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September 16, 2008
EXECUTIVE DIRECTOR AND CHIEF EXECUTIVE OFFICER
Chairman Feingold, Ranking Member Brownback and Members of the Subcommittee, thank you for inviting me to be here today to share the views of Human Rights First on what must be done to restore the rule of law in the area of detention and prisoner treatment policy. We are grateful for the Subcommittee's persistent attention to these important matters, and we look forward to continuing to work with Subcommittee Members into the next Congress and the next Administration to ensure that U.S. detention and interrogation policies uphold the government's domestic and international legal obligations and respect American values.
My name is Elisa Massimino, and I am the Chief Executive Officer and Executive Director of Human Rights First. Human Rights First works in the United States and abroad to promote a secure and humane world by advancing justice, human dignity and respect for the rule of law. We support human rights activists who fight for basic freedoms and peaceful change at the local level; protect refugees in flight from persecution and repression; help build a strong international system of justice and accountability; and work to ensure that human rights laws and principles are enforced in the United States and abroad.
II.What is at Stake
Restoring our Nation's commitment to the rule of law must be a top priority for the next president of the United States. Words will be important; but, particularly because of the way the current administration has sought to distort, obscure and evade the clear language of the law, words will not be enough. The actions of the next administration will either confirm Vice President Cheney's assertion that the drift away from the rule of law - which necessitates today's hearing - is "the new normal," or they will prove him wrong. The world will be watching what we do.
Indeed, the world has been watching all along. The erosion of human rights protections in the United States in the aftermath of September 11 has had a profound impact on human rights standards around the world. Over the last seven years, the United States has become identified with its selective observation of international human rights treaties to which it is bound, a pattern that has weakened the fabric of human rights norms and emboldened other governments to do the same. A growing number of countries have adopted sweeping counterterrorism measures into their domestic legal systems, at times significantly expanding on the substance of U.S. measures while explicitly invoking U.S. precedent. Opportunistic governments have co-opted the U.S. "war on terror," citing support for U.S. counterterrorism policies as a basis for internal repression of domestic opponents. In some instances, U.S. actions have encouraged other countries to disregard domestic and international law when such protections stand in the way of U.S. counterterrorism efforts.
III.Ending Torture and Policies that Facilitate Torture: The Case for a Clean Break
Efforts to build a legitimate government though illegitimate action--including unjustified or excessive use of force, unlawful detention, torture, or punishment without trial--are self-defeating, even against insurgents who conceal themselves amid noncombatants and flout the law. . . . Any human rights abuses or legal violations committed by U.S. forces quickly become known throughout the local population and eventually around the world because of the globalized media and work to undermine the COIN [Counterinsurgency] effort.
A.Uncovering Lessons Learned
Through extensive document requests and multiple hearings, Congress has already shed much light on the extent of abuse of detainees in U.S. custody. But there is much the American people still do not know about the parameters of the CIA secret detention and interrogation program and how abusive interrogation techniques came to be approved at the highest levels of government. There must be a thorough, comprehensive and sober examination--across all agencies involved--of policies and practices that led to the official sanctioning of torture and other cruelty in order to inoculate against future abuse, identify the most effective means of prevention and demonstrate that the United States is now committed to treating all prisoners humanely.
The current administration has engaged in a shell game of legal justifications to rationalize its policy of official cruelty and secret detentions. A true accounting of past abuses will require that these relevant legal opinions, including those no longer in force, be made public. The next president should direct the appropriate agency heads to review the classification of these documents--where classification is an issue--and to the maximum extent possible publicly release memoranda and documents authorizing or providing legal clearance of secret detention, rendition and coercive interrogations by all agencies. It is imperative that the public and Congress have a full understanding of the faulty reasoning that was used to circumvent humane treatment standards so that these standards can be effectively fortified in the future.
In order to facilitate this exercise, the next President should work with Congress to appoint a non-partisan commission of distinguished Americans to examine, and provide a comprehensive report on, policies and actions related to the detention, treatment, and transfer of detainees after 9/11 and the consequences of those actions, and to make recommendations for future policy in this area.
