WikiLeaks Docs May Play Role in Torture Debate

WIKILEAKS logo - An Iraqi detainee holds onto a fence enclosing him at the Camp Cropper detention centre, located in Baghdad, on May 21, 2008. CBS/AFP/Getty Images

It has been one of the most bitter legal debates during the so-called war on terror - who's to blame for torture and how many degrees of separation are needed to dodge a lawsuit?

The answer may lie in recently leaked documents, which lawyers and human rights groups hope will be a treasure trove of evidence that could prove U.S. and other coalition forces broke a cardinal rule of international law - handing over terror suspects when they had good reason to believe the detainees would be tortured.

The Pentagon has criticized the whistleblowing organization WikiLeaks for publishing nearly 400,000 U.S. military logs detailing daily carnage in Iraq since the 2003 U.S.-led invasion. In July, the same group published 77,000 secret documents on the war in Afghanistan.

The classified logs on Iraq describe detainees abused by Iraqi forces, insurgent bombings, executions and civilians shot at checkpoints by U.S. troops. They also show that, in some cases, U.S. interrogators thought detainees were speaking truthfully when they accused Iraqi security forces of abuse.

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Lawyers say the once-secret logs stand apart from other reports about the Iraqi security agencies because the accounts of mistreatment are recorded - and sometimes corroborated - by the Americans themselves.

"It's not as if, if we didn't have these documents, we wouldn't know that torture was widespread," said Matthew Pollard, who works as a legal adviser for Amnesty International, a human rights group which repeatedly warned that abuse was widespread in Iraq. "What's new is confirmation - in their own documents - that they didn't dispute that."

Phil Shiner, of U.K.-based Public Interest Lawyers, which represents some 130 Iraqi civilians who allege ill-treatment by Britain's armed forces, said the law is unambiguous.

"If a state knows that there's a real risk that a person will be tortured by another state, they simply cannot transfer that person to the other country's custody," he said.

But not everyone agrees that torture is avoidable during war - or just how far an occupying power should go to make sure terror suspects aren't tortured or mistreated - especially in the case of Iraq, which is a sovereign state. Some still dispute the definition of torture or abuse.

"This is an issue that we talked regularly (about) with the Iraqi government, but the same time we have and are continuing to fulfill not only our international obligations, but our obligations to Iraq as a sovereign government," State Department spokesman P.J. Crowley said on Tuesday, denying that U.S. forces had turned a blind eye to torture.

The leaked war logs carry hundreds of allegations of detainee abuse - from minor assaults during arrests to torture at Iraqi police stations and bases. U.S. forces occasionally intervened - by remonstrating with senior officers or even sleeping over at a police station to prevent late-night abuse - but the U.S. still regularly transferred detainees to Iraqi custody.

Of the 23,000 prisoners held by U.S. authorities in mid-2007, all but 200 or so have now either been released or handed over to Iraqi security forces, according to a recent Amnesty report.

"These documents provide additional evidence for why victims of torture should have their day in American courts," said Anthony Romero, executive director of the New York-based American Civil Liberties Union.

Since the start of the Iraq war, dozens of U.S. or British troops have been convicted of killing and abusing Iraqis.

In the Abu Ghraib scandal where U.S. troops were seen posing next to naked, hooded and leashed Iraqi detainees, most of the defendants were convicted and sent to prison. In the case of the 14-year-old Iraqi girl who was raped and then killed along with her family, a former U.S. Army soldier was sentenced to life. In Britain, a soldier became the country's first convicted war criminal when he pleaded guilty in connection with an Iraqi hotel receptionist who died after a British raid.

But few cases have ever been brought against coalition forces for violating non-refoulement, a principle in international law that prohibits the transfer of people if there are fears of abuse or persecution - a principle that grew out of the massive flow of refugees in World War II.

Under the Bush administration, several terror suspects were transferred to countries like Morocco, where they were interrogated and tortured under a process known as extraordinary rendition. Although the practice is widely condemned, prosecutions have been rare - the first and only convictions were secured last year in Italy for the CIA kidnap of an Egyptian cleric from Milan. Even then, the Italian convictions were in absentia and the defendants are sill free and considered fugitives.

And while the Obama administration has vowed to adhere to the Geneva Conventions governing conduct in war, it hasn't ruled out future renditions.

"I think if there needs to be an accounting, first and foremost, there needs to be an accounting by the Iraqi government itself and how it has treated its own citizens," Crowley said.

Thousands of Iraqi abuse complaints have been raised against U.S. and allied forces - but they were ultimately tossed out because those forces were given war-zone immunity from lawsuits.

Iraqi judges also are routinely targeted by assassinations, leading most courts to barricade the public from their chambers and grant access only for specific trials or appointments. Years of efforts to reform Iraq's court system through U.S.-funded programs have shown little progress.

Still, Iraq is one of the early signatories of the Geneva Conventions and the country's constitution also prohibits torture and human rights violations.

"The problem is in implementing these rules," said Abdul-Rahman Najim al-Mashhadani, director of the Hammurabi Human Rights Organization in Iraq.

Mazin Younis, an adviser to the U.K.-based Iraqi League, an expatriate support group, said the occupation-era laws make it impossible for Iraqis to sue U.S. or British officials in a local court. Asked whether it was possible to sue Iraqi authorities for mistreatment, Younis laughed, describing a judicial system ridden with cronyism, corruption and abuse.

"Very much you are asking the perpetrators to try themselves," he said.

Lawsuits are more likely in Europe, which is bound by the European Court of Human Rights and the International Criminal Court. The United States is bound by neither.

The Alien Tort Claims Act, however, allows U.S. courts to hear human rights cases brought by foreign citizens for conduct by U.S. agents committed outside the United States.

Government lawyers on both sides of the Atlantic are examining the documents.

"Although the WikiLeaks documents are raw material and may not give a full picture, they do raise prima facie evidence that could be the basis of some lawsuits," said Geoffrey Robertson, a London-based human rights lawyer who has worked for the U.N. war crimes court on Sierra Leone.
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