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Halting Canadian Bush Prosecution Violated International Obligations
8:01 AM ET

JURIST Guest Columnists Matt Eisenbrandt, Legal Director for the Canadian Centre for International Justice, and Katherine Gallagher, a Senior Staff Attorney at the Center for Constitutional Rights, say the Canadian government not only rejected the opportunity to prosecute George W. Bush, they improperly removed private citizens' ability to bring criminal proceedings as allowed by Canadian law...




In his memoir and other venues, former US president George W. Bush admitted that he authorized the waterboarding of detainees in US custody. His exact words of approval were, "Damn right." Bush ordered several other interrogation techniques that numerous experts, including the International Committee of the Red Cross and several UN rapporteurs, have found to constitute torture. Nonetheless, he has not been held accountable, in the US or elsewhere, for his oversight of a worldwide torture program that included abuses at Guantánamo, Abu Ghraib, Bagram and secret CIA "black sites."

Recently, Canada disregarded an opportunity to shatter the global impunity Bush enjoys and in so doing violated international law. On October 20, 2011, Bush, joined by former president Bill Clinton, visited Surrey, British Columbia as a paid speaker at a regional economic summit hosted by Surrey Mayor Dianne Watts. Rather than comply with Canada's legal obligations under the UN Convention Against Torture and submit Bush for prosecution, the Government of Canada refused to take action. Then, faced with privately initiated charges, the Attorney General of British Columbia intervened to shut down the case.

Three weeks before Bush's widely publicized visit to Canada, we sent a letter [PDF], a 69-page draft indictment [PDF] and approximately 4,000 pages of evidence to the Attorney General of Canada on behalf of the Canadian Centre for International Justice and the Center for Constitutional Rights. We called on him to investigate and prosecute the former US president. In response, we received a terse two-sentence letter [PDF] from the manager of the Department of Justice Correspondence Unit acknowledging nothing more than that our letters had been received over two weeks after Bush had left. Several other human rights organizations, including Amnesty International and Human Rights Watch, called for Canada to arrest Bush.

Faced with the federal government's refusal to act, we initiated a private prosecution under § 504 of the Criminal Code of Canada. On the morning of Bush's arrival in Surrey, a Justice of the Peace in the Provincial Court of British Columbia received a criminal information file [PDF] on behalf of four individuals who allege they were tortured during Bush's administration. The information charges Bush with four counts of violating § 269.1 of the Criminal Code, the provision that punishes torture even when committed outside Canada. The section was originally added to the Code to implement Canada's obligations under the Convention Against Torture. Nearly 60 human rights groups and prominent individuals signed on in support [PDF] of the private prosecution.

The four men, Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz, each endured years of inhumane treatment including beatings, chaining to a cell wall, being hung from walls or ceilings while handcuffed, lack of access to toilets, sleep, food and water deprivation, exposure to extreme temperatures, sensory overload and deprivation and other horrific and illegal treatment while in US custody at military bases in Afghanistan and at the detention facility at Guantánamo. While three of the men have since been released without ever facing charges, Hassan Bin Attash remains in detention at Guantánamo, though he too has not been formally charged with any wrongdoing.

Because Bush is not a Canadian citizen, § 7(7) of the Criminal Code permitted us eight days in which to secure the required consent of the Attorney General of Canada to continue with the private prosecution. Nonetheless, the very same day, mere hours after filing, we were notified that the Attorney General of British Columbia had already intervened in the case and stayed the proceedings under § 579 of the Code. The British Columbia Attorney General preemptively made the judgment that the necessary consent would not be forthcoming and denied us the eight days we are due under the Code. Confirmed by letter [PDF] several days later, the intervention effectively shut down the private prosecution before it got going. The speed with which the stay was implemented makes it clear that government officials did not seriously examine the evidence.

The Canadian action came on the heels of attempts to have Bush prosecuted in Switzerland. In February 2011, the Center for Constitutional Rights, supported by the Canadian Centre for International Justice and other human rights organizations, attempted to initiate criminal proceedings against Bush during a scheduled speaking engagement in Geneva. Bush cancelled the trip after news of the planned prosecution came to light.

