Center for Constitutional Rights

“What Needs to Die?”

This was the title of the November 4 sermon by Executive Associate Pastor, Rev. Meghan K. Gage-Finn, at Minneapolis’ Westminster Presbyterian Church’s “Gathered at Five,” a casual, conversational worship service at 5:00 pm. The location: Westminster Hall in the church’s new addition. Below are photographs of Rev. Gage-Finn and the Hall.

Sermon

(This sermon commented on All Saints Day, which was celebrated in the regular morning worship service with Rev. Tim Hart-Andersen’s “What Endures?” sermon.)

“This morning in worship we celebrated All Saints’ Day, remembering the names and lives of those in our congregation who died in the last year. We paused to recall their faces, their voices, their service to Westminster and community. The celebration of All Saints’ Day in the church began in the 9th century, but today in our context it is less about honoring the Saints (with a “Capital S”) and more about giving glory to God for the ordinary, holy faithful ones of our time whom we remember and love. It is yet another chance to declare and rejoice that nothing in all of creation can separate us from God’s love, as we pray that God’s good purposes would be worked out in us, that we would be helped in our weaknesses as we await the redemption of all things.” (Emphasis added.)

“It is a day when we think and talk about death and when we name the courage and hope with which others have lived, and imagine how we might model our lives of faith in the same way.”

“[For someone with a conflicted relationship with one of our deceased, All Saints Day was a] reminder that the final death of that relationship in life opened up something, created space for something new to emerge and begin. It was almost as if the death made way for a waiting change that couldn’t otherwise take shape.”

“This [observation] has pushed me to wonder about what we hold onto or are trapped by in our lives, and what happens when we are released from these burdens. In the context of All Saints’ Day, it led me to the question of, ‘What needs to die?’” (Emphasis added.)

“[The Ruth and Naomi story in Isaiah shows] cultural and religious norms at play for [them], which both women push back against. Both have to let these die in a way Orpah cannot, and because of this a new way forward opens up for them. They embrace each other and find healing and genuine friendship. [1]

“Dutch priest and theologian Henri Nouwen observed, ‘The dance of life finds its beginnings in grief … Here a completely new way of living is revealed. It is the way in which pain can be embraced, not out of a desire to suffer, but in the knowledge that something new will be born in the pain.”[2]

“The women of the book of Ruth certainly didn’t desire to suffer, but in their journey of letting go, of letting expected structures and frameworks die, they found knowledge in the birth of something new.”

For about the past 8 years I have been involved in a progressive movement of the PC (USA) called NEXT Church, which . . . seeks to build the relational and connectional fabric of the denomination, by cultivating leaders and congregations to serve a dynamic church in a changing context. About 4 years ago I came onto the leadership board of NEXT, [which] . . . set a goal of having representation of 50% people of color around the table.”

“I was in the meeting when this was decided, and I am pretty sure we all thought we could say it, wave our magic white privilege wands, and sprinkle the same old Presbyterian power dust, and so it would be. We quickly found it was going to take more intentionality than that to build any type of appreciable change, and that, of course, bringing balance to the leadership board needed to be based on relationships. And in a denomination that is 95% white, nurturing lasting relationships between white people and people of color takes a whole lot more than wand waving, magic dust, and good intentions.”

“I can report that now, in 2018, we have achieved the goal set 3 ½ years ago, but we find ourselves as a leadership board in a very tenuous and precarious situation. We have called people of color from across the denomination and country, but what we haven’t done is change how we are organized, how we communicate, how we make decisions, how we raise money, and we haven’t brought about change to any other critical structural framework within the organization.”

“And that has created an environment where trust and welcome haven’t been properly established, openness and safety is lacking, blinders are on and assumptions are prevalent. Frankly, it feels like a mess, but we are doing our best to wade through it together.”

“We are reading as a board Robin Diangelo’s book White Fragility, and discussing it in small and large groups. Personally, Diangelo’s book casts a harsh light on things I have said and silences I have kept, decisions I have made and systems I have benefited from since before I was even born. I thought I had some understanding of my own privilege and whiteness, but I have so much work to do.”

“As for the state of our board community, it is complicated, but I hope it is akin to what happens when you clean out your closet or basement or garage, any place that has old, outdated pieces of you and your history, things you have carried around that weigh you down, or maybe you even look at them all the time, but you hardly even realize they are there. Letting go, letting things die in order to create space for newness of life — sometimes it has to get worse before it gets better.”

“It is All Saints’ Day, and death is, and can be all around us, if we would but recognize it.”

“I recently read Atul Gawande’s Being Mortal. [3] Gawande is a surgeon in Boston and professor at Harvard Medical School, an accomplished writer, and he also runs a non-profit organization that strives to make surgery safer across the globe. And for his work in public health, he is a MacArthur Fellowship winner. He is one of those people who causes you question if you are really making the most of the 24 hours you are given each day.”

Being Mortal explores the relationship we have with death, both as individuals as our bodies fail us, but also as a society, as generations age and needs change and death approaches. He speaks of the experience of one patient, Felix, who said to him, ‘Old age is a continuous series of losses.”[3]

“I think in NEXT Church right now the white folks are feeling the reality of that necessary series of losses- the way we are accustomed to doing things, the loss of hiding behind our cult of whiteness, the default of not sharing, the posture of being the experts in the room. And since so much of this is deeply ingrained and largely unconscious, letting it die means naming its life in us first. In some ways, maybe even these losses are what is hardest, or as Gawande reflects: ‘It is not death that the very old tell me they fear. It is what happens short of death—losing their hearing, their memory, their best friends, their way of life.’ For many of us, our way of life works really well for us and for people like us, at the cost of the way of life of so many others.”

