Amicus Curiae Brief — United States, Petitioner v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah, et al.

No. 20-827

In the Supreme Court of the United States

___________________________

UNITED STATES OF AMERICA,

Petitioner,

v.

ZAYN AL-ABIDIN MUHAMMAD HUSAYN,

AKA ABU ZUBAYDAH, ET AL.,

Respondents.

___________________________

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

___________________________

BRIEF OF AMICI CURIAE TORTURE SURVIVORS

MAHER ARAR ET AL., IN SUPPORT OF

RESPONDENTS ABU ZUBAYDAH ET AL.

________________________

PROF. HANNAH R. GARRY

Counsel of Record

UNIVERSITY OF

SOUTHERN CALIFORNIA

GOULD SCHOOL OF LAW

699 Exposition Blvd.,

#442

Los Angeles, CA 90089

hgarry@law.usc.edu

(213) 740 9154

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTERESTS OF AMICI ............................................1

SUMMARY OF ARGUMENT....................................8

ARGUMENT ............................................................ 10

I. TORTURE IS A UNIVERSALLY

RECOGNIZED JUS COGENS

VIOLATION OF

INTERNATIONAL LAW.................... 10

II. THE UNITED STATES IS

OBLIGATED TO PREVENT,

PUNISH AND REDRESS

TORTURE. .......................................... 15

III. THE UNITED STATES’

BLANKET ASSERTION OF

STATE SECRETS CONFLICTS

WITH ITS OBLIGATION TO

UPHOLD THE RIGHT TO A

REMEDY FOR VICTIMS OF

TORTURE. .......................................... 20

CONCLUSION ......................................................... 28

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TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Al Shimari v. CACI Premier Tech., Inc.,

840 F.3d 147 (4th Cir. 2016) ............................ 12

I.N.S. v. Stevic,

467 U.S. 407 (1984)........................................... 15

Kadić v. Karadžić,

70 F.3d. 232 (2d. Cir. 1995) .............................. 18

Murray v. The Schooner Charming Betsy,

6 U.S. (2 Cranch), 64 (1804) ............................. 15

United States v. Belfast,

611 F.3d 783 (11th Cir. 2010) .....................12, 13

STATUTES

Anti-Torture Statute,

18 U.S.C. § 2340......................................... passim

18 U.S.C. § 2441 (2006).......................................... 10

22 U.S.C.A. § 2152, note (West 1999)

(Sec. 3. definition) ............................................. 13

Torture Victim Protection Act of 1991,

28 U.S.C. § 1350, note ...................................... 19

FOREIGN AND INTERNATIONAL CASES

Aksoy v. Turkey,

App. No. 21987/93, Eur. Ct. H.R. (1996) ....24, 27

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Al Nashiri v. Poland,

App. No. 28761/11, Eur. Ct. H.R. (2014) ......... 25

Assenov v. Bulgaria,

App. No. 24760/94, Eur. Ct. H.R. (1998) ......... 27

Attorney Gen. of Israel v. Eichmann,

36 I.L.R. 277 (Sup. Ct. Israel 1962) ................ 18

Bueno-Alves v. Argentina,

Merits, Reparations, and Costs, Judgment,

Inter-Am. Ct. H.R. (ser. C) No. 164 (2007) ..... 27

Centre for Legal Resources on behalf of Valentin

Câmpeanu v. Romania,

App. No. 47848/08, Eur. Ct. H.R. (2014) ......... 24

Factory at Chorzów (Ger. v. Pol.),

1928 P.C.I.J. (ser. A) No. 17 (Sept. 13) ........... 20

Fleury v. Haiti,

Merits and Reparations, Judgment,

Inter-Am. Ct. H.R. (ser. C) No. 236

(Nov. 23, 2011) ................................................ 23

Ilhan v. Turkey,

App. No. 22277/93, Eur. Ct. H.R. (2002) ......... 27

Labita v. Italy,

App. No. 26772/95, Eur. Ct. H.R. (2000) ......... 27

Neptune v. Haiti,

Merits, Reparations and Costs, Judgment,

Inter-Am. Ct. H.R. (ser. C) No. 180

(May 6, 2008) ................................................... 23

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Prosecutor v. Blaškić,

Case No. IT-95-14-AR108 bis, Judgement on

the Request of the Republic of Croatia for

Review of the Decision of Trial Chamber II

of 18 July 1997 (Int’l Crim. Trib. for the

Former Yugoslavia Oct. 29, 1997) ................... 18

Prosecutor v. Delalić,

Case No. IT-96-21-T, Trial Judgment (Int’l

Crim. Trib. for the Former Yugoslavia Nov.

16, 1998) ........................................................... 11

Prosecutor v. Delalić,

Case No. IT-96-21-A, Appeal Judgment

(Int’l Crim. Trib. for the Former Yugoslavia

Feb. 20, 2001) ................................................... 11

Prosecutor v. Furundžija,

Case No. IT-95-17/1-T, Trial Judgment (Int’l

Crim. Trib. for the Former Yugoslavia Dec.

10, 1998). .......................................................... 16

Prosecutor v. Kvočka,

Case No. IT-98-30-T, Trial Judgment (Int’l

Crim. Trib. for the Former Yugoslavia Nov.

2, 2001) ............................................................. 13

Velásquez Rodríguez v. Honduras,

Reparations and Costs, Judgment,

Inter-Am. Ct. H.R. (ser. C) No. 7 (July 21,

1989) ................................................................. 23

INTERNATIONAL SOURCES

American Convention on Human Rights,

Nov. 22, 1969, 1144 U.N.T.S. 123 ................... 21

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Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or

Punishment, adopted Dec. 10, 1984, 1465

U.N.T.S. 85................................................. passim

Convention on the Elimination of All Forms of

Racial Discrimination, Dec. 21, 1965, 660

U.N.T.S. 195 ..................................................... 21

Directive 2012/29/EU, of the European

Parliament and of the Council of 25 October

2012 Establishing Minimum Standards on

the Rights, Support and Protection of

Victims of Crime, and Replacing Council

Framework Decision 2001/220/JHA (L 315) .... 27

European Convention for the Protection of

Human Rights and Fundamental Freedoms,

Nov. 4, 1950, 213 U.N.T.S. 221 ....................... 21

G.A. Res. 217A (III), Universal Declaration of

Human Rights (Dec. 10, 1948) ........................ 21

G.A. Res. 68/165 (Dec. 18, 2013) ........................... 25

Geneva Convention Relative to the Treatment

of Prisoners of War, Aug. 12, 1949, 6 U.S.T.

