As with any presidential transition, the Biden administration has inherited a host of pending litigation from its predecessor, including cases that involve fundamental human rights violations. In many of them, the Trump administration pursued strategies and advanced arguments that are incompatible with specific commitments Biden made as a candidate, and that otherwise flout longstanding U.S. human rights obligations and policy.

Because these cases are ongoing, the Biden administration has the opportunity, and responsibility, to disavow the Trump administration’s dangerous litigation positions and the ideologies they reflect. Failure to do so will have implications for how this country and the international community perceive the administration’s commitment to upholding basic rights.

In this article we focus on key pending litigation involving people detained at the Guantanamo Bay, Cuba, prison, as well cases involving torture and the application of related human rights and humanitarian law. We identify eight key cases in which the government needs to chart a different path forward if it is to abide by Biden’s recent affirmation that “internationally recognized human rights and fundamental freedoms are each — equally — the entitlement of all,” and his corresponding pledge that his administration would “put universal rights and strengthening democracy at the center of our efforts to meet the challenges of the 21st century.”

United States v. Majid Khan (Guantanamo Military Commissions)

Majid Khan was tortured for three years at Central Intelligence Agency (CIA) black site prisons before being sent to Guantanamo, where he has been imprisoned for the last 14 years. CIA interrogators hung him by his hands from a wooden beam, naked and without food, for three days. Over and over they forcibly submerged him in a bath tub filled with ice and water until he thought he would drown. They raped him by “puree[ing]” his “‘lunch tray’, consisting of hummus, pasta with sauce, nuts, and raisins,” and pumping it into his intestines through a tube they forced into his rectum. For much of 2003, Mr. Khan lived in total darkness.

In 2012, Mr. Khan pled guilty to military commission charges and has cooperated with the government ever since. In May 2019, he filed a motion seeking administrative credit against his eventual sentence for the time periods during which the government tortured him, while in CIA custody and at Guantanamo. (One of us — Scott Roehm – submitted an amicus brief on behalf of the Center for Victims of Torture and several partners in support of Khan’s motion, which is discussed in this post.) Military commission Judge Col. Douglas Watkins granted the motion in part, ruling that he had authority to award administrative credit as a remedy for what amounted to illegal pretrial punishment, but reserved decision until after Mr. Khan’s sentencing hearing (scheduled for May 2021) on the amount by which he would reduce Mr. Khan’s sentence.

“Taken as true,” Judge Watkins correctly reasoned, the government’s “shocking mistreatment” of Mr. Khan would “rise[] 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,” he continued, “particularly when that torture is committed under the ‘color of official authority’ of the U.S. Government.” He also correctly concluded that “[c]ruel, inhuman, and outrageous treatment demands a remedy.”

On December 23, 2020, the Trump administration moved for reconsideration of Judge Watkins’ ruling. Its brief amounts to a sweeping rejection of the scope, force, and effect on the United States of international law generally and the prohibition on torture specifically—beyond even past erroneous positions that the U.S. government has taken.

For example, the Trump administration argued that international law – whether in the form of treaties or custom – is not binding on courts or the executive branch absent implementing legislation or when domestic law addresses the issue in question. The Obama administration had explicitly disavowed that argument before the D.C. Circuit en banc court in Al-Bihani v. Obama, explaining that it “does not properly reflect the state of the law.” The Defense Department’s own Law of War Manual directly refutes this position, too: “Under domestic law, treaties to which the United States is a Party are part of U.S. law,” and “[a] State’s domestic law does not justify that State’s noncompliance with an international obligation as a matter of international law.”

The Trump administration referred to the prohibition on torture as an “emerging” jus cogens norm, falsely suggesting that is has not yet been accepted by the international community as a norm from which no derogation is permitted, and which can be modified only by a subsequent international law norm of equal force. In fact, the prohibition on torture attained jus cogens status long ago. Torture is categorically prohibited by myriad human rights instruments, both universal and regional, and is recognized as a jus cogens norm from sources ranging from U.S. courts to the International Court of Justice, to the Restatement of U.S. foreign relations law to the International Law Commission.

