The road not taken: Another FBI failure involving the Clintons surfaces
Like the Warmbiers, former CIA detainees deserve chance to seek justice
In the headlines again recently was the tragic case of University of Virginia student Otto Warmbier, when it was disclosed that North Korea billed the United States $2 million for his medical treatment while a captive. Warmbier died in 2017 shortly after arriving home following more than a year in North Korean detention. Arrested by the North Koreans for spying, Warmbier was accused of ripping down a propaganda poster in a restricted area of his hotel in Pyongyang. He likely suffered unimaginable torture during his time in detention, but because of the opaque nature of the North Korean regime, little is known about his treatment and what caused the severe brain injury that led to his coma and death.
The news raised questions about the negotiations for Warmbier's release and whether the medical bill the U.S. apparently had agreed to pay essentially was a ransom payment. The Trump administration has denied that it ever was paid. Warmbier's mother, Cynthia, said that if she knew the North Koreans were after money she would have given it to them from day one. It is understandable that the relatives of victims of torture and cruelty by foreign governments are prepared to do anything to see them released and to gain justice for their families.
The Warmbiers received a modicum of justice in a federal court last December, when North Korea was ordered to pay the family over $500 million in damages. At the time of the ruling, his parents commented, "We are thankful that the United States has a fair and open judicial system so that the world can see that the Kim regime is legally and morally responsible for Otto's death. ... We promised Otto that we will never rest until we have justice for him." The judge in the case noted that the award was substantial to deter the North Koreans from engaging in this type of behavior again.
Although the U.S. courts have offered a legal venue for the Warmbiers to seek judicial redress, under Article 14 of the Convention against Torture (CAT) and international legal standards, they also should have meaningful access to legal proceedings where the torture took place. They have a right to judicial redress, adequate compensation and means for as full a rehabilitation as possible. This is something that the United States and the 163 other signatories to the CAT have committed to and is an important tool for ensuring reconciliation, healing and prevention.
Unfortunately for the Warmbiers and their quest for justice, North Korea is unlikely to pay a damages award or to provide this sort of judicial process for redress and compensation. But imagine if similar torture, cruel treatment and even death happened to a U.S. citizen in a country that had signed the CAT. The United States surely would demand the right of our citizens to have access to judicial redress and the ability to seek adequate compensation for their treatment.
Indeed, if the United States expects other countries to open their courts for U.S. victims overseas, it needs to do that for those who claim torture and ill-treatment by the United States. Specifically, victims of the U.S. post-9/11 Rendition, Detention and Interrogation (RDI) program thus far have been unable to seek meaningful redress in U.S. courts. These individuals were suspected of terrorism, rounded up in Afghanistan on promise of a bounty. After months or years of detention, many were released without charge or explanation.
These individuals never have been given the chance to seek judicial redress; those who have tried to bring claims in court against the U.S. government have failed at the judicial pleadings stage, rather than on the merits of their cases. Like the Warmbiers, these victims and their families seek justice.
Unlike North Korea, the U.S. government has acknowledged torturing these people. In addition to President Obama's crass recognition that "we tortured some folks," the U.S. Senate, in its 2014 "torture report," revealed that the CIA held 119 detainees in its torture program. Surely, at least, these individuals are owed their day in court?
Of course, the victims rendered to foreign governments for ill treatment and torture number many more and should be afforded a chance to seek justice. If the United States were to uphold its responsibilities to international agreements, perhaps other countries would be more likely to follow suit and the Warmbiers could highlight this in their advocacy for justice for their son.
For the U.S. justice system to be truly "fair and open," everyone deserves the opportunity for judicial redress.
David M.Crane was founding chief prosecutor for the international war crimes tribunal called the Special Court for Sierra Leone. He is a commissioner with the North Carolina Commission of Inquiry on Torture, and member of the advisory board for the Center for Victims of Torture.