CHAPTER 9 :
North Carolina’s Obligations under Domestic and International Law, the Basis for Federal and State Investigation, and the Need for Accountability
The United States’ rendition and torture program violated international law, federal law, and the laws of North Carolina. This chapter summarizes the laws governing torture and the seizure and transportation of people for the purpose of using torture as an interrogation tool. In doing so, it outlines areas of legal liability and responsibility for the State of North Carolina.
THE GOVERNMENT’S PURPORTED LEGAL JUSTIFICATION
The government’s decision to engage in extraordinary rendition and torture was accompanied by a series of legal memoranda, including the now infamous (and withdrawn) “Torture Memos” of August 2002900 prepared by the Office of Legal Counsel of the Department of Justice. These and other memoranda concluded that the Geneva Conventions did not apply to al-Qaeda and the Taliban;901 that torture only occurs when it is intended to inflict “physical pain . . . equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death;”902 and that the proposed so-called “enhanced interrogation techniques” (EITs)903 were legally permissible. The Torture Memos have been extensively criticized by legal scholars,904 rejected as authority by a federal court,905 found to be an exercise of “poor judgment” by the Justice Department’s Office of Professional Responsibility,906 and at least partially disavowed by later memoranda from Bush administration legal counsel.907
Via Executive Order 13491 of September 22, 2009, President Barack Obama set limits, in accordance with the humane treatment obligations of international law, on the interrogation techniques that could be used by officials and ordered the shuttering of any CIA detention facilities.908 This is for good reason. Notwithstanding the initial legal apparatus used to justify the RDI program, it is clear that the program entailed violations of the law.
The next sections evaluate the legal obligations to address and prevent rendition and torture under international, federal, and state law.
INTERNATIONAL LAW AND THE RDI PROGRAM
U.S. obligations under international law comprise a series of complementary protections under international human rights, humanitarian, refugee, and criminal law. These obligations derive both from treaties that the United States has ratified, as well as from customary international law, meaning norms that are binding on all nations although not necessarily always codified in law.909
The U. S. is a party to a number of the core international human rights treaties, including particularly for the purposes of assessing the illegality of the RDI program, the International Covenant on Civil and Political Rights (ICCPR),910 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).911 According to both international and domestic laws, when the U.S. ratifies human rights treaties, ratification binds state and local authorities,912 consistent with their various competences, in addition to the federal government.913 U.S. federalism, as well as the U.S. government’s declaration that these treaties are not self-executing914 — meaning they need implementing legislation to be able to be directly enforced in U.S. courts — do not affect “U.S. obligations under international law, but they can affect how they get domestically implemented and judicially enforced.”915
When the U.S. government ratified the ICCPR and CAT, it also indicated that its consent was subject to the understanding that these treaties “shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments.”916 Known as the federalism understanding, this understanding does not affect the extent to which the U.S. government and its subdivisions — including state and local authorities in North Carolina — are required to comply with the obligations in these treaties.917 In fact, in its initial report to the U.N. Committee Against Torture, the U.S. government recognized that such understanding does not “exempt any state or local officials from the [CAT]’s requirements regarding the prohibition, prevention, and punishment of torture or cruel, inhuman or degrading treatment or punishment.”918
U.S. HUMAN RIGHTS OBLIGATIONS DURING THE ‘WAR ON TERROR’
A range of core international obligations relevant to the RDI program are absolute and non-derogable (cannot be set aside). Specifically, neither war nor state of exception or emergency, nor national security concerns, can justify torture or cruel, inhuman or degrading treatment or punishment,919 transfer to torture or cruel, inhuman or degrading treatment or punishment,920 and enforced disappearances.921 The obligation not to torture, for example, applies wherever the U.S. government operates, whether on U.S. soil or elsewhere.922 As such, this obligation applies “to what happened on U.S. territory (e.g., authorizations through Torture Memos, trainings of interrogators, use of airports) but also extraterritorially wherever the [U.S. Government] exercised effective control over an individual [—] e.g., in CIA ‘black sites’ in locations such as Thailand and Poland, as well on rendition aircraft even when in the airspace(s) of another country or in international airspace.”923
Importantly, the United States’ human rights obligations continued to apply during the so-called “war on terror,”924 despite U.S. government assertions to the contrary.925 As the Commission heard, “just as no state, group or individual is above the law, so too can no person be placed outside the law. Acts such as enforced disappearance in CIA “black sites” or efforts to create a legal fiction of ‘human rights free zones’ that give a blank check to interrogations provided they are not on U.S. soil tried to do this and in so doing, infringed international human rights law.”926
