New York City Bar Association Urges Congress to Provide Remedies to Victims of Torture, and Cruel, Inhuman and Degrading Treatment
The New York City Bar Association has recommended that Congress provide remedies for those the United States has tortured or subjected to cruel, inhuman, or degrading treatment in the years following 9/11.
In its report, the City Bar makes the case that, “the national security, values and law of the United States demand compensation and treatment for victims of U.S. programs deploying so-called ‘enhanced interrogation techniques.’”
The report, signed by the City Bar’s President, John S. Kiernan, and the Chair of its Task Force on National Security and the Rule of Law, Mark R. Shulman, notes, “[a] cornerstone of America’s republican ideals is a belief in the inherent dignity of the individual and the right of all people to be free from torture or other cruel, inhuman and degrading treatment.” It cites the United States’ role in prosecuting war crimes during the Nuremburg Trials and in ratifying the Geneva Conventions, and that it was an original party to two international instruments establishing the fundamental right of all people to be free from torture and other mistreatment—the Universal Declaration of Human Rights and the United Nations Convention Against Torture (the “CAT”)—as evidence of our nation’s longstanding “tradition of human rights.” It further notes that federal law makes the commission of torture by U.S. officials a crime and makes the commission of torture and other war crimes by or against U.S. nationals prosecutable in federal court.
However, following the terrorist attacks of September 11, 2001, the U.S. government engaged in systematic campaigns of abduction, extrajudicial detention, unlawful rendition, and torture and abuse of people suspected of terrorism or connections to terrorism, as well as the secret imprisonment for years of detainees in Guantánamo Bay and prisoners in Abu Ghraib. “Images of that abuse,” the report observes, “have become infamous symbols of our nation’s failure to adhere to its vaunted ideals and binding legal obligations, as well as invaluable propaganda for our enemies.”
“With the publication in December 2014 of the 500-plus page executive summary of the Senate Select Committee on Intelligence’s report on CIA detention and interrogation,” the report explains that the public record now includes “clear and overwhelming evidence of wide-ranging abuses” and urges Congress to clear any obstacles to compensating victims of such treatment.
Further, the United States has not provided these victims with compensation or treatment for the injuries sustained while in U.S. custody – despite domestic and international law forbidding such acts of cruelty and requiring compensation for victims and punishment of offenders. Both the CAT and the International Covenant on Civil and Political Rights, of which the U.S. is a signatory, require avenues for redress for victims of torture and other cruel, inhuman or degrading treatment.
Noting that “[o]ur nation remains in breach of these obligations,” the report states that, “[n]either the Executive nor the Legislative branch has made any attempt to provide compensation to the victims of torture and other abuses committed by the government since 9/11. Indeed, when victims have sought redress by pursuing lawsuits in the courts, the Executive Branch has sought to block these efforts by aggressively asserting unusually broad legal defenses, including state secrets and immunity doctrines.” As a result, courts have largely dismissed suits to recover damages by victims of torture and other abuses, making the United States “an outlier among its allies” in its continued refusal to provide compensation to victims of torture and other abuse.
In the face of “clear and overwhelming evidence of wide-ranging abuses,” the City Bar states that “[c]ompensating those who have been mistreated would provide a measure of justice and also reaffirm that torture and cruel, inhuman or degrading treatment are contrary to American core values.” The report further notes, “the primary obstacle to bringing suits seeking civil remedies for torture has been the lack of a specific, Congressionally-created cause of action against the United States,” and that “courts have balked at allowing suits to proceed when not expressly authorized to do so by the political branches.” It recommends that “[a] statute could resolve that difficulty by providing such authorization,” further noting that, “[i]n the past, similar compensation statutes have afforded governments an opportunity to correct injustices [and that] Congress should now do the same to start to remedy these grave harms.”
While recognizing that “in some instances, paying funds to individuals who have been convicted of, or are being actively prosecuted for, terrorist acts may raise national security concerns . . . existing law provides several means to avoid unjust enrichment or material assistance to individuals who constitute an on-going threat to the nation’s security. … Any remaining gaps in the necessary forfeiture mechanisms can be filled in through necessary and appropriate legislation consistent with domestic and international norms of government accountability.”
Urging Congress to take steps to promptly implement the City Bar’s recommendations, the report states that, “[t]he United States has legal and moral obligations to compensate those whom it has tortured or subjected to cruel, inhuman and degrading treatment. Adopting the City Bar’s recommendations would help satisfy the demands of justice and strengthen the nation’s commitment to prohibiting the type of barbaric conduct that has so diminished its reputation.”
The report can be read here: http://bit.ly/2smfrc9
About the Association
The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities. www.nycbar.org
