CHAPTER 8 :
North Carolina Public Opposition to the RDI program, and Officials’ Responses
Since 2005, members of the public in North Carolina, largely led by North Carolina Stop Torture Now (NCSTN) and various allies, “have worked [. . .] to expose and end North Carolina’s central role in the ongoing U.S. torture program.”800 NCSTN is “a grassroots coalition of individuals representing [. . .] a diversity of faith, human rights, peace, veteran, and student groups across the state”801 From the beginning, this opposition has been motivated by the belief that torture is immoral. Participants from across the political spectrum have grounded their abhorrence of torture in a variety of strong conscientious, religious, and ethical beliefs.
Through a wide range of actions, citizens have mounted persistent and vigorous public challenges for over 12 years to North Carolina’s role in the RDI program. They have directed requests for action to officials at the local, state, federal, and international levels. Yet government responses range from failure to respond to requests for information to refusal to investigate or issue apologies; instead, local and state authorities have subjected local activists to monitoring and arrest.
No judicial, legislative, or executive official at the local or state level has taken seriously the duty to investigate whether egregious crimes, including conspiracies to kidnap and commit torture, have occurred within North Carolina’s jurisdiction. This remains the case even though there is now ample evidence of the state’s involvement in the CIA torture and rendition program.
PUBLIC CHALLENGES TO NORTH CAROLINA’S ROLE IN THE RDI PROGRAM
For over a decade, torture opponents repeatedly engaged with elected officials and staff, including governors, attorneys general, U.S. Congress members,802 and state legislators, to challenge the role of North Carolina in facilitating the RDI program. Demands for government transparency have been paramount. At the federal level, for example, in April 2009 NCSTN called on the Obama administration to publicly disclose “how U.S. torture policies were formulated, how these policies were implemented and executed, the scope of the practices (the numbers affected and the breadth of the torture), the fate of the victims, and other relevant information.”803 Advocates, including the North Carolina Council of Churches, also demanded transparency in August 2013, when they delivered a letter to U.S. Senator Richard Burr that was signed by more than 190 faith leaders from across North Carolina, among whom were 18 heads of judicatories or denominations.804 Activists have made repeated requests for a legislative remedy at both the state805 and federal level (e.g., a Commission of Inquiry).806
Courtesy: North Carolina Council of Churches
At the state level, anti-torture groups have made frequent requests for investigation and an end to North Carolina’s role in the RDI program as well as for a demonstrated commitment to prevent future such abuses. These requests have gone to prior Governors (Easley and Perdue), former Attorney General Cooper, the State Bureau of Investigation (SBI), the Global TransPark Authority (GTPA), and individual state legislators. For example, in September 2006, the N.C. Council of Churches sent letters to state officials requesting investigation of Aero Contractors.807 In March 2007, a press conference at the N.C. General Assembly announced a “letter from 75 non-profit organizations requesting an investigation of Aero, delivered to Governor Easley, Attorney General Cooper, SBI Director Pendergraft, U.S. Attorney for Eastern District of N.C. George Holding, Johnston County Board of Commissioners, [GTPA] Board members, and N.C. General Assembly members.”808 Within weeks, on May 2, 2007, NCSTN and allies provided documentation of Aero’s “involvement in rendition to torture” to Attorney General Cooper’s office.809
State-level pressure continued. On July 2, 2009, NCSTN and N.C. Council of Churches members, as well as Johnston County residents, met with then-Governor Beverly Perdue’s staff members “to encourage the Governor to end North Carolina’s support for the extraordinary rendition program and investigate Aero’s role in it.”810
Photo courtesy: Chris Seward | Creative Commons
On January 19, 2012, NCSTN and allies delivered copies of a “70-page dossier on Aero’s alleged role in rendition flights, prepared by University of North Carolina law school faculty members and students on behalf of anti-torture activists” to “officials from the governor’s office and state attorney general, who accepted them politely but made no promises.”811 And in April 2014, activists gathered at the N.C. Department of Justice to remind then-Attorney General Cooper of his “special obligation to investigate the North Carolina links to enforced disappearance, secret detention and torture the report is nearly certain to document.”812