3316, 75 U.N.T.S. 135. ..........................10, 15, 16

Geneva Convention Relative to the Protection of

Civilian Persons in Times of War, Aug. 12,

1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.....10, 15, 16

Human Rights Council Res. 9/11, U.N. Doc.

A/HRC/RES/9/11 (Sept. 18, 2008) ................... 25

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International Covenant on Civil and Political

Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6

I.L.M. 368 (1967). ...................................... passim

International Law Commission, Draft Articles

on Responsibility of States for Internationally

Wrongful Acts, Report of the International

Law Commission on the Work of Its FiftyThird Session, 2 Y.B. Int’l L. Comm’n 26–30,

U.N. Doc. A/56/10 (2001) ................................. 20

Protocol to the African Charter on Human and

Peoples’ Rights on the Establishment of an

African Court on Human and Peoples’

Rights, June 9, 1998, CAB/LEG/665 ............... 21

Rome Statute of the International Criminal

Court, July 17, 1998, 2187 U.N.T.S. 3 ............ 21

U.N. Comm’n on Human Rights, Report of the

Special Rapporteur on the Independence of

Judges and Lawyers, Leandro Despouy, U.N.

Doc. E/CN.4/2006/52 (Jan. 23, 2006) ............. 25

U.N. Comm. Against Torture, Conclusions and

Recommendations of the Committee Against

Torture: United States of America, U.N. Doc.

CAT/C/USA/CO/2 (July 25, 2006) ..............13, 16

U.N. Comm. Against Torture, General Comment

No. 3 on Implementation of Article 14 by

States Parties, U.N. Doc. CAT/C/GC/3 (Dec.

13, 2012) ...................................................... 23-25

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U.N. Comm. Against Torture, Report of the

Committee Against Torture,

U.N. Doc.

A/52/44 (Sept. 10, 1997) ................................... 14

U.N. Comm. Against Torture, Summary Record

of

the

624th

Meeting,

U.N.

Doc.

CAT/C/SR.624 (Nov. 24, 2004) ........................ 15

U.N. General Assembly, Basic Principles and

Guidelines on the Right to a Remedy and

Reparation for Victims of Gross Violations of

International Human Rights Law and

Serious

Violations

of

International

Humanitarian Law, U.N. Doc. A/RES/60/147

(Dec. 16, 2005) .......................................23, 24, 26

U.N. Human Rights Comm., General Comment

No. 31 on the Nature of the General Legal

Obligation Imposed on States Parties to the

Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.

13 (Mar. 29, 2004) .......................................22, 24

U.N. Human Rights Council, Report of the

Special Rapporteur on the Promotion and

Protection

of

Human

Rights

and

Fundamental Freedoms While Countering

Terrorism, Martin Scheinin, U.N. Doc.

A.HRC/10/3, (Feb. 4, 2009) .............................. 25

Vienna Convention on the Law of Treaties, May

23, 1969, 1155 U.N.T.S. 331 .................11, 16, 19

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OTHER AUTHORITIES AND FILINGS

Dep’t of Army, Field Manual 34-52: Intelligence

Interrogation (Sept. 28, 1992) ......................... 13

Katherine R. Hawkins, The Promises of

Torturers: Diplomatic Assurances and the

Legality of “Rendition,” 20 Geo. Immigr. L.J.

213 (2006) ......................................................... 15

Manfred Nowak and Elizabeth McArthur, The

United Nations Convention Against Torture

- A Commentary, (Oxford University Press

2008) .............................................................12, 17

Margaret L. Satterthwaite, Rendered

Meaningless: Extraordinary Rendition and

the Rule of Law, 75 Geo. Wash. L. Rev. 1333

(2007) ................................................................ 14

President Barack Obama, Press Conference by

the President (Aug. 1, 2014), .............................. 7

President Barack Obama, Remarks by the

President at the National Defense

University (May 23, 2013), ................................. 7

S. Exec. Rep. No. 101-30 (1990) ............................ 13

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INTERESTS OF AMICI

Amici curiae are individuals or surviving family

members of individuals who, like respondent Mr.

Zayn al-Abidin Muhammad Husayn a/k/a Abu

Zubaydah in this case, were subjected to acts of

severe physical and mental harm – torture – while in

detention, and interrogated by United States forces

or their proxies in Afghanistan, Djibouti,

Guantánamo Bay (“Guantánamo”), Pakistan, Syria,

and other locations where the U.S. Central

Intelligence Agency (“CIA”) operated detention and

interrogation centers commonly referred to as “black

sites.”1 Amici and their interests in this case are as

follows:

Mr. Maher Arar, a Canadian citizen, was

intercepted by United States officials in September

2002 at John F. Kennedy International Airport in

New York while on his way home to Canada. He was

detained for thirteen days, denied access to the

courts, and surreptitiously delivered to Syria, a

country known to use torture in interrogations. In

Syria, Mr. Arar was beaten, whipped with electrical

cables, and interrogated for up to eighteen hours a

day for two weeks. He was confined in an

1 Pursuant to Rule 37(6) of the Rules of the Supreme Court

of the United States, Counsel of Record discloses that no counsel

for any party authored this brief in whole or in part or made a

monetary contribution intended to fund the preparation or

submission of the brief. No other person or entity other than

amici curiae or their counsel contributed money for the

preparation or submission of this brief. All parties have

consented to the filing of this brief pursuant to Rule 37(3)(a) of

the Rules of the Supreme Court of the United States.

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underground grave-like cell for more than ten

months, and finally released after a year, without

charge, to return to his wife and two young children.

Upon his return to Canada, Mr. Arar became a

prominent human rights activist and sought justice

and accountability for what government officials did

to him. Canada convened a Commission of Inquiry

into Canadian officials’ conduct, which conducted a

comprehensive investigation and issued a threevolume report, fully exonerating Mr. Arar. Canada

apologized to Mr. Arar and compensated him for its

role in his ordeal. In 2007, U.S. Congress members

publicly apologized to Mr. Arar, who testified (via

video-link) at a House Joint Committee Hearing

about his rendition to Syria for torture. In contrast,

Mr. Arar’s case against U.S. officials was dismissed,

which the Second Circuit Court of Appeals en banc

affirmed (7-4), finding that judicial review of an

extraordinary rendition would affect diplomacy,

foreign policy, and national security interests. Arar

v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc). Mr.

Arar has been awarded several human rights

awards, and in 2007, Time Magazine named him one

of the TIME 100 most influential people in the world

in the Heroes and Pioneers category. For Mr. Arar,

redress is a form of admission that the perpetrators

have done wrong to the victim. While it does nothing

to undo the torture he went through, it helps him

heal his psychological scars and move on with his life.

As such, he supports Abu Zubaydah’s efforts to seek

a remedy, and requests the Court to allow for the

depositions of former U.S. contractors in this case.