The United States has reiterated that the prohibition on torture is universally, and always, applicable in every periodic report it has submitted to the Committee Against Torture during the 26 years since the U.S. ratified the Convention against Torture, including in its most recent report from 2015:

The United States upholds the bedrock principle that torture and cruel, inhuman, and degrading treatment or punishment are categorically and legally prohibited always and everywhere, violate U.S. and international law, and offend human dignity. Torture is contrary to the founding principles of our country and to the universal values to which we hold ourselves and the international community.

In the pre-Trump era, senior State department officials further clarified in statements to the Committee not only that “the prohibition of torture and cruel treatment is part of our Constitution, and it binds our federal government and all 50 of our states,” but also that it applies at Guantanamo.

The Trump administration’s reconsideration motion also repeatedly describes the CIA torture program using sanitized language that mirrors the false claims underlying the Office of Legal Counsel memos that purported to authorize torture—for example, that the CIA was “gathering intelligence to stop further terrorist attacks and to save lives.”

The Biden administration should immediately withdraw the government’s motion for reconsideration. If Judge Watkins rules on the motion before it does so, the Biden administration should inform the court through an appropriate filing that it does not agree with, and will not rely upon, the arguments made in the Trump administration’s motion, which if allowed to stand as official government positions would have far reaching legal and policy consequences.

Al-Qahtani v. Trump (U.S. District Court for the District of Columbia)

Mohammed al-Qahtani has been held captive at Guantanamo for nearly two decades. He suffered from schizophrenia, moderate-to-severe major depression, and traumatic brain injury even before our government sent him to Guantanamo. Torture that military interrogators inflicted on him there, coupled with Mr. al-Qahtani’s prolonged indefinite detention, have exacerbated these conditions resulting in an additional diagnosis of post-traumatic stress disorder.

The government admits to torturing Mr. al-Qahtani, and does not dispute the nature or severity of his mental illness.

On August 8, 2017, Mr. al-Qahtani filed a motion in federal court requesting a Mixed Medical Commission. Army Regulation 190-8 (“AR 190-8”) – which “implements international law, both customary and codified” – provides for such a commission, which is to be comprised of one U.S. military medical officer and two foreign physicians (appointed by the International Committee of the Red Cross) who are charged with determining whether a detainee is entitled to medical repatriation.

In March 2020, the federal court determined that AR 190-8 applies to Mr. al-Qahtani and granted his motion. Several months later, the court rejected the government’s application for a stay, and the D.C. circuit court of appeals subsequently dismissed the government’s interlocutory appeal of the order.

Under Trump, rather than taking steps to establish the Mixed Medical Commission, the Secretary of the Army issued a stunning memorandum – on the date of Guantanamo’s nineteenth anniversary, no less – providing that AR 190-8 “is not applicable to any [Guantanamo] detainee,” regardless of the nature of his claim and notwithstanding any court order to the contrary (Mr. al-Qahtani’s included). On the basis of the memorandum, the Justice Department moved to reconsider the March 2020 order.

The Trump administration’s attempt to circumvent the judiciary’s authority through a rights-stripping effort with the outgoing Army Secretary a week before Biden’s inauguration would be bad enough in a vacuum. It’s worse under the circumstances: Guantanamo medical personnel cannot treat Mr. al-Qahtani’s debilitating psychological conditions and the government refuses to release him despite its illegal and active role in making his conditions worse through torture. Now, the U.S. government is going to extraordinary lengths to deny this dangerously ill man the chance even to have independent doctors evaluate him.

