Oregon State Bar Bulletin — OCTOBER 2009


Before working at The Hague, Tim Resch, a Portland attorney who specializes in employment law and commercial litigation, had done some criminal work for Multnomah County’s special prosecutor program. Still, nothing in his professional or personal background could steel him for the nightmarish stories war victims shared as he gathered facts to prosecute those responsible for the genocide in Bosnia and Herzegovina.

“You read witness statements from women who were in camps and were raped night after night… or from families in a village where, all of the sudden, one day the Bosnian Serb soldiers come in, separate the men and women, torch the houses and tell the women to leave. The men end up in a prison camp or are never seen again,” Resch says. “Nothing can prepare you for that, and I’m not sure you ever get used to it.”

And yet Resch, a partner at Samuels, Yoelin, Kantor, Seymour & Spinrad, is in his second stint as a volunteer for the prosecution team at The Hague’s international war crimes tribunal. He is among a diverse array of Oregonians applying their professional knowledge and personal experience to help others in need around the globe. From doctors and dentists to architects and engineers, the state is home to a mix of professionals committed to bettering the lives of those in impoverished nations and regions that have been decimated by natural — and manmade — disasters.

It is a network of international expertise that has grown over decades. In 1977, Dr. David Kinzie founded the Torture Treatment Center of Oregon, the nation’s oldest treatment center for victims of torture and severe war trauma. Located on the Oregon Health & Science University campus in Southwest Portland, the center initially treated mostly victims of the Indochina Wars. Today, it serves survivors from Afghanistan, Bosnia, Central and South America, Ethiopia, Iran, Iraq, Somalia, Sudan and other parts of Africa. Overall, the center treats immigrants from 20 different language groups.

Horrific tales of torture also spurred Dan O’Neill to action during the 1970s. He raised $1 million to help refugees fleeing the “killing fields” of Cambodia and, in 1979, launched the international human rights powerhouse now known as Mercy Corps. Since then, the Portland-based nonprofit has provided more than $1.5 billion in humanitarian aid and development funds to people in 106 nations.

The Peace Corps has long ranked Oregon high on its list of fertile spots for volunteer recruitment (the state currently ranks No. 3). And, according to the U.S. State Department, Oregon is among the top 20 states refugees select when seeking to rebuild their lives in America.

Jeff Bachman, an environmental attorney for the state’s Department of Environmental Quality and board chair for Amnesty International USA, credits the number of those dedicated to international justice with the state’s concentration of similar ethics and ideals. “There are people who are drawn to live here who do have an interest in international affairs and a passion for social justice,” he says.

While Oregon’s rich legacy of international human rights involvement spans decades, it has grown exponentially since Sept. 11, 2001. Amid allegations of detainee abuse at the prison camp at Guantanamo Bay and its proposed closure, and America’s current examination of its definition of “torture,” an increasing number of attorneys, law professors and their students are pursuing opportunities to preserve and protect international justice.

Shelter in the Storm

Kinzie shares a common bond with the torture victims who come from all over the world to seek his treatment at the Torture Treatment Center of Oregon. A volunteer physician for civilians during the Vietnam War, Kinzie suffered from post-traumatic stress disorder (PTSD) after seeing people who were dead or severely wounded day after day.

“We were in a small town with a hospital and we saw the war firsthand,” he says. “We saw a lot of wounds, and we saw many people die from diseases and we couldn’t treat them. We were at times in physical danger. The main effects were anxiety, nightmares and irritability that, for me, occurred for several years afterwards.”

As he alternated between Vietnam and Malaysia during the late ’60s, Kinzie grew more intrigued by the concept of cross-cultural psychiatry. After he completed his psychiatry residency, he started a clinic for refugees in Malaysia and began treating PTSD victims. It wasn’t until 1980 that the American Psychiatry Association gave a name to the mental health disorder Kinzie had been treating for years.

“As we got more and more refugees from around the world, we realized how many had been tortured,” Kinzie says. “When you’ve been traumatized as a human being, you’re going to have very common symptoms. PTSD and depression are the most common. Some people experience psychosis. Marital discord and domestic abuse occur frequently. And many people develop medical problems like hypertension and diabetes.”

While a few symptoms can be minimized rather quickly, others take a lifetime to address. Some of the center’s patients have been treated for more than 25 years, says Kinzie, who also serves as a psychiatry professor at OHSU.