Mr. Mourad Benchellali, a French national,

was captured in December 2001 by Pakistani

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military forces on the Afghan border where he was

handed over to U.S. military forces. He was then

transferred to Kandahar prison, and finally to the

Guantánamo Bay detention facility in January 2002.

In Kandahar, Mr. Benchellali was beaten and

humiliated for days. Guards would take the

prisoners’ clothes off, force them to pile up on each

other, and take photographs. Mr. Benchellali was

forced to wake up every half hour during the night,

violently interrogated several times a day, and only

fed once a day. Upon his arrival to Guantánamo, he

was taken to the “X-RAY” camp for about a month

and a half and held in a 1.7 by 2 meter cage where he

had to sleep in the same position without touching

the wire fence. He was later transferred to the

“DELTA” camp, where he was regularly subjected to

interrogation

measures

including

sensory

bombardment, stress positions, extreme cold, and

sexual violence and humiliation. Mr. Benchellali was

released from Guantánamo on July 27, 2004. On

November 14, 2004, together with amicus Mr. Nizar

Sassi, listed below, he filed a criminal complaint in

French courts with respect to the torture they

suffered in U.S. detention facilities. An investigation

was opened in 2005 but terminated in 2017 on

grounds of State immunity and lack of U.S.

cooperation. The decision to terminate was upheld on

appeal, even though French courts acknowledged

that Mr. Benchellali and Mr. Sassi had been tortured.

The complaint is now pending before the European

Court of Human Rights. In addition, Mr. Benchellali

and Mr. Sassi filed a civil suit in French courts for

compensation for torture, which is pending on

appeal. Nearly two decades since he was first

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detained by U.S. forces, Mr. Benchellali has not yet

been fully recognized as a victim of State-sponsored

torture and has not been compensated for what he

has suffered. As amicus in this case, he seeks to

underscore the importance of redress and

reparations for victims like himself and Abu

Zubaydah who have endured such serious crimes.

Mr. Murat Kurnaz, a Turkish national residing

in Germany, was nineteen years old when

apprehended from a civilian bus in Pakistan. He was

ultimately turned over to U.S. forces for a bounty and

detained by the U.S. military in an outside pen in

Kandahar, Afghanistan, where he was subjected to

severe abuse, including stress positions, simulated

drowning, and being hung by his arms over his head

for prolonged periods of time. Upon transfer to

Guantánamo, he was beaten, sexually taunted,

subjected to prolonged solitary confinement and sleep

deprivation, and involuntarily drugged, among other

things, even as U.S. officials recognized he had no

connections to terrorism. When Mr. Kurnaz was

repatriated to Germany in 2016, he did his best to

live a normal and productive life, starting his own

family, and working for the German government as a

mentor to refugee boys. To this day, he feels deep

pain and humiliation with respect to his treatment

by U.S. officials, which he never expected from a

country like the United States. While he has been

outspoken about his detention, he still retains a deep

sense of injustice and loss due to the lack of

accountability for those who so clearly violated his

human rights. Mr. Kurnaz knows many who have

suffered torture by U.S. officials and believes that for

all such persons, including Abu Zubaydah, finding

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out the truth about the abuse they endured is critical

for personal healing and well-being, as well as

regaining a sense of justice in the world.

Ms. Zahra Ahmed Mohamed is the surviving

spouse of Mohammed Abdullah Saleh al-Asad, a

Yemeni national. On December 26, 2003, Mr. al-Asad

was taken from their family home in Tanzania. Early

the next morning, he was rendered to Djibouti at the

behest of the United States. There, he was secretly

detained and interrogated in a local facility for about

two weeks before being handed to a CIA rendition

team. During his time in the CIA detention program,

Mr. al-Asad was subjected to numerous forms of illtreatment, including “capture shock,” a brutal

procedure amounting to torture that the CIA

deployed to foster what it termed “learned

helplessness,” a sense of total subjection to U.S.

control. Mr. al-Asad was stripped naked, sexually

assaulted, diapered, chained, and strapped down to

the floor of an airplane, which transported him to

Afghanistan. There, Mr. al-Asad was held in a pitchdark cell, where he was unable to stand fully upright

because of a shackle connecting him to the wall. His

American captors blasted loud, thumping music

twenty-four hours a day, overloading his senses, and

preventing him from sleeping. Several months later,

Mr. al-Asad was transferred to a purpose-built black

site, where he was subjected to dietary manipulation,

held in complete isolation, and kept away from

sunlight. Mr. al-Asad was released from U.S.

detention in May 2005. Until the time of his death in

2016, Mr. al-Asad experienced debilitating effects of

the torture he experienced while in the secret

detention program.

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Mr. Nizar Sassi, a French national, was

captured by Pakistani military forces in December

2001 on the border between Pakistan and

Afghanistan. He was then handed over to U.S.

military forces on site. He was transferred to

Kandahar prison and then to the Guantánamo Bay

detention facility in January 2002. In the Kandahar

prison, Mr. Sassi was repeatedly beaten, humiliated,

and threatened. Upon arrival, he and other detainees

were greeted by “welcoming committees” that put the

detainees in line and wrapped cable fences around

them, and then a solder on each side of the line would

pull the cable. As he and other detainees were moved

from tent to tent, they would be “greeted” by being

beaten, climbed on or urinated upon. At

Guantánamo, Mr. Sassi was taken to the “X-RAY”

camp for about a month and a half, where he was held

in a cage and subjected to beatings every day. He was

later transferred to the “DELTA” camp, where he

suffered further physical and mental abuse,

including through beatings, sensory overload, and

sleep deprivation. Mr. Sassi was released from

Guantánamo on July 27, 2004. In November 2004, he

joined a criminal complaint in French courts with

amicus Mr. Mourad Benchellali, listed above,

addressing the torture they suffered in U.S.

detention facilities. An investigation was opened in

2005 but terminated in 2017 on grounds of State

immunity and lack of U.S. cooperation. The decision

to terminate was upheld on appeal, even though

French courts acknowledged that Mr. Sassi and Mr.

Benchellali had been tortured. The complaint is now

pending before the European Court of Human Rights.

In addition, Mr. Sassi and Mr. Benchellali filed civil

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suit in French courts for compensation for torture,

which is pending on appeal. Since he was first

detained by U.S. forces, Mr. Sassi has not yet been

fully recognized as a victim of State-sponsored

torture and has not been compensated as a victim of

a serious crime. In light of the many obstacles he has

faced in obtaining redress for the torture he suffered

nearly two decades ago, Mr. Sassi hopes that his

participation here will strengthen Abu Zubaydah’s

claim for a remedy in this case.