Concern has been expressed with special persistence at the county level. Since 2006, NCSTN and allies have repeatedly met with the Johnston County Board of Commissioners (the Board) to address the implications of Aero Contractors operating rendition aircraft out of the Johnston County Airport in Smithfield, N.C.813 For example, according to Allyson Caison’s testimony to the North Carolina Commission of Inquiry on Torture (NCCIT):
Two of us appeared in front of the [Johnston County] Commissioners nearly every month for over 2 years. We were not allowed to speak until the end of the meeting, which meant sitting through countless hours of county business for our chance to speak. Chuck Fager of Quaker House wrote a newsletter every month for the Commissioners on the latest news of torture and accountability from around the world. Each time as he addressed the Commissioners he asked them to investigate Aero Contractors.814
Yet as the selected examples below illustrate, the Board at best failed to provide an effective response, and at worst expressed support for Aero. While as recently as May 2018, the Board reportedly denied any link between the Johnston County Airport and rendition,815 this intransigence is consistent with its earlier approaches:
February 2, 2009
Anti-torture activists attended a Board meeting to request that the Commissioners “direct the Johnston County Airport Authority to adopt a pledge to prohibit future rendition flights and seek information about past flights originating from JNX [Johnston County Airport].”816 This pledge would require updated registers of aircraft including flight plans, names of the crew and passengers, and the purpose of the flights.817
March 2, 2009
Approximately two dozen anti-torture activists sought information about whether the Board of Commissioners would investigate Aero Contractors or take any other type of action.818 In response, the Board “took no action except to promise to raise the issue with Congressman Etheridge as private citizens.”819
June 1, 2009
NCSTN representatives “revisited the Johnston County Board of Commissioners [ . . .] to advocate for an investigation of Aero Contractors.”820 Chairman Wade Stewart stated “his and the Commission’s stalwart support for Aero Contractors [. . .] even endorsing an expansion of the extraordinary rendition program to capture adversaries in North Korea and Iran.”821
October 3, 2011
At a Board meeting, an NCSTN representative read portions of a letter written by Khadija Anna L. Pighizzini, the wife of Abou Elkassim Britel, “a victim of an “extraordinary rendition conducted by the CIA in May 2002.”822 The Board refused to provide the apology requested by Ms. Pighizzini.
March 5, 2018
NCSTN organized 26 individuals to attend a meeting of the Johnston County Commissioners to present “new evidence about the magnitude of Aero Contractors’ role in the CIA’s rendition program,” which included testimony that was offered during the NCCIT hearings.823 In response, “the Commissioners asked what laws were broken at their airport, said there was no direct evidence linking their airport to the 49 renditions presented, and said they deal with local matters, not federal.”824 After the meeting, NCSTN sent further information to them, including flight logs that evidenced the rendition routes that included departures from, and landings in, Johnston County Airport and Kinston Regional Airport.825
Photo and information from www.johnstonnc.com
April 26, 2018
Jeff Carver, the Chair of the Board, met with NCSTN activists and allies to respond to issues raised at the March 5, 2018 meeting, explaining that: he would not ask Sheriff Bizzell and District Attorney Doyle to take action; he would not contact North Carolina Attorney General Stein or Governor Cooper to request an investigation; and that he “will not support a policy that says anything negative about Aero.”826
May 7, 2018
Anti-torture citizens attended a Board meeting at which the commissioners “disputed that there is evidence linking Aero to torture” and “responded negatively to [. . .] requests for investigation of Aero and an anti-torture flight policy for their airport.”827
North Carolinians have also expressed opposition at the international level to the role of North Carolina in the RDI program, with requests for information and investigation of cases connected to Aero. For example, in August 2007, NCSTN joined Action by Christians Against Torture-Germany in sending letters to Chancellor Merkel, then-U.S. Secretary of State Condoleezza Rice, and then-U.S. Attorney General Alberto Gonzales. The letters urged further action on arrest warrants issued by the Munich public prosecutor as part of an investigation into the Khaled El-Masri case.828
