In Multipolarity

By Alex Emmons, The Intercept, Oct 21, 2016

Major new U.S. court ruling says ‘even the president’ can’t declare torture lawful

Protest against use of torture in U.S. military prisons in Afghanistan

Protest against use of torture in U.S. military prisons in Afghanistan

In a robust ruling in favor of Abu Ghraib detainees, an appellate court ruled Friday that torture is such a clear violation of the law that it is “beyond the power of even the president to declare such conduct lawful.”

The ruling from a unanimous panel of judges on the Fourth Circuit Court of Appeals reinstates a lawsuit against a military contractor for its role in the torture of four men at the notorious prison in Iraq.

Last June, a district court ruled that a “cloud of ambiguity” surrounds the definition of torture, and that despite anti-torture laws, the decision to torture was a “political question” that could not be judged by courts.

Some of the 198 photos released by U.S. Dept of Defense on Feb 5, 2016, responding to Freedom of Information Act lawsuit

Some of the 198 photos released by U.S. Dept of Defense on Feb 5, 2016, responding to Freedom of Information Act lawsuit. Story below

That ruling echoed the widely discredited legal theories of the Bush administration, which argued that the war on terror gave the president the inherent authority to indefinitely detain and torture terror suspects, and conduct mass surveillance on Americans’ international communications.

But the Fourth Circuit soundly rejected that theory, saying that the United States has clear laws against torturing detainees that apply to the executive branch.

“While executive officers can declare the military reasonableness of conduct amounting to torture, it is beyond the power of even the president to declare such conduct lawful,” wrote appellate Judge Barbara Keenan, writing for the unanimous panel.

The case in question revolves around contractors from CACI Premier Technologies who participated in the interrogations of the four men in 2004, subjecting them to extreme temperatures, electric shocks, broken bones, death threats, and sexual abuse.

The Center for Constitutional Rights originally filed suit against CACI on behalf of the detainees in 2008. The company has been seeking to dismiss the lawsuit ever since, and this is the fourth time it reached the appeals court.

The plaintiffs and advocates at the Center for Constitutional Rights celebrated the decision.

“Torture is illegal and can never be a ‘policy choice,’” said Katherine Gallagher, a senior staff attorney with the Center for Constitutional Rights. “As the court made clear, neither the military nor the president — let alone a government lawyer — has the power to declare torture legal.”

Salah Hassan, one of the plaintiffs, said in a statement: “Today, part of justice was achieved and this is something wonderful, not only for me and the other plaintiffs, but for all the just causes in the world.”

The lawsuit will now go back to the district court for consideration of the detainees’ claims.

The CCR previously won a settlement in 2013 on behalf of 71 Ahu Ghraib detainees against L-3 Services, another military contractor at Abu Ghraib.

Related news reports:


Appellate court reinstates Abu Ghraib torture lawsuit against private military contractor

By Center for Constitutional Rights, Oct 21, 2016

RICHMOND, VA Today, a panel of the Fourth Circuit Court of Appeals reinstated a lawsuit against private military contractor CACI Premier Technology, Inc. (CACI) for the corporation’s role in torture and other inhumane treatment at the infamous Abu Ghraib prison in Iraq. A lower court had dismissed the case, ruling that CACI’s responsibility for its established role in the torture was a “political question” to be left to the discretion of the political branches and unreviewable by the courts, and that a “cloud of ambiguity” surrounds the definition of torture. This was the fourth time the case has been before the court of appeals.

“There is no question that torture is unlawful under domestic, military, and international law. The only issue in this case is whether CACI will be held accountable – or treated with impunity – for its role in torture at Abu Ghraib,” said Center for Constitutional Rights Legal Director Baher Azmy. “Today’s decision reaffirms the role of the courts to assess illegality, including torture, and we are optimistic this case will finally move forward and our clients will have their day in court.”

In its ruling today, the Court firmly rejected CACI’s argument that its conduct was beyond the reach of the courts. As the concurring judge emphasized, “It is beyond the power of even the President to declare [torture] lawful…. The determination of specific violations of law is constitutionally committed to the courts, even if that law touches military affairs.” The court concluded, “the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity.”

