“Next Generation” Strategies

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“Next Generation” StrategiesChallenging Abuse in Transnational Counterterrorism PracticesConference Notes: Recent Developments in Counterterrorism Practices,Litigation & AdvocacyTo set up the advanced discussions intended for the October 1‐2 meeting, these notes describe recentdevelopments in several countries regarding counterterrorism practices, litigation and advocacy. The notesconsist of summaries and excerpts of documents: litigation filings, advocacy letters, legal analyses anddocumentary reports. A background paper on recent developments in U.S. litigation prepared by the HumanRights Institute is also included.The summaries and excerpts provide a quick orientation to the specific issues and cases our presenters willdiscuss at the meeting, while the full documents are available online as a resource for further study.The summaries and excerpts are organized by session, in the same order we expect the meeting’s shortpresentations to occur.List of Summarized and Excerpted MaterialsConference Notes: Recent Developments in Counterterrorism Practices, Litigation & AdvocacySESSION 1: COMPARING APPROACHES TO SHARED CHALLENGES1.“Human Rights Litigation and the ‘War on Terror’”Canada: Developments on TransferCase study: Maher Arar – Accountability Developments2. “Arar working with RCMP as it probes his overseas torture”3. Additional Readings on Arar AccountabilityCase study: Accountability for Torture in Afghan Detainee Transfers4. Remarks of Alex Neve, AI Canada at Special Forum on the Canadian Mission in Afghanistan5. Complaint to Military Police Complaints Commission6. “Standard of Conduct” (Written submissions in “Matter of a public interest hearing before the MilitaryPolice Complaints Commission”)Additional Readings on Canadian Developments7. Abdelrazik v. CanadaUnited Kingdom: Commission of Inquiry on Torture and Related Litigation8. Letter: “Inquiry into alleged UK involvement in the mistreatment of detainees held abroad,”9. “The Case of Binyam Mohamed”10. Al Rawi & Ors v the Security Service & OrsSESSION 2: ACCOUNTABILITY LITIGATION OUTSIDE THE UNITED STATESEurope: Inquiries into Complicity, Rendition and Secret Detention11. “CIA 'Extraordinary Rendition' Flights, Torture and Accountability – A European Approach”1

12. “CIA Secret Detention Places in Poland – Current Legal Developments”13. “Poles urged to probe CIA prison acts”European Court of Human Rights: Barriers to Litigation and Recent Cases14. Written Comments, Jones v. United Kingdom Mitchell & Ors. V. UK15. Application: El‐Masri v.MacedoniaSESSION 3: ROUNDTABLE DISCUSSION – CHALLENGES IN THE U.S.:LITIGATION BARRIERS, EMERGING ISSUES AND NEW STRATEGIESOverview16. HRI Background Paper17. “Establishing a New Normal: National Security, Civil Liberties and Human Rights Under the ObamaAdministration”Executive Detention18. “Tackling Prisons Beyond the Law: Guantánamo Revisited”19. “Habeas Works: Federal Courts’ Proven Capacity to Handle Guantanamo Cases”20. “A Trial Within A Trial: Justice, Guantanamo‐Style”Accountability for Torture21. “Counter‐Counter‐Terrorism Via Lawsuit: The Bivens Impasse”22. “‘Rendition’ challenge scuttled”Emerging Litigation Issues23. “Final Report: Guantanamo Review Task Force”24. “U.S. Debates Response to Targeted Killing Lawsuit”25. “CUNY CLEAR – Creating Law Enforcement Accountability & Responsibility”SESSION 4A: CHALLENGING U.S. DETENTION & TRANSFER DECISIONS THROUGH TRANSNATIONAL LITIGATION & ADVOCACYCanada and the U.S.: Omar Khadr26. “Comment: Canada (Prime Minister) v. Khadr, 2010 SCC 3”27. “Are Declaratory Orders Appropriate for Continuing Human Rights Violations? The Case of Khadr vCanada”28. Additional Readings on KhadrAfghanistan and the U.S. : U.S. v. Jawad29. US v. Jawad press releaseSESSION 4B: CHALLENGING INTER‐STATE COOPERATION:DETENTION BY PROXY, RENDITIONS AND DRONE KILLINGS IN PAKISTANYemen: Sharif Mobley Case30. “The post‐9/11 life of an American charged with murder”31. “Re: FOIA/Privacy Act Request of Sharif Mobley”East Africa: Secret Detention and Renditions32. “Blindfolded, Handcuffed and Carted Off: An Appraisal of Unlawful Transfers as a Response to SecurityThreats in Africa”33. Additional Reading: “Kenya and Counter‐terrorism: A Time for Change”Pakistan: Drone Killings and Secret DetentionDrone Killings34. “Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004‐2009”35. Study on Targeted Killings, Report of the Special Rapporteur on extrajudicial, summary or arbitraryexecutionsSecret Detention and Torture in Pakistan36. UN Joint Study on Global Practices in Relation to Secret Detention in the Context of CounteringTerrorism37. “Cruel Brittania: British Complicity in the Torture and Ill‐treatment of Terror Suspects in Pakistan”2

