The Honorable Loretta Lynch Attorney General U.S. Department of Justice 950 Pennsylvania Avenue Washington, DC 20530 June 20, 2016 Re: Actions to Support Survivors and Victims of Torture Dear Attorney General Lynch, June 26 is International Day in Support of Victims of Torture. On this date the world marks the 29 th anniversary of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) entering into force. We urge you to use this opportunity to publicly commit to all necessary steps to ensure that the US government meets its international obligations under UNCAT and other international instruments in relation to accountability for the enforced disappearances, torture and other human rights violations that occurred in the former CIA detention and interrogation program. In particular, we continue to urge you to reopen and expand investigations into the CIA detention and interrogation program. Moreover, we urge you to direct the declassification and disclosure of information about the Justice Department s reviews and investigations to date. The CIA s recent declassification of more than 800 pages of documents regarding its detention and interrogation program underscores the urgency of our request. These documents add to evidence that torture and other forms of cruel, inhuman or degrading treatment were standard operating procedure, ordered by senior officials at times, even over the objections of those who carried out the abuse. As former special counsel to the prosecutor for the International Criminal Tribunal for Rwanda, you know first-hand the importance of truth and accountability for human rights violations. Last December, you spoke about using the law to respond to situations of man s inhumanity to man. We find a way to say this is not who
we are and we find a way to try and give justice to victims, you said. i [W]e turn to the law because it is the instrument through which we can forge justice: fairly, impartially and transparently, even in the face of horrific crimes, you said on another occasion. It is how we honor the memories of the fallen and assure survivors they are not alone. ii The shattering trauma of torture remains, in widely varying forms and to many different degrees, with all survivors, and with the families of those who did not survive it. Nothing can restore fully what the torturer took from them. But justice, including truth-telling, can contribute to their recovery from torture. That is one reason why we continue to urge the Justice Department to reopen and expand its investigation into the CIA program and to bring to justice those suspected of crimes under international as well as US federal law, including torture. In June 2015, Amnesty International, the ACLU and Human Rights Watch wrote to you requesting the appointment of a special prosecutor. On behalf of these organizations, we delivered a petition signed by more than 110,000 people. iii We received no response to this or previous letters and petitions on the subject. Torture victims, as well as the wider public, have a right to know the truth about what happened and why the process of justice and accountability has not moved forward. iv Under your predecessors, the Justice Department s reviews and investigations into the CIA program all closed without a single charge filed against anyone. Since you became attorney general, human rights organizations and the UN Committee against Torture have raised questions and concerns about the scope of these inquiries and the basis for these decisions. The Justice Department has failed to provide basic information in response. Likewise, while the Justice Department has stated that it reviewed earlier versions of the Senate Select Committee on Intelligence report on the CIA detention and interrogation program, it has never publicly explained why it will not commit to reviewing the full 6,700-page Senate report, provided to it in December 2014, for evidence of federal crimes. v It has provided contradictory answers about its handling of the report. vi 2
Your decision to remain silent on CIA torture is not a neutral one. Just as human dignity suffers at the hands of the torturer, it suffers too in the face of impunity. Lack of accountability also contributes to the risk that torture will recur. Now, public figures are openly advocating torture, including waterboarding. Some are suggesting they would revive torture as an official state policy, and as a form of vengeance. Former officials remain unapologetic for their roles in encouraging, ordering and/or devising the CIA program of detention and interrogation. It is perhaps more important than ever that the Justice Department send the message that torture and enforced disappearance are crimes and that it will always bring those who perpetrate them to justice. In an annex to this letter, we outline a non-exhaustive list of information we urge you to declassify and other steps you can take to help realize this vision: A United States of America that joins the community of nations in truly seeking to strengthen protection of the right to be free from torture and other cruel, inhuman and degrading treatment or punishment. Thank you for your time and consideration. Please do not hesitate to contact us to discuss this request. Sincerely, Margaret Huang Interim Executive Director Amnesty International USA 3
