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ACLU: The U.S. Is Acting Like an Authoritarian Regime by Barring ICC Officials Probing War Crimes

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The Trump administration has barred International Criminal Court investigators from entering the United States. Secretary of State Mike Pompeo announced Friday that the U.S. will start denying visas to members of the ICC who may be investigating alleged war crimes by the U.S. military in Afghanistan. In September, national security adviser John Bolton threatened U.S. sanctions against ICC judges if they continued to investigate alleged war crimes committed by U.S. troops in Afghanistan. A 2016 ICC report accused the U.S. military of torturing at least 61 prisoners in Afghanistan during the ongoing war. The report also accused the CIA of subjecting at least 27 prisoners to torture, including rape, at CIA prison sites in Afghanistan, Poland, Romania and Lithuania. We speak with Jamil Dakwar, director of the Human Rights Program at the American Civil Liberties Union.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: We turn now to the Trump administration’s decision to bar International Criminal Court investigators from entering the U.S. In September, national security adviser John Bolton threatened U.S. sanctions against ICC judges if they continued to investigate alleged war crimes committed by U.S. troops in Afghanistan. A 2016 report by the International Criminal Court accused the U.S. military of torturing at least 61 prisoners in Afghanistan during the ongoing war. The report also accused the CIA of subjecting at least 27 prisoners to torture, including rape, at CIA prison sites in Afghanistan, Poland, Romania and Lithuania. Secretary of State Mike Pompeo announced Friday that the U.S. will start denying visas to members of the ICC who may be investigating alleged war crimes by the U.S. military in Afghanistan.

SECRETARY OF STATE MIKE POMPEO: Since 1998, the United States has declined to join the ICC because of its broad, unaccountable prosecutorial powers and the threat it poses to American national sovereignty. We are determined to protect the American and allied military and civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation. We feared that the court could eventually pursue politically motivated prosecutions of Americans, and our fears were warranted.

In November of 2017, the ICC prosecutor requested approval to initiate an investigation into, quote, “the situation in Afghanistan,” end of quote, that could illegitimately target American personnel for prosecutions and sentencing. In September of 2018, the Trump administration warned the ICC that if it tried to pursue an investigation of Americans, there would be consequences. I understand that the prosecutors’ request for an investigation remains pending.

Thus, today, persistent to existing legal authority to post visa restrictions on any alien, quote, “whose entry or proposed activities in the United States would have potentially serious adverse foreign policy consequences,” end of quote, I’m announcing a policy of U.S. visa restrictions on those individuals directly responsible for any ICC investigation of U.S. personnel. This includes persons who take or have taken action to request or further such an investigation. These visa restrictions may also be used to deter ICC efforts to pursue allied personnel, including Israelis, without allies’ consent.

AMY GOODMAN: Secretary of State Mike Pompeo.

To talk more about the U.S. decision to deny visas to those involved in the International Criminal Court investigation, we’re joined now by Jamil Dakwar, the director of the Human Rights Program at the American Civil Liberties Union.

Welcome back to Democracy Now! It’s great to have you with us. Your response to this announcement?

JAMIL DAKWAR: OK. I think this is unprecedented. This is the first time that the U.S. government is targeting foreign judges and prosecutors, personnel of an international—one of the most respected international judicial bodies in the world, with a travel ban. As far as we look back, there hasn’t been any kind of precedent for such a thing. They’re not only doing that. They’re also saying anyone who assisted the ICC, who worked or will work to push for accountability for investigation before the ICC with regard to the situation of Afghanistan, particularly looking at U.S. involvement in war crimes, will be subject to the same visa restrictions. So this is an act of a country that—similar to authoritarian regime. When you have—when you’re crushing dissent, when you’re going after those who are disagreeing with you, when you’re trying to punish and retaliate and intimidate those who are trying to hold you accountable, you use your powers in order to limit the way that they can do that. And that’s really very outrageous and very concerning to us, that this is reaching to this level.

But it also speaks to what this administration has been doing. I mean, this administration threatened with prosecuting judges and the prosecutors of the ICC for doing their job, and for doing the job that the United States should have done—that is, to investigate, credibly and thoroughly, war crimes and crimes against humanity that were committed in the course of the war in Afghanistan, including the use of black sites, not only in Afghanistan. This is another important aspect of this investigation, or in pending investigation, because it hasn’t been really fully authorized by the pretrial chamber, is that it would cover not just what happened in Afghanistan, but it would cover in three countries that are linked to the conflict in Afghanistan—that is, Poland, Romania and Lithuania—because they are state parties. They joined the ICC in the—since 2002, when the court started to function.

