[Editor’s note: for an analysis of the policy issues raised by this news, see Luke Hartig’s post “Reported Emirati Abuse of Detainees and the Perils of U.S. Partnerships.”]
There is a lot to say about Maggie Michael and Maad al-Zikry’s deeply disturbing Associated Press story out early this morning—that the United Arab Emirates (UAE) has operated (and may still be operating) a number of different secret terrorism detention centers in Yemen; and that there is evidence that dozens of individuals suspected of being al Qaeda (and/or AQAP) members were tortured and subjected to other abuses by UAE agents at those facilities. And most relevant here, the AP reports that the United States has played at least some role in these cases—which may include feeding questions to (and perhaps even observing) some of the interrogations; receiving intelligence from those interrogations; and even conducting subsequent interrogations of some of the same detainees by US forces themselves inside UAE detention centers. According to the AP, the Pentagon’s response has been to acknowledge the interrogations, to deny that any US personnel were directly involved in committing any of the alleged abuses; and, apparently, to otherwise wash its hands of responsibility for the actions of the UAE—even if those actions softened up the detainees for American interrogators and produced intelligence information shared with (and utilized by) the US intelligence community. (Never mind how troubling such an apparent “not our problem” response to this story is as a matter of policy, ethics, or, you know, basic human decency.)
There’s no possible way to cover all of the important legal, policy, and political implications of the claims in the AP story in a single piece. Instead, my analysis starts by asking—and trying to answer—three questions:
- Do any of the allegations in the AP story suggest a violation by US forces of US domestic or international law?
- Would the detainees have any remedy available to them under US law?
- What options would the US government have if it seeks to assert jurisdiction over any of these detainees, going forward?
I. US Law
At their core, the claims in the AP story suggest that the detainees may have been subject to a form of “proxy detention,” pursuant to which one country (presumably with less of a commitment to the rule of law) detains individuals at least in part at the request (and potentially behest) of another, for whom such detention would be more legally and/or politically fraught. Of course, not all proxy detention is equal; in some cases, the proxy is only acting at the request of the other country. In others, as may well be the case here, the putative proxy (UAE) is detaining and/or interrogating individuals it would have detained in any event, but is also allowing agents of a foreign sovereign (for example, US interrogators) to participate in the interrogations in some manner, or to at least receive downstream intelligence benefits from the interrogations after the fact.
The key for present purposes is that US law has vanishingly little to say about the legality of proxy detention itself, especially where the situation involves non-citizens lacking substantial voluntary connections to US territory (and, as a result, lacking most constitutional rights). There’s at least the theoretical specter that a detainee currently in US custody who faces transfer to proxy detention might be able to object to the transfer, but that does not appear to be the issue here (though it conceivably might be an issue were the US ever to be involved in a capture operation and turn over detainees to UAE forces).
Even the most robust statutory anti-torture protection out there—the McCain-Feinstein Amendment to the FY2016 National Defense Authorization Act—applies, as relevant here, only to detainees “in the custody or under the effective control of an officer, employee, or other agent of the United States government” at the time of the interrogation. So unless the United States was in “effective control” of the proxy detention as it was happening (including if, for example, the interrogations took place on US vessels in international waters), or unless the interrogations could properly be understood as a “joint venture” between the United States and the UAE (a difficult sell, at least based on the most closely on-point case law), it’s not clear that torture by a US proxy would violate US domestic law. Of course, anything the detainees say under torture will likely be inadmissible in a US court (even in prosecutions against others), as would anything they say in subsequent interrogations by the United States.
But barring conduct by the United States itself that truly “shocks the conscience,” the fact that defendants in a US criminal trial were previously tortured by a foreign government absent some contemporaneous involvement by the United States is not likely to bar the United States from actually trying them. (All of this analysis necessarily changes in a hurry if, in fact, the United States was more directly involved in the underlying interrogations, at which point an array of statutes like the Anti-Torture Act, and President Obama’s not-yet-repealed Executive Order 13,491—on “ensuring lawful interrogations”—come into play.)
Contrast that, for example, with international human rights law. In a 2009 Report, Martin Scheinin, the UN Special Rapporteur on Human Rights and Countering Terrorism, suggested that it would violate human rights law not only to be directly complicit in torture by a proxy, but also to knowingly “tak[e] advantage of the coercive environment.” In his words, “States that receive information obtained through torture or inhuman and degrading treatment are complicit in the commission of internationally wrongful acts.” That is to say, the United States could well be violating its obligations under international law (including treaties we have not only ratified but incorporated into domestic law) by encouraging, or even subsequently benefiting from, torture or other forms of cruel, inhuman or degrading treatment (CIDT) by a proxy.