Amici understand, first-hand, the importance of

justice and accountability for severe human rights

violations. International human rights instruments

recognize and affirm as key principles the promotion

of rule of law, the pursuit of truth, the provision of

remedies to victims, and the prevention of recurrence

in the wake of systemic and severe violations of

human rights, including through the punishment of

those who committed or furthered torture.

Amici note that no less than the former President

of the United States has recognized that the United

States violated fundamental tenets of domestic and

international law in its response to the September

11th attacks, including by authorizing, ordering,

committing, and furthering torture.2 Yet, in the

See, e.g., President Barack Obama, Press Conference

by the President (Aug. 1, 2014), https://obamawhitehouse.archi

ves.gov/the-press-office/2014/08/01/press-conference-president

(“. . . [I]n the immediate aftermath of 9/11 we did some things

that were wrong. . . . [W]e tortured some folks.”); President

Barack Obama, Remarks by the President at the National

Defense University (May 23, 2013), https://obamawhitehouse.a

rchives.gov/the-press-office/2013/05/23/remarks-presidentnational-defense-university (“And in some cases, I believe we

2

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nearly twenty years since, there has been no full

accounting for the severe and long-lasting harm done

to so many, including amici, through the U.S.

rendition, interrogation, and detention program.

Amici make this submission to assist the Court as

it considers the balance to be struck for protection of

legitimate national security interests while also

ensuring that the United States meets its core legal

obligations to prevent, punish and redress torture.

SUMMARY OF ARGUMENT

This case implicates multiple fundamental rules

of international law and, for many in the

international community, serves as a bellwether as

to the United States’ commitment and adherence to

rule of law.

The right to be free from torture is a fundamental

right of the highest order from which there is no

derogation, including in times of war or national

emergency. The United States was instrumental to

the codification of the prohibition against torture at

the global level in the Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment

or Punishment (“Convention Against Torture” or

“CAT”), which it ratified in 1994.3 American

leadership in the drafting of the Convention led not

compromised our basic values – by using torture to interrogate

our enemies, and detaining individuals in a way that ran

counter to the rule of law.”).

3 Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, Apr. 18, 1988, S. Treaty

Doc. No. 20, 100-20 (1988), 1465 U.N.T.S. 85 [hereinafter CAT].

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only to the absolute prohibition of torture, but also

the creation of an enforcement regime that

recognizes

territorial

and

nationality-based

jurisdiction as well as the principle of universal

jurisdiction. The Convention requires that the 172

States Parties assist one another in advancing

criminal proceedings concerning torture, including

by supplying all evidence at their disposal. CAT, art.

9. This robust enforcement regime reflects the global

commitment to break the cycle of impunity for

torture so as to prevent acts that strike against the

inherent dignity of all persons from being committed

in the future.

The United States likewise led on the inclusion of

provisions that recognize the right of victims of

torture to complain to and seek justice from an

impartial tribunal, and affirm that victims of torture

enjoy an enforceable right to a remedy.

The United States’ assertion in this case of the

judicially-created evidentiary State secrets privilege

to block the deposition testimony of former

government contractors for use in a criminal

investigation of torture in Poland, conflicts with its

obligations under international law, including as a

signatory to the Convention Against Torture, to

further prevention, punishment and remedies for

acts of torture. The United States has failed to

provide any meaningful measure of justice and

accountability for torture, including to amici curiae,

in its own courts. It must not be permitted to impede

such efforts elsewhere.

The decision by the Court of Appeals for the Ninth

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Circuit would allow the United States to meet its

international legal obligations while protecting

legitimate national security interests. That decision

should be affirmed and the case remanded for further

proceedings.

ARGUMENT

I. Torture is a Universally Recognized Jus

Cogens Violation of International Law.

Torture is prohibited under treaty and customary

international law binding on the United States. See

International Covenant on Civil and Political Rights,

art. 7, Dec. 16, 1966, S. Treaty Doc. 95-20 (1978), 999

U.N.T.S. 171 [hereinafter ICCPR]; CAT, art. 4;

Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, art. 3(1)(a), 6 U.S.T.

3316, 75 U.N.T.S. 135

[hereinafter Geneva

Convention III] (prohibiting torture as a war crime);

id., art. 129 (requiring parties to the Convention to

criminalize grave breaches); id., art. 130 (defining

torture as a grave breach); Geneva Convention

Relative to the Protection of Civilian Persons in

Times of War, art. 3(1)(a), Aug. 12, 1949, 6 U.S.T.

3516, 75 U.N.T.S. 287

[hereinafter Geneva

Convention IV] (prohibiting torture as a war crime);

id., art. 146 (requiring parties to the Convention to

criminalize grave breaches); id., art. 147 (defining

torture as a grave breach). Torture is also prohibited

under domestic law.4 The prohibition is grounded in

the recognition of the “inherent dignity” of all

4 Torture Act, 18 U.S.C. §§ 2340-2340A (2004) [hereinafter

Anti-Torture Statute]; see also 18 U.S.C. § 2441(d)(1)(A) (2006)

(prohibiting torture as a war crime).

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persons. CAT, Preamble.

The prohibition of torture constitutes a jus cogens

norm that creates obligations erga omnes; as such,

the right to be free from torture is non-derogable and

imposes obligations that bind all States and which

are owed by States to the international community as

a whole.5 ICCPR, art. 4(2) (no derogations are

permitted from the prohibitions against torture and

other cruel, inhuman, or degrading treatment); CAT,

art. 2(2) (“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”);

Prosecutor v. Delalić, Case No. IT-96-21-T, Trial

Judgment, ¶ 454 (Int’l Crim. Trib. for the Former

Yugoslavia Nov. 16, 1998) (finding that the

prohibition against torture is absolute, nonderogable in all circumstances and a jus cogens

norm); Prosecutor v. Delalić, Case No. IT-96-21-A,

Appeal Judgment, n.225 (Int’l Crim. Trib. for the

Former Yugoslavia Feb. 20, 2001) (affirming that

torture is a jus cogens norm). Just as a state of war

neither justifies nor allows the use of torture,

combatting terrorism – engaging in a so-called “war

on terror” – or public emergencies that threaten the

life of the nation likewise provide no legal basis for

5 According to the Vienna Convention on the Law of

Treaties, a jus cogens norm (or peremptory norm) of

international law is a “norm accepted and recognized by the

international community of States as a whole as a norm from

which no derogation is permitted and which can be modified

only by a subsequent norm of general international law having

the same character.” Vienna Convention on the Law of Treaties,

art. 53, May 23, 1969, 1155 U.N.T.S. 331.

