Sunday, 27 April 2008

Legal Interpretations and Interrogation Techniques in the War on Terrorism

Today’s lead story in the New York Times reveals how the US Justice Department’s legal advice to CIA agents on acceptable interrogation techniques was worded following the Supreme Court’s decision in Hamdan (2006) that Common Article 3 of the Geneva Conventions applies to Guantánamo Bay detainees. According to the story:

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit “outrages upon personal dignity,” a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.

….

The legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.

The article is a (short) must-read for all those who are interested in the role that law and lawyers have played in the attempts by the United States to reshape international legal standards since 9/11. It also ties in nicely with the papers presented at last Wednesday’s CCJHR seminar entitled ‘How the US Can Lose the War on Terror’ (delivered by John D. Hutson) at which the discussion paper, which I presented, was about lawyers’ complicity. The seminar will soon be available for viewing on UCC Faculty of Law’s video archive, and my discussion paper can be accessed here.

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Wednesday, 9 April 2008

(UK) Court of Appeal applies Saadi v Italy and Prevents Deportation to Libya

Today the Court of Appeal (Civil Division) released its judgment in AS & DD v Secretary of State for the Home Department [2008] EWCA Civ 289, which concerned the lawfulness of the deportation of the applicant to Libya, pursuant to a Memorandum of Understanding with the proposed receiving state.

The applicant was considered to pose risks to national security in the United Kingdom. He claimed that his right to be free from torture, inhuman and degrading treatment and punishment under both the ECHR and the Human Rights Act 1998 would be violated by the deportation as he faced a substantial risk of such treatment on return to Libya, and that the memorandum of understanding provided was not sufficient to discharge the United Kingdom’s positive obligations under Article 3, ECHR (on which see, esp., Soering and Chahal).

Drawing very heavily on the European Court of Human Right’s recent decision in Saadi v Italy (previously discussed on the CCJHR blog here), the Court of Appeal held that the test to be applied when considering whether deportation would constitute a human rights violation was as laid down in Saadi as follows:


Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment ... in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. (paragraph 142)


The Secretary of State for the Home Department conceded that this test would have been satisfied beyond doubt in this case were it not for the fact that a Memorandum of Understanding (i.e. diplomatic assurances) had been concluded between the UK and Libya. This memorandum, the respondent claimed, was sufficient to discharge the UK’s duty of non-refoulement under Article 3 ECHR.

In this respect the Court of Appeal held that the sufficiency of any memorandum must be decided on a case-by-case basis (paragraph 75). Although the Court did not, perhaps, articulate the principles of assessing the sufficiency of particular memoranda of understanding as clearly as it might have done, it did clearly state that in assessing whether Article 3 is satisfied it is important to consider the reality on the ground in the receiving country and the extent to which – taking into account the unpredictability of the future – it is likely that treatment violating Article 3 might take place notwithstanding the memorandum of understanding.

Whether this decision will be appealed to the House of Lords remains to be seen, but as the judgment is substantively based on Saadi it seems unlikely that the Law Lords would reverse. In essence, then, the judgment outlines three principles:


  1. The protections of Article 3, ECHR are absolute and remain absolute notwithstanding the alleged misbehaviour/terrorist status/national security risk posed by the individual(s) concerned;
  2. In assessing whether deportation would constitute a violation of Article 3 a Court must consider whether there is “a real risk of ill-treatment”, taking into account all of the evidence before it and the necessarily speculative nature of the exercise;
  3. A Memorandum of Understanding/diplomatic assurance can, in principle, be sufficient to ensure compliance with Article 3, but the mere existence of such a memorandum is not sufficient in and of itself. Rather, the court must be satisfied that the situation in the proposed receiving state is such that the memorandum will be effective in protecting the individual from behaviour that violates Article 3.

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Tuesday, 4 March 2008

Saadi v Italy - The ECtHR Reaffirms Article 3's Absolute Protection

Article 3 of the ECHR, which prohibits torture, inhuman or degrading treatment or punishment, imposes positive obligations on states, including the obligation of non-refoulement (i.e. the obligation not to return and individual to a country where that individual is likely to be subjected to treatment that violates Article 3). This obligation has been clearly outlined and enforced by the European Court of Human Rights since Soering v United Kingdom and Chahal v United Kingdom. Since the commencement of the ‘War against Terrorism’, however, some governments have argued that they ought to be entitled to deport suspected terrorists, even to countries where they may be at risk of Article 3 treatment, provided they have acquired diplomatic assurances that the individual will be protected from such treatment.