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In addition to regulating the activities or omissions of its own officials, under international law the United States is also required to regulate those of private actors, such as corporations. This means, for example, that the United States will be “liable for the actions of other individuals or groups acting under its instruction, direction, control, or acquiescence, including private actors such as companies that act effectively as an arm of the government.”927 Under Article 1 of CAT, the U.S. government is responsible for torture by State and non-State actors, including private contractors working for the U.S. government, where torture 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.”928 In addition, even if the private actor is found not to be acting at the direction of the U.S. government, the U.S. government nonetheless is required to exercise due diligence to prevent human rights abuses by non-State actors, to investigate and prosecute these perpetrators, to assist and protect victims, and to ensure remedies. As the Commission heard, “under human rights law that binds the United States and all of its governmental authorities, a government can’t violate rights, outsource to private actors to do so, or turn a blind eye when private actors do — either at the time these things are happening or afterward in failing to investigate, prosecute, and punish.”929
THE RDI PROGRAM AND VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW
According to testimony before the Commission:
Program planning, execution, and failure to investigate and punish, all engage international law obligations that bind the United States. For example, what happened to individuals at all stages in the program — including in the lead up to rendition flights (including their initial apprehension and treatment on tarmacs of foreign airports by CIA Rendition Teams), on rendition flights, in secret detention and through interrogation using brutal tactics referred to as EITs, and in the failure to get justice — engages international law obligations that bind the United States and was in clear violation of human rights treaties.930
The RDI program violated multiple human rights.931 This section focuses specifically on how interrogation techniques, conditions of confinement, and the incommunicado nature of detention in the CIA “black sites” — as well as in foreign custody — violated prohibitions on torture, prohibitions on cruel, inhuman, or degrading treatment or punishment, and prohibitions on enforced disappearances.
INTERROGATION, CONFINEMENT, AND THE PROHIBITION ON TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
The U.S. government is bound by the prohibition on torture and cruel, inhuman or degrading (CID) treatment or punishment under CAT, as well as Article 7 of the ICCPR.932 The prohibition of torture has also been universally recognized as a norm of customary international law.933 The absolute nature of the prohibition renders irrelevant any discussion of the efficacy of conditions of confinement or interrogation tactics, as “[t]he absolute ban on torture means that from a legal perspective there is simply no room for discussions about whether torture does or does not work.”934
Interrogation and conditions of confinement during the RDI program fell woefully short of international law requirements in CAT including protecting both the “physical and mental integrity of individuals,”935 even taking into account the U.S. government’s relevant reservations and understandings to these treaties (e.g., its reservations to the meaning of cruel, inhuman, and degrading treatment in the ICCPR936 and CAT,937 as well as its understanding on the definition of torture in CAT).938
Government documents describing the interrogation process,939 accounts of individuals in the RDI program, and the inquiry by the Senate Select Committee on Intelligence reveal that the interrogation and conditions of confinement in CIA “black sites” amounted to illegal severe pain or suffering, either physical, mental, or in many cases both. For example, detainees in CIA “black sites” were subjected to “rectal rehydration” and “rectal feeding” and put in ice water “baths.”940 Detainees received either direct death threats or threats of “harm to their families — including threats to harm the children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to ‘cut [a detainee’s] mother’s throat.’”941 Sleep deprivation “involved keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads.”942 With regard to conditions of confinement, detainees in one prison were “kept in complete darkness and constantly shackled in isolated cells with loud noise or music and only a bucket to use for human waste.”943 Conditions at this facility were such that one senior CIA officer described the “black site” as “itself an enhanced interrogation technique.”944 Mental suffering was severe: “Throughout the program, multiple CIA detainees who were subjected to the CIA’s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation.”945
International human rights bodies have condemned the U.S. interrogation techniques, calling on the government as early as 2006 to “rescind any interrogation technique, including methods involving sexual humiliation, ‘waterboarding’, ‘short shackling’ and using dogs to induce fear, that constitutes torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control, in order to comply with its obligations under the Convention.”946
The European Court of Human Rights also concluded that interrogation techniques used against detainees in CIA “black sites” comprise human rights violations. For example, in the Case of Al-Nashiri v. Poland, the Court stated that regardless of “when, how and in what combination” particular interrogation techniques were utilized,947 both the interrogations and various aspects of detention “were applied in a premeditated and organized manner, on the basis of a formalized, clinical procedure, setting out a “wide range of legally sanctioned techniques” and specifically designed to elicit information or confessions or to obtain intelligence from captured terrorist suspects.”948 On this basis, the Court found that the treatment to which Abd al Rahim Al-Nashiri was subjected “amounted to torture within the meaning of Article 3 of the Convention.”949
CIA “BLACK SITES’ AND THE PROHIBITION ON ENFORCED DISAPPEARANCES
Detention in CIA “black sites,” as well as in many foreign custody arrangements in the RDI program, also violated the international human rights law prohibition on enforced disappearances.