Recommended Actions to Support Victims of Torture Declassify and Disclose Information on Previous Reviews and Investigations We urge you to declassify and disclose information regarding any declinations of prosecution issued by the Justice Department with regard to detainees held in CIA black sites, including Mustafa al-hawsawi; vii the Justice Department s investigation into the destruction of CIA videotapes (closed in 2010); its preliminary review into the cases of 101 detainees held in the CIA program (closed in 2011); and its full investigation into two cases of detainees who died in US custody (closed in 2012), including the following: o Whether the mandate of these inquiries included examining the role of high-level officials in the authorization and implementation of measures related to the treatment of detainees in violation of the international prohibition of enforced disappearance, torture and other cruel, inhuman and degrading treatment; o Whether any former or current detainees in the CIA program were interviewed; o Whether the full investigation into the death of Gul Rahman (closed in 2012) relied on conclusions made by the CIA in its 2003 memorandum, including that Rahman contributed to his own death ; viii o The limitations on the evidence available to [his] team, former US attorney John Durham made reference to in a court declaration filed in connection with a Freedom of Information Act request made by the New York Times, and whether such limitations continue to exist; ix o The specific jurisdictional limits and statutes of limitations concerns that Justice Department officials have referenced as barring prosecution; x and o With regard to the preliminary review, the basis for the determination by Durham that many of the detainees whose cases he reviewed were 4
not held in CIA custody, and that this relieved CIA personnel of responsibility for criminal wrongdoing. xi We also urge you to clarify and provide information about the Justice Department s review and assessment of the full Senate Intelligence Committee report, as well as former officials admissions of involvement in the CIA program through media interviews and memoirs. We urge you to disclose the reasons for not reopening and expanding investigations into federal crimes in light of these developments. Reopen and Expand Investigations Appoint a special prosecutor to conduct a thorough and independent criminal investigation of the CIA program. Expand the scope of investigations, looking into the exact role and involvement of US government personnel and/or those acting on the Government s behalf mentioned in the Senate Select Committee on Intelligence report and in other materials. Inquiries should not be limited to those who directly perpetrated the violations. Individuals in positions of responsibility who knew the content or existence of information that indicated that subordinates were committing violations, yet failed to take reasonable measures to prevent, report or otherwise address it, should also be included, as well as anyone who authorized, was complicit or otherwise participated in the acts, including by knowingly providing assistance. In conducting the investigation, ensure that all necessary testimony is gathered and all relevant all relevant physical evidence is collected and examined. Issue an apology as a matter of urgency and provide compensation and other forms of redress in conformity with the US s international human rights obligations to victims of enforced disappearance, torture and other human rights violations committed in the CIA program, including German national Khalid al-masri, whose case is the subject of a CIA Office of Inspector General s report declassified in June 2016. 5
Reaffirm that Torture is a Crime Make a series of public statements regarding torture before you leave office and in particular, on June 26 and the days and weeks that follow. In these statements, we urge you to emphasize the following: Torture and other cruel, inhuman or degrading treatment or punishment are always unlawful; they must never be considered an option. Torture and other cruel, inhuman or degrading treatment or punishment are unequivocally prohibited by international law. Torture is a crime in all places and all times. Indeed, torturers are considered hostis humani generis enemies of all humanity. Torture and other cruel, inhuman or degrading treatment or punishment can never be justified. It is wrong, self-defeating and poisons the rule of law. As Amnesty International put it in 1973, in its first global review of the use of torture: No act is more a contradiction of our humanity than the deliberate infliction of pain by one human being on another, the deliberate attempt over a period of time to kill a man without his dying. This is a matter of our shared humanity. Torture and other cruel, inhuman or degrading treatment or punishment are an affront to human dignity and justice. The world s governments recognized these fundamental truths when, in the aftermath of the atrocities of the Second World War, they adopted the Universal Declaration of Human Rights in 1948. This enshrined the basic right of all of us, everywhere, to live free from such appalling acts. This right is at the heart of our shared humanity. This matter calls for principled leadership from governments. The USA played an important role in efforts to establish the international legal framework banning torture. No threat can justify torture and other cruel, inhuman or degrading treatment or punishment. There are no circumstances war, threat of war, attacks by armed groups, or national emergency under which such acts can be justified. Every country, including this one, must stand between the torturer and the tortured. That requires holding those responsible accountable. As the 6