What’s more, Juan Méndez, the UN Special Rapporteur on Torture, has suggested that such an obligation springs not only from Article 16 of the Torture Convention (which the United States has ratified), but from the customary international law obligation not to recognize as lawful serious breaches of international human rights law reflected in Article 41 of the Articles on State Responsibility. (And that particular provision applies regardless of whether it can be established that the US had any desire for the torture to take place.) Mendez was also clear that the State receiving information obtained through torture carried out by foreign agents would be complicit in this extreme violation if it knew or “ought to have known” there was a real risk of torture taking place. Plus for a state with a record of systematic torture—like the UAE—there is even more reason for the United States to have known, and, accordingly, a lower legal threshold to establish this form of liability.
Given the nature of the context (the non-international armed conflict in Yemen), there are also the constraints imposed by Common Article 3 of the Geneva Conventions, which strictly forbids “outrages upon personal dignity, in particular, humiliating and degrading treatment.” It is easy to see why the theory for complicity in torture under human rights law would apply to complicity in torture under the laws of war. And whereas the United States takes the controversial position that the Torture Convention does not fully apply extraterritorially, it has never so argued with respect to Common Article 3. Thus, depending upon the type and nature of US involvement in these detentions and interrogations, it is also at least outwardly possible that US officials could be criminally liable for aiding and abetting the war crime of torture under 18 U.S.C. § 2441 (although this assumes that the Justice Department would have any interest in pursuing such prosecutions; I’m not holding my breath).
Finally, and perhaps furthest into the weeds, there’s also the “Leahy Law,” which prohibits the State and Defense Departments from providing military assistance to foreign military units if the relevant Secretary “has credible information that the unit has committed a gross violation of human rights.” That substantive standard seems easily satisfied here, including to armed groups under the effective control of the UAE, which raises questions about the extent to which the State and/or Defense Departments have been providing assistance to the UAE military triggering the Leahy Law, and whether, as a result of these developments, that assistance has been cut off (and appropriate notifications have been made). I suspect Senator Leahy will have something to say on this score.
In sum, and to make a long story short, if the claims at the heart of the AP story are true, then the United States may well have violated (and may still be violating) international human rights law and the laws of war. As for whether it also violated domestic law in the process, that all depends on the exact degree of control the United States exercised (and continues to exercise) over the detainees, especially while they were/are being abused by UAE interrogators.
II. US Legal Remedies?
Assuming that the United States has exercised “effective control” over the detainees, or at least is exercising such control today, the question then becomes whether US law provides the detainees with any remedy for either (a) their prior mistreatment or (b) their ongoing detention. Taking these in reverse order, US courts would have jurisdiction over the detainees’ ongoing detention only if they are in the “custody” of the United States sufficient to satisfy the federal habeas statute, 28 U.S.C. § 2241.
What may be less clear at first blush is that US courts treat “custody” in this context somewhat capaciously, to include situations in which detainees are formally in the custody of some other jailer, but are in the “constructive custody” of the United States. Here’s how Judge Bates summarized the issue in the Abu Ali case back in 2004:
given the accepted breadth of the habeas statute, the imperative to construe the “in custody” requirement expansively in favor of the petitioner and without regard for formalisms, the absence of any language in the text that carves out an exception where the physical custodian is a foreign body, the many circumstances in which habeas jurisdiction has been found where the individual was not in the immediate possession of the respondent, and the decisions in which habeas jurisdiction was found when the executive or some other government official was working through the intermediary of a State, a private individual or a private corporation, the Court cannot find any basis in the habeas statute for denying jurisdiction merely because the executive is allegedly working through the intermediary of a foreign ally.
So as long as they could find a proper next friend (e.g., family member) to file on their behalf, it appears that the habeas statute would support jurisdiction, at least at the motion-to-dismiss stage, over a habeas petition alleging that a detainee is in the constructive custody of the United States (which may well require a similar showing as that necessary to establish a “joint venture,” as discussed above). And as the Supreme Court made clear in the Munaf case, if the detainees are in the actual custody of the United States, then any statutory jurisdictional objection by the government necessarily disappears.
