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US Law Special: The Leak Investigation

7 December
:: Sec. Rice in Kiev says US has forbidden all forms of cruel or inhumane treatment, anywhere US personnel operate...
6 December
:: ACLU files suit against Bush admin. for kidnapping foreign national...
:: HRW: Rice "miscast" rendition as legal; it is clearly banned under international law...
5 December
:: McCain holds firm, torture ban must be total, must be law; Hadley pushing CIA exemption...
2 November
:: Washington Post reports secret network of illegal CIA prisons in 8 countries...
Human Rights Watch :: Reports on abuse...

US Legal & Judicial News

Under Article VI of the US Constitution:
"...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..."

Under Article 1 of the Convention against Torture:
"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"...

Under Article 2 of the Convention against Torture:
"2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Under Article 4 of the Convention against Torture:
"1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture."

Under the US Foreign Assistance Act:
Section 502b: "a principal goal of the foreign policy of the United States shall be to promote increased observance of internationally recognized human rights by all countries".

Under Article I, Section 8, of the US Constitution:
"The Congress shall have Power... To define and punish... Offences against the Law of Nations..."

Under US Alien Tort Claims Act (1789):
"the district courts should have original jurisdiction of any civil tort action by an alien... committed in violation of the law of nations or a treaty of the United States"

3 November 2005

Dana Priest, a Washington Post writer, reported yesterday astounding revelations about the existence of a global network of secret CIA-managed prisons which appear to violate numerous provisions of international law. The so-called "black sites" are said to exist or to have existed in at least 8 countries, including in eastern Europe, a fact which has sparked outrage across the continent.

Priest reports "The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound", adding that "The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents."

There are calls now for independent investigations into the prison system, whose legality cannot be substantiated except under the Bush administration's to-date failed arguments before the courts that the president retains extraordinary war powers.

The Post report suggests the system of secret prisons "depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress", including those "charged with overseeing the CIA's covert actions", an apparent violation of the constitutional checks and balances and separation of powers principles designed to prevent the erosion of democratic processes.

According to Priest's research, only "a handful of officials in the United States" have been made aware of the prisons, and likely only the president or one or two top officials would be permitted to know of their existence in the complicit host countries.

The White House has refused to acknowledge the existence of the so-called "black sites", and the CIA will not disclose details of the system, citing security and operational concerns, but both have offered rhetorical defense of the techniques used, which fall under the controversial policy of "extraordinary rendition": the transfer of prisoners across borders, possibly without charge, and without judicial review or consent. [s]

7 December 2005

Amid growing concern relating to press reports of undisclosed CIA flights through or over European nations, with possible connections to the abduction of terror suspects and the use of secret detention centers, US Secretary of State Condoleezza Rice has sought to defend US policy. She admitted that the US might make mistakes in the "war on terror", but did not make specific reference to controversy over the alleged abduction of an innocent German citizen who, after 5 months of questioning in Afghanistan, proved to be a case of mistaken identity.

Secretary Rice spoke to the press while in Kiev, Ukraine, today, Wednesday, and announced that the US had prohibited all inhumane treatment of prisoners. She said "As a matter of U.S. policy, the United States' obligations under the CAT [U.N. Convention Against Torture], which prohibits cruel, inhumane and degrading treatment -- those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States".

As reported by the Washington Post, this announcement appears to signal an essential shift in Bush administration policy. The administration had previously argued that obligations under the Convention Against Torture, the Geneva Conventions and other international treaties did not apply on foreign soil —this was the reasoning behind using the Guantánamo Bay naval facility for interrogations—, but now official policy appears to be in line with Sen. McCain's proposed total ban.

8 December Update:
Human Rights Watch has, however, already issued a statement calling Rice's statement in favor of international torture bans "inadequate". The organization stated that the Secretary of State's comments did not address any specific allegations of secret or extralegal procedures which, if true, would violate those prohibitions.

Tom Malinowski, Washington director of Human Rights Watch, is quoted in the statement, saying the administration "should close secret prisons and get rid of waterboards" and "drop its opposition to Senator John McCain's legislation, pending in the U.S. Congress, which would strengthen the legal prohibition against all cruel, inhumane and degrading treatment against all detainees, worldwide."

Investigations into the possible complicity of European governments in secret detainee rendition flights and secret detention and interrogation facilities on European soil are ongoing through the European Union. Governments have been reminded that official complicity in illegal covert detentions could result in their nations having EU voting rights restricted.

9 December Update:
Khaled el-Masri, a Lebanese-born German citizen, abducted while on holiday in Tunisia in December of 2003, by the CIA, then held, interrogated and tortured for 5 months in a prison camp in Afghanistan, is demanding a formal apology from the US government. Sec. of State Rice admitted to Germany's chancellor, Angela Merkel, this week, that el-Masri's abduction was a "mistake". He was released in 2004, when it was learned he shared the name of the al-Qaeda militant the CIA had thought they were detaining.

The ACLU has filed suit on behalf of el-Masri in US federal court, "charges that George Tenet and other CIA officials violated U.S. and universal human rights laws when they authorized agents to kidnap el-Masri, and that his unlawful abduction and treatment were the direct result of an illegal CIA policy known as 'extraordinary rendition'." The German foreign minister is now under pressure to resign, as has the former interior minister, for their concealing knowledge about the affair.

Not only is it legal for a foreign national to sue in federal courts for human rights violations, but under an act of the very first US Congress, the Alien Tort Claims Act, "the district courts should have original jurisdiction of any civil tort action by an alien... committed in violation of the law of nations or a treaty of the United States". That provision was broadened significantly under the 1992 Tort Victim Protection Act, which expressly permits foreign nationals to sue their torturers in US courts.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment —based in part on the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by the General Assembly on 9 December 1975— was formally adopted by the UN in 1984 and entered into force on 26 June 1987.

Under Part I, Article II, Section 1 of the treaty, "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." [emphasis added] the US Constitution specifically requires that ratification of any treaty binds the standards of the US system of laws to those of the ratified treaty. Some legal clauses relevant to stories in this special section can be found in selected excerpts to the left of this page, above.

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