- 11 -

employing acts of torture. See Manfred Nowak &

Elizabeth McArthur, The United Nations Convention

Against Torture: A Commentary 2, 91 (Oxford

University Press 2008); see also Al Shimari v. CACI

Premier Techn., Inc., 840 F.3d 147, 162 (4th Cir.

2016) (Floyd, J., concurring) (“While executive

officers can declare the military reasonableness of

conduct amounting to torture, it is beyond the power

of even the President to declare such conduct

lawful.”).

The Convention Against Torture defines torture

as:

any act by which severe pain or suffering,

whether physical or mental, is intentionally

inflicted on a person for such purposes as

obtaining from him or a third person

information or a confession, punishing him

for an act he or a third person has

committed or is suspected of having

committed, or intimidating or coercing him

or a third person, or for any reason based on

discrimination of any kind, when such pain

or suffering is inflicted by or at the

instigation of or with the consent or

acquiescence of a public official or other

person acting in an official capacity.

CAT, art. 1(1).

The U.S. Anti-Torture Statute, enacted in 1994 to

implement the Convention Against Torture, “tracks

the provisions of the CAT in all material respects.”

United States v. Belfast, 611 F.3d 783, 806 (11th Cir.

- 12 -

2010). It defines torture as an act “specifically

intended to inflict severe physical or mental pain or

suffering . . . upon another person within his custody

or physical control.” 18 U.S.C. § 2340(1).

Certain conduct, including acts alleged to have

been committed against Abu Zubaydah, has been

universally recognized to constitute an underlying

act of torture. This includes acts such as “sustained

systematic beating, application of electric currents to

sensitive parts of the body, and tying up or hanging

in positions that cause extreme pain,” S. Exec. Rep.

No. 101-30, at 14 (1990); “[i]nfliction of pain through

chemicals or bondage (other than legitimate use of

restraints to prevent escape)[;] [f]orcing an individual

to stand, sit, or kneel in abnormal positions for

prolonged periods of time[;] [f]ood deprivation[;] [a]ny

form of beating” and “[m]ock executions[;] [a]bnormal

sleep deprivations[;] [c]hemically induced psychosis,”

U.S. Dep’t of Army, Field Manual 34 52: Intelligence

Interrogation, 1-8 (Sept. 28, 1992), https://www.loc.

gov/rr/frd/Military_Law/pdf/intel_interrrogation_sep

t-1992.pdf; and “the use of rape and other forms of

sexual violence,” 22 U.S.C.A. § 2152, note (West

1999) (Sec. 3. definition).6 Notably, courts and human

6 See also Prosecutor v. Kvočka, Case No. IT-98-30-T, Trial

Judgment, ¶ 144 (Int’l Crim. Trib. for the Former Yugoslavia

Nov. 2, 2001) (“beating, sexual violence, prolonged denial

of sleep, food, hygiene, and medical assistance, as well as

threats to torture, rape, or kill relatives . . .” held to constitute

torture); U. N. Comm. Against Torture, Conclusions and

Recommendations of the Committee Against Torture: United

States of America, ¶ 24, U.N. Doc. CAT/C/USA/CO/2 (July 25,

2006) [hereinafter Committee Against Torture Conclusions]

(finding acts “involving sexual humiliation, ‘waterboarding’,

‘short shackling’ and using dogs to induce fear, [. . .] constitutes

- 13 -

rights bodies have assessed the totality of treatment

to determine if it meets the “severe pain” threshold.7

Torture arises not only from the rendering of

severe physical pain, but also from severe mental

harm. Indeed, the drafters of the Convention Against

Torture considered the infliction of severe mental

harm sufficiently grave to constitute torture even in

the absence of physical harm. CAT, art. 1(1) (“severe

pain or suffering, whether physical or mental”); see

also 18 U.S.C. § 2340(1) (“severe physical or mental

pain or suffering”) (emphasis added).

The Convention Against Torture further prohibits

the transfer or return (“refouler”) of detainees to

countries where there are substantial grounds for

believing they face a risk of being subjected to torture

– or indeed, as relevant to the underlying facts of the

case at issue and to the experience of amici subjected

to “extraordinary rendition”8 – where they were

torture or cruel, inhuman

punishment”).

or

degrading

treatment or

7 For example, the United Nations Committee Against

Torture, which monitors the implementation of the CAT, in its

conclusions and recommendations to Israel, found that “(1)

restraining in very painful conditions, (2) hooding under special

conditions, (3) sounding of loud music for prolonged periods, (4)

sleep deprivation for prolonged periods, (5) threats, including

death threats, (6) violent shaking, and (7) using cold air to chill”

constitute torture. U. N. Comm. Against Torture, Report of the

Committee Against Torture, ¶ 257, U.N. Doc. A/52/44 (Sept. 10,

1997).

For more on the President George W. Bush-era practice of

“extraordinary rendition” and the legal framework applicable

thereto see Margaret L. Satterthwaite, Rendered Meaningless:

Extraordinary Rendition and the Rule of Law, 75 Geo. Wash. L.

8

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intended to be tortured. CAT, art. 3(1). See also I.N.S.

v. Stevic, 467 U.S. 407, 417, n.20 (1984) (referencing

obligations of non-refoulement under the 1951

Convention Relating to the Status of Refugees). Nonrefoulement has been recognized as a peremptory

norm under international law. U.N. Comm. Against

Torture, Summary Record of the 624th Meeting,

¶¶ 51-52, U.N Doc. CAT/C/SR.624 (Nov. 24, 2004).

II. The United States is obligated to prevent,

punish and redress torture.

The United States ratified the Convention

Against Torture in 1994. As a State Party to the

Convention, as well as to the 1949 Geneva

Conventions,9 the United States is obligated to take

certain measures to prevent, punish and redress

torture. It is recalled that domestic statutes – and

judicially-created evidentiary privileges or defenses –

should be applied to conform with the United States’

international legal obligations and commitments.

Murray v. Schooner Charming Betsy, 6 U.S. (2

Cranch), 64, 118 (1804) (“an act of Congress ought

never to be construed to violate the law of nations if

any other possible construction remains.”). See also

Rev. 1333 (2007); Katherine R. Hawkins, The Promises of

Torturers: Diplomatic Assurances and the Legality of

“Rendition,” 20 Geo. Immigr. L.J. 213 (2006).

9 See Geneva Convention III, art. 3(1)(a), (prohibiting

torture as a war crime); id., art. 129 (requiring parties to the

Convention to criminalize grave breaches); id., art. 130

(defining torture as a grave breach); Geneva Convention IV, art.

3(1)(a), (prohibiting torture as a war crime); id., art. 146

(requiring parties to the Convention to criminalize grave

breaches); id., art. 147 (defining torture as a grave breach).

