West Law Report

John Yoo: Talk with Harry Kreisler

Posted in Anti-terrorism law (US), International Law, John Yoo, President's Authority, Torture by mrkooenglish on May 19, 2008

Conversations With History
Jan 2008

(60 min)

John Yoo, the law professor, discussed Presidential war powers. Professor Yoo analyzed the situation confronting the United States after the 911 attack and explained the development of the legal justifications for the Bush’s administration’s response. Topics addressed include the memorandum on torture, the interface between law and politics, secrecy and democracy, and the Bush legacy.

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D.C. Circuit Declines To Overturn Lower Court’s Finding of Justiciability in Tort Suit Brought by Indonesian Villagers

Havard Law Review case summary (Issue 121, Jan 2008): Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007) (.pdf) (8 pages)

FEDERAL COURTS — POLITICAL QUESTION DOCTRINE

In 2001, Exxon Mobil Corporation (Exxon) operated a natural gas extraction and processing facility in the Aceh province of Indonesia. Eleven Acehnese villagers sued Exxon in the U.S. District Court for the District of Columbia, alleging that Exxon’s security forces — composed of members of the Indonesian military — committed murder, torture, sexual assault, and other tortious acts against them. The plaintiffs brought claims under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), in addition to common law tort claims. Exxon filed a motion to dismiss the complaint on the ground that the claims were nonjusticiable political questions.

Philippe Sands: use of torture undermines international law

The barrister answers readers’ question on Times:

Q: What consequences would the use of controlled “legislative” violence in the interrogation of suspects have for our present understanding of Human Rights?

A: In my view, the move to abusive interrogation has deeply undermined the United States’ ability to promote respect for international human rights law. For that reason I deeply regret what has happened and sincerely hope that the United States will take corrective measure and bring its own house in order before inaction compels prosecutors and judges in other jurisdictions feel the need to intervene.

Q: Are European countries that allowed rendition-flights to Guantanamo complicit in violating the absolute prohibition on torture under international law? If so, how can these countries be held accountable?

A: Article 4 of the Convention prohibiting torture, criminalises “an act by any person which constitutes complicity or participation in torture”. What constitutes complicity or participation will turn on the facts of a particular case. Knowing support for rendition flights, or turning a blind eye in circumstances in which torture is seen as likely or reasonably foreseeable, could constitute complicity or participation. Again, it turns on the facts, which are to be established.

Q: Why doesn’t the international committee put more pressure on the US to resolve this situation?

A: History shows that it can take time for countries to call to account abuses of international law. Senator Pinochet was arrested in London eight years after he had left office. But countries do seem to have turned a blind eye. On April 17, 2008 British Prime Minister Gordon Brown stood next to President Bush in the Rose Garden at the White House and said: “The world owes President George Bush a huge debt of gratitude for leading the world in our determination to root out terrorism, and to ensure that there is no safe haven for terrorism and no hiding place for terrorists.” (Read the transcript.)

President Bush has taken responsibility for approving techniques of interrogation that, in my view, have amounted to torture. Just a few weeks earlier President Bush vetoed legislation prohibiting the CIA from using the very same techniques of interrogation I describe in my book. “The bill Congress sent me,” President Bush said, “would take away one of the most valuable tools in the war on terror — the CIA program to detain and question key terrorist leaders and operatives”. (Click here for the transcript.)

Philippe Sands: Follows the Bush Torture Trail

Posted in Guantánamo, International Human Rights Law, John Yoo, Philippe Sands QC, Torture by mrkooenglish on May 10, 2008

8 May 2008


(10 min)


(10 min)

In the interview:

Attorney Philippe Sands Follows the Bush Administration Torture Trail A new exposé in Vanity Fair by British attorney Philippe Sands reveals new details about how attorney John Yoo and other high-ranking administration lawyers helped design and implement the interrogation policies seen at Guantanamo, Abu Ghraib and secret CIA prisons. According to Vanity Fair, then-White House counsel Alberto Gonzales and other top officials personally visited Guantanamo in 2002, discussed interrogation techniques and witnessed interrogations. Sands joins us in our firehouse studio.

Rush transcript in Decomcracynow.org

Ask Philippe Sands

Posted in Guantánamo, International Human Rights Law, Philippe Sands QC, Torture by mrkooenglish on May 10, 2008

Philippe Sands, the writer of Lawless World, published his 2nd book Torture Team. The QC will answer readers’ question on Times Online on May 15. I’m thinking about question.

But first, I should get a copy of his 1st book (can’t find the new one yet) and re-read it. Read the interview in Times (4 May) and the book review of the new book on Times (4 May).

Read also his article in Guardian (19 Apr) about a Guantanamo officials’ interrogation tech inspired by the TV series, 24.

