Gitmo and Abu Ghraib, Infamous Symbols of US Human Rights Violations

15 October, 2021
“Guan­tá­namo detainee,” 2012, resin fig­ure on spray-paint­ed back­ground (art cour­tesy Ryan Calla­han).


Lawyers Beyond Bor­ders, Advanc­ing Inter­na­tion­al Human Rights Through Local Laws and Courts

By Maria Armoudian
Uni­ver­si­ty of Michi­gan Press (Sept 2021)
ISBN 9780472132560

 

Mischa Geracoulis

“The human rights cas­es in these pages are among the most unlike­ly ones slat­ed for victory.”

Lawyers Beyond Bor­ders is pub­lished by the Uni­ver­si­ty of Michi­gan Press.

Dis­man­tled in a man­ner more dic­ta­to­r­i­al than demo­c­ra­t­ic by the pur­port­ed­ly moral­ly supe­ri­or pul­pit of the Unit­ed States pres­i­den­cy, the guardrails of human rights came crash­ing down. Wield­ing a self-right­eous vengeance beyond bib­li­cal pro­por­tions, the Bush Administration’s 9/11 “War on Ter­ror” has indeed been ter­ri­fy­ing. And noth­ing con­jures up the fear­some idol­a­try of Amer­i­can excep­tion­al­ism more vivid­ly than America’s prison camps in Guantánamo Bay. 

Lawyers Beyond Bor­ders (Uni­ver­si­ty of Michi­gan Press, Sep­tem­ber 2021), the lat­est book by Maria Armoudi­an, polit­i­cal his­to­ri­an and pro­fes­sor of inter­na­tion­al rela­tions at the Uni­ver­si­ty of Auck­land, is a jour­ney through the his­to­ry of human rights pro­tec­tion, defense, and fail­ures there­of, and the inner­work­ings of liti­gious loss­es and unex­pect­ed vic­to­ries due in large part to the efforts of a small and eclec­tic alliance of lawyers. Inves­tiga­tive, his­tor­i­cal, and a lit­er­al who’s who in the field of human rights, Lawyers Beyond Bor­ders is an emo­tion­al roller coast­er, equal­ly despair­ing and moti­vat­ing. Regard­ing the first point, reports such as that of ren­di­tion and tor­ture à la Git­mo, give gut-wrench­ing pause for reflec­tion on the deprav­i­ty of so-called civ­i­liza­tion. On the lat­ter point, a seem­ing­ly anti­quat­ed, cen­turies old Unit­ed States “Alien Tort Statute” resur­faces, offer­ing uni­ver­sal juris­dic­tion and util­i­ty, and a glim­mer of hope to boot. 

In rel­a­tive­ly plain lan­guage, the Alien Tort Statute (ATS) declares that dis­trict courts shall have orig­i­nal juris­dic­tion of any civ­il action by an alien for a tort only, com­mit­ted in vio­la­tion of the law of nations or a treaty of the Unit­ed States.

As it hap­pened, in the mid-1980s inter­est in the Alien Tort Stat­ue was revi­tal­ized by Con­gressper­son Gus Yatron of Pennsylvania’s 6th dis­trict. Yatron con­duct­ed con­gres­sion­al hear­ings to dis­cern the facil­i­ta­tion and reach of ATS, which, unbe­knownst to him then, would prove to be fun­da­men­tal to ATS appli­ca­tion after Bush’s War on Ter­ror jus­ti­fied the use of tor­ture, nation­al­ly and internationally.

A nation once at the fore­front of human rights pro­tec­tion, the Unit­ed States of Amer­i­ca, spec­tac­u­lar­ly turned on its pro­fessed esteemed val­ues after 9/11. Habeas corpus—a dis­tin­guish­ing cor­ner­stone of US rights, Latin for “show me the body” and meant to pro­tect against unlaw­ful, indef­i­nite imprisonment—went out the win­dow, along with rule of law, and due process.  Sim­i­lar­ly, the Bush Admin­is­tra­tion decid­ed that none of the Gene­va Con­ven­tion pro­vi­sions would apply in the US’ hunt for Al Qae­da in Afghanistan, and every­where else in the world. 