So, we will see—we will see how this will play out. We’re very happy that the responses so far, in just the last few days, from members of the court, particularly European countries, have been very strong in condemning the Trump administration and upholding the independence and legitimacy of the court, and that any actions to deter prosecutors and the judges, that would be not acceptable and will be rejected by U.S. allies, particularly in Europe.

JUAN GONZÁLEZ: Well, let me ask you. This is reflective of an overall tendency in the Trump administration. Last year, the U.S. withdrew from the United Nations Human Rights Council, as well, and it’s resisted over 20 requests by special rapporteurs of the United Nations looking into particular issues of human rights violations here. But this is a step further. This is not just refusing to cooperate. This is actually punishing people who are trying to get to the facts of what’s happened. In terms of what can be done in response by the international community to what, in essence, is the United States saying, “No one has a right to judge what we do abroad”?

JAMIL DAKWAR: Well, first of all, let’s start with what Secretary Pompeo said. He said it’s an attack on our sovereignty. I don’t think that anyone attacked U.S. sovereignty. It was the Afghanistan sovereignty that has been subject to the jurisdiction, because Afghanistan joined the ICC in May of 2003 and agreed that if there would be war crimes, crimes against humanity or genocide—these are the worst crimes that are defined under the ICC statute or their treaty—that they would be jurisdiction for the court. So, it’s not an issue of U.S. sovereignty. It’s not also an issue of protecting the constitutional right of American citizens who could be tried abroad. That’s not something that we see again and again. If you committed a crime abroad—you could be committing it anywhere in the world—you could be held accountable by those countries where you violated their criminal laws. And therefore, there is no such a thing of attacking or undermining American sovereignty.

The second thing is, is that Secretary Pompeo is saying there was no consent of the governments, that being—their nationals being prosecuted or investigated by the ICC in the future. Since when war criminals have to get their consent to a criminal investigation? That’s unheard of. So, the nature of the attacks, as you said, they are punitive, they’re retaliatory. They are trying to go and to send a message, not just to the ICC personnel, in particular. This actually has consequences beyond the United States’ situation, of U.S. government officials who commissioned, ordered or implemented acts of torture in Afghanistan and elsewhere. So it is really a serious threat to the system that we created. The United States was responsible for creating systems after World War II, after the horror of the Holocaust, that would fight impunity, that would combat the worst crimes. And now the U.S. is leading the charge in attacking the judges. And being cheered by what countries? Cheered by Sudan, Burundi, the Philippines.

JUAN GONZÁLEZ: Philippines, which also just pulled out of the International Criminal Court in the last few days. Could I ask you also, though? This must indicate that there is a real fear here on the part of the U.S. government about this investigation, to take this kind of drastic action. Could you talk about what some of what the preliminary findings of the court are in terms of the war crimes committed here?

JAMIL DAKWAR: So, first, it’s important to highlight that the court, the ICC, is a court of last resort, meaning it doesn’t jump in to investigate a crime just because it violates the crimes defined by the Rome Statute, by the ICC. It actually waits and sees what the countries that joined the court are doing, what have they done, in order to investigate violations of the ICC. And that is an important point, because the ICC people think that the ICC, you know, was—immediately acted, automatically opened investigations. That’s not true.

In the case of the United States, the situation of Afghanistan lasted for over a decade, where it was under a so-called preliminary examination. So, it was based on publicly available information. The ICC prosecutor would not use its investigative powers, but rely on media reports, on U.N. reports, other NGOs’ reports, etc. And, yes, once it comes to the conclusion that there is a reasonable belief that there were crimes that are committed in violation of the ICC, and it has a jurisdiction—and it has to also satisfy other requirements—admissibility and the interest of justice—it will then—because this one was initiated by the prosecutor’s office, it will have to get an authorization from the pretrial chamber, a chamber of three judges of the ICC, that then examine the whole evidence.

The evidence that she has is really relying heavily—well, we don’t have access to that information, but we believe that her evidence is based on the Senate torture report, the well-documented investigation of the CIA involvement in the most brutal and gruesome acts of humiliation and torture against prisoners. And that torture report, what was released in December of 2014, basically made the—it put the United States on notice, that if the United States is not acting in light of the declassified parts of the report—because the report itself, the whole thing, was still classified, so we don’t even have a clue what’s in the details of that report, because the U.S. government, both under the Obama administration and under the Trump administration, resisting declassification. But what is publicly available, there is enough to justify opening an investigation.

So, the prosecutor looked into that information. It looked at what the United States has done in order to hold officials accountable, both at the level of the U.S. military and the level of the CIA officials, the level of all chain of—the chain of command, meaning looking not just at the lower-rank officers and military personnel, but also at the leaders who sanctioned this policy. You have the highest level of the White House, in the Bush administration, that ordered the torture program. So they looked at what the Bush administration, the Obama administration have done in order to investigate, and they reached a conclusion that they were not credible investigations. And that’s why they’re stepping in.

