January 28, 2013

President Barack Obama
The White House
1600 Pennsylvania Avenue
Washington, DC 20500
Fax: (202) 456-2461

Dear President Obama,

Four years ago this month, PEN American Center was proud to share the news with our international colleagues that you had signed executive orders aimed at ending post-9/11 detention and interrogation practices that violated domestic and international prohibitions on torture—practices that had tarnished our country’s image and weakened our ability to promote respect for human rights norms internationally.

Like our international colleagues, we believed then, and still believe, that bringing the United States into full compliance with the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (CAT) is both a moral imperative and a matter of law. We also believed, and still believe, that complying with CAT and other international human rights laws prohibiting torture and inhumane treatment honors the United States’ historical role in helping to establish these norms, and ensures that they remain the clear and effective instruments they were intended to be. And we share your belief, articulated so eloquently in your second inaugural address last week, that adhering to these norms strengthens us as a nation; that security, as you noted, comes not just from strength of arms but from the rule of law, and that “peace in our time requires the constant advance of those principles that our common creed describes,” preeminent among them human dignity and justice.

Much of what you accomplished in your first term derives from and reinforces these values. We commend you in particular for curbing the clearly illegal excesses of this country’s post-9/11 interrogation program. But we fear that the legacy of that principled act is being undermined by a pattern of not cooperating with, and at times actively obstructing, the legal processes that are required under CAT and domestic laws codifying its terms. We are concerned that this pattern, established by the preceding administration and extending uninterrupted through your first term, does more than just undercut the global ban on torture: it weakens the ability of legal institutions in the U.S. and around the world to safeguard and enforce the rule of law.

The record of your administration in this regard is troubling.

During your first term, the Justice Department declined to prosecute CIA personnel responsible for the death of a detainee in a secret detention facility in Afghanistan, for the mock execution of a detainee in a secret detention facility in Poland, and for the destruction of videotapes documenting the torture of a detainee in a secret detention facility in Thailand. When detainees and former detainees attempted to exercise their right to pursue redress for their injuries, the Justice Department derailed their civil proceedings by invoking a “state secrets” privilege or claiming absolute or qualified immunity from suit.  The results are disturbing: not a single case relating to the abuse of detainees in U.S. custody has come to trial in the United States.

Even more discouraging has been your administration’s approach to investigations and legal proceedings in other countries, many of them close allies of the United States. In the United Kingdom, the State Department forced the High Court to suppress descriptions of a detainee’s treatment at the hands of U.S. interrogators in Pakistan, threatening to stop sharing intelligence with British agencies if the descriptions were released. Diplomatic cables obtained and released by news organizations reveal similar pressure to suspend an inquiry in Spain into the role of Bush administration lawyers in creating a legal framework that permitted torture. The United States has refused to cooperate in legal processes even when such refusals violate treaty terms and agreements. In Poland, for example, when prosecutors investigating torture in the secret CIA detention facility in that country requested information from the U.S. under a Mutual Legal Assistance in Criminal Matters Agreement, your administration reportedly refused the request and told Polish authorities the United States considers the case closed.

This record of non-cooperation and obstruction extends to international human rights bodies as well. Thwarted by the assertion of “state secrets” in litigation in the U.S. seeking redress for his forced disappearance and mistreatment in a secret U.S.-run prison in Afghanistan, German citizen Khalid El-Masri filed petitions with the Inter-American Commission on Human Rights against the United States and with the European Court of Human Rights against Macedonia. The United States has simply ignored requests for information from the Inter-American Commission and declined to cooperate with the European Court’s request for assistance. Despite this stonewalling, the European Court of Human Rights recently found that Mr. El-Masri was subjected to forced disappearance and torture while in CIA custody and awarded him damages for his ordeal. That judgment, however, is against the government of Macedonia, which merely assisted the United States in Mr. El-Masri’s rendition; to date the United States has yet to compensate a single victim of the post-9/11 rendition, detention, and interrogation program.

As a human rights organization that participates in the human rights mechanisms of the United Nations and regional intergovernmental organizations and depends on these bodies to intervene to end human rights abuses, we are especially troubled by the U.S.’s refusal to cooperate with processes that this country has played a crucial role in creating and promoting. We have been grateful for the United States’ strong support for the Organization of American States (OAS) Inter-American Human Rights Commission (IACHR), and for its vocal opposition to reforms proposed by some Latin American leaders who seek to weaken that body’s ability to hear cases and issue effective and forceful rulings. In pressing their agenda, these leaders often complain of double standards in the OAS human rights system. For the United States simply to refuse to answer complaints relating to the treatment of detainees in U.S. custody since 9/11 risks giving credence to these claims, at a time when the Inter-American Human Rights System is already threatened.

Last month, Jose Padilla and his mother, Estela Lebron, filed a petition before the IACHR alleging torture, arbitrary detention, and other mistreatment by the United States during the time he was held as an “enemy combatant” at the U.S. Naval Brig in Charleston, South Carolina. Mr. Padilla, a U.S. citizen, is pursing this petition after exhausting all avenues of redress in the United States. Once again, the world will be watching to see if the United States responds as required to the Commission’s inquiries about this petition.

As you enter your second term, you have both an obligation and opportunity to steer a different course in this case, and in all current and future investigations and legal proceedings arising out of allegations of torture and cruel, inhuman and degrading treatment of detainees in U.S. custody since 9/11.

The obligation is compelled by law itself: under CAT and under U.S. laws codifying its terms, allegations of torture must be investigated; those who orchestrate and carry out torture must be prosecuted; and those who are abused must receive restitution. That the United States has thus far failed in its obligations under the law to reckon with the mistreatment of detainees in its custody is troubling enough. That our government has inhibited efforts by other governments and international legal institutions to fulfill their own obligations under the Convention to examine their complicity with U.S.-led violations is even more disturbing.

The opportunity, meanwhile, is the same one you identified in the early hours of your first term: the opportunity to restore and strengthen the ability of the United States to promote respect for human rights and the rule of law around the world. By committing the United States to cooperating with investigations and legal proceedings relating to alleged violations of the ban on torture, your administration will be affirming the principles that every human being possesses inalienable rights and that no individual or government is above the law.  In a world where nations are struggling to establish structures to protect fundamental rights and dismantle tyranny, adhering to these principles at home and promoting them around the world is not only a legal and moral matter, but also a matter of national security.

On behalf of the Board of Trustees and 3,350 members of PEN American Center,
Peter Godwin                    
Current President

K. Anthony Appiah                    
President, 2009-2012

Francine Prose
President, 2007-2009
Ron Chernow              
President, 2006-2007                                   

Salman Rushdie
President, 2004-2006