At the level of the United Nations, the University of North Carolina Human Rights Policy Lab called upon the U.N. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment for a full and independent investigation of the case of Abou Elkassim Britel.829 As a result, eight U.N. mandate holders sent a letter to several governments, including the U.S., requesting information regarding Mr. Britel’s case. Specifically, they inquired about any steps taken to establish inquiries to identify and hold responsible public officials accountable, and to provide reparations, rehabilitation, and compensation to victims of the RDI program.830
NATURE OF PUBLIC OPPOSITION IN NORTH CAROLINA TO THE RDI PROGRAM
Local actors expressed concerns about the lack of government accountability and the impact of U.S. torture on survivors in a myriad of ways, including through:
In November 2005, NCSTN delivered a “people’s indictment” to the headquarters of Aero in Smithfield, N.C.831 and subsequently continued further visibility actions such as vigils, marches, and rallies. For example, in January 2014, at an event organized by NCSTN, the N.C. Council of Churches, Quaker House, and Veterans for Peace, people carried signs outside Senator Burr’s office urging him “to support the release of a critical report on the use of torture on terrorism suspects.”832 Also, NCSTN adopted the highway fronting Aero’s property833 and cleaned up the roadside for four years as a way “to remind Johnston County motorists and residents that the road to a clean community conscience must travel through a thorough investigation of the airport’s link to the immoral, illegal and ineffective U.S. program of enforced disappearance, secret detention and torture.”834
Activities of religious witness
Members of congregations across North Carolina have held educational discussions, signed letters and delivered petitions to elected officials, and displayed banners. Motivated by faith and moral conviction, persistent anti-torture witness has been carried out by Baptists, Catholics, Episcopalians, Jews, Methodists, Muslims, Presbyterians, Quakers, and Unitarians.
Citizen petition and postcard campaigns
Citizens have collected signatures on petitions and passed out educational materials in Johnston County on several occasions.835 For example, at the 2011 North Carolina State Fair, attendees were invited to sign a petition directed at Governor Perdue and Attorney General Cooper “endors[ing] [. . .] the North Carolina Commission of Inquiry on Torture to reveal the truth about whether our state has been used as a base for kidnapping and torture,” and ending with a “call [. . . ] to investigate Aero Contractors.”836
North Carolina advocates hosted four major educational conferences at Duke University in Durham, N.C. in September 2007, May 2008, April 2010, and March 2011,837 as well as a panel following the hearings of the NCCIT.838
Media engagement has included authoring letters to the editor and op-eds,839 as well as providing interviews to reporters about anti-torture efforts in the state. 840 The NCCIT hearings also garnered significant media coverage.841
Formation of North Carolina Commission of Inquiry on Torture (NCCIT)
North Carolina advocates supported the creation of the NCCIT by successfully lobbying cities and counties to adopt resolutions in support of the NCCIT.842 For example, the city of Durham,843 Orange County,844 the municipal government of Carrboro,845 and the Town of Chapel Hill846 issued such resolutions and proclamations. NCSTN also met with staff members of newly-elected N.C. Attorney General Josh Stein in March 2017 to present the case against Aero and ask him to express support for the NCCIT’s work.847
In addition to the groups highlighted throughout, in 2012, NCSTN worked with the Beloved Community Center, American Friends Service Committee, and others to host an event in Greensboro, N.C. entitled “Our Responsibility to Oppose the Abuse of State Power,”848 which addressed links between torture and mass incarceration of black youth and immigrants.849
Other allies include the ACLU, Amnesty International, Center for Constitutional Rights, Center for the Victims of Torture, Code Pink, Human Rights First, Human Rights Watch, the National Religious Campaign Against Torture, Quaker House, Veterans for Peace, and Witness Against Torture.850
OFFICIAL RESPONSES – AND NON-RESPONSES – TO PUBLIC OPPOSITION TO TORTURE IN NORTH CAROLINA
Official responses to public opposition to North Carolina’s role in the RDI program have consisted of refusals to respond or inadequate responses, monitoring of local anti-torture advocates rather than investigation of the program, and failure to pass relevant state legislation. This approach has largely left North Carolina’s official public discourse about torture and the RDI program to those sympathetic to the state’s role in the RDI program.