AS (LIBYA) & ANR v HOME SECRETARY & ANR

Posted in Art. 3 European Convention on Human Rights, Torture, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 4:13 PM BST 29/04/2008
Court of Appeal (Civil Division)

Sir Anthony Clarke MR, Buxton and Smith LJJ

April 9, 2008

Deportation – Inhuman or degrading treatment or punishment – Libya – Memorandums of understanding – National security – Torture – Art. 3 European Convention on Human Rights 1950

FACTS

The appellant secretary of state appealed against a decision allowing the appeals of the respondent Libyan nationals against deportation. Both respondents had been served with a deportation order on the grounds that their presence in the United Kingdom was not conducive to the public good because they were a danger to national security. Their appeals against deportation were allowed by the Special Immigration Appeals Commission on the basis that there were substantial grounds for believing that the respondents faced a real risk of suffering ill-treatment contrary to the European Convention on Human Rights 1950, art. 3, if they were returned.

A memorandum of understanding had been entered into between the UK and Libya that provided the UK with assurances that anyone deported from Libya would be properly treated. It was accepted by the secretary of state that, in the absence of the memorandum, there would be substantial grounds for believing that there was a risk of the respondents being tortured on their return. It was accepted on behalf of the respondents that if Libya complied with the memorandum there was no such risk. The commission found that Libya’s motivation and reasoning might change and that it might not honour the memorandum.

The secretary of state submitted that the commission (1) failed to direct itself as to the correct test to measure the degree of risk that the respondents would suffer ill-treatment contrary to art. 3 on return by repeatedly stating that the question was whether there was a real risk of the respondents suffering torture contrary to art. 3 on return, rather than asking itself whether there were substantial grounds for believing that the respondents would face such a real risk; (2) failed to give sufficient weight to the evidence of an expert diplomatic witness (L) and/or wrongly substituted its own assessment for L’s and/or failed to give sufficient reasons for rejecting his evidence; (3) erred in lowering the test for risk on return to take account of the unpredictability of future events in Libya; (4) had come to the conclusion that there were substantial grounds for believing that the respondents faced a real risk of suffering ill-treatment contrary to art. 3 based on findings of fact that did not warrant or support that conclusion.

ISSUES

(1) Whether the commission failed to direct itself as to the correct test to measure the degree of risk that the respondents would suffer ill-treatment contrary to art. 3 on return.

(2) Whether the commission failed to give sufficient weight to the evidence of an expert diplomatic witness.

(3) Whether the commission erred in lowering the test for risk on return to take account of the unpredictability of future events in Libya.

(4) Whether the commission had come to the conclusion that there were substantial grounds for believing that the respondents faced a real risk of suffering ill-treatment contrary to art. 3 based on findings of fact that did not warrant or support that conclusion.

HELD (appeal dismissed)

(1) The submission that the commission misstated the relevant test involved the assertion that it had made an inexplicable error. The correct approach was to consider the judgment of the commission as a whole and to only hold that it had erred in law if it was quite clear that it had done so, AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2007] 3 WLR 832 applied. It was common ground that the correct test was whether substantial grounds were shown for believing that the respondents would face a real risk of suffering ill-treatment contrary to art. 3 of the Convention on return to Libya and that meant no more than that there must be a proper evidential basis for concluding that there was such a real risk, Saadi v United Kingdom (13229/03) Times, February 4, 2008 ECHR (Grand Chamber) applied. A considerable amount of evidence was put before the commission, which considered it with care and, on the basis of it, concluded that there would be a real risk of torture. The commission had applied the correct test. As to the formulation of the test, it would be very surprising indeed if the commission misunderstood or misstated it. If the commission was mistaken in the instant case, it was precisely the kind of egregious and inexplicable error that was referred to in AH (Sudan). It was inconceivable that it made such a mistake. The commission had not made an elementary error and had not misstated or misapplied the test.

(2) The commission had not failed to have proper regard to L’s evidence. The commission fully described L’s experience and expertise and approached his evidence entirely properly and appropriately. Although it relied heavily on his evidence it had not accepted L’s evidence that a breach of the memorandum would be almost unthinkable. It was clear that when the commission’s reasoning was taken as a whole it had due regard to the strong views expressed by L.

(3) The commission had not lowered the test to take account of the unpredictability of the future. It understood that the risk of ill-treatment was contingent on other events occurring but that would often be the case. The commission fully understood and applied the correct test.

(4) There was no basis for holding that the findings of fact, namely that there were substantial grounds for believing that there was a real risk of torture, despite the terms of the memorandum, were not capable of satisfying the test or were otherwise irrational.

Philip Sales QC, Robin Tam QC, Tim Eicke and Andrew O’Connor (instructed by Treasury Solicitor) for the appellant. Edward Fitzgerald QC, Raza Husain, Danny Friedman, Hugh Southey (instructed by Birnberg Peirce & Partners) for the respondents. Michael Fordham QC and Tom Hickman (instructed by in-house solicitor) for the intervener. N Garnham QC and J Farbey (instructed by Special Advocates’ Office) as the Special Advocates for the first respondent. A Nicol QC and J Farbey (instructed by Special Advocate’s Office) as the Special Advocates for the second respondent.