“Luther Seminary Professor Karoline Lewis, in writing on All Saints Day, says, ‘We allow death to have its way and a say before it should. We allow death to determine a way of being in the world that has acquiesced to a matter of factness, an inevitability that truncates the power of the Kingdom of God, the presence of God, in our midst. And finally, we allow death to have more power than resurrection.”[4]

“The same could be said of racism and the other social evils and ills of our day– we let them have their way and say and we allow them to determine a way of being in the world that has acquiesced to a matter of factness, an inevitability that truncates the power of the Kingdom of God, the presence of God in our midst. We allow racism to have more power than resurrection.”

“[Gawande also says,]’Whenever serious sickness or injury strikes and your body or mind breaks down, the vital questions are the same: What is your understanding of the situation and its potential outcomes? What are your fears and what are your hopes? What are the trade-offs you are willing to make and not willing to make? And what is the course of action that best serves this understanding?’”

“So once we name the things that need to die–racism, anti-Semitism, sexism, classism, heteronormativity, the fracturing of our political bedrock, we must ask ourselves these same questions:

What is my understanding of the situation and its potential outcomes?
What are my fears and what are my hopes?
What are the trade-offs I am willing to make and not willing to make?
And what is the course of action that best serves this understanding ?” [5]

“Just as Gawande emphasizes the concept of being an active participant in mortality and the dying process, so too must we be active participants in bringing about the death of the social sicknesses and diseases which are killing our children, our communities, our siblings of color, separating us from the Good News of Jesus Christ in the world, and separating us from God’s beloved.”

“So I close by giving us space in silence to ask ourselves these questions–what needs to die and in that dying and rising, what are your fears and hopes? What is the course of action that best serves this dying and new life? What new creation might God work through that death? How can you make room for the power of the Kingdom of God, the power of resurrection life”

Closing Prayer

“This is the Good News we know–you are God with us and you are here. By the power of your Spirit, help us to name what needs to die, help us to grieve the losses, but push us to move forward in the hard work ahead, to change ourselves and the communities you have created, that we might be repairers for the world. In Christ’s name we pray, Amen”

Reflections

This sermon had a surprising and different slant than that of Rev. Tim Hart-Andersen’s sermon (What Endures?) at the morning service.

Rev. Gage-Finn focused on societal beliefs and actions that need to die: racism, anti-Semitism, sexism, classism, heteronormativity and the fracturing of our political bedrock. These beliefs and actions, she says, should prompt us to ask these questions:

“What is my understanding of the situation and its potential outcomes?
What are my fears and what are my hopes?
What are the trade-offs I am willing to make and not willing to make?
What is the course of action that best serves that understanding?

This concentration on societal and political problems, while understandable, can lead to reading and studying about the problems and to a sense of hopelessness. What can I do as one individual to combat such large problems? Instead, I suggest, we should focus on what can I do in my everyday life to combat these problems? And is there at least one of these problems where I can get more deeply involved by studying and getting active in a group that attacks the problem?

For me, blogging about law, politics, religion and history is one way to study and advocate for change on these and other issues. I also am active in various Westminster programs that address some of these issues.

And I make financial contributions to groups that concentrate on these issues, including the Equal Justice Initiative, a nonprofit law organization that has challenged mass incarceration, excessive punishment, imposition of death penalty, abuse of children, and discrimination against the poor and disabled; Advocates for Human Rights; Center for Victims of Torture; American Refugee Committee; immigrant Law Center; Amnesty International; Human Rights Watch; Center for Constitutional Rights; American Civil Liberties Union; and Center for Justice and Accountability. I urge others to add these groups to their charitable contributions.

In my everyday life, I seek to smile and greet people, regardless of race, I encounter while walking downtown.

The Isaiah passage also poses even more challenging personal questions: What am I trapped by in my life and what happens when I am released from these burdens?

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[1] Wines, Commentary on Ruth 1: 1-18, Preach this Week (Nov. 1, 2015).

[2] Henri J. Nouwen & Michael Ford. The Dance of Life: Weaving Sorrows and Blessings into One Joyful Step. (Notre Dame, IN: Ave Maria Press) 2005, p. 56.

[3] Atul Gawande, Being Mortal (New York: Picador) 2014, p. 55. [See also these posts to dwkcommentaries.com: Another Perspective on Dying (Oct. 6, 2014); Comment: Review of Dr. Atul Gawande’s “Being Mortal” (Oct. 7, 2014); Comment: Another Review of “Being Mortal” (Oct. 17, 2014); Comment: Yet Another Review of “Being Mortal” (Oct. 21, 2014); Comment: Interview of Dr. Gawande (Oct. 26, 2014); Comment: Dr. Gawande’s Conversation with Charlie Rose (Oct. 30, 2014).]

[4] Lewis, For All The Saints, Dear Working Preacher (Oct. 29, 2018).

[5] Gawande, p. 259.

President Trump’s Unsound Action Regarding the U.S. Prison at Guantanamo Bay, Cuba

On January 30, just before leaving the White House for his State of the Union Address at the Capitol, President Donald Trump signed an executive order regarding the U.S. prison at Guantánamo Bay, Cuba.

