory Commission for the International Court held in New York from June 12 to 30 2000:[4]
Article 7 (1) (f) Crime against humanity of torture[5]
Elements
1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
2. Such person or persons were in the custody or under the control of the perpetrator.
3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
[1] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200 A (XXI) of 16 December 1966. Entry into force 23 March 1976.
[2] Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984. Entry into force 26 June 1987.
[3] Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998.
[4] PCNICC/2000/INF/3/Add.2
[5] It is understood that no specific purpose need be proved for this crime.
Nothing can justify torture under any circumstances
Alerted by the World Organization Against Torture (OMCT) to the reality that an increasing number of governments are allowing torture to spread and that public opinion appears to tolerate the practice, we feel compelled to state unequivocally that respect for human dignity means that torture is forbidden under all circumstances.
http://www.omct.org/international-campaigns/campaign-prohibition-to...
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