While the U.S. government has not ratified the core human rights treaty proscribing enforced disappearances950 and has stated that “enforced or involuntary disappearances are not synonymous with acts of torture,”951 the prohibition has repeatedly been read into CAT and the ICCPR952 by the bodies charged with monitoring the treaties. For example, enforced disappearances can, in certain circumstances, violate the right to life guaranteed by Article 6 of the ICCPR. They always violate “the right to liberty and security of the person and the prohibition of arbitrary arrest or detention.”953 In addition, the
U.N. Human Rights Committee found that “[e]very instance of secret detention is by definition incommunicado detention. Prolonged incommunicado detention may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment, and may in itself constitute such treatment.”954 Enforced disappearance may also “amount to torture or other form of ill-treatment, and at the same time violates the right to the protection of family life” for family members of the disappeared.955
Individuals held in CIA “black sites” — and often those rendered to foreign custody for detention and interrogation — were held in secret, i.e., incommunicado, detention in unknown locations and without information about their fate disclosed,956 amounting to an enforced disappearance.
VIOLATIONS OF THE RIGHT TO REMEDY
According to the testimony before the Commission, “[a]cross all of the human rights treaties, there is also a right to an effective remedy, including reparation and compensation for violations that are committed. This means that the human rights treaties that the United States has ratified govern what the government does or does not do long after the program itself has ended.”957 Indeed, a right to remedy is found in the both ICCPR958 and CAT.959 As testimony before the Commission highlighted, neither the Bush nor Obama administration criminally prosecuted any officials for violations of international law committed during the CIA RDI program.960 Furthermore, both administrations claimed the “state secrets” privilege to block attempts by victims to remedy violations through civil litigation.961
This testimony also highlighted that
“[w]hile official acknowledgment of the CIA RDI program through the Senate Torture Report has allowed for a successful settlement remedy against two CIA-contracted psychologists, James Mitchell and John ‘Bruce’ Jessen, on behalf of two survivors of the CIA Torture Program, Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, and the family of Gul Rahman, who froze to death in a secret CIA prison in November 2002,”962 a remedy for many victims of rendition under the CIA RDI program remains impossible until the U.S. government fully investigates those renditions.963 This failure of the U.S. government authorities at all levels to investigate and prosecute allegations of human rights violations in the RDI program — including allegations of abuses faced by those rendered to foreign custody — is itself a breach of its binding obligations under human rights treaties.964
FEDERAL LAW AND THE RDI PROGRAM
INVESTIGATION AND PROSECUTION OF TORTURE-RELATED CRIMES UNDER FEDERAL LAW
Both United States Attorneys (the chief federal prosecutors in the various judicial districts) and specialized attorneys of the U.S. Department of Justice have the responsibility to investigate crimes falling under their jurisdictions. Under 28 U.S.C. § 547, United States Attorneys have a duty to prosecute offenses against the United States; that “carries with it the authority necessary to perform this duty.”965 According to the United States Attorney Manual, “[t]he United States Attorney, as the chief federal law enforcement officer in his district, is authorized to request the appropriate federal investigative agency to investigate alleged or suspected violations of federal law.”966 This plenary authority within each district is exercised under the supervision and direction of the Attorney General.967
The authority, discretionary power, and responsibilities of the United States Attorney with relation to criminal matters include: (a) investigating suspected or alleged offenses against the United States; (b) causing investigations to be conducted by appropriate federal law enforcement agencies; (c) declining to prosecute; (d) authorizing prosecution; (e) determining the manner of prosecuting and deciding trial related questions; and (e) dismissing prosecutions.968
In addition, the Human Rights and Special Prosecutions Section of the Criminal Division of the U.S. Department of Justice is charged with “investigat[ing] and, where appropriate, prosecut[ing] cases against human rights violators and other international criminals.”969 This includes individuals who have violated federal criminal laws, including laws prohibiting torture and war crimes. The principal statutes under which this Section operates are the Extraterritorial Torture Law, The War Crimes Act, 18 U.S.C. § 2441, and 18 U.S.C. §§ 2340-2340A (the “Torture Act”), which is discussed in what follows.970
FEDERAL OFFENSES IMPLICATED BY THE U.S. RENDITION, DETENTION AND INTERROGATION PROGRAM
The Torture Act
By far, the broadest federal authority to prosecute human rights violations outside the United States is the Torture Act, which implements United States’ obligations under CAT. The Act criminalizes the commission of torture and other cruel and inhuman treatment, the attempt to commit such acts, and conspiracy to commit such acts.971 It applies to acts of torture and other cruel and inhuman treatment committed outside the United States by a U.S. national or by an offender who is physically present in the United States and therefore subject to its jurisdiction, without regard to the nationality of the offender or the victim.