The Guantanamo Bay Executive Order[1]

The Executive Order entitled “Presidential Executive Order on Protecting American Through Lawful Detention of Terrorists” started with these Findings:

“Consistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict” and that since 9/11 the U.S. “remains engaged in an armed conflict with al-Qa’ida, the Taliban, and associated forces, including the Islamic State of Iraq and Syria.” (Section 1(a), (b).)
“The detention operations at the U.S. Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law.” (Section 1(c ).) “Those operations are continuing given that a number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews.” (Section 1(d).)

The Order than addressed the Status of Detention Facilities at U.S. Naval Station Guantánamo Bay. After revoking President Obama’s January 22, 2009, executive order ordering the closure of those facilities (Section 2(a)), it stated, “Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005” and the U.S. “may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.” (Section 2 (b), (c))

The Order also directed certain government officials to “recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.” (Section 2 (d).)

There, however, were modest concessions to the plight of the detainees and other interests. It states, the detainees “shall [be] subject to the [previously established] procedures for periodic review . . . to determine whether continued law of war detention is necessary to protect against a significant threat to the security of the United States” (Section 2(e)); the order shall not “prevent the Secretary of Defense from transferring any individual away from the U.S. Naval Station Guantánamo Bay when appropriate, including to effectuate an order affecting the disposition of that individual issued by a court or competent tribunal of the United States having lawful jurisdiction” (Section 3(a); the order shall not “affect existing law or authorities relating to the detention of United States citizens, lawful permanent residents of the United States, or any persons who are captured or arrested in the United States” (Section 3(b); and the order shall not “prevent the Attorney General from, as appropriate, investigating, detaining, and prosecuting a terrorist subject to the criminal laws and jurisdiction of the United States” (Section 3 (c ).

The State of the Union Address[2]

The President announced that he had “just signed an order directing Secretary Mattis to reexamine our military detention policy and to keep open the detention facilities at Guantánamo Bay. I am also asking the Congress to ensure that, in the fight against ISIS and al-Qa’ida, we continue to have all necessary power to detain terrorists — wherever we chase them down.”

He also said, “My Administration has also imposed tough sanctions on the communist and socialist dictatorships in Cuba and Venezuela.”

Reactions

Roger Cohen, a New York Times columnist, said the prison at Guantanamo Bay “is widely viewed around the world as a facility incompatible with the American principles of fair trial, human rights and the rule of law.” Moreover, this decision “will be seen by many as a signal of an American return to the excesses of the war on terror — the use of torture, extraordinary renditions and C.I.A ‘black sites.’”[3]

Admiral Dennis Blair, the former Director of National Intelligence, said Cohen, once testified to Congress that the “detention center at Guantánamo has become a damaging symbol to the world and that it must be closed. It is a rallying cry for terrorist recruitment and harmful to our national security, so closing it is important for our national security.”

The Center for Constitutional Rights (CCR) stated, “Trump’s planned executive order is not the last word on the fate of Guantánamo, any more than his attempted Muslim bans and arbitrary transgender military ban—struck down by the courts—were the last word on those matters. CCR has filed a new legal challenge to the illegality and racism driving Trump’s Guantánamo policy and demanding detainees’ release. It is the courts, not the authoritarian-in-chief, that will ultimately determine the fate of the men detained at Guantánamo.”[4]

The just mentioned CCR action on behalf of 11 Guantánamo detainees was filed on January 11, 2018, in the U.S. District Court for the District of Columbia. It alleges that Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances is arbitrary and unlawful and amounts to “perpetual detention for detention’s sake.” This move was supported by Muslim, Faith-Based and Civil Rights Community Organizations.[5] On January 18, the court ordered the federal government to provide information about its Guantánamo policy.[6]

The New York Times in an editorial supported this challenge to the continued detention of individuals at the U.S. prison in Cuba. The editorial stated, “the men make a straightforward case for their release. The Supreme Court has ruled that prisoners at Guantánamo must have a “meaningful opportunity” to challenge the legal and factual grounds for their detention, which means that the federal courts have the power to review those claims and grant any appropriate relief. If the Constitution stands for anything, the plaintiffs argue . . ., it must stand for the proposition that the government cannot detain someone for 16 years without charge.”[7]

Conclusion

The U.S. prison at Guantánamo Bay has long been a major source of legitimate complaints against the U.S. and should be closed as soon as possible, not potentially expanded as this Executive Order would permit. In addition, this prison provides Cuba with its strongest argument that the U.S. has breached its 1905 lease of the site of the prison from Cuba.[8]

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[1] White House, Presidential Executive Order on Protecting American Through Lawful Detention of Terrorists (Jan. 30, 2018).

[2] White House, President Donald J. Trump’s State of the Union Address (Jan. 30, 2018).

[3] Cohen, Trump’s Volk and Vaterland, N.Y. Times (Jan. 31, 2018).

[4] Center for Const’l Rts, Guantánamo Attorneys blast Trump “Keep Gitmo Open” Order (Jan. 30, 2018).

[5] Brief of Amici Curiae Muslim, Faith-Based, and Civil Rights Community Organizations in Support of Petitioners’’ Motion for Order Granting Writ of Habeas Corpus, Awad al Bihani v. Trump, Case No, 1:09-cv-00745-RCL (D.D.C. Jan. 22, 2018).

[6] Center Const’l Rts, Court Orders Government to Clarify Guantánamo Policy, Attorneys React (Jan. 18, 2018); Order, Awad al Bihani v. Trump, Case No, 1:09-cv-00745-RCL (D.D.C.J an. 18, 2018).