Photo and information from www.johnstonnc.com
In particular, the Johnston County Commissioners have repeatedly and publicly endorsed Aero and its activities. For example, in February 2012, Commissioner Allen Mims told the Washington Post that Aero had been an upstanding local corporate citizen. “Mims suggested that he would not be disappointed to learn that the company had helped the CIA in its pursuit of suspected terrorists [. . .] ’I’d rather that the CIA do it that way than put a terrorist on a Delta flight and endanger the rest of us.’”851 And in December 2014, after partial release of the Senate “Torture Report,” Chair Tony Braswell called Aero “a good corporate citizen.” Johnston County Commissioner Allen Mims said, “I feel pretty certain what they are doing at the airport is legal.”852
In reality, however, the program was blatantly illegal. The legal obligations of the State and Aero are explored in detail in Chapter 9.
Officials’ refusal to provide information, including when information requests have been made through official channels, has been ubiquitous. For example, state officials have been substantially non-responsive to public records requests. The NCCIT sent public records requests to seven entities in May 2017,853 and out of these, only Attorney General Josh Stein’s office, the GTPA, and the Johnston County Airport Authority have provided records.854 Sheriff Bizzell has not responded, the Johnston County Commissioners responded that they planned to “review and respond as soon as possible,”855 the Johnston County District Attorney’s Office responded that “there are no records in the custody and control of the Johnston County District Attorney’s Office that would be responsive to your request,”856 and Governor Cooper’s office responded that it was “unable to locate any public records in our possession that were responsive to your May 26th request re Aero Contractors.”857
At the federal level, information requests are also blocked. For example, in response to a letter from a group of U.N. mandate holders requesting information on “the alleged detention and torture”858 of Mr. Britel, the U.S. Representative to the U.N. Human Rights Council responded that the U.S. government was “unable to provide any additional information responsive to your inquiry.”859
On yet other occasions, officials have refused to engage meaningfully with members of the public. For example, in 2007, the legal counsel for the GTPA explained in an email chain with its Communications Manager and Executive Director that the GTPA did not have to “interact with or debate things” with NCSTN.860 Indeed earlier – in May 2006 – NCSTN representatives had attended the GTPA’s annual board meeting and raised “the issue of Aero Contractors’ involvement in kidnapping and torture” and requested “referral for investigation to the SBI.”861
Photo courtesy: danielrosecenter.org
At the state level, requests to investigate Aero Contractors have been repeatedly denied or referred to the federal level with unknown results. For example, in April 2006, NCSTN and the N.C. Council of Churches met with then-N.C. Governor Easley’s Chief of Staff, asking the Governor to encourage the Attorney General to investigate the link between Aero and rendition.865 In response, an advisor to Easley informed NCSTN “there were no grounds to attempt to break GTPA’s lease with Aero, nor to launch a criminal investigation of Aero, because North Carolina’s U.S. Senators and President Bush had indicated that the U.S. government does not engage in torture.”866
In October 2006, the SBI responded to a joint letter from twelve N.C. state legislators requesting that the SBI investigate Aero867 by claiming “a lack of jurisdiction.”868 When 22 N.C. legislators, led by Representative Paul Luebke (D-N.C., 30th District), continued to pursue this matter,869 the General Counsel to then-N.C. Attorney General Cooper responded that the SBI had referred the investigation of Aero to the FBI, and that “[t]he Attorney General and the SBI stand ready to assist the FBI in any criminal investigation [. . . ]”870 Following up, U.S. Representative Melvin L. Watt (D-N.C., 12th District), during a U.S. House Judiciary Committee hearing in April 2008, asked then-FBI Director Robert Mueller for information regarding a criminal investigation of Aero,871 and was informed a week later that the FBI was “awaiting the Department [of Justice]’s advice on how best to proceed.”872 Subsequently, on March 10, 2009, state representatives Harrison (D-N.C., 57th District), Jones (D-N.C., 60th, District), and Luebke (D-N.C., 30th District) wrote a letter to U.S. Representatives Butterfield, Miller, Price, and Watt, referencing the above sequence of events, requesting that they “write to the Department of Justice and ask for a full and transparent investigation of Aero Contractors,” and concluding with “the rule of law at a minimum demands an investigation.”873 The status of the investigation as referred to the FBI is not publicly known.