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Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act). ..........
(d) Common Article 3 Violations
(1) Prohibited conduct.—In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment.— The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control. ..........
(2)Definitions. In the case of an offense under subsection (a) by reason of subsection (c)(3)— ..........
(D) the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—
(i) a substantial risk of death; (ii) extreme physical pain; ..........
Torture is defined under the Act as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” “Severe mental pain or suffering” means:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
It seems likely that a conspiracy was formed between those who regularly provided and operated aircraft used in the RDI program and those responsible for the kidnapping and torture that was carried out under the program.
The Act went into effect on November 20, 1994. To date, there has been only one prosecution under it.972 Nevertheless, there can be no dispute that the conduct described in the Report that was carried out by U.S. nationals under the U.S. Rendition, Detention & Interrogation program between 2001 and 2006 violated the Torture Act.
Conspirators and Accomplices
Federal law also provides a basis for prosecuting conspirators and accomplices. Conspiracy requires proof that the individual charged entered an agreement with others to engage in unlawful conduct. The government must also prove an overt act by one of the co-conspirators in furtherance of the agreement. This requirement can be satisfied by virtually any act committed by a co-conspirator, including buying fuel in North Carolina for one of the aircraft used to ferry officials and detainees under the program. From the evidence developed before the Commission, it seems likely that a conspiracy was formed between those who regularly provided and operated aircraft used in the RDI program and those responsible for the kidnapping and torture that was carried out under the program.
A person charged with a conspiracy may also be convicted of other substantive crimes committed by the group, including torture and kidnapping. The defendant can be convicted for the offense that he or she personally commits; for participation in the crime as an accomplice; and under the federal Pinkerton Rule. Under that rule, a person charged with a criminal conspiracy may also be liable for the substantive offenses committed by co-conspirators, whether or not he or she assisted in their commission (or even knew about them).973
The federal government can also prosecute accomplices who aid and abet or attempt to aid and abet principals to a crime.974 “The government must prove that the defendant associated with the criminal venture, purposefully participated in the criminal activity, and sought by his [or her] actions to make the venture successful.”975 The evidence of accomplice liability does not have to be substantial:
A [person] associates with a criminal venture if he shares in the criminal intent of the principal, and the [person] participates in criminal activity if he has acted in some affirmative manner designed to aid the venture. . . . The level of participation may be of relatively slight moment. . . . Also, it does not take much evidence to satisfy the facilitation element once the [person’s] knowledge of the unlawful purpose is established.976
If the government establishes that the individual is an accomplice to a federal offense, he or she is treated as a principal and is punished accordingly.977
Special Aircraft Jurisdiction of the United States
The “special aircraft jurisdiction of the United States” allows the federal government to prosecute certain criminal offenses that take place aboard a “civil aircraft of the United States” or any U.S. military aircraft, while the aircraft is in flight anywhere in the world.978 The jurisdiction is also implicated when the proscribed offense takes place during the flight of any other aircraft that is leased without a crew to a lessee who has its principal place of business in the United States or who is a permanent resident of the United States. Crimes that can be prosecuted under this special aircraft jurisdiction include assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), and sexual abuse offenses (18 U.S.C. §§ 2241-2244).979 The United States prosecuted Richard Reid (the so-called “shoe bomber”) and Umar Farouk Abdulmutallab, who attempted to detonate explosives that lined his underwear on a Northwest Airlines flight from Amsterdam to Detroit, under its special aircraft jurisdiction.980
INVESTIGATION AND PROSECUTION OF CRIMES UNDER NORTH CAROLINA LAW
