While You Were Away…

by Kevin Jon Heller

We hope you never left, but in case you have not been keeping up with Opinio Juris over the holiday season, here is what you missed:

1. Two excellent blog posts setting the record straight about the NDAA, graciously provided to us by two experts on the subject, Marty Lederman and Steve Vladeck.  You can find Part I here and Part II here.

2. A friendly response to Part II by me that discusses the limits of analogizing detention in non-international armed conflict to the rules of international armed conflict.  You can find it here.

3. A fascinating post by Ruti Teitel discussing the need to avoid victor’s justice in Libya.  You can find it here.



2 Responses

  1. Response…
    Kevin: please post something on this new Report — from an email received today from Ben Davis:
    Report Calls for Investigation and Prosecution of Top Government Officials for Acts of Torture
    WASHINGTON, D.C., January 4, 2012: In the aftermath of the attacks on September 11th, high-ranking U.S. government officials planned and authorized acts of torture against detainee terror suspects in violation of both domestic and international law, said Human Rights USA in a report released today. 
    The report, Indefensible: A Reference for Prosecuting Torture and Other Felonies Committed by U.S. Officials Following September 11th, details the voluminous evidence indicating that illegal interrogation techniques were the official policy of the Bush Administration. 
    More than ten years after the onset of the Bush Administration’s post-9/11 anti-terrorism policies, not a single torture survivor has succeeded in holding a top government official accountable in a U.S. court for the indefensible act of torture due in large part to legal maneuvering by both the Bush and Obama Administrations.  The report serves as a practitioner’s reference, addressing the domestic and international laws implicated by the actions of certain former high-ranking government officials, and laying the groundwork for litigation of those prosecutions. 
    “Repudiation of torture and accountability for the government officials who authorized it is essential in order to restore the rule of law in the United States and prevent similar acts of torture from being repeated in the future,” said Allison Lefrak, litigation director of Human Rights USA.  “Our country’s legal system relies on the fundamental principle that no one is above the law – even top government officials.”
    While certain actions taken by President Obama indicate his desire to break with the lawless ways of the Bush Administration, he has failed to fulfill his international legal obligation to investigate these crimes of torture and other cruel, inhuman and degrading treatment.  This failure to investigate acts of torture committed by top U.S. government officials provides them with an unacceptable veneer of legitimacy.
    The report is a call for action.  If accountability cannot be achieved through the courts, it becomes even more critical that the U.S. government properly investigate acts of torture either through the appointment of a Special Counsel or alternatively by Congressional enactment of a Commission of Inquiry.
    The report is the result of a multi-year collaborative effort between Human Rights USA and the International Human Rights Law Clinic at American University Washington College of Law.  Information about the upcoming release event and an online version of the report is available online at http://humanrightsusa.org.
    Human Rights USA is a non-profit organization in Washington, DC that seeks to enforce human rights responsibilities in the U.S. legal system.  Using impact litigation and other legal strategies, Human Rights USA seeks to obtain justice for survivors of human rights violations, to hold the perpetrators accountable, and deter future violations.
    The International Human Rights Law Clinic at American University College of Law carries out its mission of client representation in a broad range of cases and projects – all of which share a commitment to justice through the advancement of international human rights law, both domestically and internationally.

  2. Ah,  I’ve been trying to comment further down on the two NDAA posts to no avail.  The comment window would not open. The relevant quotes on which I have questions.  “… which we share, that “the prison at Guantánamo Bay undermines our national security”  How does a resort prison undermine national security?  (If you reply, as I suppose, that the ‘folks’ held there ought to be in the Constitutionally authorized and addministered US court systems, I might counter with the Geneva conventions, specifically those regarding combatants not in uniform.  Suppose our soldiers were not adhering rigidly to these conventions.  In such a case, would you just turn your heads and cough?  In times of war, is the law not silent?)  Second snip:   “As he reaffirmed today ‘My administration will not authorize the indefinite military detention without trial of American citizens’ “.  Why would you still believe anything this man says?  “If you like your doctor, you will get to keep him”.  “These negotiations will be on C-span”.    “No family making less than $250,000 will see any form of tax increase.” Then-senator Obama declared that a recess appointment is “damaged goods” and has “less credibility” than a normal appointment. August 25, 2005. “The detention facilities at Guantánamo … shall be closed as soon as practicable, and no later than one year from the date of this order.” January 22, 2009. “Now, what I’ve done throughout this campaign is to propose a net spending cut.”  Lucy jerks the football away, ad infinitum.

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