On this International Day in Support of Victims of Torture, the United States is at a crossroads.
We will know soon if the country is capable of breaking the cycle of impunity for systemic racism in police use of deadly force. As society reimagines the role of police, policymakers should bear in mind that even the most sweeping changes will fail if the torture and murder of Black people are not swiftly followed by credible investigation, appropriate punishment, and redress to victims and their families.
In other words, absent meaningful accountability, we will be back here again. That fundamental truth is at the heart of the national reckoning sparked by George Floyd’s death, set against the backdrop of countless similar killings and generations of more widespread violent oppression of Black communities.
It is also driving a parallel struggle — one evolving more quietly, but persistently — to address a different shameful legacy with which the United States has not sufficiently reckoned: post-9/11 torture.
While these might seem like disparate matters, both deal with systematic abuses of power and disregard for the full humanity and dignity of all persons. Indeed, the United States’ decision to torture Muslim men and boys with no credible evidence that it would produce anything but lasting harm cannot be fully disentangled from a long history of state-sanctioned torture and cruel treatment of indigenous, Black, and Brown communities within the United States and abroad.
Over the past several weeks, as thousands have taken to the streets seeking justice for victims of police violence, the ongoing effort to combat impunity for post-9/11 U.S. torture and to secure remedies for victims resurfaced publicly in ways both encouraging and deeply troubling.
The most visible example came on June 11, in the form of a breathtaking executive order (E.O.). In it, President Trump threatens to sanction International Criminal Court (ICC) officials, their families, and the ICC itself because the Court refused to exclude from a recently approved atrocities investigation credible allegations of torture — by members of both the CIA and U.S. armed forces — at multiple former black site prisons and detention centers on the territory of ICC States Parties, including Afghanistan, Lithuania, Poland and Romania.
Just Security has published a number of excellent analyses of the E.O. and the ways in which it constitutes a serious threat to the independence of the courts and a direct assault on the rule of law. (Available here. Thirty-three independent United Nations human rights experts issued a similar condemnation yesterday.) As these posts explain, making the stunning declaration that the investigation of crimes committed by the U.S. or its allies, such as Israel, constitutes a “national emergency” could impair or ensnare the work of lawyers, investigators, and civil society members — including U.S. citizens — who dare support the investigation, as well as banks or tech companies that provide services to the Court. And it could punish the very victims and survivors of those crimes. That individuals subjected to torture by U.S. actors could now be sanctioned or prosecuted for seeking accountability and redress through ICC proceedings is an astonishing additional example of the United States disregarding its obligations under the Convention against Torture.
Alarming as it is, the E.O. should not overshadow two significant developments that immediately preceded it. Both demonstrate the tenacity of victims and their advocates to pursue justice even in the face of long odds and suggest it is unlikely that the E.O. will curtail victims’ support for ongoing accountability efforts at the ICC.
The first occurred in perhaps the unlikeliest of places: the military commission system operating at the Guantánamo Bay prison. Colonel Douglass Watkins, the judge presiding over Majid Khan’s prosecution there, issued a powerful ruling on Khan’s motion to have his sentence reduced because of the years-long torture to which he alleges the CIA and U.S. military subjected him prior to his trial. (For background, see this post from last May when the motion was filed. Two of us — Scott Roehm and Juan Mendez – submitted an amicus brief in support of Khan’s motion, which is discussed in the May post.)
Khan’s treatment at the CIA’s hands is well documented in the 2014 Senate Intelligence Committee study that has become known as the Torture Report. It included prolonged sleep deprivation, forced nudity, and rape euphemized as “rectal feeding.” Taking those facts as true — a safe assumption for many reasons, including that the CIA’s response to the Torture Report does not dispute any of them, save for claiming that it was medically necessary to “rectally rehydrate” Khan — Watkins found that the government’s conduct “[rose] to the level of torture … and violated the jus cogens universal right to be free of torture under U.S. and international law.”
“The universal prohibition against torture requires that our courts treat it with the utmost attention as a grave violation of national interest, particularly when that torture is committed under the ‘color of official authority’ of the U.S. Government,” the judge continued. “Cruel, inhuman, and outrageous treatment demands a remedy.”
Although he saved for another day deciding by how much he would reduce Khan’s sentence, Watkins’ flat rejection of the government’s argument that he lacked the authority to do so, rooted in an affirmation that “torture is prohibited at all times and in all circumstances without exception,” rang loud. The implications are far-reaching: Khan, of course, is not the only military commission defendant that the government tortured, and all of them share the same right to a remedy.
The second promising development came the week prior to Watkins’ ruling, when the Inter-American Commission on Human Rights (IACHR) published a landmark decision in the case of Djamel Ameziane, one of Khan’s fellow Guantánamo captives before being forcibly transferred to Algeria in 2013. In this first-ever decision by a major regional human rights body regarding violations committed at Guantánamo, the Commission catalogued a host of human rights abuses perpetrated against Ameziane — from prolonged solitary confinement to beatings to inadequate medical care (a problem rampant at Guantánamo to this day). Equally important, among the IACHR’s recommendations to the United States were “mak[ing] adequate material and moral reparation” to Ameziane, “including both economic compensation and measures of satisfaction,” and conducting a prompt criminal investigation into his torture.
When grave human rights violations go unpunished, and victims are not compensated or otherwise adequately helped to heal, wounds fester and metastasize. They do not simply resolve over time. With respect to both state-sanctioned torture and race-based police violence, we are witnessing in real-time — albeit through different manifestations — what a failure of accountability looks like, and how the consequences operate, individually, collectively, and institutionally.
The good news is that it is not too late; it is possible to turn the page on these historic and deep-seated wrongs, to affect lasting change. But to do so requires a commitment at all levels of government and a sustained public movement. We are not there yet. We must keep pushing.
(Editor’s Note: Katherine Gallagher represents Guantánamo detainees Sharqawi Al Hajj and Guled Duran in the ICC’s investigation of U.S. torture and Palestinian victims of persecution in the Situation in Palestine.)
(Editor’s Note: Readers can find Just Security’s full coverage of Executive Order 13928, “Blocking Property of Certain Persons Associated With the International Criminal Court,” here.)