Local district attorneys have primary jurisdiction to investigate and prosecute crimes in North Carolina.981 The North Carolina Attorney General is authorized to advise and assist local district attorneys in carrying out their prosecutorial responsibilities, but only if requested by them.982 Under some enumerated circumstances, local district attorneys can request the Attorney General to prosecute individual cases, but the Attorney General retains the discretion to decline such requests.983
Similarly, local law enforcement agencies have the primary responsibility to investigate crimes in their jurisdictions.984 However, the North Carolina State Bureau of Investigation, an independent investigative agency, has statewide jurisdiction to conduct investigations. “The services of employees of the Bureau may be required by the Governor in connection with the investigation of any crime committed anywhere in the State when called upon by the enforcement officers of the State, and when, in the judgment of the Governor, such services may be rendered with advantage to the enforcement of the criminal law.”985 Enforcement officers include district attorneys, sheriffs, police departments, and judges.986
CONSPIRACY UNDER NORTH CAROLINA LAW
A threshold question under North Carolina law is whether the state has territorial jurisdiction to prosecute any of the criminal conduct carried out under the RDI Program, which occurred outside the state. Generally, North Carolina has jurisdiction to prosecute only offenses that take place within the state, as well as any accessorial acts (planning or solicitation to commit offenses in North Carolina) that take place outside the state.987 In addition, however, North Carolina has the jurisdiction to prosecute a member of a conspiracy in this state if any of the co-conspirators commit an overt act in North Carolina in furtherance of the conspiracy, even if the conspiracy was formed outside the state (State v. Drakeford).988 This is the broadest and clearest possible basis for criminal liability in North Carolina for acts in North Carolina associated with the CIA’s RDI program.989
In North Carolina, conspiracy is a common law offense. Its elements are (1) an agreement with at least one other person (2) to commit an unlawful act (3) with intent that the agreement be carried out.990 A conspiracy is complete once the agreement is made, whether or not the planned offense ever occurs.991 That means that the state does not have to have jurisdiction to prosecute the unlawful acts that were the object of the conspiracy. A person may be charged with conspiracy in North Carolina if any co-conspirator commits an overt act in North Carolina in furtherance of the unlawful agreement, even if the conspiracy was entered into outside the state.992
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The acts of Aero Contractors and its employees, agents, and collaborators in North Carolina, described in detail in this report, were taken in furtherance of an unlawful agreement to violate CAT and the federal Torture Act.993 These actors also were key participants in the unlawful kidnapping and renditions that systematically took place under the RDI program.994 In addition, offenses that were subject to the special aircraft jurisdiction of the United States took place during flights on aircraft operated by these North Carolina co-conspirators. North Carolina has the jurisdiction to prosecute the co-conspirators in this state. Finally, other offenses that were a foreseeable consequence of the conspiracy, although not prosecutable in North Carolina, are relevant to show that the agreements under which the RDI program was carried out were unlawful.
The state of North Carolina has an obligation to do at least one of these things: report Aero’s conduct to the federal government for investigation (under CAT and ICCPR); conduct its own investigation of the unlawful conduct and refer the results to the federal government to prosecute; prosecute under state law, in cases where the conduct also violates state law and prosecution is warranted.
It is clear that the RDI program was a scheme that violated numerous international, federal, and state laws. Further, it is clear that unlawful missions began in North Carolinians’ own backyard, utilizing the facilities of taxpayer-supported public airports, aided and abetted by the acts and agreements of North Carolina residents. Yet despite the clarity of the illegality, no law enforcement authority has accepted responsibility for investigating and prosecuting the crimes that originated on North Carolina’s soil. This failure to pursue justice is an important part of the persistent lack of accountability for the CIA RDI program. In order to fulfill the obligations of their offices, federal and state prosecutors and state and local law enforcement agencies should fully investigate and prosecute crimes covertly committed in North Carolina in the name of the people of this nation.995