There is strong precedent in Canada for prosecuting those alleged of committing atrocities outside the country. In 2009, a Canadian court convicted Désiré Munyaneza of crimes against humanity, genocide and war crimes committed in Rwanda. He was sentenced to life imprisonment. Another Rwandan man, Jacques Mungwarere, is also in custody awaiting trial this year. Both men were charged under the Crimes Against Humanity and War Crimes Act.

One hundred and forty-seven countries, including Canada and the US, are parties to the Convention Against Torture, meaning that those countries have committed to promptly investigate, prosecute and punish torturers. All signatories are obligated to investigate and submit for prosecution, or extradite to another country for prosecution, anyone present in their territory who they reasonably believe has committed torture. In light of Canada's violation of its duty in the case of George W. Bush, we are reviewing our options at the domestic and international levels.

Matt Eisenbrandt is the Legal Director for the Canadian Centre for International Justice, where his primary focus is casework and outreach. CCIJ is a charitable organization that works with survivors of genocide, torture and other atrocities to seek redress and bring perpetrators to justice. He previously served as the Legal Director for the Center for Justice & Accountability.

Katherine Gallagher is the Senior Staff Attorney at the Center for Constitutional Rights where she attempts to bring those responsible for human rights violations to justice. She has worked for numerous other human rights projects including the UN International Criminal Tribunal for the former Yugoslavia and the implementation of gender equality measures during the development of the International Criminal Court.

Suggested citation: Matt Eisendbrandt & Katherine Gallagher, Halting Canadian Bush Prosecution Violated International Obligations, JURIST - Hotline, Jan. 17, 2012, http://jurist.org/hotline/2012/01/matt-eisenbrandt-bush-arrest.php.



This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org


Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.



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Continued Dysfunction Marks Guantanamo Bureaucracy
5:11 PM ET

JURIST Guest Columnist J. Wells Dixon, Senior Staff Attorney for the Guantánamo Global Justice Initiative at the Center for Constitutional Rights, says there is a systematic dysfunction within the bureaucracy of the Guantánamo Bay detention facility that impacts the capability of attorneys to adequately represent their clients...



The seizure and review of attorney-detainee legal materials by officials of the Joint Task Force Guantánamo is disturbing. Anyone remotely familiar with the adversarial legal system in the US knows that a jailor cannot sift through privileged information to reveal a prisoner's confidential defense strategies. Any first-year law student knows why this is especially improper in the context of a death penalty case. What is unknown is why this event occurred at Guantánamo now, particularly given the government's admission that it was "not in response to any particular security threat." The likely answer is there was no principled reason. Having traveled to Guantánamo numerous times over many years to meet with men detained there, it comes as no surprise to me that someone, somewhere in the bureaucracy of Guantánamo, ordered a disruptive and ultimately needless examination of legal papers and correspondence kept by detainees, including materials clearly marked as privileged. Bad decisions and pointless exercises abound at Guantánamo, often for no apparent purpose. Indeed, little changes at Guantánamo except the rules and procedures about legal mail, what you can say and do, what paperwork is required, what box must be checked, and so forth. The only certainty from month-to-month is there will be some new administrative obstacle for lawyers to overcome in order to represent their clients.

If the government cannot figure out "small" issues such as the proper handling of legal mail, it is unclear how it will address complex substantive matters, such as the contradiction in its claim that terrorist suspects who attack coalition forces are war criminals triable by military commission because they are not soldiers with a right to engage in belligerency, yet CIA drone pilots, who also lack combat immunity, may legally target citizens of Pakistan and Yemen (including children) with Hellfire missiles under the laws of war.

It is important to consider that January 11, 2012, will mark the 10-year anniversary of Guantánamo. For nearly a decade, the US has held about 800 men and boys in a prison that was designed to be outside the protections of any law. All were Muslim, few have been charged with any offense and none has received a fair trial. There are currently 171 men still imprisoned at Guantánamo and 89 have been unanimously approved for transfer by all relevant military, law enforcement and intelligence agencies. The identities of the cleared men remain inexplicably withheld from the public, however, and no one has actually been transferred within the last year except an Algerian who was forcibly repatriated despite his fear of persecution in his home country. Others have commented that, for the cleared men, as well as the 36 slated for prosecution and the 46 who will be held indefinitely, Guantánamo has become "The Forever Prison."