[7] Editorial, Donald Trump vs. Guantánamo’s Forever Prisoners, N.Y. Times (Jan. 16, 2018).

[8] See these posts to dwkcommentaries.com: Resolution of Issues Regarding Cuba Lease of Guantánamo Bay (April 4, 2015); Resolution of U.S. and Cuba’s Damage Claims (April 6, 2016); Does Cuba Have the Right To Terminate the U.S. Lease of Guantánamo Bay? (April 26, 2015)

Spanish Court Dismisses Criminal Investigation of Alleged Torture at U.S. Detention Facility at Guantánamo Bay Cuba

On July 17, 2015, Spain’s National Court’s Judge Jose de la Mata terminated Spain’s criminal investigation of alleged torture of detainees at the U.S. detention facility in Guantânamo Bay Cuba. [1]

The reason for the termination was a 2014 statutory amendment narrowing Spain’s universal jurisdiction statute [2] and Spain’s Supreme Court’s May 2015, decision upholding that amendment in its affirmance of the dismissal of a case investigating alleged genocide in Tibet.[3]

More specifically the dismissal of the Guantánamo case was required, said the judge, because the investigation was not directed against a Spanish citizen or a foreigner who was habitually resident in Spain or a foreigner who was found in Spain and whose extradition had been denied.

An appeal from this decision has been taken by the U.S. Center for Constitutional Rights and the European Center for Constitutional and Human Rights. One of the points of the appeal is the assertion that the court ignored evidence of the participation of Spanish police officials in some of the interrogations at Guantánamo. [4]

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[1] Poder Judicial España, El juez propone archivar el ‘caso Guantánamo’ por “no ser competencia española” (July 17, 2015).

[2] Under customary international law and certain treaties, a nation state’s courts have universal jurisdiction (UJ) over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court for certain crimes, including genocide; terrorism; and any other crimes under international treaties or conventions that should be prosecuted in Spain. The March 2014 amendment of this statute, among other things, restricted universal jurisdiction for war crimes to cases where the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.

[3] Spain’s Audiencia Nacional (National Court) in June 2014 decided to terminate its investigation of alleged genocide in Tibet because of the amendment to the statute. Plaintiffs then appealed to Spain’s Supreme Court, which in May 2015 rejected that appeal.

[4] Center for Constitutional Rights, Former Detainees and Human Rights Groups Appeal Spain’s Decision to Discontinue Guantánamo Investigation (July 23, 2015).

Alien Tort Statute Case Against a Corporation Is Settled with Its Payment of $5.28 Million

On October 5, 2012, Engility Corporation (formerly known as L-3 Services, Inc. and as Titan Corporation and hereafter “Titan” or “Engility”) paid $5.28 million to settle claims brought by 71 Iraqi citizens for the corporation’s alleged participation in their torture and inhuman treatment at the now notorious Abu Ghraib and other prisons in that country.[1]

Proceedings in the Case Against Engility

The case started in June 2008 in the U.S. District Court for the District of Maryland. The complaint, which was twice amended by October 2008, asserted that during 2003 through 2007 the plaintiffs were tortured at these prisons, which were then under the control of the U.S. Armed Forces. At that time L-3 Services, Inc. was a private contractor that provided translators at the prisons who allegedly participated in, or approved of, the torture and inhuman treatment. The alleged acts of torture and cruel, inhuman and degrading treatment included sexual assault, sleep deprivation, electric shocks, threats (including use of unleashed dogs) and denial of medical treatment.

The complaints sought unspecified compensatory and punitive damages and attorneys’ fees under the Alien Tort Statute (“ATS”)[2] and state tort law (assault and battery, intentional infliction of emotional distress and negligent hiring and supervision of employees).

On July 29, 2010, U.S. District Judge Peter J. Messitte denied L-3’s motion to dismiss the complaint. The court’s careful and detailed opinion ruled that (a) aliens who had been detained abroad by the U.S. were not barred from bringing suit in U.S. courts over their detention; (b) private government contractors were not immune from such suits; (c) the political question doctrine did not apply and, therefore, the case was justiciable; (d) private parties, including corporations, were subject to ATS claims for war crimes, torture and cruel, inhuman and degrading treatment; and (e) Iraqi law, not Maryland law, applied to the state-law claims possibly subject to Maryland public policy forbidding such application of foreign law.[3]

Immediately after that decision, Titan filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit. A three-judge panel of that court, 2 to 1, in September 2011, reversed the district court while deciding that the plaintiffs’ state law claims were preempted by federal law and that the case should be dismissed. This decision, however, was overturned by the entire Fourth Circuit in May 2012, when it decided, 11 to 3, that it did not have interlocutory jurisdiction to consider the appeal on the merits.

Thereafter the case was remanded to the district court after the Fourth Circuit had denied Engility’s motion to stay the remand pending the filing and resolution of the corporation’s forthcoming petition for review by the U.S. Supreme Court.

After the remand and Engility’s failure to file a petition with the Supreme Court, the parties on October 5, 2012, agreed to the previously mentioned settlement, and on October 10th the plaintiffs dismissed their case and thereby terminated the litigation.

Comments

This case was sponsored by New York City’s Center for Constitutional Rights, which is “dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.”