Unleashed by Attor­ney Gen­er­al John Ashcroft’s direc­tives to the FBI and oth­er US offi­cials to pro­file, round up, and vig­or­ous­ly inter­ro­gate every Mid­dle East­ern male between the ages of 18 and 40, and to make con­di­tions of con­fine­ment as harsh as pos­si­ble, it was all but guar­an­teed that detainees would be treat­ed with bru­tal­i­ty irre­spec­tive of any proven guilt (76).  The CIA amped up its ren­di­tion pro­gram, and peo­ple went miss­ing. Hun­dreds of boys and men accused of ter­ror­ism, through process­es often shroud­ed in secre­cy, were round­ed up, locked up, and abused for months or years on end, many in over­seas “black sites” and/or in the prison camps of Guantánamo Bay. 

Most have nev­er been charged with any crime.


Tor­ture Is the Nasty Cen­ter of the 9/11 Case at Guantánamo

Address­ing the hor­rors of sanc­tioned tor­ture, Armoudian’s fifth chap­ter in par­tic­u­lar speaks to the devolv­ing state of human rights.  Detail­ing just some of what’s been done to peo­ple found guilty of noth­ing more than being born male and with­in a cer­tain time­frame and region, the US’ exu­ber­ant use of tor­ture is stom­ach-turn­ing, mind blow­ing, and heart­break­ing.  Picked up in the mid­dle of night, or oth­er­wise caught off guard, detainees were often whisked away with­out iden­ti­fi­ca­tion, ren­der­ing them untrace­able by fam­i­ly or any would-be lawyer.  One of the cas­es men­tioned in the book, Turk­men v. Ashcroft, depicts the night­mare that men assumed to be Arab, South Asian, or Mus­lim, endured in the Met­ro­pol­i­tan Deten­tion Cen­ter in New York.  After months of being slammed against walls, punched, dragged, stripped searched, raped with flash­lights, denied med­ical treat­ment and com­mu­ni­ca­tion with the out­side, all were found inno­cent of ter­ror­ism (74).

US civ­il rights lawyer Clive Stafford Smith has argued, “What sys­tem do you have when a demo­c­ra­t­ic gov­ern­ment locks up a bunch of peo­ple and won’t tell you who they are?”

Eric Lewis, com­mer­cial lit­i­ga­tor for Baach, Robin­son, and Lewis, a self-pro­fessed “Ronald Rea­gan Repub­li­can” whose client list includes the World Bank and Abu Dhabi Com­mer­cial Bank, is quot­ed from a Forbes inter­view with jour­nal­ist, David Par­nell, stat­ing that when Guantánamo Bay opened and the US began tor­tur­ing peo­ple, a line had been crossed. He assert­ed, “Guantánamo, indef­i­nite deten­tion, and tor­ture present the sig­na­ture legal and moral chal­lenges of our era.” Lewis, cit­ing his oblig­a­tion as a lawyer, joined forces with oth­er lawyers intent on jus­tice and the preser­va­tion of human rights. 

Human rights, while relat­ed to inter­na­tion­al human­i­tar­i­an law and the work of inter­na­tion­al crim­i­nal tri­bunals, is not about the sov­er­eign­ty of states, but of indi­vid­u­als.  Human rights artic­u­late the agency of the indi­vid­ual irre­spec­tive of loca­tion, nation­al­i­ty, race, creed, socioe­co­nom­ic sta­tus, abil­i­ty, et. al. For this rea­son, the Alien Tort Statute, one of the old­est and still oper­a­tional fed­er­al laws on the books, is applicable. 

Lead­ing US human rights lit­i­ga­tor, Paul Hoff­man, famed for his defense of vic­tims of America’s War on Ter­ror, con­firms that ATS is an expres­sion of the Unit­ed States’ orig­i­nal com­mit­ment to inter­na­tion­al law, designed to pre­vent giv­ing refuge to tor­tur­ers, and intend­ed to be extrater­ri­to­r­i­al (111).

Against polit­i­cal resis­tance and ide­o­log­i­cal odds, ATS has been tried, test­ed, and proven true to its words, evi­denced most notably in a 1980s ground­break­ing Paraguayan vic­to­ry in the US courts.  Set­ting some­thing of a prece­dent, vic­tims from Chile, Argenti­na, El Sal­vador, Guatemala, Peru, Hon­duras, Colom­bia, Ethiopia, Liberia, Haiti, the Philip­pines, Bosnia, Soma­lia, and vic­tims of extra­or­di­nary ren­di­tion would even­tu­al­ly find a sim­i­lar, albeit not entire­ly straight­for­ward, track to some sem­blance of justice. 