Session One: Comparing Approaches to Shared Challenges1. “Human Rights Litigation and the ‘War on Terror’”Helen Duffy, International Review of the Red Cross, 90:871 (September 2008)Journal Article: Duffy (Interights) assesses the willingness of the judiciary, across diverse systems, toquestion counterterrorism measures. She describes the positive effects of human rights litigation, including:framing the issues as a matter of law, not only politics; serving as a catalyst to change law or practice;securing access to information in the face of a wall of state secrecy; and impacting practice transnationally.In the full article, Duffy traces recent litigation across countries on issues including arbitrary detention; theexterritorial application of human rights obligations; torture; renditions; and terrorism “lists.”Canada: Developments on TransferCase study: Maher Arar – Accountability Developments2. “Arar working with RCMP as it probes his overseas torture”Colin Freeze and Steven Chase, Globe and Mail (June 2010)Media account: The article describes an investigation by Canada’s federal police into the rendition ofCanadian national Maher Arar to Syria. While long believed to be complicit in Arar’s rendition, the RCMP isnow gathering evidence in support of a possible prosecution of Syrian officials.3. Additional Readings on Arar AccountabilityReview of the Findings and Recommendations Arising from the Iacobucci and O’Connor Inquiries,” Report ofthe Standing Committee on Public Safety and National Security (June 2009)Case study: Accountability for Torture in Afghan Detainee Transfers4. Remarks of Alex Neve, AI Canada at Special Forum on the Canadian Mission in AfghanistanOsgoode Hall Law School, York University (February 2010)Speech: Alex Neve (Amnesty International Canada) describes the human rights community’s evolvingresponse to revelations, beginning in 2002, that prisoners captured by Canadian forces’ in Afghanistan weretortured at the hands of U.S. personnel and the Afghan National Directorate of Security (NDS). He chartslitigation efforts, political developments in Canada and changes in detainee transfer policy. Finally, hedescribes the Afghan transfer cases in the context of a “much wider erosion” of the effectiveness ofinternational human rights and humanitarian law.5. Complaint to Military Police Complaints CommissionPaul Champ (June 2008)Filing: This update to a complaint to Canada’s military police complaints commission challenges the militarypolice’s failure to investigate possible crimes committed by senior Canadian officers who ordered thetransfer of detainees to the custody of the Afghan secret police despite first‐hand reports that previousdetainees were tortured.3

6.“Standard of Conduct” (Written submissions in “Matter of a public interest hearing before theMilitary Police Complaints Commission”)Amnesty International and British Columbia Civil Liberties Association (March 2010)Filing: The brief applies international legal standards on the duty to investigate potential crimes andbreaches of international law to military police charged with investigating Afghan detainee transfer abuses.Additional Readings on Canadian Developments7. Abdelrazik v. CanadaMinister of Foreign Affairs (June 2009)A Canadian federal court permitted an application for judicial review of the Canadian government’s conductallegedly thwarting a Canadian national’s return to Canada. In 2003, Abdelrazik was detained and allegedlytortured by Sudanese officials based on the recommendation, “directly or indirectly,” of Canadianintelligence. After being released, he was put on a terrorist list and refused a passport or travel document.United Kingdom: Commission of Inquiry on Torture and Related Litigation8. Letter: “Inquiry into alleged UK involvement in the mistreatment of detainees held abroad,”AIRE Centre, Amnesty International, et al. (September 2010)Open letter to government official: Addressing the head of the newly announced UK commission of inquiryinto torture, leading UK human rights organizations describe basic human standards with which the inquiryshould comply. The letter recommends particular terms of reference and measures to ensure that theinquiry provides “effective redress” for victims.9. “The Case of Binyam Mohamed”Rachel Fleetwood, Interights Bulletin 16:1 (November 2010)Legal Article: The article provides an overview of legal proceedings in the UK concerning Binyam Mohamed,a British national returned to the UK in February 2009 after having spent almost seven years in custody inPakistan, Morocco and Guantanamo Bay. UK lawyers claimed that British intelligence sources had beeninvolved in Mohamed’s extraordinary rendition, and sought release of documents from the UK government,i.e., statements which were used as a basis for the charges against him in the U.S. The UK governmentclaimed that releasing the information would risk UK security and the UK’s relationship with the U.S, and theUK Secretary of State claimed “public interest immunity” to prevent their release. Early judgments orderingthe government to disclose information were redacted; ultimately, in the face of significant governmentopposition, the redacted paragraphs were made public.10. Al Rawi & Ors v the Security Service & OrsEngland and Wales Court of Appeal [2010] EWCA Civ 482 (May 2010)Six former Guantanamo detainees brought claims for a range of civil wrongs, including torture, falseimprisonment and misfeasance in public office. The government asked the lower court to conduct closedproceedings, claiming that hearing the case in open court would require it to vet more than 250,000documents, which would cost millions of pounds and take up to 10 years. The lower court found it had4