The Center’s extensive experience and expertise in litigating cases against corporations under the ATS and other laws are exceedingly important for successful prosecution of these cases. Their backing also provides the resources, persistence and stamina necessary to conduct such cases over a long time period (here, over four years) in various courts.

A similar case is pending in the federal court in Virginia in preparation for trial against another U.S. corporation, CACI International, Inc., which also was involved in interrogation and translation of detainees at Abu Ghraib and other Iraqi prisons. It is in pretrial discovery awaiting trial and is also sponsored by the Center for Constitutional Rights. It was reviewed in a prior post.

Another similar case sponsored by the Center, Saleh v. Titan, was brought by more than 250 Iraqi plaintiffs against CACI International, Inc. and Titan. In September 2009 the U.S. Court of Appeals for the District of Columbia, 2 to 1, affirmed the dismissal of all claims against Titan and, reversing to the district court, also dismissed all claims against CACI. On June 27, 2011, the U.S. Supreme Court denied the plaintiffs petition for certiorari, thereby ending this case.

Overhanging all of these cases is another case awaiting decision in the U.S. Supreme Court–Kiobel v. Royal Dutch Petroleum (Shell)–that raises the issue whether corporations may be sued under the ATS. This case has been discussed in prior posts.

[1] The settlement is described in an SEC filing by Engility’s parent company (Engility Holdings, Inc.’s Quarterly 10-Q Report at 11 (Nov. 13, 2012)); Cushman, Contractor Settles Case in Iraq Prison Abuse, N.Y. Times (Jan. 8, 2013); Yost, Abu Ghraib Settlement: Defense Contractor Engility Holdings Pays $5M To Iraqi Torture Detainees, Huffington Post (Jan. 8, 2013); Assoc. Press, Iraqis Held at Abu Ghraib, Other Sites Receive $5 Million, W.S. J. (Jan. 9, 2013).

[2] Prior posts have discussed the Alien Tort Statute.

[3] District Judge Peter J. Messitte, was a 1966 classmate of mine at the University of Chicago Law School.

Inter-American Commission on Human Rights Decides Guantanamo Bay Detainee’s Case Against U.S. Is Admissible on the Merits

On March 30, 2012, the Inter-American Commission on Human Rights (“IACHR” or “Commission”) decided that a case against the U.S. was admissible for determination on the merits.

The case was brought by Djamel Ameziane, who left his home country of Algeria in the early 1990s to avoid a bloody civil war. Thereafter he lived in Austria and Canada for many years until Canada denied his asylum application. Fearing deportation to Algeria, he fled to Afghanistan just before the U.S. invasion in October 2001. Like many others, he then went to Pakistan to escape the war. There he was picked up and sold to U.S. forces for a bounty. In early 2002 Ameziane was transferred to the U.S. detention facility at Guantanamo Bay, Cuba, where he has been held ever since without any charges being filed against him. Documents about his hearings at Guantanamo Bay are available on the web.)

In February 2005 he filed a habeas corpus petition with the U.S. District Court in Washington, D.C. There were some preliminary pre-trial and appellate skirmishes, but the case has been stayed or postponed indefinitely by court order.

Thus being left without an effective remedy in U.S. federal court, Ameziane on August 6, 2008, filed with the IACHR a petition and a request for precautionary measures (akin to a preliminary injunction) against the U.S.

Two weeks later, the Commission issued its Urgent Precautionary Measures that required the U.S. immediately to do the following:1.

“[T]ake all measures necessary to ensure that . . . Ameziane is not subjected to cruel, inhuman or degrading treatment or torture during the course of interrogations or at any other time, including but not limited to all corporal punishment and punishment that may be prejudicial to [his] physical or mental health;
[T]ake all measures necessary to ensure that . . . Ameziane receives prompt and effective medical attention for physical and psychological ailments and that such medical attention is not made contingent upon any condition;
[T]ake all measures necessary to ensure that, prior to any potential transfer or release, . . . Ameziane is provided an adequate, individualized examination of his circumstances through a fair and transparent process before a competent, independent and impartial decision maker; and
[T]ake all measures necessary to ensure that . . . Ameziane is not transferred or removed to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture or other mistreatment, and that diplomatic assurances are not being used to circumvent the United States’ non-refoulement obligations.”

In October 2010 the Commission held a hearing in the case. Evidence was provided about Ameziane’s lack of effective remedies in U.S. courts, his continuing need to be protected from forcible transfer to Algeria and his plea for resettlement in a safe third country.

Eighteen months later the Commission issued its previously mentioned decision that the case was admissible for proceedings on the merits. Thereafter Ameziane’s attorneys immediately renewed their request that the IACHR facilitate a dialogue between the U.S. and other countries belonging to the Organization of American States toward the safe resettlement of men such as Ameziane, as indefinite detention at Guantánamo will not end unless the international community offers safe homes for the men who cannot return to their countries of nationality for fear of torture or persecution. The attorneys also asked the U.S. Government to direct the U.S. Department of Defense to certify Ameziane for transfer, or, if necessary, authorize a “national security waiver” of the transfer restrictions for him. (Under the National Defense Authorization Act for FY2012, he needs a certification or waiver before he can be released.)

Now we wait to see what happens in this case.

Ameziane’s attorneys are from the Center for Constitutional Rights, which is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.

Commentary on the Spanish Criminal Cases Against Judge Garzon

WO-AI699_GARZON_D_20120208182020 — Judge Baltasar Garzon

A prior post summarized the three pending criminal cases against Spanish Judge Baltasar Garzon.