The War on Ter­ror pro­voked a mul­ti­tude of lawyers from across the bar to rethink their work, includ­ing cor­po­rate defense lawyer, Susan Burke.  Refer­ring to Bush’s dou­ble-term open sea­son on human rights, Burke remarked that the administration’s deci­sion to use tor­ture effec­tive­ly con­vert­ed a griev­ous human rights abuse tra­di­tion­al­ly out­lawed into accept­ed pub­lic pol­i­cy.  For Burke and oth­er lawyers, this was a turn­ing point in how and why they do their work (90).

US lawyers took up impos­si­ble cas­es, search­ing for miss­ing boys and men, even­tu­al­ly rep­re­sent­ing hun­dreds of “pow­er­less aliens in juris­dic­tion­al black holes.”  Tak­ing the lead on con­fronting the US government’s dec­i­ma­tion of human rights pro­tec­tions, Clive Stafford Smith, civ­il rights lawyer Joseph Mar­gulies, and pres­i­dent of Cen­ter for Con­sti­tu­tion­al Rights, lawyer Michael Rat­ner, would ulti­mate­ly inspire oth­er US lawyers to join the cause, includ­ing Thomas Wilner of Shear­man & Ster­ling, a law firm that rep­re­sents some of the US’ largest corporations. 

This hand­ful of lawyers, even after decades of com­plex lit­i­ga­tion, seem­ing­ly end­less push­back and dead-end suits, threats to their lives and liveli­hoods, and accu­sa­tions of being trai­tors, per­sist in their pur­suit of jus­tice against top US offi­cials and attempts at recourse for tor­ture vic­tims.  High­light­ing the dif­fi­cul­ty they face, even the sworn dec­la­ra­tion of US Colonel Lawrence B. Wilkerson(ret.), that the Bush admin­is­tra­tion knew “the vast major­i­ty of Guantánamo detainees were inno­cent,” had lit­tle bear­ing on the 2006 Mil­i­tary Com­mis­sions Act. The act gave the US pres­i­dent absolute pow­er to decide who would be an ene­my of the state, and to imprison peo­ple with or with­out charge of crime, indef­i­nite­ly. Wilk­er­son stated: 

…it became appar­ent to me as ear­ly as August 2002, and prob­a­bly ear­li­er to oth­er State Depart­ment per­son­nel who were focused on these issues, that many of the pris­on­ers detained at Guan­tá­namo had been tak­en into cus­tody with­out regard to whether they were tru­ly ene­my com­bat­ants, or in fact whether many of them were ene­mies at all. I soon real­ized from my con­ver­sa­tions with mil­i­tary col­leagues as well as for­eign ser­vice offi­cers in the field that many of the detainees were, in fact, vic­tims of incom­pe­tent bat­tle­field vet­ting. There was no mean­ing­ful way to deter­mine whether they were ter­ror­ists, Tal­iban, or sim­ply inno­cent civil­ians picked up on a very con­fused bat­tle­field or in the ter­ri­to­ry of anoth­er state such as Pak­istan. The vet­ting prob­lem, in my opin­ion, was direct­ly relat­ed to the ini­tial deci­sion not to send suf­fi­cient reg­u­lar army troops at the out­set of the war in Afghanistan, and instead, to rely on the forces of the North­ern Alliance and the extreme­ly few US. Spe­cial Oper­a­tions Forces (SOF) who did not have the nec­es­sary train­ing or per­son­nel to deal with bat­tle­field deten­tion ques­tions or even the incli­na­tion to want to deal with the issue.

It’s worth read­ing fur­ther from Wilkerson’s 2010 nine-page state­ment that points to incom­pe­tent vet­ting, result­ing in myr­i­ad cas­es of wrong­ful seizure and detainment.

“Pro­ce­dur­al grounds pre­vent­ed all civ­il actions [includ­ing ATS lit­i­ga­tion] for the tor­tured, abused, wrong­ful­ly detained, or killed in [the War on Ter­ror] from reach­ing their mer­its” (89). With reme­dies exhaust­ed in US courts for US-based vio­la­tions, Cen­ter for Con­sti­tu­tion­al Rights lawyers sought out alter­na­tives that includ­ed suing pri­vate, for-prof­it mil­i­tary cor­po­ra­tions, CACI Inter­na­tion­al, Inc. and Titan Cor­po­ra­tion, their sub­sidiaries com­pa­nies, and the indi­vid­u­als retained to trans­late, inter­ro­gate, and guard at Abu Ghraib prison in Iraq.