B.The Way Forward
If the United States is to reclaim what General Petraeus referred to as the "moral high ground" in our counterterrorism and counterinsurgency efforts, then it must both decisively abandon abusive practices and take bold steps to reinforce existing prisoner treatment standards--including the Convention against Torture, Common Article 3 of the Geneva Conventions, the domestic Anti-Torture Statute, the McCain Amendment, and other applicable laws. To demonstrate a renewed commitment to humane treatment standards, and to ensure clarity about what the United States means when it pledges to the world that it will treat prisoners humanely, the next president should take the following concrete steps:
?Revoke and repudiate all existing orders and legal opinions that authorize cruel interrogations or secret detention or imply that legal standards of humane treatment differ when applied to the CIA. This would include revoking Executive Order 13440, which authorizes the CIA to maintain a secret detention program using interrogation techniques that have been rejected by our own military as unlawful and unproductive. In addition, the next president should revoke the reported September 17, 2001 Executive Order, and any other directive not yet made public which authorizes the CIA detention and interrogation program. The next president should enforce a single standard of humane treatment of prisoners across all government agencies, based on the military's Golden Rule standard: we must not engage in conduct that we would consider unlawful if perpetrated by the enemy against captured Americans.
?End the practice of holding "ghost prisoners" and acknowledge such practices as illegal. Timely notification and access to all detainees in the custody of any U.S. government agency should be required to be given to the ICRC (such a requirement is included in this year's Senate intelligence authorization bill). In addition, the next president should sign, and the United States should ratify, the International Convention for the Protection of all Persons from Enforced Disappearances.
?Sign and request advice and consent of the Senate to ratification of the Optional Protocol to the Convention Against Torture. The Optional Protocol requires states party to the treaty to allow visits by experts of the UN Committee Against Torture to prisons and other facilities where people are being deprived of their liberty. The object of the Optional Protocol is to prevent torture and other unlawful abuse of prisoners, and its ratification by the United States would send a clear message to the world that the United States is serious about upholding its obligations to treat prisoners humanely.
?Urge Congress to enact legislation requiring the videotaping of all intelligence interrogations of individuals in the custody of the military or intelligence community. Such recording, as is provided for in the House version of National Defense Authorization Act for Fiscal Year 2009, would actually strengthen intelligence-gathering, as it would allow the careful examination of body language, and source and collector interaction, and could be used for training effective interrogation techniques. Videotaping also would simultaneously help to deter abuse of detainees and protect interrogators from spurious claims of abuse.
?Invest in efforts by the intelligence community to pursue effective means of intelligence gathering that rely on humane treatment. In June 2008 Human Rights First hosted a forum for 15 senior interrogators, interviewers and intelligence officials with more than 350 years collective field experience in the U.S. military, the FBI and the CIA. These intelligence experts unanimously agreed that more resources are needed to support the non-coercive, traditional, rapport-based interrogation approaches that provide the best possibility for obtaining accurate and complete intelligence, instead of ineffective cruelty that actually can impede efforts to elicit actionable information. Such resources should support efforts such as further professionalizing the interrogation field, researching best practices and lessons learned, and developing language and cultural skills.
?Support legislation to ensure that the government has jurisdiction over U.S. government civilians and contractors implicated in detainee abuse. The Attorney General has expressed concern that current law does not provide sufficient jurisdiction over U.S. government contractors for violent abuses committed overseas. Congress should clarify and expand the Military Extraterritorial Jurisdiction Act to ensure effective enforcement of prohibitions on torture and other abuse committed by civilian personnel of the U.S. government. The U.S. government should neither send nor employ any civilians abroad to interrogate prisoners without ensuring that it has the ability--and devotes the resources necessary--to prosecute such individuals when they are implicated in serious abuse.
?Declare a moratorium on extraordinary renditions and develop with Congress effective law and regulations to ensure that the United States is not complicit in torture. Recent experience has demonstrated that existing rendition procedures, including those that permit reliance on bare assurances from the receiving governments, are woefully insufficient to ensure that individuals are safeguarded from transfer to torture. Many Members of Congress, including members of this committee, have offered proposals to enforce the obligation of United States under Article 3 of the Convention Against Torture in the context of renditions. Going forward, Congress and the Executive Branch must work together to devise an effective process that ensures the rendered individual an opportunity to present his fear of torture to an independent decision-maker.
IV.Guantánamo: A Failed Experiment
The remaining prisoners at Guantánamo fall into three groups:
?Prisoners suspected of having committed crimes against the United States. These should be prosecuted in regular criminal courts or in court-martial proceedings under the Uniform Code of Military Justice (UCMJ).