authority to order a “closed material procedure” in the absence of statutory authority; the Court of Appealreversed.Session Two: Accountability Litigation Outside the United StatesEurope: Inquiries into Complicity, Rendition and Secret Detention11. “CIA 'Extraordinary Rendition' Flights, Torture and Accountability – A European Approach”European Center for Constitutional and Human Rights (June 2009)Report: The report describes freedom of information law‐based work in four Eastern European countries:Albania, Macedonia, Poland and Romania. In Albania and Macedonia, freedom of information requests werefiled regarding the detention, interrogation and rendition of Khaled El‐Masri. Requests in Poland focused onthe use of Polish airspace for transfers and the existence of secret detention facilities. Romanian authoritieshave declined public information requests about the use of Romanian airspace and the existence of secretfacilities there, claiming it would be against public interest. The full report provides a comprehensiveoverview of pending criminal cases and Freedom of Information requests concerning renditions and secretdetention sites in Europe.12. “CIA Secret Detention Places in Poland – Current Legal Developments”Adam Bodnar, Interights Bulletin 16:1 (November 2010)Legal article: Bodnar (Helsinki Foundation) describes the Polish government’s “strategy of denial” regardingcooperation with the CIA, secret flights over the territory of Poland and the existence of CIA secretdetention sites. The Polish government has refused to cooperate with European Union and Council ofEurope investigations. However, Poland’s Prosecutor General is currently investigating whether publicofficials committed a crime of abuse of power by allowing part of Polish territory to be under the control ofa foreign state. Through Freedom of Information requests, the Helsinki Foundation has confirmed theexistence of CIA flights in Polish territory; however, many agencies have refused to answer the requests,citing national security arguments. Bodnar also notes the possibility of holding the highest public officialslegally responsible before Poland’s “Tribunal of State.”13. “Poles urged to probe CIA prison acts”Associated Press (September 2010)Media account: The article describes a recently filed petition—which lawyers have not made public yet—requesting that the Appellate Prosecutor in Warsaw investigate and prosecute the people responsible forGuantanamo prisoner Abd al‐Rahim al‐Nashiri’s transfer, detention, and torture on Polish soil. Al‐Nashiri isthe first victim of the CIA’s rendition program to pursue legal remedies in Poland. Polish prosecutors arereportedly considering war crimes charges against former President Aleksander Kwasniewski and two otherofficials in connection with the CIA prison site.European Court of Human Rights: Barriers to Litigation and Recent Cases14. Written Comments, Jones v. United Kingdom Mitchell & Ors. V. UKRedress, Amnesty International, Interights and Justice, App. No. 34356/06; App. No. 40528/06 (February2010)5

Intervenor Brief, European Court of Human Rights: Alleged victims of torture brought a denial of access tojustice claim under Article 6 of the European Convention on Human Rights after their attempts to sue aforeign state and its officials were blocked at the domestic level (UK courts) on immunity grounds. Theintervenor brief argues that neither state nor subject matter immunity justified interference with thevictims’ right to a fair trial, in light of, inter alia, the special status of the prohibition of torture ininternational law (Part A) and the disproportionate impact of immunity on the victims’ ability to obtainredress (Part D).15. Application: El‐Masri v.MacedoniaOpen Society Justice Initiative, Application No. 39630/09, European Court of Human Rights (September2009)Filing: In an application to the European Court of Human Rights, the applicant claims that Macedoniaviolated Article 3 of the European Convention on Human Rights when it illegally detained and transferredKhaled El‐Masri to Afghanistan, where we was subjected to ill‐treatment. The application notes that theMacedonian government has publicly maintained “a total denial” of complicity in El‐Masri’s abuse, “whilestating in private that the incident was a favour to the Americans.”Session 3: Roundtable Discussion – Challenges in the U.S.: LitigationBarriers, Emerging Issues and New StrategiesOverview16. HRI Background PaperHuman Rights Institute (September 2010)Briefing Paper: To help participants prepare for the roundtable discussion on October 1, this paper providesa broad overview of recent developments in U.S. litigation challenging post‐9/11 civil liberties violations andoutlines some emerging issues that may be litigated in the coming months.17. “Establishing a New Normal: National Security, Civil Liberties and Human Rights Under theObama Administration”American Civil Liberties Union (July 2010)Public Report: The ACLU reviews the Obama Administration’s record on major issues related to civil libertiesand national security, including transparency, torture and accountability, detention and the use of lethalforce against civilians. At best, the ACLU concludes, the Administration’s record on these issues has beenmixed; at worse, the ACLU suggests that “there is a very real danger that the Obama administration willenshrine permanently within the law policies and practices that were widely considered extreme andunlawful during the Bush administration.”Executive Detention18. “Tackling Prisons Beyond the Law: Guantánamo Revisited”Jonathan Hafetz, excerpted from [TITLE] (forthcoming in 2011) (not to be reproduced without thepermission of the publisher)6