This month has seen significant developments in these cases. On February 8th, the trial of the Franco-era case ended with Judge Garzon telling the court that he was motivated by “the helplessness of the victims.” The decision in that case is still to come. On February 9th, Judge Garzon was convicted of the charges involving his approval of wire-tapping attorney-client communications. On February 13th the court dismissed the case about the Judge’s alleged bribery by Banco Santander.

Now I have further commentary about these cases.

Reaction to the Criminal Charges Arising Out of the Franco-Era Investigation

The case that has drawn the most attention is the one with respect to Judge Garzon’s investigation of Franco-era human rights violations.

This case against the Judge has been severely criticized by the major Spanish newspaper, El Pais, which proclaimed that the case was reckless for “being charged . . . with apology for and defense of a dictatorial regime of cursed memory for many Spanish people. it also has a tone of provocation and insolence, which is hard to accept in democratic Spain. . . . The overtly fascist ideological tone of the legal action has contaminated the proceedings from the start, and is causing serious damage to the international image of Spain.”

Thousands_rally_in_favor_of_Garzon — Madrid demonstration for Garzon

WO-AI696_GARZON_G_20120208195159 — Madrid demonstration for Garzon

Spanish citizens supporting the Judge have demonstrated in front of the Supreme Court building with signs saying “Stop the Persecution of Judge Garzon.” This obviously is only one segment of Spanish society which still has deep-seated divisions over its Civil War of the 1930’s.

Similar criticism has been leveled by international human rights organizations and leading newspapers. Amnesty International said this case was “a threat to human rights and judicial independence.” Human Rights Watch had similar harsh words: the case “threatens the concept of accountability in Spain and elsewhere.” The International Commission of Jurists said this case was “an attack against one of the pillars of the rule of law.” An author in Dissent said the main purpose for these charges was to “silence . . . those who’ve dared give voice to memories of political abuse and those who might pursue universal jurisdiction.” In the U.S. a New York Times editorial observed that this case was “a disturbing echo of the Franco era’s totalitarian thinking.”

Moreover, these charges against Garzon have spawned at least two collateral proceedings.

In March 2011 a British human rights organization, Interights, filed a complaint with the European Court of Human Rights asserting that under international law there could be no valid amnesties or statutes of limitations for crimes against humanity, that Judge

Garzon could not validly be punished for his reasoned interpretation of law and that the charges against Judge Garzon were threats to judicial independence. The European Court, however, is unlikely to take any action on this complaint for many months.

The prior year, May 2010, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights and nine other human rights organizations filed a complaint with the U.N. Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers (and five other U.N. special rapporteurs and working groups) alleging that these criminal charges against Judge Garzon were an improper interference with the Spanish judiciary. I have not been able to find any action or report about what these U.N. entities have done, if anything, with respect to this complaint.

It should be noted that this May 2010 complaint to U.N. entities was submitted before the WikiLeaks disclosure of the U.S. diplomatic cables about U.S. efforts to stop Spanish criminal cases against U.S.officials, and there was no allegation in this May 2010 complaint that the U.S. or Spanish officials improperly caused the criminal charges against Judge Garzon to be made.

As reported in prior post, on January 19, 2012, two of these same human rights organizations–the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights–alleged that U.S. and Spanish senior governmental officials improperly had attempted to interfere with the Spanish judges handling three criminal cases against U.S. officials. The asserted bases for the allegations were U.S. diplomatic cables released by WikiLeaks; these cables are now available on the web. The allegations themselves were set forth in a complaint the organizations filed with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers. However, this recent complaint to the Special Rapporteur does not allege that the U.S. or Spain or both improperly had instigated the criminal charges against Judge Garzon. Perhaps the unstated hope of this complaint is that the Rapporteur would uncover evidence of such an improper attempt.

The absence of such a direct accusation in the recent complaint to the Rapporteur is significant, in my opinion, because simultaneously with filing of that complaint, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights along with seven other human rights organizations released a joint statement supporting Judge Garzon on his investigation of crimes related to the alleged crimes of the Franco regime. The statement asserts that application of international law to such crimes as was done by Judge Garzon does not constitute judicial malfeasance under Spanish law. Indeed, the joint statement elucidates the international law against the validity of amnesties for genocide, crimes against humanity and war crimes. But the joint statement did not allege that this criminal case against the Judge was the result of improper actions of U.S. or Spanish officials.

Reaction to the Other Two Criminal Cases Against Judge Garzon

There has been considerable commentary about the Judge’s conviction in the tapping of attorney-client communications that has been discussed in posts on February 10th and February 11th.

The El Pais editorial about the conviction should also be mentioned. It said that the Supreme Court’s rationale was “hair-brained, absurd and even offensive.” This rationale asserted that Judge Garzon sought to weaken the suspects’ “defense strategies” to such a degree as to place “the Spanish penal system on the same level as that of totalitarian regimes.” That absurdity of this rationale was shown by the facts that the wire taps were sought by the Office of the Public Prosecutor, were maintained by another judge who replaced Judge Garzon in the corruption investigation and were initially approved by the Madrid High Court. Absurd though it was, the rationale served the Supreme Court’s “objective: eliminating Garzón as a judge.”

The dismissal of the third case involving alleged bribery of Judge Garzon makes it unnecessary to make further comment on that case.

Conclusion

The criminal cases against Judge Garzon are very important. First, they are obviously important for the Judge personally. Second, they are important, in my opinion, for the independence of Spanish judges from internal (or external) political opposition to judicial decisions. Third, they are important around the globe for judicial enforcement of international human rights.