Of course, there is still the pesky matter of the habeas-stripping provision of the Military Commissions Act of 2006 (MCA), still codified at 28 U.S.C. § 2241(e)(1). The Supreme Court in Boumediene held that provision unconstitutional in violation of the Suspension Clause only as applied to Guantánamo detainees; whether the Suspension Clause also protects non-citizen detainees on U.S. vessels in international waters (for example) is, today, an open question. But it may not matter; as I’ve written elsewhere, the D.C. Circuit, at least, has interpreted Boumediene to restore habeas jurisdiction to its pre-2005 status quo in full—meaning that, under the current law of the D.C. Circuit, a district court has jurisdiction so long as the habeas statute is satisfied, and notwithstanding § 2241(e)(1). If that’s correct, then a detainee in either actual or effective U.S. custody should theoretically be able to invoke the jurisdiction of the D.C. district court, at least if a next friend is able to file on his behalf.
As for any prior mistreatment, I’ve written before about how difficult it’s been for plaintiffs to obtain damages arising out of US counterterrorism policies, especially torture or other forms of CIDT. Among other obstacles, there’s the difficulty of getting courts to recognize a Bivens cause of action (all the more so after Monday’s Supreme Court ruling in Abbasi); the MCA’s other jurisdiction-stripping provision (which covers “any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination”); and qualified immunity, just to name a few. So even if the US government, or agents thereof, might have violated some statutory or constitutional constraint in these cases, damages as a result are likely to be illusory.
Civil litigation against the UAE or Yemen (or, at least, relevant officials thereof) might have a theoretically greater prospect of success. The Torture Victim Protection Act (TVPA) allows suit against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture.” But even though the Supreme Court held in Samantar v. Yousuf that TVPA suits against foreign government officials do not implicate foreign sovereign immunity, the D.C. Circuit has since held that defendants who are current government officials may still enjoy common-law immunities (especially when the US government makes a “suggestion of immunity). And, in any event, there’s the difficult matter of obtaining personal jurisdiction over foreign defendants who never set foot on US soil. (Claims under the Alien Tort Statute against foreign defendants for human rights violations on foreign soil are likely foreclosed by Kiobel.)
Thus, unless the US involvement in these cases was more active than initially appears from the AP story, or the US asserts some authority over these detainees going forward, there may be very little role for US courts to play—even if the United States was complicit in egregious and appalling human rights abuses by UAE officials, and even if the United States violated (and/or is continuing to violate) its own obligations under international law.
III. Now What?
That leaves the forward-looking question—now what happens? It appears from the AP’s reporting that at least some of the detainees are of continuing value to the United States, such that the US government may continue to play a role in their detentions/interrogations, and perhaps even seek to have some detainees transferred stateside (or, possibly, to Guantánamo). If the detainees were indeed tortured while in UAE custody, that will significantly complicate any effort to prosecute them in a US civilian court, since not only will statements elicited during those interrogations not be admissible, but it’s quite possible that subsequent evidence will also have to be excluded because of the taint of the original torture. (A criminal prosecution might also put the US government in the position of having to turn over more information about its involvement in the UAE interrogations than it would care to.)
That leaves either the status quo or military detention, whether at Guantánamo or elsewhere. Neither should be especially attractive as a policy matter; allowing these detainees to continue to languish in UAE detention sites in Yemen with full knowledge (if not affirmative exploitation) of their circumstances reflects very badly, to say the least, on the United States’ own reputation in the international community. Moving them to Guantánamo may fulfill a campaign promise, but opens the door to habeas litigation that could also raise thorny legal and factual questions about US involvement.
* * *
Needless to say, there’s more to be said about all of the above. And just to say overtly what should already be implicit: it’s more than a little callous for the United States to insinuate through its actions that it has no problem with torture of terrorism suspects by other countries, just so long as we can deny direct responsibility while still receiving any intelligence benefit. But it’s not yet clear whether that position will actually lead to legal liability for the US government or those US officials involved in this scandal. That doesn’t mean that the reported US role in this scandal was lawful (in many ways, it likely wasn’t), or that it doesn’t warrant moral, ethical, and political condemnation (it does). It just means that, before fully assessing the potential legal consequences, we will need to know much, much more about this disturbing and alarming story. Here’s hoping there are enough members of Congress who are as bothered by this story even half as much as I am…
[This analysis was first published on June 22, 2017 at 1:41 AM (ET)]
Image: BravissimoS / Getty