While war in and of itself is a redis­tri­b­u­tion of wealth, “[t]hese con­trac­tors are for-prof­it cor­po­ra­tions,” explains Cen­ter for Con­sti­tu­tion­al Rights lawyer, Kather­ine Gal­lagher.  “Is war for prof­it?” she asks rhetor­i­cal­ly.  In a mon­e­tized prison sys­tem where prof­its mul­ti­ply by the num­ber of incar­cer­a­tions, many and indef­i­nite deten­tions would imply a resound­ing yes. 

In Saleh v Titan, rep­re­sent­ing more than 200 deten­tion and tor­ture sur­vivors of Abu Ghraib, Cen­ter for Con­sti­tu­tion­al Rights lawyers have used inter­na­tion­al, fed­er­al and state laws, includ­ing ATS, Rack­e­teer Influ­ence and Cor­rupt Orga­ni­za­tions (RICO), the US Con­sti­tu­tion, and com­mon law torts to peti­tion for a per­ma­nent injunc­tion, declara­to­ry relief, and com­pen­sa­tion. A class action law­suit was filed in the US Dis­trict Court for the South­ern Dis­trict of Cal­i­for­nia on behalf of 256 Iraqi civil­ians who were sub­ject­ed to rape, tor­ture, elec­tri­cal shocks, abus­es to gen­i­tals, beat­ings with guns and oth­er hard objects, being uri­nat­ed on, and forced watch­ing of a par­ent tor­tured to death (92). 

Sim­i­lar facts from oth­er deten­tion sites have come to light, and sim­i­lar suits have been filed to mixed and insuf­fi­cient results. When sur­vivors of secret ren­di­tions emerged and their sto­ries were cor­rob­o­rat­ed from out­siders regard­ing flights, per­son­nel, air space clear­ance, unlaw­ful impris­on­ment, deten­tion, and tor­ture, “the Bush admin­is­tra­tion inter­vened, motion­ing for dis­missal, argu­ing to pro­tect ‘state secrets’” (101). 

Part and par­cel to polit­i­cal back­lash in the US, courts are packed with judges who’ve insti­tut­ed high­er legal bar­ri­ers to the advance­ment and pro­tec­tion of human and civ­il rights, accord­ed indi­vid­ual rights to cor­po­ra­tions with­out requir­ing the same respon­si­bil­i­ties, and gar­nered ever more priv­i­lege for the super-rich. Access to courts has tight­ened, and cas­es can lan­guish for years, which is wor­ry­ing, giv­en that legal pro­fes­sor, Charles Epp, main­tains that the advance­ment and pro­tec­tion of indi­vid­ual human rights requires access to the courts, and works bet­ter from bot­tom-up rather than top-down (159). 

Dis­cussing this back­lash, Rula Jebre­al, for­eign pol­i­cy ana­lyst and jour­nal­ist, in a Sep­tem­ber 2021 inter­view with Democ­ra­cy for the Arab World Now com­mu­ni­ca­tions direc­tor, Omid Memar­i­an, argued that, “Amer­i­can fail­ures in Afghanistan and the wider War on Ter­ror have rever­ber­at­ed back in the Unit­ed States [via] Don­ald Trump’s pres­i­den­cy, and cul­mi­nat­ing in the Jan­u­ary 6 assault on the Capi­tol in Wash­ing­ton by his extrem­ist sup­port­ers… Author­i­tar­i­an­ism [has not stayed] in the Mid­dle East—it’s come back to haunt America’s democ­ra­cy…. [And the cor­po­rate] media estab­lish­ment [claims to be] pro­gres­sive, pro-democ­ra­cy, pro-mul­ti­cul­tur­al domes­ti­cal­ly; but when it comes to brown, black, or Mus­lim peo­ple over­seas, [the cor­po­rate media] actu­al­ly endors­es authoritarianism.”

Cor­re­spond­ing­ly, human rights strate­gies and tools have nec­es­sar­i­ly shift­ed, and the prin­ci­ple of uni­ver­sal juris­dic­tion in cross-bor­der strate­gies is a method of choice.  Inspired by ATS and deter­mined to rem­e­dy the fail­ure to hold top US offi­cials account­able for tor­ture, Peter Weiss and oth­er human rights lawyers, have found com­pa­ra­ble laws in oth­er coun­tries that pro­vide for uni­ver­sal juris­dic­tion, and courts capa­ble of pros­e­cut­ing heinous inter­na­tion­al crimes, includ­ing tor­ture, ter­ror­ism, and geno­cide (125).  Such strate­gies have yield­ed indict­ments, arrests, and judg­ments pre­vi­ous­ly assumed impos­si­ble in the EU, UK, and the Amer­i­c­as.  Still, count­less vic­tims remain with­out resolution.