Alleged Improper Interference with Spanish Judicial Process by U.S. and Spanish Officials

As mentioned in a prior post, on January 19, 2012, two human rights organizations–the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights--alleged that U.S. and Spanish senior governmental officials improperly have attempted to interfere with the Spanish judges handling three criminal cases against U.S. officials. These allegations were in a complaint the organizations filed with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers.

Now we examine the specifics of these allegations. Afterwards we will take a quick look at the role and function of the Special Rapporteur to understand the context in which these accusations are being made.

The Allegations

The complaint to the Special Rapporteur alleges that U.S. officials have breached the right to an independent and impartial judiciary by interfering with the exclusive authority of the Spanish judiciary to determine these cases without restrictions, improper influences, pressures, threats or interference. These actions by U.S. officials allegedly sought to deprive victims of serious crimes, including torture, of the right to an impartial proceeding and the right to redress.

With respect to Spanish officials, it is alleged that they improperly cooperated with the U.S. officials and that the Spanish prosecutors breached their legal duty to act fairly and impartially.

The factual basis for these allegations is a collection of 28 U.S. diplomatic cables from the period July 2004 through May 2009 that subsequently were put into the public record by WikiLeaks. The following, I believe, fairly summarizes the complaint’s account of these cables:

The U.S. officials who were involved in these communications were the U.S. Ambassador to Spain, two Republican U.S. Senators (Judd Gregg of New Hampshire and Mel Martinez of Florida) and U.S. diplomatic staff in Spain.
The Spanish officials who were so involved held various positions in the government’s executive branch, including the Vice President, the Foreign Minister, the Attorney General and the Chief Prosecutor along with lower-level people in the Spanish government.
Very significantly, in my opinion, there is no mention in the complaint of U.S. or Spanish officials’ allegedly communicating directly with the Spanish judges who were involved in these three cases in any way. There is no allegation that the U.S. or Spain threatened the judges or tried to bribe them to halt the cases. Nor is there any claim that the Spanish officials had improper and ex parte communications with the judges.
In many of these communications, the Spanish officials stressed that the Spanish judiciary was independent of the government, and I think that the previous summaries of these three cases demonstrates that independence. The complaint to the Special Rapporteur, however, argues, in my opinion, that these Spanish statements show that all participants were aware that their communications were improper. I do not find this argument persuasive.
The substance of the communications was the U.S. extreme displeasure with the Spanish courts’ processing these cases and the potential adverse consequences for the overall U.S.-Spain relationship from continuation of the cases. The U.S. kept pressing the Spanish officials to try to stop these cases, but the consistent Spanish response was their inability to control that decision because the courts were independent.
Moreover, as we have seen in prior posts, the three cases continue to be processed by the Spanish courts. The cases are not over.

I am not an expert on U.S. or other countries’ diplomatic practices, but these communications are what I would expect to occur when two countries have a problem. Diplomats and other officials for one country express their displeasure with something the other country is doing and try to persuade that other country to change its behavior.

Therefore, although I regard myself as an international human rights advocate and want these cases against U.S. officials to proceed on the merits and although I have great respect for the two human rights organization pressing this complaint, I am not persuaded there was improper conduct by the U.S. or Spain as alleged in the complaint. Here especially I invite comments indicating I may have missed or misinterpreted some of these diplomatic cables or their significance for this complaint to the Special Rapporteur.

In a subsequent post I will discuss the Spanish criminal charges now pending against Judge Baltasar Garzon, who was a judge in two of these cases against U.S. officials and whether the charges against the Judge are related to the alleged U.S. and Spanish improper attempts to interfere with the Spanish judiciary.

The Special Rapporteur on the Independence of Judges and Lawyers

In 1994 the U.N. Commission on Human Rights created this position after it noted “the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights.” The initial period for this position was three years, but it has been extended by the Commission and since 2006 by its successor, the U.N. Human Rights Council.

This Special Rapporteur, among other duties, is required to “inquire into any substantial allegations transmitted to him or her and to report his or her conclusions and recommendations thereon.”

This Special Rapporteur is one example of the 33 thematic mandates of the Human Rights Council. They constitute one way that the Council seeks “to examine, monitor, advise and publicly report on . . . major phenomena of human rights violations worldwide.”

The term “rapporteur,” by the way, is a French term that is used in international and European legal and political contexts to refer to a person appointed by a deliberative body to investigate an issue or a situation.

Conclusion

The complaint to the Special Rapporteur and the Spanish criminal cases against U.S. officials and against Judge Garzon are important unfinished matters. We all should make special efforts to stay abreast of further developments, especially since the U.S. media does not provide persistent coverage of these matters.

Spain Invokes Universal Jurisdiction for Three Criminal Cases Against U.S. Officials and Soldiers

As discussed in a prior post, under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.

Spain has implemented this principle in its own domestic law and has invoked it in significant cases, including the attempt to prosecute Augusto Pinochet, the former President of Chile, for alleged human rights violations in his home country and Spain’s pending prosecution of former Salvadoran military officers for the November 1989 murder in El Salvador of six Jesuit priests and their housekeeper and her daughter (the Jesuits case).

We also have seen that torture is illegal under international law and that the U.S. is a party to the multilateral treaty against torture. As a result, the U.S. has submitted reports about its compliance with the treaty to a U.N. committee.