National public officials have refused requests from citizens of North Carolina for an apology to victims of the RDI program. For example, in November 2016, a petition with more than 1,000 signatures calling on President Obama to acknowledge the mistreatment of Abou Elkassim Britel and provide an official apology,874 was emailed to the National Security Council of the White House. The response, in January 2017, was “that the signatures and the call for an apology had been logged, but that no action would be taken.”875
Legislative efforts to address North Carolina’s role in the RDI program have similarly stalled. These include N.C. House Bill 1682, the “N.C. No Place for Torture Act” (introduced in the N.C. House of Representatives) and its successor N.C. House Bill 2417, “Crimes of Torture and Enforced Disappearance” (introduced in the N.C. General Assembly).876 According to testimony submitted to the NCCIT by Representative Verla C. Insko of the N.C. House of Representatives, it was partly in response to the SBI’s refusal to investigate, as discussed above, that twelve members of the North Carolina House of Representatives sponsored N.C. House Bill 1682, as the “only [. . .] state bill to address violations in the post-9/11 U.S. rendition and torture programs.” The bill would have done three things: “It amended North Carolina law to identify torture, kidnapping and enforced disappearance as felonies. It gave the State jurisdiction to investigate. It empowered the convening of a grand jury to investigate, with concurrence of the North Carolina Attorney General.”877
After the bill was filed in the N.C. House of Representatives on April 18, 2007,878 NCSTN representatives and allies met with then-Attorney General Cooper’s senior staff to provide documentation of Aero’s involvement in rendition to torture, inform them of the bill, request that the Attorney General issue a supportive statement, and invite him to attend a press conference on the bill scheduled for mid-May.879 After being re-referred to the Committee on Rules, Calendar, and Operations of the House on May 24, 2007,880 the N.C. Sentencing and Policy Advisory Commission’s Torture Offenses Subcommittee met on January 18, 2008 to consider the bill and recognized Aero as the “prototype offender” for whom the bill was designed.881 The bill was then introduced as House Bill 2417 in 2008882 and would have created “the statutory criminal offenses of torture and enforced disappearance” as offenses for which “an investigative grand jury may be convened as recommended by the North Carolina Sentencing and Policy Advisory Commission.”883 However, the bill “was never brought to a vote.”884
Instead of investigating Aero Contractors, or apologizing to victims, state officials have monitored and impeded advocates. During the November 2005 delivery of “citizens’ indictments” to Aero executives, county commissioners, and airport officials, 14 NCSTN members were arrested for trespass; they were subsequently convicted in January 2006.885 When activists attempted to deliver “citizens’ arrests” of “three Aero pilots indicted in Germany for their participation in the kidnapping, extrajudicial detention and transport of Khaled El-Masri” on April 9, 2007,886 eight activists were arrested, three of whom were subsequently convicted of criminal trespass on May 10, 2007.887 Further, when NCSTN requested an investigation of Aero, GTPA Executive Director Darlene Waddell instead accused NCSTN of “attempting to undercut job creation at the Global TransPark.”888 In January 2012, upon learning that advocates planned to deliver a report by the UNC School of Law Human Rights Policy Lab to representatives of the Governor and Attorney General, the Raleigh Police Department produced an internal memo on NCSTN and its members for the SBI in consultation with the Johnston County Sheriff’s Department and the Smithfield Police Department.889
Photo courtesy: DepositPhotos.com
Section 2340A of Title 18, United States Code, prohibits torture committed by public officials under color of law against persons within the public official’s custody or control. Torture is defined to include acts specifically intended to inflict severe physical or mental pain or suffering. (....) The statute applies only to acts of torture committed outside the United States. There is Federal extraterritorial jurisdiction over such acts whenever the perpetrator is a national of the United States or the alleged offender is found within the United States, irrespective of the nationality of the victim or the alleged offender.