These claims have been extremely controversial, particularly since diplomatic assurances are not legally binding; there is no recourse for the individual against the state that has given the assurance in the event of its breach (unless some kind of legitimate expectation claim could be successfully constructed, which seems somewhat unlikely) – as diplomatic tools they are enforced (or not) through diplomatic channels. However, diplomatic assurances are not always insufficient to meet the receiving state’s obligations: if the assurance covers the prohibited activities, relates to a situation over which the assuring state has control, and comes from a reliable source then arguably the receiving state can rely on it. (For more on this see, e.g., this piece originally published in the Irish Law Times). One of the primary questions to arise since 2001, however, is whether the suspected involvement of the individual concerned in terrorist activity in any way reduces a state’s positive obligations under Article 3.

This question was directly addressed by the European Court of Human Rights in last week’s judgment in Saadi v Italy (judgment here). The case concerned a Tunisian citizen whom Italy wished to return to Tunisia but who claimed that he was likely to be subjected to behaviour violating Article 3 on his return and therefore that Italy had an obligation of non-refoulement towards him. The Italian government had received an assurance from Tunisia that Tunisian law guaranteed a fair trial and prisoners rights and that Saadi would be treated in strict conformity with these national laws. Pursuant to that assurance Italy claimed compliance with its Article 3 obligations; Saadi claimed that the assurance did not satisfy Article 3.

Although the Court accepted the grave difficulties that contemporary terrorism poses to states, it rejected the argument offered by the United Kingdom, which was a third party intervener to the proceeding, that in relation to suspected terrorists the court ought to weigh the community interest against the risk of violatory conduct perpetrated by a third party state (in this case, Tunisia). According to the Court, at paragraph 138:


Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 130 above). It must therefore reaffirm the principle stated in the Chahal judgment (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account.

And at paragraph 140:


With regard to the second branch of the United Kingdom Government's arguments, to the effect that where an applicant presents a threat to national security, stronger evidence must be adduced to prove that there is a risk of ill-treatment (see paragraph 122 above), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by Article 3 either. It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been sown for believing that there is a real risk that the person concerned will be subjected i the receiving country to treatment prohibited by Article 3.


The Court accepted that diplomatic assurances might be sufficient in some cases to satisfy a state’s Article 3 obligations, but this was not the case here given the strong evidence of widespread torture and ill-treatment in Tunisian detention facilities. Thus Saadi could not be deported; any deportation would violate Article 3.

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Wednesday, 23 January 2008

What happens the detainees when the War on Terrorism ends?

University of Pittsburgh’s excellent JURIST blog today reports on a draft bill before the Iraqi parliament which would allow for the release of approximately 5,000 current detainees in Iraq and provide those released with an amnesty. Although there are some quite severe difficulties with the Bill – not least the fact that excludes from its provisions all those in US custody and those imprisoned for, inter alia, adultery and homosexuality – and the fact that it is not targeted as a response to terrorism-related detentions, the Bill’s presentation does raise an important question: what will ‘we’ do with those detained on suspicion of terrorist activities when the ‘War on Terrorism’ ends?

To take Guantanamo Bay as an example, the United States has repeatedly asserted its desire to close the detention facility there but cites concerns about the destination and future conduct of detainees, including reluctance by ‘home states’ to have their citizens repatriated, as one of the major obstacles to closure. In addition, any detainees who may have been subjected to unlawful treatment in detention including torture clearly pose a litigation risk to the United States. To this end, some insurance policies may cover people against mistreatment claims (see NYT piece here). In addition, national security and separation of powers arguments may be successfully used to prevent litigation in US courts by those who claim to be the victims of such ill-treatment. For example, the DC Circuit court last week decided Rasul v Myers in which the court , finding that the claimant could not succeed in a damages claim against the government, held:

The present case involves the method of detaining and interrogating alleged enemy combatants during a war--a matter with grave national security implications. Permitting damages suits by detainees may allow our enemies to “obstruct the foreign policy of our government.” Moreover, dealing with foreign relations is primarily delegated to the executive and legislative branches, see...and creating a damages action could produce “multifarious pronouncements by various departments.” Nor does our government's unanimous condemnation of torture answer this concern, since where to draw that line is the subject of acrimonious debate between the executive and legislative branches. Treatment of detainees is inexorably linked to our effort to prevail in the terrorists' war against us, including our ability to work with foreign governments in capturing and detaining known and potential terrorists. Judicial involvement in this delicate area could undermine these military and diplomatic efforts and lead to “embarrassment of our government abroad.”