All of these elements come together in three pending criminal cases in Spain against certain U.S. officials for their alleged involvement in torture allegedly committed by U.S. citizens who were employees of the U.S. military or government:

One relates to the alleged use of torture at the U.S. detention facility at Guantanamo Bay, Cuba. It is directed at “members of the American air forces or military intelligence and all those who executed and/or designed a systemic torture plan and inhuman and degrading treatment against prisoners in their custody.”
Another case is against six members of the George W. Bush Administration who were involved in drafting legal memoranda that allegedly facilitated the torture of detainees at Guantanamo Bay and other U.S. detention facilities around the world (the so-called “Bush Six” case) .
The third case concerns the killing of a Spanish journalist-cameraman in Baghdad, Iraq on April 8, 2003, by a U.S. tank’s firing on a hotel where the man was staying.

Each of these three cases will be the subjects of subsequent posts.

On January 19, 2012, another front in these battles was opened with the filing of a complaint with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers. On the basis of U.S. diplomatic cables released by WikiLeaks, the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights alleged that U.S. and Spanish senior governmental officials improperly have attempted to interfere with the judicial process in these three cases. This important development also will be discussed in a subsequent post.[1]

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[1] The issue of judicial independence under international law is currently being litigated in a case against Ecuador.

International Criminal Court: Recent Developments in Proposed ICC Investigations

In addition to the seven investigations being conducted by the International Criminal Court (ICC), its Office of the Prosecutor (OTP) conducts preliminary examinations of other situations to determine if an official investigation should be conducted. Four such possible preliminary examinations deserve comment.

Syria. This June there were reports that Syrian opposition and human rights groups had asked the OTP to seek authorization for an investigation into alleged crimes by the Syrian government and that discussions about a possible U.N. Security Council referral of the Syrian situation to the ICC were occurring.[1] Since then the Syrian regime has continued to attack and kill protesters with at least 3,500 protesters killed since the uprising began in March.[2] So far the OTP has not commented on Syria.

Recently four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” The Security Council, the Senators added, should be deeply troubled by the “credible threats to . . . [the] safety” of the U.S. Ambassador to Syria that forced him to leave the country. Security Council referral of Syria to the ICC also has been endorsed by the New York Times.[3]

Palestine. In January 2009, the Palestinian National Authority lodged a declaration with the ICC under Article 12(3) of the Rome Statute which allows States not party to the Statute to accept the Court’s jurisdiction. Later (October 2009) representatives of the Authority and the Arab League visited the Court to support the Authority’s ability to delegate its jurisdiction to the ICC.[4]

The OTP will examine issues related to its jurisdiction: first whether the declaration accepting the exercise of jurisdiction by the Court meets statutory requirements; and second whether crimes within the Court’s jurisdiction have been committed. The Office will also consider whether there are national proceedings in relation to alleged crimes. The OTP has not made any determination on the issue, and recently the Prosecutor said that the issue of Palestinian statehood would have to be resolved elsewhere before the OTP issued any kind of statement on this request.[5]

The recent, and so far unsuccessful, efforts of the Authority to obtain U.N. membership for Palestine have heightened interest in the Authority’s seeking an ICC investigation of Israel’s military actions in the Gaza. Being a member of the U.N. would strengthen the Authority’s argument for ICC jurisdiction over alleged crimes committed by Israel in Gaza.[6]

Liberia. Before Liberia’s recent re-election of Ellen Johnson Sirleaf Tubman as its president, the OTP released a public statement that it was monitoring the pre-election activities of all of the candidates and political parties and that “resorting to violence will not be tolerated.”[7]

Roman Catholic Church Officials. In September a U.S. human rights NGO (the Center for Constitutional Rights) and the Survivors Network of Those Abused by Priests filed a complaint with the OTP seeking an investigation of high-level Vatican officials for alleged cover-up of rapes and sexual violence committed by individual priests as a crime against humanity.[8]

This application poses serious questions as to whether the ICC has jurisdiction over such claims, and I anticipate it will take a long time for the OTP to make any public statement about this request. I will be surprised if the OTP decides to seek approval for such an investigation from the Pre-Trial Chamber of the Court.

[1] Post: International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 6, 2011).

[2] Bakhi & Gladstone, Syria Faces New Threats as Opposition Seeks Allies, N.Y. Times (Nov. 15, 2011).

[3] US senators: Charge Assad before ICC, Google News (Oct. 25, 2011); Editorial, The Killing in Syria Goes On, N.Y. Times (Nov. 16, 2001).

[4] ICC, Palestine, www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor; Dunphy, An Interview with Luis Moreno-Ocampo (Oct. 1, 2011), http://amicc.blogspot.com.

[5] Id.; Dunphy, An Interview with Luis Moreno-Ocampo (Oct. 1, 2011), http://amicc.blogspot.com.

[6] Reuters, Committee Is Deadlocked Over Palestinian Membership Bid, N.Y. Times (Nov. 11, 2011); Maccarone, The Palestinian Authority’s Application for United Nations Membership and Its Implications for the International Criminal Court (Sept. 27, 2011), http://www.amicc.org/docs/Palestine_and_the_ICC.pdf.

[7] ICC prosecutor “monitoring” Liberia elections, expatica. com (Oct. 14, 2011).

[8] Center for Constitutional Rights, In the Case Against Vatican Officials for Rape and Sexual Violence, We’ve come to the End of the Beginning (Sept. 27, 2011).