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Vienna Convention on the Law of Treaties, art. 26

(“Every treaty in force is binding upon the parties to

it and must be performed by them in good faith”); id.,

art. 27 (“A party may not invoke the provisions of its

internal law as justification for its failure to perform

a treaty”). As the Trial Chamber in the seminal

Furundžija case observed, “torture is prohibited by a

peremptory norm of international law . . . [which]

serves to internationally de-legitimise any

legislative, administrative or judicial act authorizing

torture.” Prosecutor v. Furundžija, Case No. IT-9517/1-T, Trial Judgment, ¶ 155 (Int’l Crim. Trib. for

the Former Yugoslavia Dec. 10, 1998).

First, the United States is obligated to ensure that

acts of torture are offences under its criminal law.

CAT, art. 4.10 The United States did so, in part, when

it enacted its Anti-Torture Statute, which provides

jurisdiction over acts of torture committed “outside

the United States” when the perpetrators are

nationals of the United States or present in the U.S.11

18 U.S.C. § 2340A. States’ authorities “shall” proceed

“to a prompt and impartial investigation, whenever

10 The Convention Against Torture also requires that States

prevent “acts of cruel, inhuman or degrading treatment, or

punishment which do not amount to torture” in any territory

under its jurisdiction when committed by a public official or

another acting at the instigation or with the consent of a public

official. CAT, art. 16(1). See also Geneva Convention III, art.

129; id., art. 130; Geneva Convention IV, art. 146; id., art. 147.

11 Unusually, the Anti-Torture Statute excludes acts of

torture committed on the territory of the United States and only

applies extraterritorially. The Committee Against Torture has

repeatedly called for the United States to enact a federal crime

of torture consistent with article 1 of the Convention. See

Committee Against Torture Conclusions, ¶ 13.

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there is a reasonable ground to believe that an act of

torture has been committed in any territory under its

jurisdiction.” CAT, art. 12.

States Parties to the CAT are obligated to

establish jurisdiction not only over acts of torture

committed on their territory or by their nationals but

also over alleged torturers present in their territory,

regardless of nationality or where the acts of torture

occurred. CAT, art. 5. The mandate to provide

universal jurisdiction for torture was explained as

such: “Torture . . . is . . . primarily committed by

State officials, and the respective governments

usually have no interest in bringing their own

officials to justice.” Manfred Nowak & Elizabeth

McArthur, The United Nations Convention Against

Torture: A Commentary 316 (Oxford University

Press 2008). Notably, it was “the delegation from the

United States that had convincingly argued that

universal jurisdiction was intended primarily to deal

with situations where torture is a State policy and

where the respective government, therefore, was not

interested in extradition and prosecution of its own

officials accused of torture.” Id. at 315.

Once the presence of the suspect is guaranteed,

the Convention Against Torture requires that the

State must immediately proceed to a preliminary

inquiry. CAT, art. 6(2). This inquiry will make it

possible to determine the follow-up necessary, in

particular if the State Party itself will conduct the

proceedings to their conclusion.

Under the definition in both the CAT and the U.S.

Anti-Torture Statute, torture requires State action.

See CAT, art. 1(1) (harm is “inflicted by or at the

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instigation of or with the consent or acquiescence of

a public official or other person acting in an official

capacity”); 18 U.S.C. § 2340(1) (“an act committed by

a person acting under the color of law”).12 The United

States has recognized that all U.S. officials, as well

as contractors, are prohibited from engaging in

torture. See Committee Against Torture Conclusions,

¶ 6. The United States and its current or former

officials cannot cite official positions to evade

obligations to investigate or punish acts of torture.13

12 There is no state action requirement for the commission

of torture as a war crime or as an underlying act of genocide.

See Kadić v. Karadžić, 70 F.3d. 232 (2d. Cir. 1995).

13 Because torture is committed by State actors or non-State

actors working with the State, superior orders cannot be

invoked to justify torture. CAT, art. 2(3). Likewise, it would be

contrary to the very object and purpose of the CAT to allow

immunities to prevent the realization of one of the primary goals

of the CAT. Because acts of torture cannot be attributable to the

State due to the consensus among States that such acts are

impermissible and illegal under all circumstances, they cannot

fall within the scope of an official’s sovereign authority under

international law for which they enjoy immunity from

prosecution. See, e.g., Prosecutor v. Blaškić, Case No. IT-95-14AR108 bis, Judgement on the Request of the Republic of Croatia

for Review of the Decision of Trial Chamber II of 18 July 1997,

¶ 41 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 29, 1997)

(“those responsible for [war crimes, crimes against humanity

and genocide] cannot invoke immunity from national or

international jurisdiction even if they perpetrated such crimes

while acting in their official capacity”); Attorney Gen. of Israel v.

Eichmann, 36 I.L.R. 277, 310 (Sup. Ct. Israel 1962)

(“international law postulates that it is impossible for a State to

sanction an act that violates its severe prohibitions, and from

this follows the idea which forms the core of the concept of

‘international crime’ that a person who was a party to such

crime must bear individual responsibility for it. If it were

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In order to achieve the goal of preventing torture,

States also have obligations to assist in the

investigation and prosecution of alleged torturers

carried out by other States Parties to the Convention

Against Torture. Moreover, the jus cogens status of

the prohibition against torture impacts inter-State

relations. States Parties are required to “afford one

another the greatest measure of assistance in

connection with criminal proceedings” regarding

allegations of torture “including the supply of all

evidence at their disposal necessary for the

proceedings.” CAT, art. 9(1). Treaties on mutual

judicial assistance can be used to facilitate the

fulfilment of such obligations – and should not be

written or applied so as to subvert the object and

purpose of the substantive obligations. See Vienna

Convention on the Law of Treaties, art. 31.

Finally, and as will be discussed in detail in

Section III, the CAT requires States Parties to

provide a remedy. Article 14 mandates States to

ensure that victims of torture have “an enforceable

right to fair and adequate compensation, including

the means for as full a rehabilitation as possible.”

Torture Victim Protection Act of 1991, 28 U.S.C.

§ 1350, note, was enacted to satisfy this obligation, in

part.

otherwise, the penal provisions would be a mockery.”).

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III. The United States’ Blanket Assertion of

State Secrets Conflicts with its Obligation to

Uphold the Right to a Remedy for Victims of

Torture.

The principle ubi jus ibi remedium — “where

there is a right, there is a remedy” — is wellestablished in international law. This fundamental

tenet of law was recognized by the Permanent Court

of International Justice (“PCIJ”) in the seminal

Factory at Chorzów case, which declared “a principle

of international law that the breach of an engagement

involves an obligation to make reparation.” Factory at

Chorzów (Ger. v. Pol.), 1928 P.C.I.J. (ser. A) No. 17,

at 29 (Sept. 13) (emphasis added). Affirming the

responsibility of States to redress breaches of their

international obligations, the PCIJ further

recognized that reparation “is the indispensable

complement of a failure to apply a convention.” Id.14

The failure to provide a remedy promotes impunity,

which in turn leads to further human rights abuses.

