Off the Record: Observations on the 9/11 Military Commission

This blog series by Dr Kasey McCall-Smith examines some of the crucial legal issues and broader public questions raised regarding the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The military commissions are in the sixth year of the pretrial phase and taking place at a purpose-built Expeditionary Legal Complex in Camp Justiceon Naval Station Guantánamo Bay, Cuba. The series is part of her project ‘Torture on Trial’ and funded by a grant from the Royal Society of Edinburgh.

Taking a Step Back – A Primer on the International Prohibition against Torture

Many members of the public not trained in international law fail to understand why the international prohibition against torture matters or should matter in the US legal system. This post seeks to explain how international law on the prohibition against torture relates to US law and the impact of the prohibition on the military commission proceedings against the five men charged with conspiracy and war crimes in relation to the 9/11 terrorist attacks on the US in US v. Khalid Shaikh Mohammad, et. al.(9/11 case).

As international lawyers frequently invoke, the prohibition against torture is universal. However, simply because torture is prohibited it does not mean that torture does not happen in many places every day. In the same way that speed limits exist, their existence does not prevent individuals from regularly breaking these types of strict liability offences. What ultimately matters is that when the preventative rule is not observed, the individual found in breach of the law will be sanctioned with an appropriate penalty in accordance with the law. Along the same lines, many Americans and indeed it seems the government prosecutors in the 9/11 military commissions fail to recognise that regardless of whether the Bush Administration, the US Department of Defense or the US Department of Justice approved the use of ‘enhanced interrogation techniques’ (EITs) in the post-9/11 US Rendition, Detention and Interrogation (RDI) programme, the prohibition is not diminished and State-sanctioned torture is no less illegal.

The prohibition against torture is a legal obligation owed by the State and relates to the State’s exercise of control over and treatment of an individual, which is distinct from the emotional and psychological invocation of the word by people when under extreme personal duress caused by a great loss. As a party to the Geneva Conventions (Common Article 3), the International Covenant on Civil and Political Rights (Article 7) and the UN Convention against Torture and other Cruel, Inhuman or Degrading Punishment, the US committed, through its ratification of these instruments in 1955, 1992 and 1994, respectively, NOT TO TORTURE any individual or to subject any person, whether citizen, non-citizen, belligerent or non-belligerent, to cruel, inhuman or degrading treatment. It is an international law that has crystallised by overt, reinforcement across States over the last century. For the same reason that a government intentionally exterminating a particular ethnic group breaches international law – the peremptory norm prohibiting genocide – the decision of a government to engage in action that breaches international law is not rendered lawful simply because it was the decision of the State as a sovereign actor to engage in the prohibited activity. That would strike against the very idea of the rule of law.

In the case of the hundreds of men who were detained and subjected to EITs on CIA blacksites for 3-4 years during the US RDI programme, there is no question that many of the interrogation techniques used were variable forms of torture and, at the very least, most amounted to cruel, inhuman or degrading treatment. Breaches of the international prohibition occurred, plain and simple. Military commission observers and victims’ family members sometimes question how the CIA’s enhanced interrogation techniques amounting to torture could be ‘illegal’ if the US executive approved the EITs, including waterboarding and extended periods of sleep deprivation (often in combination). The simple explanation is that no single government has the authority to unilaterally change or abdicate the prohibition against torture under any circumstance, including after a major terrorist attack. Article 2 of the UN Convention against Torture expressly outlines this point: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.’ Therefore, regardless of the horrendous events that happened on 11 September 2001, the US government could not legalise actions amounting to torture and still be compliant with its international obligations.

So what of the breach of the international obligation? Unlike national law, international law is a consent-based system and operates under a multifaceted enforcement system. It is generally a more nuanced concept than national law in that most breaches are resolved through diplomatic channels. Of course, more public enforcement actions are available, such as a claim at the International Court of Justice, but these demand a strong political will as most infractions of international law will not rise to a level that a State would want to disrupt its normal international relations by raising an international claim. This is why human rights violations tend to go unchecked at the international level and, instead, play out through international relations and in domestic courts. International human rights law is first and foremost implemented through national law, and claims against the State for human rights breaches are first and foremost raised in the national legal system. The prohibition against torture and cruel, inhuman or degrading treatment or punishment, as the key example, is prohibited under US law by 18 USC §2340and the Constitution (8th & 14th amendments).

For the five men on trial in the 9/11 case in Guantánamo, their torture is a constant feature of the arguments raised in the war crimes courtroom. In what is the largest criminal justice trial in US history, government prosecutors consistently pit any ill-treatment the defendants received on blacksites against the ‘murder of almost 3000 people’ on 11 September 2001. And while it is clear that the CIA, as an organ of the US Government, breached the international prohibition against torture, the repeated failures of the Bush and Obama Administrations to effectively address the issue has wreaked havoc on the ability of both the prosecution and defense to progress the case. As government prosecutors have implored throughout the proceedings, the CIA operatives were simply people ‘who went to work on September 11th to stop [the defendants] from killing more people’ and to ensure that America was not attacked again. This argument aims to minimise the outrageous conduct of the CIA – a wrongful breach of the law – and suggests a more 9/11 victims’ families-friendly idea that because the defendants are wrongdoers as the alleged terrorist murderers, torture is not important. It expressly ignores that the defendants have not yet been proven guilty. Nonetheless, in committing documented instances of torture, the US has undoubtedly made trial counsel’s case in chief much harder as any statement extracted through torture is inadmissible. That is one ‘penalty’ that is applied for breach of the prohibition and thus one means of ‘enforcing’ international law. The enduring nature of the physical and mental damage to the torture victims could also seriously inhibit the trial as the taint of the original torture can extend well past the time of the prohibited State action. This issue has been the focus of much of the pretrial proceedings and, for now, hangs in the balance until the current military judge, Keith Parrella, rules on a range of issues before the commission. However the judge ultimately decides, the 9/11 military commission has clearly demonstrated the old adage: two wrongs do not make a right.