Book: In this excerpt from his forthcoming book, Hafetz provides a comprehensive analysis of the major U.S.detention cases decided since 2006 and assesses the impact of these cases on the government’s detentionpolicy. He concludes that although habeas corpus provides a vehicle for the courts to address fundamentallegal questions in individual detention cases, the scope of habeas review and its impact on detention policyis potentially quite limited.19. “Habeas Works: Federal Courts’ Proven Capacity to Handle Guantanamo Cases”Human Rights First and the Constitution Project (June 2010)Report: In a report endorsed by numerous formal federal judges, Human Rights First and the ConstitutionProject review the D.C. federal courts’ jurisprudence following Boumediene. They conclude that the courtsare steadily developing a “coherent and rational jurisprudence” on habeas corpus, and there is therefore noneed for Congress to intervene to establish a new legal standard for executive detention or to prescribe newprocedural rules to govern litigation of habeas cases.20. “A Trial Within A Trial: Justice, Guantanamo‐Style”Andrea Prasow, JURIST‐Forum (August 2010)Op‐Ed: Andrea Prasow reports on the military commission proceedings for Ibrahim Al Qosi, a Sudanese manwho pled guilty to the crime of providing material support for terrorism and thus became the first personthat the Obama Administration has successfully prosecuted in a military commission. While the jury publiclysentenced Al Qosi to 14 years in prison, the judge, counsel, defendant and Convening Authority had alreadyagreed on what sentence the defendant would actually serve, and further agreed that this actual sentencewould not be revealed to the jury or to the public. Prasow suggests that by negotiating this secret deal, theplayers in Al Qosi’s case created “their own mini‐justice system” to replace the broken system of the militarycommissions.Accountability for Torture21. “Counter‐Counter‐Terrorism Via Lawsuit: The Bivens Impasse”George D. Brown, Research Paper No. 176, Boston College Law School Legal Studies Research PaperSeries (September 2009)Journal Article: Brown reviews the procedural obstacles confronted by victims of the “war on terror” whoseek to bring lawsuits in the U.S. courts based on the Bivens doctrine, which permits damages actions forconstitutional torts committed by federal officials. He argues that the application of the Bivens doctrinepresents an impasse in cases concerning the war on terror because courts may not feel competentdetermining the appropriate balance between individual liberty and national security. In the excerpt, Brownconsiders the types of fact patterns likely to be found in war on terror Bivens suits, the serious hurdles thatsuch suits face in moving forward, and the initial matter in which the lower courts are handling these cases.22. “‘Rendition’ challenge scuttled”Lyle Denniston, SCOTUSblog (September 2010)Legal Article: This article discusses the recent ruling by the U.S. Court of Appeals for the Ninth Circuit inMohammed, et al., v. Jeppesen Dataplan, Inc., in which the court invoked the “state secrets” doctrine todismiss a lawsuit filed on behalf of five victims of extraordinary rendition.7

Emerging Litigation Issues23. “Final Report: Guantanamo Review Task Force”Department of Justice, et al. (Jan. 22, 2010)Government Report: This report summarizes the findings of an interagency government task forceappointed to evaluate each of the 240 individuals detained at Guantanamo at the time President Obamatook office in January 2009. In the report, which was made public in May 2010, the task force recommendstransferring 126 detainees home or to a third country, prosecuting 36 for crimes and holding 48 withouttrial under t

Albania, Macedonia, Poland and Romania. In Albania and Macedonia, freedom of information requests were filed regarding the detention, interrogation and rendition of Khaled El‐Masri. Requests in Poland focused on the use of Polish airspace for transfers and the existence of secret detention facilities.

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