Respect for and realization of the right to a remedy

can thus be understood as a linchpin for upholding

the international legal order.

In the century since the PCIJ decision, the right

of victims of serious human rights violations to an

effective remedy has been enshrined in numerous

14 See also International Law Commission, Draft Articles on

Responsibility of States for Internationally Wrongful Acts,

Report of the International Law Commission on the Work of Its

Fifty-Third Session art. 31(1), 2 Y.B. Int’l L. Comm’n 26–30,

U.N. Doc. A/56/10 (2001) (“[t]he responsible State is under an

obligation to make full reparation for the injury caused by the

internationally wrongful act.”).

- 20 -

international human rights treaties ratified by the

United States, as well as in regional instruments.15

The ICCPR, which the United States ratified in 1992,

requires that all States Parties “ensure that any

person whose rights or freedoms … are violated shall

have an effective remedy, notwithstanding that the

violation has been committed by persons acting in an

official capacity.” ICCPR, art. 2(3)(a). The CAT

15 See, e.g., G.A. Res. 217A (III), Universal Declaration of

Human Rights (Dec. 10, 1948), art. 8 (“[e]veryone has the right

to an effective remedy . . . for acts violating the fundamental

rights granted him”); Convention on the Elimination of All

Forms of Racial Discrimination art. 6, Dec. 21, 1965, 660

U.N.T.S. 195 (“States Parties shall assure to everyone within

their jurisdiction effective protection and remedies, through the

competent national tribunals and other State institutions

[. . .]”); American Convention on Human Rights art. 25, Nov. 22,

1969, 1144 U.N.T.S. 123 (“[e]veryone has the right to simple and

prompt recourse, or any other effective recourse, to a competent

court or tribunal for protection against acts that violate his

fundamental rights recognized by the constitution or laws of the

[S]tate concerned or by this Convention”). See also European

Convention for the Protection of Human Rights and

Fundamental Freedoms art. 13, Nov. 4, 1950, 213 U.N.T.S. 221

(“Everyone whose rights and freedoms set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity.”); Protocol

to the African Charter on Human and Peoples’ Rights on the

Establishment of an African Court on Human and Peoples’

Rights art. 27(1), June 9, 1998, CAB/LEG/665 (“If the Court

finds that there has been violation of a human or peoples’ right,

it shall make appropriate orders to remedy the violation,

including the payment of fair compensation or reparation.”);

Rome Statute of the International Criminal Court art. 75, July

17, 1998, 2187 U.N.T.S. 3 (“The Court shall establish principles

relating to reparations to, or in respect of, victims, including

restitution, compensation and rehabilitation.”).

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mandates that “[e]ach State Party shall ensure in its

legal system that the victim of an act of torture

obtains redress and has an enforceable right to fair

and adequate compensation, including the means for

as full rehabilitation as possible.” CAT, art. 14. The

Human Rights Committee, which oversees Member

State compliance with the ICCPR, emphasizes that

remedies must not just be available in theory but that

“States Parties must ensure that individuals . . . have

accessible and effective remedies to vindicate” their

rights. U.N. Human Rights Comm., General

Comment No. 31 on the Nature of the General Legal

Obligation Imposed on States Parties to the Covenant,

¶ 15, U.N. Doc. CCPR/C/21/Rev.1/Add. 13 (Mar. 29,

2004) (“HRC General Comment 31”). The Committee

Against Torture has emphasized the same in its

General Comment on the Convention Against

Torture, stating that redress “encompasses the

concepts of ‘effective remedy’ and ‘reparation.’” U.N.

Comm. Against Torture, General Comment No. 3 on

Implementation of Article 14 by States Parties, ¶ 2,

U.N. Doc. CAT/C/GC/3 (Dec. 13, 2012) (“Committee

Against Torture General Comment 3”).

The right to a remedy has also been recognized in

the case-law of regional bodies, including within the

Inter-American system. In Velásquez Rodríguez v.

Honduras, Reparations and Costs, Judgment,

Inter-Am. Ct. H.R. (ser. C) No. 7 (July 21, 1989), the

Inter-American Court of Human Rights issued a

landmark decision on the right to a remedy.

According to the Inter-American Court, “every

violation of an international obligation which results

in harm creates a duty to make adequate reparation.”

Id. at ¶ 25. This principle has frequently been

- 22 -

affirmed by the Inter-American Court.16

In 2005, the United Nations General Assembly

acknowledged “the importance of addressing the

question of remedies and reparation […] in a

systematic and thorough way at the national and

international levels.” U.N. General Assembly, Basic

Principles and Guidelines on the Right to a Remedy

and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious

Violations of International Humanitarian Law, U.N.

Doc. A/RES/60/147 (Dec. 16, 2005) (“U.N. Basic

Principles”). The U.N. Basic Principles recognize that

victims of gross violations of international human

rights law are entitled to “equal and effective access

to justice;” “adequate, effective and prompt

reparation for harm suffered;” and “access to relevant

information concerning violations and reparation

mechanisms.” U.N. Basic Principles, ¶ 11.

Notably, the right to a remedy or redress is not

limited to compensation. It is a “comprehensive

reparative concept [that] entails restitution,

compensation, rehabilitation, satisfaction and

guarantees of non-repetition.” Committee Against

Torture General Comment 3, ¶ 2; see also U.N. Basic

16 See, e.g., Fleury v. Haiti, Merits and Reparations,

Judgment, Inter-Am. Ct. H.R. (ser. C) No. 236, ¶ 115 (Nov. 23,

2011) (describing obligation to provide reparations as a

“customary norm that constitutes one of the fundamental

principles of contemporary international law on State

responsibility.”); Neptune v. Haiti, Merits, Reparations and

Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 180, ¶ 152

(May 6, 2008) (“It is a principle of international law that any

violation of an international obligation that results in damage

establishes the obligation to repair it adequately.”).

- 23 -

Principles, ¶ 18; ICCPR, ¶ 16. Amici highlight that

the ability to seek judicial remedies is a crucial

means for achieving an effective remedy, particularly

where there is a just process that allows for active

and meaningful victim participation.17 In the absence

of such remedies, the Human Rights Committee has

indicated that the purposes of the ICCPR would be

defeated. HRC General Comment 31, ¶ 17.