In its reconsideration motion, the Trump administration raised two “practical concerns,” which are equally abhorrent: First, the administration argued that if Mr. al-Qahtani is granted a Mixed Medical Commission “detainees would leverage their control over their health and medical care and attempt to endanger their own health to claim benefit.” Even putting aside that the only detainees who might “benefit” from a Commission are those whose health has reached a crisis point precisely because of the way our government has mistreated them, imagine how dire a prisoner’s circumstances must be even to present such a far-fetched risk. Second, the government argues that establishing a Mixed Medical Commission for Mr. al-Qahtani could “interfere[] with attempts to bring high-value detainees to justice through military commission prosecutions,” and points to one of the 9/11 defendants having made the same request as Mr. al-Qahtani. Given the government’s own role in creating and pressing the spectacularly broken and unfair military commissions to try defendants it subjected to torture, that argument is shameless.

The Biden administration should rescind the Army Secretary’s January 11 memorandum, withdraw its motion for reconsideration, and immediately repatriate Mr. al-Qahtani to Saudi Arabia, which has confirmed its willingness to accept him. If the administration refuses to do so, it must promptly establish a Mixed Medical Commission to evaluate Mr. al-Qahtani and do the same for any other detainee who requests one consistent with AR 190-8.

Duran v. Trump (U.S. District Court for the District of Columbia)

Guled Duran was captured in March 2004 while transiting through Djibouti on his way to Sudan for surgery to treat a gunshot wound, then turned over to the CIA. Mr. Duran’s interrogators withheld medical care from him to pressure him to cooperate and threatened both Mr. Duran and his family. In September 2006, the CIA transferred him to Guantanamo.

In late 2016, Mr. Duran challenged his detention through a petition for habeas corpus filed in federal court. In a declassified status report, Mr. Duran’s counsel informed the court of their belief that his “is the first and only detainee habeas case litigated since [Boumediene v. Bush] in which the government has relied in its case-in-chief on evidence obtained from a detainee while that individual was subjected to the CIA torture program.” More specifically:

[N]early all of the core evidence that the government presents in support of his detention – and more than half the total number of documents contained in the factual return – consists of intelligence reports from the Central Intelligence Agency (CIA)… Several of these reports contain information that appears to have been obtained from Petitioner prior to his arrival at Guantanamo [REDACTED] in September 2006… In particular, although much of the relevant information is redacted, these exhibits appear largely to include statements made by Petitioner after his initial capture in Djibouti and rendition to secret detention [REDACTED] in March 2004.

Mr. Duran moved for discovery in 2019, including access to the Senate Select Committee on Intelligence’s nearly 7,000-page torture report. The government denied access to the report and is seeking to withhold certain other evidence.

Because the government still continues to keep secret important information about what the CIA did in its torture program, many of the details surrounding the evidentiary issues in Mr. Duran’s case are classified. Some filings are sealed entirely; others are heavily redacted. That is a significant problem in its own right, but the publicly available information is more than enough to cause deep concern.

Under article 15 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the United States government has an obligation never to use information obtained through torture in any judicial or administrative proceeding whatsoever. (There’s a limited exception when the information is used against a person accused of torture or cruel, inhuman, or degrading treatment, or CIDT). Moreover, given what we do know about the CIA torture program, it’s fair to assume that any statement made or evidence obtained from the men subject to the program – Mr. Duran included – is involuntary and coerced.

The Biden administration should immediately conduct a thorough review of Mr. Duran’s case to ensure that no torture or CIDT-derived evidence has been or will be used, and establish unambiguous safeguards against its use in other cases. The administration should also provide Mr. Duran’s counsel immediate access to the full torture report and to any other related exculpatory evidence. The government cannot torture a man, claim authority to hold him indefinitely – including on the basis of information connected to that torture – then refuse to disclose to him the details of the crimes to which it subjected him.

Ali v. Trump (U.S. Supreme Court); Al Hela v Trump (U.S. Court of Appeals for the District of Columbia); and Nasser v. Trump (U.S. District Court for the District of Columbia)

Each of these cases presents substantially the same question, at different procedural stages, for men held at Guantanamo since 2002, 2004, and 2002, respectively: does the Constitution’s due process clause apply at Guantanamo, and to these men held there? Abdul Latif Nasser’s case involves a potential twist on that question, as he has been approved for transfer for four and a half years.

