US Torture Files and Access to Human Rights Information

25 August 2009

By Jesse Franzblau and Emilene Martinez-Morales

Washington, DC — The US government’s August 24, 2009, release of a controversial CIA 2004 Inspector General report on torture brings new attention to the issue of how information on human rights abuses is treated and should be treated under freedom of information laws. Deadlines set by a federal judge in a Freedom of Information Act lawsuit brought by the ACLU and other plaintiffs in New York were the proximate causes of this most recent release, but changes in the political leadership in the US Department of Justice under President Obama seem to have had more to do with the new access than the actual text of the FOIA. An earlier release of the report, made in May 2008 during the Bush administration, contained only a few sentences of the 150-page report, with the remainder either blacked out or blanked out.

Yet an emerging international norm holds that states have a special obligation to disclose information pertaining to human rights violations and corruption, including the recent global war on terror, whereby systematic torture and other cruel, inhuman and degrading treatment has been allowed to flourish under the veil of state secrets [1].

The special focus on human rights records is evident now more than ever in the international transparency movement. There is a growing trend towards the universal recognition of the citizen’s right to access government information with human rights value. The final product of the Carter Center’s FOI summit in Peru also reveals a special interest on human rights information, as a critical asset for post-conflict societies throughout Latin America still recovering from legacies of dictatorships and authoritarian rule. Many Latin American countries are actually ahead of the curve in passing government legislation institutionalizing access to human rights information, exemplifying the emerging international norm. For years open government advocates have fought for access to official archives related to Latin Americas cold war atrocities committed by state police and military forces. In many cases declassified US government records have actually been a primary source of information for truth and reconciliation efforts in the region. US files have been used in numerous truth commissions and have provided evidence in human rights prosecutions in Argentina, Chile, Uruguay, Peru, and Guatemala.

More recently, however, many of Latin Americas post-conflict societies have made major strides in gaining access to their own governments records through the discovery of secret archives and, most importantly, through the implementation of their own access to information laws. Brazil was the first country to pass a Habeas Data law in 1988, ensuring its citizen’s the right to clandestine state records with their own personal information maintained for political reasons. Mexico was the first Latin American country to pass an information law with a special human rights provision in 2002, followed shortly thereafter by Peru. Article 14 of the Mexican Law states that In case of severe violation of fundamental rights or crimes against humanity the information found in the investigations may not be deemed privileged. At the local level, 19 out of 32 FOI state laws in Mexico have similar provisions. According to the Mexican Access to Information Commission (IFAI) [2], as of 2009, this provision been cited in appeal rulings only 4 times—one of them resulting in the release of the criminal investigation of former President Luis Echeverra who was accused of grave human rights violations. Article 15 or Peru’s law states that information relating to violations of human rights or the Geneva Conventions of 1949 cannot be classified, and any exempted information can be obtained by the courts, Congress, the General Comptroller, and the Human Rights Ombudsman in some cases.

In the past year alone, three more Latin American countries with histories of military dictatorships have passed transparency laws (Chile, Guatemala, Uruguay), and two of these countries have special clauses securing the mandatory release of records related to human rights abuses of the past (Guatemala and Uruguay).

After more than 40 years of the FOIA in action, with all its success in providing illuminating information on past crimes against humanity, the US law still has no special clause for human rights information. The successful release of over 100,000 pages as a result of the ACLU lawsuit does demonstrate the importance of the US judicial system in enforcing full government compliance with the FOIA, overriding the inherent government tendency to use national security as a pretext to suppress evidence of its own unlawful conduct. The files have provided an unprecedented historical record of US torture policy, and the disclosure process has helped establish a precedent in the US legal system that emphasizes the importance of information pertaining to potential crimes against humanity. Yet the long-standing ACLU legal battle over the Bush administration’s torture papers also demonstrates the need for a FOIA provision ordering the declassification on an expedited basis and the need for the preemptive disclosure of documents related to human rights.

The current administration has also received some well-deserved criticism from rights groups pushing for the complete declassified record on US torture policy. Openness advocates weighed in heavily when President Obama abused his executive authority by overriding the civilian court orders to declassify pictures of detainee abuses, which could shed further light on past crimes of torture. The Action Plan of the Americas released by the Carter Center earlier this year, also addresses this issue, stating unequivocally that any claims of state secrets, national security, diplomatic relations, or related grounds to shield information regarding human rights violations must be subject to review by a civilian court or other body that is fully independent of the executive branch [3]. According to this line of reasoning, no president should have the power to unilaterally withhold government information on potential human rights crimes without an official review by an independent body. The progress made by the ACLU lawsuit also exemplifies this point, as the adversarial process and the forceful role of an independent federal judge have forced the opening of a collection of formerly secret government records with critical information on abusive US policies, all of which had been initially withheld from the public under claims of national security harm.

While the Obama administration has made transparency and accountability a central theme of the new government, there have been no sweeping FOIA changes in the area of human rights, nor any visible effort to revive the human rights information law first proposed during the Clinton administration. Latin America’s movement towards institutionalizing access to human rights records demonstrates the need for a FOIA reform in the US. As American lawmakers and politicians debate the issue of government accountability for America’s post-September 11th torture policy, the findings from the Carter Center’s international FOI summit provides an important point of reference for advocates pursuing truth and reconciliation efforts in the region. The United States should draw on lessons from Latin America and implement the necessary measures to ensure full disclosure of government archives with human rights evidentiary value.


NOTES

[1] Finding No. 6, The Carter Center’s Regional Conference on the Right of Access to Information, Lima, Peru, April 28-30, 2009.

[2] IFAI is an independent executive branch agency that is in charge of resolving appeals.

[3] Finding No. 17. The Action Plan goes on to state that “Claims should only be upheld where (a) the independent body has the opportunity to review the information sought to be suppressed, (b) disclosure of the information would demonstrably harm a legitimate national security interest, and (c) the restriction imposed is the least restrictive means possible for protecting that interest.”


LINKS

Central Intelligence Agency, “Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), 2003-7123-IG, May 7, 2004. Released August 24, 2009.

Central Intelligence Agency, “Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), 2003-7123-IG, May 7, 2004. Released May 2008.

National Security Archive, “CIA Inspector General Report Exposes Torture as US Policy: What Were They Hiding? August 25, 2009.

Carter Center, Americas Regional Conference on the Right of Access to Information, Lima, Peru, April 28-30, 2009.

Freedominfo.org, “President Carter Disseminates Atlanta Declaration to Advance Right to Information Worldwide, August 5, 2008.

Mexico’s Federal Transparency and Access to Information Law

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