Faculty, students participate in investigation of North Carolina's role in CIA renditions

December 7, 2018Duke Law News

A commission that included faculty from Duke University and Duke Law and was supported by the Law School’s International Human Rights Clinic has issued a report on North Carolina’s role in a Central Intelligence Agency-led program to apprehend, detain, and transport suspected terrorists to be held, interrogated, and tortured outside the United States.

The report by the citizen-led North Carolina Commission of Inquiry on Torture (NCCIT) is the culmination of a 13-year effort to hold federal, state, and local officials accountable for the state’s involvement in the post-9/11 “rendition, detention, and interrogation” program. Most notably, according to the report, a Smithfield-based aviation company operating out of two public airfields in Johnston County and Lenoir County was hired to deliver suspects into CIA or foreign custody, where many were subjected to torture and other forms of abuse.

The renditions themselves may have also amounted to torture. Suspects, who included a 16-year-old student and a pregnant woman, were “forcibly seized without any due process, in a manner that itself amounted to torture and cruel, inhuman or degrading treatment,” according to the report. International law requires the prevention of and accountability and redress for torture and enforced disappearances.

“What the report makes very clear … is that the U.S. government not only violated rights of individuals throughout the duration of the program, but by failing to investigate what happened, by failing to provide a remedy, this is an ongoing violation,” said Clinical Professor Jayne Huckerby, who directs the International Human Rights Clinic, at a Nov. 12 Duke Law presentation. “And until there has been an accounting for those victims, the U.S. government will continue to be in breach of its international human rights law obligations.”

Huckerby testified before the commission during two days of public hearings it held in late 2017. Robin Kirk, faculty co-chair of the Duke Human Rights Center at the Franklin Humanities Institute, served as commission co-chair and James E. Coleman, Jr., the John S. Bradway Professor of the Practice of Law, was one of 11 members.

The commission found that between 2001 and 2004, Aero Contractors, Ltd. transported 49 individuals to foreign countries to be interrogated by either the CIA at one of its undisclosed “black sites” or by foreign governments. The company leased space at two public airports in Johnston County and Lenoir County and used a hangar that was built specially for one of the two aircraft it operated.

The commission also investigated allegations that other North Carolina companies participated in the torture program and that military personnel at Fort Bragg played a major role in developing abusive techniques against suspected terrorists. While the legality of the renditions and the state’s role in them have been scrutinized through inquiries held by European authorities and five landmark cases decided by the European Court of Human Rights, the NCCIT is the first to publicly investigate them inside the United States, despite years of entreaties to state and local officials.

“We do not often think about human rights in terms of what happens in the United States,” said Coleman, who directs the Law School’s Center for Criminal Justice and Professional Responsibility. “I think that is a mistake, and I think those of us who care about civil rights ought to be concerned about human rights. This program is an example of a systematic effort by the United States that violated international law and domestic law, in which lawyers played an important role in making it possible.”

Coleman said he believed that the program breached both federal and state criminal laws, such as conspiracy, in addition to international human rights law, but that public officials in North Carolina had never bothered to look into them. He said he agreed to participate in the commission in part because he thought it might provide a model for investigating and documenting other contentious issues, such as racial injustice in the United States, with an ultimate goal of accountability.

“I think that sometimes [just] producing the record is helpful,” Coleman said an interview. “I also have this notion that when public officials, law enforcement officials, are willing to overlook obvious wrongdoing in one area, they likely are indifferent to wrongdoing in other areas.”

The International Human Rights Clinic began working with the commission in the spring 2017 semester, with students conducting extensive research and legal analysis as well as data visualization in support of the public hearings. Following the hearings, students engaged in additional research, analysis, and writing that contributed to the report.

“I would say this was by far the most fulfilling experience I had in law school, not just because I got to play a small part in this really important work, but also because I felt a sense of camaraderie with the small team that I was fortunate to work with,” said Khaled Fayyad ’18. “It allowed me to see myself as part of a team of people with a shared purpose.”

The hearings, which were held in Raleigh, provided an opportunity for victim testimony by two individuals. Mohamedou Ould Slahi, who was rendered by Aero Contractors and detained for 14 years at Guantanamo Bay, and Khadija Anna Pighizzini, the wife of Abou Elkassim Britel, who was rendered to a secret Moroccan prison reported to have been largely funded by the CIA, both spoke to the commission on video.

“I think that actually seeing face to face and hearing directly from one victim and the wife of a second victim at the hearing was really significant and impactful,” said Senior Lecturing Fellow Aya Fujimura-Fanselow, the clinic’s supervising attorney. “It can be difficult with international human rights law when we’re working with issues that are happening in different countries, and we don’t necessarily see it up close.”

Fall semester students are addressing issues that the report identified as requiring further attention to achieve an even more complete understanding of the ways in which the United States and North Carolina in particular are implicated in rendition and torture. Their work will also include strategizing how best to advocate for the implementation of the commission’s recommendations, which are targeted at the federal, state, and local governments and law enforcement officials as well as citizens, and which include educating the public about the program, holding officials accountable, providing redress to victims, and preventing torture in the future.

“It’s a good marriage of domestic politics and local politics with international law,” said Lauren Hughes ’19. “They’re not really areas that people usually think of as overlapping and really intersecting, but in this project they are absolutely bringing international human rights law to North Carolina, down to specific cities. For me that was really exciting to see, how human rights is being applied at the local level.”