The United States
TIHE UNITED STATES' ENHANCED IMPUNITY FOR ITS
INTERNATIONAL OBLIGATIONS: THE CONTINUED UNLAWFUL
TREATMENT OF CAPTIVES AND DETAINEES FOLLOWING THE
ATTACK OF SEPTEMBER
The United States' Enhanced Impunity for Its International Obligations: The Continued Unlawful Treatment of Captives and Detainees Following the Attack of September 11, 2001
David Brennan 0
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DavidBrennan *
This paper addresses the issue of United States government officials' impunity
during the Bush Administration in actions taken after the September 11, 2001
(9/11) attack and during the "war on terrorism." The footnoted "Principle 1.
General Obligations of States to Take Effective Action to Combat Impunity" is part
of the framework for this inquiry.' The focus is on the actors, practices and the
possible consequences of acting with impunity respecting the United States
international obligations for the detention and treatment of captives. This takes the
considerations of that activity beyond the armed conflict situations in Afghanistan
and Iraq. The two major practices to be considered are: (1) torture, which includes
other cruel, inhumane and degrading treatment (torture); and (2) extraordinary
rendition that involves a forced transfer of a captive or detainee from one detention
facility to another in a different country where the primary intent is administering
extreme, harsh interrogations and mistreatment in locations where the host-country
officials will not interfere with the practices. This secret and opportunistic use of
remote facilities in foreign states bypasses the essential fact that they violate
recognized norms of the international laws of war and humanitarian and human
rights law, to which the United States ascribes.
This paper considers the deliberate steps taken by the current administration
since January 2009 to continue this pattern of impunity by providing forms of
nearamnesty for those who ordered, planned and implemented the practices of torture
or rendition in the post-9/1 1 era.2 Further, none of the detainees who were
subjected to prolonged detention, torture or rendition were afforded the required
redress or compensation for the violations of international law, despite the United
* David Brennan is a Professor of Law at the University of San Diego School of Law,
http://www.sandiego.edullaw/academics/faculty/bio.php?id=854.
1. U.N. Commission on Human Rights, Report on the Sixty-First Session, U.N. ESCOR, 61st Sess., Doc.
E/CN.4/2005/102/Add.1 (2005), available at http://daccess-dds ny.un.org/doc/UNDOC/GEN/GO5/109/00/
PDF/G0510900.pdf?OpenElement.
Arises from a failure by States to meet their obligations to investigate violations; to take
appropriate measures in respect of the perpetrators, particularly in the area of justice, by
ensuring that those suspected of criminal responsibility are prosecuted, tried and duly
punished; to provide victims with effective remedies and to ensure that they receive
reparation for the injuries suffered; to ensure the inalienable right to know the truth about
the violations; and to take other necessary steps to prevent a recurrence of violations.
Id.
See LEVIN, infranote 133.
Barry Law Review
States' obligations to provide it.3 The U.S. courts rejected the claims or grounds for
redress in some
cases
while the Justice
Department
has vigorously, albeit
successfully, opposed remedies for the detainees who were victims of rendition or
torture.4 I argue that this pattern of conduct, if continued, undermines the United
States' attempt to regain its position as the de facto leader of the free world in
advocating for the rule of law and adherence by other states to their international
obligations.
I. INTRODUCTION
The unprecedented
September 11, 2001
attack resulted in dramatic
and
profound changes in the government's approach to fighting in a new conflict that
was declared a "war on terrorism,"
which profoundly impacted the day-to-day
activities of everyone from the President of the United States to all of its citizens.
The attack's scope of destruction of humans and property inflicted a catastrophic
effect not only on the citizens of the United States, but also on the entire global
community. 6 It was unique because a non-state group, the followers of Al Qaeda,
rather than a government or other legitimately recognized international entity,
perpetrated the attack, which required entirely different responses and strategies to
address the perpetrators and followers to prevent another attack.7 In contrast to the
December 7, 1941 surprise attack on Pearl Harbor by Japanese military forces,
neither the Taliban nor Al Qaeda were acting with recognized uniform military
forces in carrying out their attacks; 9/11 did not provide the United States with a
defined enemy to engage (...truncated)