“We can end the sleep disorders and nightmares pretty fast and some depressive symptoms. But we can’t get rid of the past and bring back family members or countries,” he says. “The biggest difficulty is they remain vulnerable. You can have reduced symptoms that under stress — like losing immigration status, having a car accident or losing a family member — will cause the symptoms to come back. There’s an up-and-down course for a long time.”

And, as conflicts rage in the Middle East, Darfur and other hotspots around the world, the influx of traumatized people seeking treatment most likely will continue as well.

“It doesn’t seem like the wars are going to slow down,” Kinzie says.

The Facts of Torture

While Kinzie helps torture and war trauma victims try to piece together some normal semblance of life, across town, at Reed College, political science Professor Darius Rejali explores the technology of torture. Since the 1970s, the Iranian-born professor has studied the causes, consequences and meaning of torture. He is now an internationally renowned expert on government torture and interrogation.

Rejali’s most recent book, Torture and Democracy, examines how democracies use torture in the 20th century. According to his website, “As democracy, human rights, and the free press blossomed after World War II, so did the market for ‘clean’ torture techniques that leave no evidentiary scars, such as the use of drugs, stress positions, and waterboarding. Rejali reveals the most controversial Western intelligence-gathering techniques, explains their origins, and questions if their use actually hinders the torturer’s ability to gather credible intelligence.”

The book, which won the 2007 Human Rights Book of the Year Award from the American Political Science Association, took Rejali 13 years to write. “I was ready to publish it after 10 years, but it was 2001 and I realized there was a torture crisis coming. For me, all the flags were up by 2002.”

He predicts that this torture crisis will likely continue, with private interrogation companies playing a larger role as governments seek to distance themselves from such practices. Another aspect to the crisis is that the soldiers serving in the Middle East will one day return home and find work as police officers, private security and other positions of authority, Rejali notes, adding some of them may incorporate less-than-desirable techniques on the job.

“Torture isn’t policy, it’s practice,” he says. “There is about a 20-year shadow where it reappears back in society.”

It’s an issue of growing interest to students, many of whom initially want to explore the moral implications of torture but come to focus on Rajali’s current emphasis: the forensics of torture.

“I try to get a lot of the mystery out of it, and the facts of torture are extremely important for legal cases and the prosecution of those who commit torture,” he says.

Putting the Facts to Work

Perhaps no one knows that better than the Oregon lawyers who travel to The Hague to serve on the international war crimes tribunal. Resch made his first journey there in 2000 when what was supposed to be a brief assignment turned into a four-year endeavor to prosecute Bosnian Serb leaders accused of war crimes.

Resch returned to The Hague last January to prosecute Serbian war leader Radovan Karadzic, who is charged with a siege and terror campaign in Sarajevo and the mass genocide of about 7,000 Bosnian Muslims during the Srebrenica Massacre in 1995. The case against Karadzic involves more than 500 witnesses and 2,500 exhibits.

“Inasmuch as I can make a contribution to international justice, I feel I have a responsibility because I have some special knowledge and I wanted to come back and contribute,” Resch says. “I can only be here for six months, but it was important for me to come back and do what I can to help the trial team.”

Another element of his work involves identifying witnesses in leadership positions who can confirm that the judicial system became an arm of the state’s policy of ethnic cleansing. One gentleman in particular has been honest in sharing how judges failed by letting soldiers go back to their units instead of prosecuting them, Resch says.

“He accepted responsibility that he had failed and was able to give us some pretty powerful testimony about the political and military involvement,” he says. “He was a courageous individual, and that sort of experience is rewarding.”

Another Oregon attorney has witnessed heroism beyond what she imagined humanely possible while teaching English to Tibetans. She asked to remain anonymous but wanted to share her experiences from the handful of trips she has made to China since the 1980s.

Previously a Portland litigator, she first traveled to China in 1985 to teach law. Her last visit was from November 2007 through February 2008, when she witnessed a markedly different China than the one she first encountered during the ’80s. Amid turbulent protests by Tibetans and the impending 20th anniversary of the Tiananmen Square protests, Chinese officials were much less welcoming to outsiders.