?Prisoners not suspected of any criminal activity. These should be repatriated to their home countries whenever possible in accordance with international human rights and humanitarian law obligations. Those who face a substantial likelihood of torture in their own countries should be resettled in third countries.
To succeed, this plan requires the cooperation of third countries. U.S. allies, particularly European leaders who have called most loudly for the prison to be closed, must help and not just criticize. It is true that the United States climbed into this box alone, but those of our allies who truly want to see the end of Guantánamo will have to help us get there. To the extent Guantánamo and other failures of the current Administration's counterterrorism policy have promoted terrorist recruitment, this is more than just a U.S. problem now. And our allies have a shared interest and responsibility to help fix it.
?Immediately improve conditions of confinement at Guantánamo. Increasing access to family members through video- and tele-conferencing, improving access to counsel, and reducing the use of solitary confinement will ease the burden of isolation experienced by many Guantánamo prisoners and bring U.S. policy more in line with international treatment obligations. In addition, providing prisoners' families access to regular health assessments and other appropriate data, as is done for the families of U.S. detainees in Iraq, will inspire international confidence that the United States is treating prisoners with appropriate care.
?Resettle some Guantánamo prisoners in the United States. Then-Secretary of Defense Donald Rumsfeld's early pronouncements that all Guantánamo prisoners are all dangerous terrorists engendered reluctance on the part of other countries to accept prisoners now found years later to pose no danger. Our failure to resettle any such prisoners here in the United States has only compounded that reluctance. A small number of prisoners who have not committed crimes against the United States, and whose individual circumstances make them eligible for relief, should be resettled here. This would send an important message and likely would increase the willingness of third countries to accept some prisoners themselves. It may also be necessary to convince other countries to accept their own citizens and legal residents.
?Manage effectively the risk posed by repatriation and resettlement. Releasing some of the prisoners at Guantánamo will require an assumption of some risk. But that risk can be managed, and it is undoubtedly less than the risk posed by the continued detention of more than 200 Guantánamo prisoners without criminal charge. Risk management can be achieved by performing individualized risk assessments of detainees selected for repatriation and resettlement; obtaining appropriate security assurances from receiving countries; making transfers on a rolling basis to ease the burden on home countries; and passing legislation to invest in reintegration programs modeled after the Saudi rehabilitation program, which led to the transfer of more than 100 Saudis out of Guantánamo.
B.Repeal the MCA and Terminate the Military
In March of last year, I testified before the House Armed Services Committee and urged that terrorist suspects at Guantánamo be tried in regular federal courts or pursuant to the Rules for Courts-Martial under the UCMJ. Such trials would satisfy the requirement of the laws of war--and of our own laws--that sentences be carried out pursuant to a "previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." That remains our view.
Human Rights First opposed the Military Commissions Act (MCA). Even some Members of Congress who voted for it did so while expressing the hope that the courts would step in to remedy its many defects.
Congress should not wait for the courts to come to the rescue, nor should it merely tinker with the machinery of military commissions. Instead, Congress should repeal the MCA and embrace its responsibility to ensure that suspected terrorists are brought to justice in proceedings worthy of this country.
The defects of the MCA are many and have been well-documented by Human Rights First and others. They include permitting coerced evidence, rules for classified evidence that prevent the defendant from seeing evidence that may show innocence or lack of responsibility, and violating the basic due process requirement that a person cannot be held criminally responsible for an action that was not legally prohibited at the time it was taken.
One of the most telling indictments of the military commissions is the way the system looks up close in actual practice. Recently Human Rights First observers attended the first military commission trial held at Guantánamo, of Salim Hamdan. There is no question that the defects in the MCA infected Hamdan's trial. Though the judge excluded some of Hamdan's statements obtained following coercive interrogations at Bagram, he admitted other statements extracted under abusive conditions at Guantánamo, conditions that included sleep deprivation and sexual humiliation.
The military commissions at Guantánamo are staffed by many talented, dedicated and honorable service personnel. But the system itself is illegitimate, and no amount of good will or good lawyering can change that. It is abundantly clear from our observations of trial proceedings there why Common Article 3 of the Geneva Conventions requires, as a prerequisite for passing sentences and carrying out executions, trials by a "regularly constituted court." The system in operation at Guantánamo does not come close to passing that test.