CCR lawyers say the lower court’s ruling was essentially a return to the widely discredited Bush-era legal theories of Torture Memo author John Yoo. Constitutional scholars, military officers, and human rights groups submitted briefs in support of reinstating the lawsuit.

Salah Hassan, one of the plaintiffs in the long-running case, reacted to the news: “Today, part of justice was achieved and this is something wonderful, not only for me and the other plaintiffs, but for all the just causes in the world.  I wish to see in the coming period a ruling in our favor in this case. No doubt the result will be a white light in the process of justice in the world at the time.”

U.S. military investigators concluded that several CACI interrogators conspired with U.S. soldiers, who were later court martialed, to “soften” detainees for interrogations, and that this contributed to “sadistic, blatant, and wanton criminal abuses.” At Abu Ghraib, CCR’s four clients in the case were subjected to electric shocks, sexual violence, forced nudity, broken bones, and deprivation of oxygen, food, and water.

Azmy continued, “As with the problems that arise when private corporations run prisons, accountability is particularly important in this case where serious abuses were carried out by a for-profit corporation that made millions of dollars for its work at Abu Ghraib.”

Al Shimari v. Premier Technology was filed in June 2008 under the Alien Tort Statute (ATS), which allows non-citizens to sue for human rights violations committed abroad. In 2014, the Fourth Circuit overturned a lower-court ruling that would have barred the Abu Ghraib survivors from accessing U.S. courts to sue U.S. corporations involved in torture. The Fourth Circuit reversed, determining that the case sufficiently “touch[es] and concern[s]” the United States “with sufficient force” to overcome the “presumption against extraterritorial application” of the ATS recognized by the Supreme Court in 2013.

For more information on the case, visit CCR’s Al Shimari v. CACI  case page.

Jeena Shah of the International Human Rights Clinic at Rutgers Law School-Newark, Patterson Belknap Webb & Tyler LP, and Shereef Akeel & Valentine, P.C. in Troy, Michigan, are co-counsel on the case.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.   [email protected]


ACLU lawsuit against U.S. Dept of Defense wins release of 198 torture photos from Iraq and Afghanistan, DOD refuses to release several thousand more

By American Civil Liberties Union, Feb 5, 2016

In response to a Freedom of Information Act lawsuit filed by the ACLU, the Defense Department has released some 200 photographs related to prisoner abuse at U.S. military facilities in Iraq and Afghanistan.

The photos mostly show close-ups of body parts like arms, legs, and heads, many with injuries. There are also wider shots of prisoners, most of them bound or blindfolded. They are part of a larger collection of some 2,000 photographs, most of which the government refuses to release.

The disclosure of these photos is long overdue, but more important than the disclosure is the fact that hundreds of photographs are still being withheld. The still-secret pictures are the best evidence of the serious abuses that took place in military detention centers. The government’s selective disclosure risks misleading the public about the true extent of the abuse.

The lawsuit has faced numerous hurdles since it was filed in 2008. In addition to the legal battles, the plaintiffs have struggled to get their clients into the U.S. for depositions because the government has denied them visas.


The stories behind the government’s newly released Army abuse photos

By Eliza Relman, Paralegal, ACLU National Security Project, Feb 11, 2016

Last week, in response to a long-running ACLU lawsuit, the Defense Department released 198 photos relating to prisoner abuse by U.S. military personnel in Iraq and Afghanistan. These photos are disturbing, but they are almost certainly less disturbing than the approximately 1,800 pictures the government is still keeping secret — and we’re still fighting for those in court under the Freedom of Information Act.

The photos we did get mostly show close-ups of body parts — arms, legs, and heads, many with injuries. There are also wider shots of prisoners, most of them bound or blindfolded. The government didn’t provide any information about the human beings depicted or the contexts in which they were photographed.

But with a little digging, we were able to learn about the stories behind them. Sixty of the 198 photos have legible Army criminal investigation file numbers printed on them. We used those numbers to search our Torture Database, which contains some 6,000 reports, investigations, emails, and other documents the government has been forced to release to us in the course of our 11-year-old FOIA suit.

We found 14 separate cases of alleged or proven detainee abuse relating to 42 of the photos. Here’s what we learned…

Read the full article and view the extensive photos at the weblink above.

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