International Military Tribunal at Nuremberg stated, [c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. By pursuing cases against torturers, governments forcefully voice their condemnation of such acts and put future perpetrators on notice. All governments that are party to the UN Convention against Torture must exercise universal jurisdiction over the crime of torture. The USA must reckon with its own use of torture and other cruel, inhuman or degrading treatment or punishment. In the name of countering terrorism after the attacks of 11 September 2001, hundreds of people were subjected to torture and other human rights violations, including by or at the behest of US forces. From Abu Ghraib prison in Iraq came images of systematic abuse at the hands of the US personnel images of physical abuse and humiliation that rightly shocked and outraged the world. Countless detainees were subjected to torture or other human rights violations in US custody in Afghanistan. Guantánamo was designed to be a battle lab for interrogation, where detainees were subjected to appalling methods, including sexual humiliation and assault. The USA should fully account and provide proper remedies for its use of torture and other cruel, inhuman or degrading treatment, and never repeat it. i Attorney General Loretta Lynch, Remarks at Muslim Advocates Dinner, 3 December 2015, http://www.c-span.org/video/?401446-1/attorney-general-loretta-lynch-remarks-muslim-advocates. ii Attorney General Loretta Lynch, Remarks at 84 th Interpol General Assembly, 3 November 2015, https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-84th-interpolgeneral-assembly. iii See Letter from Amnesty International, ACLU and Human Rights Watch to Attorney General Loretta Lynch, 23 June 2015, https://www.hrw.org/sites/default/files/related_material/letter-to-ag- Lynch-Special-Prosecutor-Torture.pdf. iv See UN Human Rights Council, res. 9/11 Right to the truth, A/HRC/RES/9/11, 24 September 2008, para. 1 and preamble; see also Human Rights Commission, res. 2005/66 Right to the truth, 7
E/EN.4/RES/2005/66, 20 April 2005 and UN Human Rights Council, Res. 21/7, Right to the truth, UN Doc. A/HRC/21/L.16, 24 September 2012, para. 1 and preamble. v The declassified summary of the Senate report describes actions, including sexual abuses such as rectal rehydration, that were previously not widely known. It also includes evidence suggesting that rather than relying in good faith on legal guidance, CIA officials knew the conduct in question amounted to torture before they ever sought guidance. Letter to US Department of Justice Inspector General from Amnesty International USA, 21 September 2015, https://www.amnestyusa.org/pdfs/oigcomplaintamnestyinternationalusa.pdf. vi See id. vii In June 2016, the CIA declassified a disposition memorandum concerning Mustafa al- Hawsawi. It refers to a Letter of Declination from an assistant US attorney dated December 5, 2006, which advises that they have concluded that there is insufficient evidence to warrant a criminal prosecution in this matter. We request that you declassify the letter of declination; confirm whether the Justice Department s prior letter of declination was a factor in its subsequent decision to close a preliminary inquiry into cases including al-hawsawi s; and disclose whether the 2006 review included evidence that Mustafa al-hawsawi was subject to sodomy through rectal examinations, as reported by the Senate Intelligence Committee. See CIA, Disposition Memorandum, released 13 June 2016, https://www.cia.gov/library/readingroom/docs/0006541723.pdf; Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency s Detention and Interrogation Program, 100 (approved 13 December 2012; declassification revisions 3 December 2014), http://www.intelligence.senate.gov/sites/default/files/press/executivesummary_0.pdf. viii In June 2016, the CIA declassified a memorandum, Death Investigation Gul RAHMAN. An unnamed doctor performed an autopsy concluding that Rahman died due to hypothermia and listed multiple aspects of detention conditions, physical restraints and forced nudity that contributed to Rahman s death. The memo, however, concluded: Gul RAHMAN s actions contributed to his own death. It stated, his violent behavior resulted in his restraint which prevented him from generating body heat by moving around and brought him in direct contact with the concrete floor leading to a loss of bodyheat through conduction. CIA, Death investigation Gul Rahman, released 13 June 2016, https://www.cia.gov/library/readingroom/document/6555318. ix Declaration of John Durham, The New York Times v. U.S. Department of Justice ( Durham Declaration ), 8 December 2014, 1:14-cv-03777-JPO (S.D.N.Y. 2014), para. 13, http://pdfserver.amlaw.com/nlj/durham_declaration_20141209.pdf. 8
x See id.; Department of Justice, Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees, 30 August 2012, https://www.justice.gov/opa/pr/statement-attorney-general-eric-holder-closure-investigationinterrogation-certain-detainees. xi In carrying out his mandate, Mr. Durham examined any possible CIA involvement with the interrogation of 101 detainees who were in United States custody subsequent to the terrorist attacks of September 11, 2001, a number of whom were determined by Mr. Durham to have never been in CIA custody. Department of Justice, Statement of the Attorney General Regarding Investigation into the Interrogation of Certain Detainees, 30 June 2011, http://www.justice.gov/opa/pr/statementattorney-general-regarding-investigation-interrogation-certain-detainees. 9