That rights are cre­at­ed, and can there­fore be un-cre­at­ed, is a real­i­ty well under­stood by human rights advo­cates. Encap­su­lat­ing the the­sis of Lawyers Beyond Bor­ders, Jebre­al con­tends that human rights are mere words; action makes them meaningful. 

“[E]mpower civ­il soci­eties, peo­ple on the ground…spend [even one per­cent of the Pentagon’s bud­get] on edu­ca­tion, schol­ar­ships, on empow­er­ing girls and women, pro­tect­ing and defend­ing minori­ties and vul­ner­a­ble com­mu­ni­ties, and Amer­i­can val­ues. Rejoin the Iran nuclear deal, and nego­ti­ate with the Israelis…condition US aid to respect human rights and democ­ra­ti­za­tion, and end apartheid. Amer­i­ca can­not be hyp­o­crit­i­cal anymore…It’s time to choose truth.”

But after twen­ty years of the War on Ter­ror, Jebre­al isn’t con­vinced that there will ever be any real accountability.

To her point, the jury is still out as to whether human rights are expe­ri­enc­ing a rebirth, or if they’ve reached the sad autumn of life.  More­over, it’s repeat­ed ad nau­se­um that we live in a post-truth era.  Thus, we find our­selves at a crit­i­cal junc­ture when, insists Armoudi­an, “agency, ideas, and infor­ma­tion mat­ter” most. Advo­ca­cy must change with the times and embrace cross-bor­der col­lab­o­ra­tions to pro­duce new sys­tems and struc­tures that revive rights and uphold a “work­ing rule of law that leaves no one above the law and no one below it” (162). 

Inno­va­tions in glob­al­ized jus­tice is exem­pli­fied by the coali­tion that orig­i­nat­ed between Peter Weiss and Wolf­gang Kaleck, US and Ger­man lawyers respec­tive­ly. With far-reach­ing net­works in the US and Euro­pean legal sys­tems, their com­bined efforts devel­oped into the Euro­pean Cen­tre for Con­sti­tu­tion­al Human Rights, which in turn col­lab­o­rates with oth­er non­govern­men­tal orga­ni­za­tions, like Human Rights Watch and TRIAL Inter­na­tion­al, in pur­suit of demo­c­ra­t­ic, social stan­dards and val­ues world­wide.  As part of a “net­work of sol­i­dar­i­ty,” atroc­i­ty sur­vivors are now bet­ter able to seek redress through inter­state courts (126–128).

All told, Lawyers Beyond Bor­ders is a hard real­i­ty check to my GenX ide­al­ism. Coun­ter­ing the post-truth-era adage with the one that says sun­light is the best dis­in­fec­tant, I am some­what reas­sured by the transna­tion­al efforts of human rights lawyers and cos­mopoli­tan con­flict res­o­lu­tion strate­gists. Armoudi­an affirms that their use of “exist­ing laws to chal­lenge injus­tices with­in polit­i­cal-legal sys­tems on behalf of [human­i­ty], entire client constituenc[ies], and for future gen­er­a­tions, human rights lawyers will find solu­tions to con­science-shock­ing prob­lems,” includ­ing the indeli­ble sins that are pris­ons like Git­mo, Abu Ghraib and untold black sites whose names may nev­er be ful­ly catalogued. 

Abu Ghraibblack opsCIAGuantánamohuman rights abusesillegal detentionrendition

TMR contributing editor Mischa Geracoulis is a writer and educator of critical media literacy, English for speakers of other languages, and those with learning differentials. Her writing, teaching and approach to life are informed by the Universal Declaration of Human Rights. Some of her topics of research include the Armenian Genocide and Diaspora, restorative justice, equitable education and child welfare, and the multifaceted human condition. Her work has appeared in Middle East Eye, The Guardian, Truthout, LA Review of Books, Colorlines, Gomidas Institute, National Catholic Reporter, and openDemocracy, among others. Follow her on Twitter @MGeracoulis.