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Transnational Justice and the Binyam Mohamed Case
In terms of accountability, a lot of the action in the Binyam Mohamed case has been in the U.K., but as we've been following in Chapter 4 and here in the Diary, it is the recent round of back-and-forth decisions between a U.K. and U.S. court that has really served to establish the truth of Mohamed's account of torture in Pakistan, Morocco, and the CIA's secret Dark Prison.
That has me thinking about what is being called “transnational justice,” and so I asked Steven Watt, Senior Staff Attorney at the ACLU's Human Rights Program, to give me some background on this important tool and how it is being used in Binyam Mohamed's case. I thought I'd just share our conversation.
LS: Explain “transnational justice” to me—What is the idea, where does it come from, what are some significant examples?
SW: Transnational Justice is a very fluid term, but it basically involves the flow of ideas and judgments from court to court across borders, and using this flow to advocate for justice. A really good example of this would be Binyam Mohamed's case. We've got litigation here in the United States on behalf of Binyam Mohamed, there's habeas proceedings there's also a damages proceeding against Jeppesen Dataplan, and over in the UK there's mirror litigation involving access to information that's in the hands of the United Kingdom concerning his detention by US authorities in Pakistan in 2002, and there's also litigation involving Jeppesen Dataplan's UK subsidiary and its involvement in his rendition and torture in Pakistan and Morocco from 2002 to 2004.
LS: I didn't realize there was a separate Jeppesen action. Which one was filed first?
SW: Ours was filed first, and then lawyers over there had the idea, when it came to light that there was a possibility that Jeppesen's UK subsidiary had been involved in his rendition, that they would file an action that mirrored our proceedings in the United States . So I've been working very closely with them, making sure they have all the information we have, making sure their claims don't somehow conflict with the claims we've made here. It's an interchange of ideas and judgments and standards—that's what transnational justice is all about.
LS: In this case we've seen that interchange of judgments pretty vividly, the way the UK court's earlier decisions affected Judge Kessler's decision to grant the habeas corpus petition of a Guantánamo detainee because information Binyam Mohamed had supposedly provided about the detainee was tainted by Binyam's torture—and the way Judge Kessler's decision then became a major part of the U.K. court's decision to release the seven paragraphs, right?
SW: Absolutely, because what the U.K. Court of Appeal found in its most recent decision was that, of course we have to unredact those seven paragraphs in the lower court's judgment, because a court in the United States has already made findings which mirror what was in those seven paragraphs—so the claims by the U.K. government in his case before the court of appeal, that releasing the paragraphs would damage the intelligence-sharing relationship between the countries, were improbable. Since the United States had now already openly discussed exactly the same issues in Judge Kessler's opinion, why should the court prohibit their publication in the United Kingdom ?
LS: Can you talk a little bit about the using this tool of transnational justice specifically to address torture, to secure accountability for torture? It seems to me there's two parts of that, there's telling the story, establishing the truth of what happened, and there's making reparations to the person who was subjected to torture.
SW: I don't think it's really making reparations—or rather, I think it's looking at reparations in a very broad sense of the word. What was important to Binyam in the U.K. case and in the U.S. proceedings is really the vindication of his story, so transnational justice really becomes the process by which his story is verified in an official proceeding. This kind of vindication is crucially important to torture survivors in their recovery process; I've personally witnessed it time and again in many cases where I've been involved with victims of post-9/11 torture and forced disappearance policies. What they want in these court proceedings is some way of even attempting to hold those responsible accountable.
LS: Who are some of the others you have worked with?
SW: That would be starting back when I worked at the Center for Constitutional Rights representing Maher Arar, for example. His primary reason for filing proceedings which we knew were going to be incredibly difficult in the United States was some vindication of his story, a truth-telling process. That's what the litigation was about for him. Similarly, Khalid el-Masri, who, you know, had a very different personal background, but was of the same view as Maher Arar: he wanted a process by which the truth could come out and that he could somehow someday get an apology, and litigation was seen as part of that process. And then the five individuals in the Jeppesen case, all of them—they're not about seeking huge money damages which they'll never see at the end of the day, most likely, but it's a process of holding those responsible for their treatment to account.
LS: So how far is Binyam Mohamed toward that goal now? I mean, you now have a court in the U.S. and a court in the U.K. who essentially say that his account of his experiences, at least in Pakistan —
SW: Pakistan , and in Morocco . In the habeas proceedings, Judge Kessler basically found that his account seemed to be truthful, and noted that the United States authorities, when presented with it, did not dispute it, so she took his account as a given. And similarly in the U.K. now, those judges have found that their examination of 42 documents—because that's what that case was about, they analyzed 42 documents which gave an accounting of U.S. and U.K. complicity in Mohamed's rendition and detention, and they distilled that down to these seven paragraphs—and these judges in the United Kingdom also found that his version of the facts, his torture, his forced disappearance, were truthful. And that's very, very important to Binyam in his recovery process as a torture survivor.
LS: But it's short of an apology.
SW: We're nowhere near an apology, either in the U.K. or the U.S. yet, but at least in the U.K., I think it's important to note that once the court came down with its ruling and said that those seven paragraphs should be published, the U.K. government complied with that order and didn't drag this proceeding out, didn't go for example up to what is now called the Supreme Court in the United Kingdom, previously the House of Lords. They didn't actually fight the case up to the highest court as they could have done; they came clean and said, OK, let's publish them, and those seven paragraphs are published on the official U.K. government website.
LS: Do you think the U.K. 's actions will now change or affect the Jeppesen suit in the U.S? Will it make it more difficult for our government to pursue a sort of ‘state secrets' approach?
SW: I would think so. I mean one would think the judges would look at government's assertions of damage to national security in Jeppesen case, particularly in relation to Binyam Mohamed's claims, with skepticism. Because if what the government is essentially trying to cover up in the Jeppesen litigation in the U.S. is the same as what it now publicly acknowledged in the U.K.—and I can't see that it would be any different—it just makes their assertions increasingly improbable, and I think'll be viewed, as I say, with skepticism.
LS: It's interesting to think of this kind of pursuit of justice across borders as a kind of mirror image of the “war on terror's” notion of a borderless international conflict, and as a powerful tool for responding to the abuses of that approach. Do you think this is the way it's going to play out in more and more cases, and places?
SW: I think it's the way to pursue justice in a paradigm where you have the United States , both the prior administration and now this administration, trying to act outside the law by making assertions that these incidents arose outside of the United States , so therefore you can't come into a United States courtroom to assert your rights. As advocates we now need to look outside the United States . In the same way that the U.S. administrations are looking outside the United States to justify their positions, we should be looking outside the U.S. to hold them to account.