Last year, Human Rights First asked two former federal prosecutors from the Southern District of New York--Richard Zabel and James Benjamin, now partners at Akin Gump Strauss Hauer & Feld--to carefully examine and evaluate international terrorism prosecutions brought in the federal courts. Their report, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, published by Human Rights First in May 2008, examines more than 120 terrorism cases prosecuted over the past 15 years, ranging from epic mega-trials for completed acts of terrorism to individual, pre-emptive prosecutions focused on prevention. It draws on the personal perspectives of judges, prosecutors and defense lawyers with firsthand terrorism litigation experience, as well as the views of security experts and academics. The focus of the examination is on the legal and practical issues that confront courts, law enforcement, and Congress regarding terrorism-related crimes. In Pursuit of Justice concludes that the federal system has capably handled important and challenging terrorism cases without compromising national security or sacrificing rigorous standards of fairness and due process.
?Prosecutors have invoked a host of specially-tailored anti-terrorism laws and longstanding, generally-applicable federal criminal statutes to obtain convictions in terrorism cases.
?Courts have consistently exercised jurisdiction over defendants brought before them, even those defendants apprehended by unconventional or forcible means.
?Existing criminal statutes and immigration laws provide an adequate basis to detain and monitor suspects in the vast majority of known cases.
?Applying the Classified Information Procedures Act (CIPA), courts have successfully balanced the need to protect national security information, including the sources and means of intelligence gathering, with defendants' fair trial rights.
?Miranda warnings are not required in battlefield and non-custodial interrogations or interrogations conducted purely for intelligence-gathering purposes, and Miranda requirements have not impeded successful criminal terrorism prosecutions.
?The Federal Rules of Evidence, including rules that govern the authentication of evidence collected abroad, provide a common-sense, flexible framework for guiding admissibility decisions.
?The Federal Sentencing Guidelines and other applicable sentencing laws prescribe severe sentences for many terrorism offenses, and experience shows that terrorism defendants have generally been sentenced to lengthy periods of incarceration.
?Courts are well able to assure the safety and security of trial participants and observers.
Many judges support our view that the federal system adequately meets the special challenges presented by terrorism prosecutions. In testimony before the Senate Judiciary Committee in June 2008, Judge John Coughenour, who presided over the trial of the trial of "millennium bomber" Ahmed Ressam, remarked: "It is my firm conviction, informed by 27 years on the federal bench, that the United States courts, as constituted, are not only an adequate venue for trying suspected terrorists but also a tremendous asset against terrorism. Indeed, I believe it would be a grave error with lasting consequences for Congress, even with the best of intentions, to create a parallel system of terrorism courts unmoored from the values that have served us so well for so long." Similarly, during a speech at American University's Washington College of Law in February 2008, Judge Leonie Brinkema, presiding judge in the trial of Zacarias Moussaui, said: "I think that we need to seriously think about the implications of getting away from the standard criminal justice model for these cases....[We must not be] so overcome with fear that we jettison fundamental principles of our legal and political system. It's something that we absolutely have to remember. You can address the terrorist threat with tools that we have if the people who are running those tools do their job."
While In Pursuit of Justice does not respond directly to the proposals of those who advocate a substitute justice system--such as "preventive detention" or a "national security court"--I would note here two significant disadvantages of such schemes:
Human Rights First continues to study these issues carefully. We urge Congress and the next Administration to consider them as well, and to explore any continuing gaps and shortcomings in the law that can be remedied by revision rather than with the creation of an entirely new court system.
The current Administration's misguided embrace of indefinite detention, torture and deeply flawed military commissions has greatly damaged the reputation of the United States, fueled terrorist recruitment and undermined international cooperation in counterterrorism operations. Repairing our reputation as a nation committed to the rule of law will require bold action, including finally closing the detention facility in Guantánamo and demonstrating -- in deed, not just in word--an unequivocal commitment to treating all prisoners humanely.
The next Congress and the next Administration will have a window of opportunity to signal to the American people and to the world that the policies of the last seven years were an aberration and that the United States is serious about restoring the rule of law, upholding our Constitution and respecting the international rules and laws our country played such a central role in formulating.
The stakes are incredibly high. In the balance hangs the ability of the United States to: maintain the integrity of our counterterrorism policy; improve intelligence cooperation with allies; support the human intelligence community in employing proven, effective methods for gathering actionable information; and re-establish the moral authority necessary to restore the United States as a world leader in upholding human rights.