The military commissions, which recently ruled that the seizure and review of capital defendant Abd al-Rahim al-Nashiri's legal mail infringed his rights, also underscore the dysfunction of Guantánamo. The military commission system was designed to serve only one purpose: to manufacture predetermined guilty verdicts for Muslim men who have been dehumanized and rendered unworthy of the protections provided by the US Constitution and laws, including international law. After nearly a decade of false starts, the commissions are notable only for convicting a chauffeur, a child and a video propagandist, none of whom is responsible for the attacks of September 11, 2001. Who will be next, a Taliban cook, or perhaps an al Qaeda gardener? The consistent missteps and false starts at Guantánamo raise the question of what President Barack Obama is trying to achieve there at this point — Guantánamo is a fiasco by any measure.

Recent events of the so-called "Arab Spring" also bring new perspective to the failures of Guantánamo. Across North Africa and the Middle East, men and women are demanding widespread political and social change. They are rejecting the vestiges of old authoritarian regimes which have long oppressed them — torture, indefinite detention, unfair military trials and impunity — the very features that Guantánamo was created to embody and which persist there today. It is ironic, and hypocritical, that the US claims to be the world's leading democracy, but when it comes to Guantánamo the country lags behind students marching and dying in the streets of Sana'a and Damascus.

Guantánamo Bay demeans the US and should be closed, yet the government continues to dither about and obstruct lawyers' ability to represent their clients.

J. Wells Dixon joined the Center for Constitutional Rights in 2006. He works on the Guantánamo Global Justice Initiative, where he challenges the detention of prisoners and represents clients in federal court and before the military commissions at Guantánamo Bay. He previously worked at Kramer Levin Naftalis & Frankel LLP, where he specialized in white collar criminal defense and securities litigation.

Suggested citation: J. Wells Dixon, Continued Dysfunction Marks Guantanamo Bureaucracy, JURIST - Hotline, Nov. 18, 2011, http://jurist.org/hotline/2011/11/wells-dixon-guantanamo-dysfunction.php.



This article was prepared for publication by Michael Glenn, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org


Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.



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Spain leads way in effort to resettle Guantanamo detainees
10:05 AM ET

Ken Gude [Director, International Rights and Responsibility Program, Center for American Progress] "Spain is leading the way among US allies in assisting the Obama administration in the critical counterterrorism mission to close the detention center at Guantanamo Bay. With domestic efforts stalled due to political opposition and opportunism, the Obama administration is forced to turn to allies like Spain to bring down the population at the prison. Spain's leadership is crucial to persuading other countries, and hopefully the United States Congress, to join in this effort to close Guantanamo and prevent our terrorist enemies from using that symbol to recruit new members into their ranks.

Regardless of the improvements that have been made to conditions at Guantanamo or to the military commission trials once again underway, closing the prison remains a national security imperative. Guantanamo is a symbol of American lawlessness and hypocrisy that has played into the hands of our enemies. President Obama accurately described the net negative impact of the prison for US national security when he said last May that it "created more terrorists around the world than it ever detained." Any plan to close Guantanamo must include dozens of transfers to third countries because international law restricts sending detainees to countries where they face the
prospect of torture.

Spain has accepted this responsibility and has consistently stepped up to the plate to help remove this terrorist recruiting tool. It originally pledged to resettle two detainees - the second of which arrived Tuesday - but recently upped their pledge to five as it became clear that more help would be needed to find homes for detainees released from Guantanamo. Spain's increased assistance is commendable because it comes in the face of outright refusal on the part of the US Congress to accept any detainees for resettlement into the United States.