Given the turmoil in China, she changed her plans for another visit in late 2008 and traveled to India to teach English instead. Many of her students were Tibetans who had fled China after years of imprisonment and torture. She says a number of them were from nomadic or farming families, and several were monks and nuns. For the most part they were imprisoned during the 1990s, though one student was released as recently as 2005.

“Without exception, the activities they engaged in that landed them in prison all had to do with freedom of religion and freedom of expression issues,” she says, noting that to carry the Tibetan flag is one of the greatest infractions. “There are three phrases that also will land you in prison: ‘Free Tibet,’ ‘China out of Tibet’ or ‘Long live His Holiness the Dalai Lama.’”

She interviewed several students in January, and they recounted the months they spent in detention centers after their arrests.

“While in detention, no one was allowed to see or contact family or friends or a lawyer. In detention they were subjected to daily interrogations and beatings. The torture there was worse than in the prisons following sentencing,” she says. “Not one of them was represented by a lawyer or by a legal representative at any stage.”

A group of Chinese lawyers who sought to represent Tibetans charged in the 2008 uprisings were denied the right to do so and were subjected to threats of discipline, disbarment and even prosecution for state security violations, she adds.

While she hopes to return to China soon, and someday visit Tibet, she worries about the future of the China she first experienced during the 1980s. Even more, she fears for the Tibetan students she befriended and younger generations of Tibetans fighting to make their voices heard.

Justice for All?

Another contingent of Oregon lawyers who volunteered their expertise found themselves in the unenviable position of evaluating just how far their own country’s commitment to international justice goes during wartime.

After the U.S. Congress passed legislation designed to strip Guantanamo detainees of their right to file habeas corpus petitions contesting their imprisonment, the Center for Constitutional Rights and the American College of Trial Lawyers called upon private practice attorneys to volunteer their time to represent the detainees. Several Portland lawyers answered the call.

They included Sam Kauffman, of counsel with Garvey Schubert Barer; Kauffman’s colleague, Bob Weaver; Jan Kitchel with Schwabe, Williamson & Wyatt; and Tom Johnson with Perkins Coie. A team from the Oregon Federal Defender office, including its head, Steven Wax, and attorney and investigator William Teesdale, also took on several cases.

Each undertook the effort at considerable personal and professional expense. During a 2007 interview, Weaver estimated he and Kauffman spent about 1,000 hours — worth an estimated $350,000 in legal fees — and $100,000 in travel and other costs, from when they began representing a pair of detainees in fall 2004 to 2007.

Johnson traveled to Guantanamo four times to meet with his client, Ihlkham Battayav, and to Kazakhstan to investigate facts that supported Battayav’s innocence. Johnson volunteered about 450 hours on the case in 2006, and spent at least $10,000 each time he traveled to Guantanamo.

As the issue bounced back and forth between the U.S. government and the Supreme Court, the Oregon lawyers watched helplessly as their clients sank into despair and, in some cases, insanity. Though Supreme Court rulings favored the detainees, there still was no end in sight to their confinement.

“On the one hand, I’m proud of my country because it permits me as a federal employee to fight this fight,” Wax said during a 2007 interview with the Bulletin. “On the other hand, I’m deeply disturbed by my country because of what it’s doing to the human beings it has locked up now for more than five years and the continual distortion of the truth it puts out. I’m disturbed by the legal positions put out by my government that run contrary to 800 years of Anglo-American legal and political thought.”

Debate Initiates Evolution

As the eighth anniversary of 9/11 neared, U.S. politicians and legal authorities wrestled with what to do with detainees captured in the wake of the terror attacks. About 230 detainees still remain at Guantanamo, and President Barack Obama has said that while Guantanamo should be shut down, a small number of those who remain should be imprisoned indefinitely because they are too dangerous to release or prosecute.

If nothing else, Gitmo is the indelible image shadowing the national debate about U.S. policies on the treatment — and torture — of prisoners captured during wartime. The debate has generated significant interest among Oregon legal professionals, who for years now have been drawn to public forums on the issue hosted by the Oregon State Bar’s Civil Rights Section.

Dennis Steinman, a civil rights attorney with Portland’s Kell, Alterman & Runstein and former Civil Rights Section chair, recalls a forum on the Patriot Act a few years back that filled the Oregon Convention Center to standing-room-only capacity. The keynote speaker was Viet Dinh, former U.S. Assistant Attorney General and the act’s primary author. Other speakers included Rep. Earl Blumenauer, former U.S. Attorney Karin Immergut, representatives from the U.S. Department of Homeland Security, several defense lawyers and members of the American Civil Liberties Union.