Under the Trump administration, the government’s position in these cases was that Guantanamo detainees have no due process rights at all, notwithstanding almost two decades of indefinite detention. The crux of its argument was that the due process clause “extends only to aliens who are present in the United States (or claim due-process rights in connection with property they own in the United States),” and because Guantanamo “is not part of the sovereign territory of the United States” (and the men who languish there have no property connections to the United States), the due process clause does not protect them.

Those arguments cannot be squared with three important Biden statements: (1) that “internationally recognized human rights and fundamental freedoms are each – equally – the entitlement of all;” (2) that his administration would prioritize “universal rights and strengthening democracy;” and (3) that he wants to close Guantanamo.

The Biden administration needs to distance itself, across the board, from the categorical position that due process does not apply at Guantanamo. It should do so before the Supreme Court in its response, due on February 3, to Abdul Razak Ali’s request for the Court to review the merits of his case. It should do so in the Al-Hela case through immediate notice to the en banc D.C. Circuit Court of Appeals — under President Obama, the Justice Department similarly rejected erroneous interpretations of international law before the en banc D.C. Circuit in the Al-Bihani case in May 2010. In the Nasser case, the Biden administration should inform the D.C. District Court of the same change in position in a status report due on March 30. In that report to the court, the government should also commit to swiftly transferring Mr. Nasser from Guantanamo, consistent with a 2016 Periodic Review Board decision approving him for transfer.

Open Society Justice Initiative v. Trump (U.S. District Court for the Southern District of New York); Sadat v. Trump (U.S. District Court for the Northern District of California)

On June 11, 2020, Trump issued an executive order authorizing economic sanctions and civil and criminal penalties against International Criminal Court (ICC) officials and those who support the ICC’s investigations and prosecutions. The order has been widely criticized domestically and globally because it is “colossally counter-productive,” “isolates the United States from historic allies and alliances,” and instead aligns the United States with “global scofflaws and authoritarian actors who would degrade the rule of law.” (A roundup of Just Security posts on the E.O. is available here.)

Trump’s justification for his order was that the Court is pursuing investigations of war crimes and other human rights atrocities by the United States and its allies. Those investigations include credible allegations of U.S. torture at former CIA black site prisons in Afghanistan, Lithuania, Poland and Romania. Trump ignored that the only reason the ICC is pursuing investigations of U.S. war crimes is because the United States has itself failed to provide meaningful accountability to victims and survivors. Indeed, the ICC is a court of limited jurisdiction: among other limits, it only investigates grave human rights violations when domestic legal systems fail to do so. Instead, the ICC E.O. is consistent with Trump’s embrace of those who commit human rights violations, as demonstrated by his pardons of Americans convicted of or charged in U.S. courts with war crimes committed in Iraq and Afghanistan.

On September 2, 2020, the Trump administration designated the ICC’s chief prosecutor, Fatou Bensouda and a top ICC official, Phakiso Mochochoko, for sanctions. The impact of sanctions and the threat of civil and criminal penalties for those supporting the ICC’s work investigating war crimes in a host of countries is serious. The Open Society Justice Initiative and four law professors challenged the E.O. and its implementing regulations in federal court, and on January 4 obtained a preliminary injunction. The government’s merits brief in response to the case is due March 5. On behalf of three U.S. law faculty and a human rights attorney, the American Civil Liberties Union also challenged this sanctions regime on January 15 in Sadat v. Trump. Both lawsuits argue that the Trump administration’s actions violate the First Amendment rights of those seeking to communicate with ICC personnel by providing human rights and technical expertise or evidence of war crimes—and, in the ACLU case, by representing victims in ICC judicial proceedings.

The Biden administration should rescind the ICC E.O. prior to the March 5 deadline in Open Society Justice Initiative and deadlines that will come up in the Sadat case. If the administration has not done so by then, the Justice Department should at a minimum inform the court that it intends to rescind the E.O. and will not enforce it or contest the injunction or otherwise defend the sanctions in the interim.

Image: Guantanamo Bay, Cuba – AUGUST 22: The courtroom of the Commissions building (Mark Wilson/Getty Images)