Particularly relevant to the matter before this Court

and fundamentally linked to the other aspects and

purposes of the right, a remedy also encompasses the

right to an effective investigation.18 The European

Court of Human Rights recognized that an “effective

official investigation” is the natural consequence of

the obligation on States to protect fundamental

rights – including the right to be free from torture –

“[o]therwise, the general legal prohibition of torture

and inhuman and degrading treatment and

17 Active victim participation in judicial proceedings does

not eliminate the obligations on States to investigate, facilitate

and further proceedings, or shift the burden onto the victim to

achieve a just outcome in judicial proceedings. See, e.g.,

Committee Against Torture General Comment 3, ¶ 30 (States

are obligated to “make readily available to the victims all

evidence concerning acts of torture or ill-treatment upon the

request of victims, their legal counsel, or a judge.”).

18 See European Court of Human Rights, Judgement in the

case of Centre for Legal Resources on behalf of Valentin

Câmpeanu v. Romania, App. No. 47848/08, Eur. Ct. H.R. at 55

(2014) (discussing the right to “a thorough and effective

investigation capable of leading to the identification and

punishment of those responsible”); Aksoy v. Turkey, App. No.

21987/93, Eur. Ct. H.R. at 26 (1996) (“notion of ‘effective remedy’

entails, in addition to payment of compensation where

appropriate, thorough and effective investigation capable of

leading to identification and punishment of those responsible”).

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punishment would, despite its fundamental

importance, be ineffective in practice and it would be

possible in some cases for agents of the State to abuse

the rights of those within their control and with

virtual impunity.” Al Nashiri v. Poland, App. No.

28761/11, Eur. Ct. H.R. at 184 (2014). Further, amici

endorse the conclusion that, regardless of outcome,

an effective investigation is a critical step towards

restoration of the dignity of victims of torture as

rights holders. See Committee Against Torture

General Comment 3, ¶¶ 4, 30.

The right to a remedy likewise includes the right

to truth.19 In this regard, the former United Nations

Special Rapporteur on the promotion and protection

of human rights and fundamental freedoms while

countering terrorism, Martin Scheinin, has

expressed concern about States, including the United

States, invoking secrecy provisions “to conceal illegal

acts from oversight bodies or judicial authorities, or

to protect itself from criticism, embarrassment and –

more importantly – liability.” U.N. Human Rights

Council, Report of the Special Rapporteur on the

Promotion and Protection of Human Rights and

Fundamental Freedoms While Countering Terrorism,

19 See, e.g., U.N. Comm’n on Human Rights, Report of the

Special Rapporteur on the Independence of Judges and Lawyers,

Leandro Despouy, ¶¶ 14-39, U.N. Doc. E/CN.4/2006/52 (Jan. 23,

2006) (on the administration of justice and the right to truth);

G.A. Res. 68/165 (Dec. 18, 2013) (calling on States inter alia to

preserve evidence of gross human rights violations to facilitate

knowledge of such violations, their investigation and access to

effective remedy); Human Rights Council Res. 9/11, U.N. Doc.

A/HRC/RES/9/11, (Sept. 18, 2008); Committee Against Torture

General Comment 3, ¶¶ 16-17.

- 25 -

Martin Scheinin, ¶ 59, U.N. Doc. A.HRC/10/3, (Feb.

4, 2009). He explained, “[t]he human rights

obligations of States, in particular the obligation to

ensure an effective remedy, require that such legal

provisions [concerning secrecy provisions and public

interest immunities] must not lead to a priori

dismissal of investigations, or prevent disclosure of

wrongdoing, in particular when there are reports of

international crimes or gross human rights

violations.” Id. at ¶ 60. Indeed, the U.N. Basic

Principles include “[v]erification of the facts and full

and public disclosure of the truth.” U.N. Basic

Principles, ¶ 22.

Concomitant with the right to a remedy is the

right of victims to have their claims adjudicated by

an independent and impartial tribunal. ICCPR, art.

14; see also CAT, art. 13. As this Court has long

recognized, it is the judiciary’s role to interpret the

law, mete out justice, and provide redress to victims.

Undue deference to the Executive branch or

judicially-created evidentiary privileges such as the

State secrets privilege cannot be used to either

impair the ability of courts to fulfil their duty to apply

and uphold the law or deny victims their

fundamental rights to justice and a remedy.

Based on the foregoing, it cannot be disputed that

the United States has an obligation to provide a

remedy to victims of torture. The position advanced

by the United States in this case runs contrary to its

obligations to victims of torture, including amici as

well as Abu Zubaydah.

Moreover, as a matter of both its treaty

- 26 -

obligations and customary international law, the

United States also has an obligation to assist other

States in meeting their obligations to prevent,

investigate, punish and remedy acts of torture. CAT,

art. 9.20 As set out above, the anti-torture regime is

intended to be international in scope and relies upon

States working together to achieve the goals of

preventing torture, and when that fails, to punish

those who perpetrated or furthered it so as to deter

its reoccurrence and provide a remedy to victims.

Failure by States to do so results in further injury to

victims, undermines the prohibition against torture,

and may itself constitute a violation of the

prohibition.21 The United States must not impede

other States from achieving a measure of justice for

victims of torture that it has thus far failed to

provide. Denying in toto the depositions of the former

U.S. contractors in this case constitutes just such an

improper obstruction of justice.

20 Amici observe that in addition to obligations under the

Convention Against Torture and customary international law,

Poland has independent obligations to provide victims of torture

with a remedy. See, e.g., Directive 2012/29/EU, of the European

Parliament and of the Council of 25 October 2012 Establishing

Minimum Standards on the Rights, Support and Protection of

Victims of Crime, and Replacing Council Framework Decision

2001/220/JHA (L 315).

21 See Aksoy v. Turkey, Eur. Ct. H.R. at 26 (1996); Assenov

v. Bulgaria, App. No. 24760/94, Eur. Ct. H.R. at 23 (1998). See

also, Labita v. Italy, App. No. 26772/95, Eur. Ct. H.R. at 25-26

(2000); Ilhan v. Turkey, App. No. 22277/93, Eur. Ct. H.R. at 2223 (2002); Bueno-Alves v. Argentina, Merits, Reparations, and

Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 164, ¶¶ 88-90,

108 (2007).

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CONCLUSION

For the foregoing reasons, the decision of the

Court of Appeals for the Ninth Circuit in this case

should be affirmed and the case remanded for further

proceedings.

Respectfully submitted,

PROF. HANNAH R. GARRY

Counsel of Record

UNIVERSITY OF SOUTHERN CALIFORNIA

GOULD SCHOOL OF LAW

699 Exposition Blvd., #442

Los Angeles, CA 90089

(213) 740-9154

hgarry@law.usc.edu

Dated:

August 20, 2021

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