Spain's leadership is also essential to bring other countries, particularly major European countries like Germany, into the effort to close Guantanamo. Germany had previously refused to accept Guantanamo detainees but reports out last month indicate that they are close to agreeing to resettle some detainees. Such a move from Germany could induce France to add to its one detainee and others could follow suit, moving the Obama administration closer to its objective to close the prison.

The Obama administration has never wavered in its commitment to close Guantanamo, even in the face of political opposition in the United States. It now relies more than ever on its allies to keep making progress toward that goal and Spain has consistently been willing to do its part and more. Spain and many other countries realize the danger that flows from increased terrorist recruitment and incitement is not only directed at the United States, it threatens us all. Let's hope that the US Congress can learn from that enlightened approach and finally put this tragic episode in US history behind us."


Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.



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Guantanamo detainee's release highlights failure of enhanced interrogation policy
10:03 AM ET

Daphne Eviatar [Senior Associate, Human Rights First]: "There may be no better example of why so-called "enhanced interrogation techniques" are a bad idea than the case of Mohamedou Ould Slahi, who a judge on Monday ordered released after seven years in US custody.

Prosecutors once insisted that Slahi was "the highest value detainee at Guantanamo Bay," a key al-Qaeda leader involved in plotting the 9/11 terrorist attacks and deserving of the death penalty.

Critics are already chiding the federal court judge for granting Slahi's petition for habeas corpus and using it to argue the merits of military commissions rather than civilian trials for suspected terrorists.

But the government had already tried and failed to prosecute Slahi in a military commission for what's likely the same reason Judge Robinson ordered him freed: Slahi was tortured in US custody.

US District Judge James Robinson's order was filed under seal and an unclassified version is not yet available. But Slahi's lawyers argued to the court that his torture tainted his confession. The judge appears to have determined that any other evidence against him was equally unreliable or insufficient.

Lt. Col. Stuart Couch, the military commission prosecutor assigned to Slahi's case, came to exactly that conclusion six years ago. Reviewing the classified evidence in the case, Couch concluded that Slahi, who turned himself in for questioning in Mauritania before being transferred to Jordan, Afghanistan and finally Guantanamo Bay, had been mentally and physically tortured in order to induce a confession. In addition to threatening Slahi's life, Couch said in an interview last year, US interrogators threatened to bring his mother to the Guantanamo Bay prison camp, where, they implied, she would be gang-raped. To Couch, "that was just over the top. For lack of a better term, that's just un-American."

Couch resigned from the case in protest.

Setting aside any moral concerns about treating a suspect this way, the problem with confessions elicited by torture is that, as top interrogators and intelligence officials have concluded repeatedly, they're simply unreliable.

David Boren, the former Senator from Oklahoma, has said that after receiving a classified briefing from CIA director Michael Hayden on the agency's "enhanced" tactics, "I left the briefing by General Hayden completely unconvinced that the use of torture is an effective means of interrogation...Those who are being tortured will say anything."

As Lt. Col. Couch, Slahi's would-be prosecutor, said in an interview last year: "If these techniques are being used to get evidence here at Guantanamo, then we have a problem with the evidence in some of our cases."

That problem has now come to a head. More than 180 detainees remain imprisoned at Guantanamo Bay without charge, many after having been incarcerated for more than seven years. In 34 of 45 cases, independent federal judges, some of whom were appointed by President George W. Bush, have determined that the government lacks sufficient evidence to justify continuing to imprison the men. At least one other military commission case — the case of Mohammed al-Qatani - had to be dropped altogether because the suspect had been tortured. In another case, the suspect's statements were all suppressed for the same reason. His petition for release was granted.

Some will argue that these judicial rulings, by both civilian and military judges, are the reason the United States needs to pass a new law authorizing indefinite detention of terrorist suspects without charge or trial.

Couch would disagree. What he learned from the Slahi case, he says, is that "we cannot compromise our respect for the dignity of every human being...It's a slippery slope if in the name of national security we decide to compromise that."

"If we compromise that," he continued, "then Al Qaeda has been able to effect much more of an impact on this country than it has by driving a couple of airplanes into the World Trade Center or by crashing one into the Pentagon. Because they've torn at the very fabric of who we are as Americans."


Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.



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