And they’re stepping in because this is an important for the rule of law. It’s important for upholding international principles against impunity. And it’s also providing victims of torture their day in court. And that is where, I think, more than anything, is important and being sidelined by the whole response to Pompeo.

AMY GOODMAN: Can you talk about how psychologists James Mitchell and Bruce Jessen could be implicated in the investigation, who reaped tens of millions of dollars for designing torture techniques for the CIA?

JAMIL DAKWAR: So, these two individuals, who are psychologists in their private practice, were hired by the CIA after the terrorist attacks on 9/11 in order to help implement—design and implement a torture program. They have come up with, really, based on pseudoscience—it was really junk science—a theory of how to break down detainees and how to break down those suspected in involvement in the 9/11 attacks. There has been clear evidence, that we have exposed in our lawsuit, the ACLU lawsuit against the two individuals, that was settled a couple of years ago, that showed that this—that the information that they relied on, the science there was really out of—in line with any scientific—and that its purpose was really to coerce and to lead detainees to say things they may have not done. And, in fact, I think the—again, the Senate torture report has confirmed that the program, the whole program, not only was costly, was not effective, but it was also—was misleading in the way that it presented as if those two individuals—so, these two individuals made over $80 million off this program.

And they, as individuals, who acted on behalf of the U.S. government, may also be subject to the ICC investigation, if it’s authorized. We don’t know who are the individuals who will be authorized, but I think that they should be worried. Other people who were involved in the—particularly in the worst part of the CIA torture program should be worried, I think, in the future. That doesn’t mean that the ICC will, again, rush into prioritizing the investigation and prosecuting of U.S. officials. I think that there are other crimes that are being investigated in the Afghanistan situation, especially the crimes against Afghan nationals and the civilian population by the Taliban, by the Afghan forces there.

Now, the real serious challenge for the ICC is, none of those parties—Afghan government, the Taliban and the United States government—is willing to cooperate with the ICC. So the real challenge is how—if this investigation moves forward, how the ICC will really be able to build cases, based on lack—without any cooperation with—of these, of the countries.

AMY GOODMAN: And, very quickly, Pompeo also named Israel, if the ICC says it’s going to investigate Israel.

JAMIL DAKWAR: Yes. So, the secretary’s announcement didn’t only say that it’s about U.S. officials that will be targeted by a potential investigation by ICC. He also alluded to U.S. allies, and particularly Israeli officials. There is a separate investigation—it’s called the Palestine situation—that was actually not the initiation of the prosecutor. It was a request, a referral, by the Palestine to investigate war crimes and crimes against humanity in the context of the Gaza situation in the war in 2014, also the recent attacks on protesters in the Gaza border, as well as the legality of settlements in the West Bank, to what extent they violate the ICC statute. So there’s also that situation, where it could impact, in our view, human rights defenders, human rights lawyers, who are acting to hold officials—in this case, Israeli officials—accountable before the ICC. They could be subject to visa restrictions.

And so, this is really a serious issue that has to be addressed by the U.S. Congress, particularly the House Foreign Relations Committee. We filed a Freedom of Information Act to ask for the legal basis for this policy. The U.S. government is resisting. And we’re likely to file a lawsuit soon to force this information to be disclosed. Because it’s not really about going after every U.S. citizen who served in the U.S. military. That is not what is going—what we’re talking about here. This is here talking about really shutting down a legitimate investigation into war crimes. It is about deflecting from scrutiny, deflecting from upholding international law, and giving not only U.S. officials the immunity and impunity that they have enjoyed for years, but also giving other countries the same. And that’s what’s emboldening other regimes that we’ve seen over the past several months been happy to withdraw from the ICC, like the Philippines did just a year ago, and it came into effect a couple days ago.

AMY GOODMAN: And, Jamil Dakwar, we want to thank you for being with us, director of the Human Rights Program at the American Civil Liberties Union.

JAMIL DAKWAR: Thank you.

AMY GOODMAN: When we come back, we look at the close relationship between the Trump administration and Boeing, in 30 seconds.

[break]

AMY GOODMAN: The legendary Lebanese-American musician Dick Dale, who was known as the “King of the Surf Guitar,” has died at the age of 81. His hit song “Misirlou” was an adaptation of a traditional Arabic folk tune. Dale continued performing live into this year, in part to pay his medical bills from bouts with cancer, renal failure and diabetes. He once said, “I have to perform to save my life.”

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