No Comment — October 7, 2010, 3:08 pm

Compensating Victims of Torture Should Be a Two-Way Street

When American citizens are victims of torture and other cruel, inhuman, and degrading teatment by foreign governments, the United States sometimes presses their claims to compensation aggressively, under the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), insisting on large settlements from the governments that abused them. A good example was in the agreement, announced on September 11, between the United States and Iraq. Neither side would publicly disclose the amount of the payment, designed to provide reparations to Americans who were imprisoned, abused, and tortured by the government of Saddam Hussein, but the Christian Science Monitor reported that it amounted to $400 million.

When the tables are turned and the United States is the torturer or abuser of the citizens of foreign states, things are different. Recently, the Justice Department has vigorously opposed all efforts by victims of its torture and abuse policies to obtain compensation for their mistreatment. It does so even when acknowledging the abuse and even when the victim was completely innocent—witness the cases of the Canadian computer engineer Maher Arar and the German greengrocer Khaled El-Masri. Salon’s Glenn Greenwald calls this “American exceptionalism”; I would call it the American doctrine of asymmetrical lawfare—we use international law instruments to secure compensation for our own citizens and steadfastly refuse to be held to the same standards ourselves.

Now the International Center for Transitional Justice has released a new study, “After Torture: U.S. Accountability and the Right to Redress,” which unravels the United States’ defensive posture with respect to claims by victims of torture step by step:

Under the [CAT and ICCPR], signatories like the United States are required to provide redress (reparation) to victims of such serious rights violations. The United States has publicly lauded this principle as it applies to other countries and has offered significant financial and political support to torture victims of foreign regimes; yet it has failed to acknowledge or address its obligation to victims of its own detention- and interrogation-related rights violations in counterterrorism operations.

When the United Nations (UN) Committee against Torture questioned the United States about its obligation to provide redress to torture victims, the government’s response in 2005 was that victims could pursue civil litigation in U.S. courts or file claims under the Foreign Claims Act (FCA), by which the military provides compensation for harms to civilians. Yet neither of these has proven successful for most victims of U.S. abuses in the counterterrorism context. Non-citizen detainees’ civil claims have been stymied by procedural roadblocks and defenses couched as national security concerns that have been zealously pursued by government attorneys. A number of cases have been dismissed without ever reaching a hearing on the merits because courts have repeatedly declined to hear cases in which the government asserts that state secrets, classified evidence, evaluations of foreign policy, or national security issues are involved. Additionally, cases have been dismissed because government officials are protected by legal immunities. For its part, the FCA excludes claims from people deemed unfriendly to the United States, who did not file a claim within two years after the incident, or who were held or interrogated by the CIA or other nonmilitary personnel. Nor is the FCA a reparative scheme; it fails on essential components of redress such as acknowledgment of wrongdoing.

If the United States really wants to resume its posture of leadership in the international community, it needs to think seriously about agreeing to the same standards of compensation that it imposes on other nations. The deal with Iraq looks suspiciously like the sort of bargain a colonial power would strike with one of its supine possessions struggling to be free. But for that very reason, it provides a useful yardstick to be used against the United States when it comes to compensating Iraqis and others seriously mistreated in the war on terror.

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