IX. Provide Redress for Abuse

Over the past several years, victims of abusive counterterrorism policies have been effectively shut out of US courts, unable to obtain redress for even the most egregious abuses.

Part of the problem stems from legislation that was passed in 2006. The Military Commissions Act bars alien "enemy combatants"-including current and former Guantanamo detainees, as well as Ali Saleh Kahlah al-Marri, the Qatari citizen detained for years in a South Carolina military brig-from bringing suit in US court to challenge their treatment, or to obtain damages for past mistreatment. This prohibition applies even to detainees who were brutally tortured, and even in cases where US officials have conceded error.

Another aspect of the problem is in the Justice Department's litigation strategy.  Justice Department lawyers have relied on overbroad national security claims to prevent victims of abusive counterterrorism practices from obtaining compensation for their injuries. Specifically, they have used such claims to block a lawsuit brought by Khaled el-Masri, a German citizen who was arbitrarily arrested and rendered by the US to a CIA-run prison Afghanistan, where he was beaten and held incommunicado for several months. They have similarly blocked a damages action brought by Maher Arar, a Canadian citizen secretly detained and rendered by the US to Syria, where he was tortured and imprisoned for 10 months. In both cases, Justice Department lawyers successfully argued that discovery in the cases would lead to the revelation of "state secrets," even though specific details of the cases and general details of US rendition operations have been documented in numerous media reports, congressional inquiries, and formal investigations by foreign governments.[8]

President Obama should ensure that victims of US government abuses are able to seek redress in the federal courts, or are otherwise provided compensation for their injuries, as required under international law obligations.[9] Providing redress to victims will help compensate them for their injuries, make amends for the past, and help restore America's reputation around the world.

Specifically, President Obama should:

(1)Direct the Department of Justice to allow claims for redress to proceed on their merits, rather than relying on "state secrets" protections to hide abusive and embarrassing practices.

(2)Work with Congress to repeal the Military Commissions Act (or at a minimum, the provisions of the Military Commissions Act that prevent victims of abuse from obtaining redress).

(3)Set up a compensation scheme so that victims of the abusive counterterrorism practices of the past seven years can be compensated for their injuries without having to engage in protracted litigation.