OBSTACLES TO ACTION CITED BY NORTH CAROLINA OFFICIALS
Lack of authority for investigation and criminal prosecution
It appears that the crimes of rendition to torture in which Aero is involved could be prosecuted in federal court under the federal Torture Act (18.U.S.C. 2340A), or under state laws that prohibit conspiracy to engage in kidnapping, assault or other crimes (further discussed in Chapter 9).890 However, staff of both Attorney General Cooper and Attorney General Stein have told NC Stop Torture Now members that the law does not give the Attorney General original jurisdiction with respect to Aero’s activities at the Johnston County Airport or the Kinston Global TransPark. It was precisely this obstacle that led state legislators to introduce HB 1682 (which became HB 2417), which would have provided the Attorney General authority to investigate the ongoing crimes allegedly being committed by Aero personnel.
Yet during the two sessions in which the bill was considered and despite citizens’ requests (see above), the N.C. Department of Justice failed to support this expansion of the Attorney General’s investigative authority, even though it has supported such expansions in other matters.891 As has been observed, the problem appears to lie less in the availability of legal remedies than in marshalling political will.892 And as further discussed in Chapter 9, the Commission believes that there is already a basis for prosecution under current state law.
Concern about challenging a Federal government policy
State officials appear reluctant to criticize federal government actions. But the state could deal with Aero’s criminal activities as violations by a public contractor registered to do business in North Carolina, rather than as a federal policy outside the state’s purview.893 In fact, as the Commission’s public records request has revealed, when state legislators asked the SBI to investigate Aero, the response drafted by Attorney General Cooper’s general counsel — while not ultimately used — suggested considering Aero’s role in rendition flights as a case of corruption by a government contractor.894
Moreover, the apparent unwillingness to critique the federal government is a selective one. Attorney General Cooper made it a priority to tackle public corruption at all levels of government.895 Upon a valid request, the SBI conducts investigations into government official misconduct, including misdeeds by U.S. Congresspersons and local officials. For example, one category of misconduct is the misuse of prisoners or inmates.896
Concern about political costs
It is possible that state officials have been reluctant to speak out because they fear political costs to their other priorities. However, if North Carolina’s Governor and Attorney General took steps to prevent renewed use of their state by federal agencies for torture-related activities, they would likely receive support from a broad array of organizations and individuals, including faith communities and military veterans, both powerful constituencies in North Carolina.
Since 2005, North Carolinians of different religious, political and racial backgrounds have called upon local and state officials to investigate the state’s role in rendition to torture. Some state and federal legislators have responded positively, but the state of North Carolina has failed to check the use of its facilities for grave human rights abuses. The silence of the Attorney General’s office and four successive governors has meant that the only official voice on the matter is that of the Johnston County Commissioners, some of whom have repeatedly defended Aero and even torture in public. There is strong concern about possible continued clandestine use of Aero and the Johnston County Airport, among other infrastructure in the state, for missions involving torture or other grave human rights violations. It is past time for the state of North Carolina to acknowledge and account for the violations of law and humanity that have taken place, in order to prevent a possible reoccurrence.