Notwithstanding these potential protections from liability, per se, the release of prisoners who claim torture or serious ill-treatment might well have a masive reputational impact on the United States. Writing about this issue in a piece entitled “United States Policy Towards Enemy Detainees in the ‘War on Terrorism’” published in the Human Rights Quarterly, the formidable scholar David Forsyth recently evoked the French-strategy following the Algerian war (i.e. of mass killings to prevent torture victims from speaking out) and wrote:



Accordingly, the democratic French, who had greatly contributed to the theory and practice of human rights, committed torture. And because the French had tortured, they could not put their enemies on trial; instead, they summarily executed them. Their efforts to sweep these atrocities under the rug for many years led to the loss of their self-respect, as well as the respect of many others, starting with the Arab-Islamic world. Torture may have helped the French win the battle of Algiers, but their policy of abuse led to many negatives, including increased domestic criticism and loss of reputation in the world; meanwhile their enemies failed to lessen their struggle. The Bush policy toward enemy detainees replicates much of this French experience.

….

US nationalism after 11 September 2001 has been less intolerant than some periods in US history; the Wilson and McCarthy eras quickly come to mind. But perhaps that is due to the lack of open, vigorous debate and dissent about Bush’s security policies. Given this lack of serious domestic debate, the Bush Administration has been able to sustain its policy of abusive interrogation, even if it has had to clean up detention practices in military facilities. International criticism has been much less important than domestic factors, although the role of the ICRC is not without importance.

The situation is not totally new, not only by comparison to France in Algeria. During the Cold War, the United States then too spoke of freedom and human rights and the rule of law but acted in the shadows to overthrow elected governments and back murderous allies, as in Chile and Guatemala. But to paraphrase Satre in the earlier quote, why should Americans go to such trouble to be patriots if their country in reality stands for torture and other serious violations of fundamental human rights? The French have much to say on the subject.



A law such as that proposed in Iraq is unlikely to solve the problems to be faced by the United States at the ‘cessation of hostilities’ when even its (shaky) IHL grounds for detention are gone, but it may well become time to start thinking about strategy. Although the candidates for presidential nominations from both the GOP and the Democratic party have address Guantanamo and the ‘War on Terrorism’ (for a useful summary of GOP hopefuls' approaches see here), none appear to have come up with a sustained strategy to avoid a repetition of what Forsyth might call ‘the French lesson’.

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Thursday, 13 December 2007

IHRC Report on 'Extraordinary Rendition'

The Irish Human Rights Commission (homepage) this week released a report entitled 'Extraordinary Renditions: A Review of Ireland's Human Rights Obligations' (pdf). The Report is essentially a response to the Irish government's decision that it would not carry out random searches of US planes stopping over in Shannon Airport because it had received diplomatic assurances that these planes were not carrying any prisoners who were being extraordinarily rendered. The following excerpt from the Executive Summary concisely outlines the IHRC's approach:


The IHRC is of the view that in its approach to ‘extraordinary rendition’, the Irish State is not complying with its human rights obligations to prevent torture or inhuman or degrading treatment or punishment. Its reliance on the assurances of the US Government is not enough. In order to ensure full compliance with its human rights obligations, the Irish State should put in place a reliable and independently verifiable system of inspection so that no prisoner is ever transported through this country except in accordance with proper legal formalities and the highest observance of human rights standards. In the absence of such a system of inspection, it is impossible for any ordinary citizen to gain evidence regarding such activity or to ascertain with any level of confidence whether such illegal activity is taking place in the State.

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Wednesday, 10 October 2007

Some Irish Prisons Unsafe

A report by the (COE) Committee for the Prevention of Torture claims that three Irish prisons – St. Patrick’s, Mountjoy and Limerick – are unsafe and degrading due to a high rate of inter-prisoner violence and intimidation, which it links to a lack of activities and the easy availability of drugs. Detainees interviewed also claimed that they were frequently subjected to abuse (verbal and physical) when arrested. The Irish government has made the Report public (which it is not required to do) and claims that it is working to ensure adequacy of activities and to restrict the availability of illegal drugs inside prisons.

Irish Independent; Irish Times

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