“It was not only well attended by the legal community but also by the public in general, so the interest in matters of civil liberties since 9/11 was dramatic,” Steinman says. “This was a program that was occurring while the Department of Justice was investigating Brandon Mayfield. There was significant interest in the changes in civil liberties and how it was affecting us on a day-to-day basis.”

Katelyn Oldham, a Portland sole practitioner and immediate past chair of the OSB Civil Rights Section, says the topic of international justice continues to draw interest. OHSU’s Dr. Kinsey was among the speakers for a forum last November that addressed the implications of torture on democratic societies.

“I would say there has always been an interest in this issue. What has changed is in response to the press that came out about what went on at Guantanamo and the secret prisons we’ve heard about,” Oldham says. “It’s widely recognized that the Bush administration pushed executive privilege to the utmost and, because of that, there were civil rights violations. It’s generated more outrage and really put a face to it, especially when we learned that American citizens were involved.

“Now there is a lot of curiosity about what the [Obama] administration will do and the questions surrounding it, like whether Guantanamo will be shut down and what we will do with the people being held there,” she adds.

Willamette University Professor Jim Nafziger, who teaches international law, comparative law, international dispute resolution and immigration law, says the expanding web of issues related to international justice is igniting interest among law students as well.

“Efforts to promote and protect human rights internationally have already progressed through three phases: the definition and elaboration of rights, gradual governmental accession to those rights, and the construction of international institutions to implement and to supervise compliance with those rights,” says Nafziger. “We are now essentially in a fourth phase of a focus on actual implementation and compliance, which is proceeding, as one might expect of the international system, in fits and starts.”

Some examples include the work of the United Nations and its specialized agencies regarding not only political and civil rights but also economic, social and cultural rights; the integration of international human rights considerations into corporate law, extradition law, environmental law, criminal law and other basic disciplines; and the growth of new institutions, ranging from the Truth and Reconciliation Commission in South Africa to the European Court of Human Rights and the Inter-American Commission and Inter-American Court of Human Rights.

“Sadly, the United States is not a party to the latter institutions, nor to many international human rights treaties, including, for example, that on the Rights of the Child, to which only one other country, Somalia, is also not a party,” Nafziger says.

Noting that the challenges to the discipline in this era of gradual implementation are immense, Nafziger outlined a few:

The question of cultural relativity and whether human rights really are global, given the disparity of cultural variations.

The status of the group rights of ethnic communities, indigenous populations such as Native Americans, and other minorities.

The status of internally displaced persons, such as those who flee from armed conflict and natural disasters but, because they cannot leave their own national territories, do not enjoy the full protection of international law.

The question of whether war crimes prosecutions, as justice-administering institutions, serve or compromise negotiations for peace.

Another challenge, according to Nafziger, is the problem of how to balance economic and political rights. For example, China believes that human rights begin at breakfast and, therefore, economic rights should come first in the country’s modernization efforts. But this priority has met with great skepticism from Western media and people who question whether you can really separate economic from political rights, he notes.

“At a more theoretical level are questions about the relationship between human rights law and humanitarian law — that is, the law applicable in times of armed conflict — and between human rights law and international criminal justice.

“These are big issues that will shape the evolving curriculum in law schools,” he adds. “But we are making progress in promoting and protecting human rights globally. Years ago, while I was serving as chair of the Human Rights Committee of the International Law Association (American Branch), a huge issue was cultural relativity. Today, however, though it is still an issue, the universality of basic human rights norms on such matters as gender and religious issues is much more broadly accepted.”

While some improvements have been made over the years, many with a passion for international justice continue to keep a wary watch on future events and are concerned about what may lie ahead.

“I know that as practitioners we need to be more aware of the general policies of what’s happened with our country since 9/11 and how it’s impacting the employment arena and all sorts of other aspects of people’s day-to-day lives,” Steinman says.

“I absolutely think the public has an intense need to know, and a right to know, about the kind of stuff that has been going on,” he adds. “I do believe that policies have changed and hopefully some of the stuff that went on before under the Torture Memo have been stopped and we can move on from that.”

Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin

© 2009 Melody Finnemore

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