U.S. Second Report to U.N. Committee Against Torture

As previously noted, States Parties to the multilateral treaty against torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) are obligated to submit periodical reports to the Committee Against Torture  (CAT) “on the measures they have taken” to implement the treaty. We also have examined the U.S. initial report to CAT (First Report).[1]

In CAT’s comments on the First Report, it requested the U.S. to submit its second report on or before November 19, 2001. The U.S. did not do so. Instead, the U.S. belatedly submitted its second report (the Second Report) on May 6, 2005.[2]

It is important to remember that the Second Report came after 9/11 and during the U.S.’ so called “war on terror.” It was also after there was world-wide publicity and criticism of the U.S. about horrible abuses of prisoners by U.S. personnel at the Abu Ghraib prison in Iraq, U.S. transfer of detainees to other countries (so called “rendition”) where torture was known to occur and the U.S. use of its base at Guantanamo Bay, Cuba for detention of men arrested in the “war on terrorism.” As we will see below, this led to an intensive examination and criticism of the U.S. by CAT.

We will examine the Second Report (85-pages plus annexes, including two sworn statements about transfers of detainees from Guantanamo Bay), CAT’s hearings regarding that report, CAT’s responsive comments and the U.S. reaction to those comments.

1. U.S. Second Report to CAT

The report started with positive general statements. The U.S. “is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the [U.S.].”[3]

Moreover, “All components of the [U.S.] Government are obligated to act in compliance with the law, including all [U.S.] constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment.The U.S. . . . does not permit, tolerate, or condone torture, or other unlawful practices, by its personnel or employees under any circumstances. U.S. laws prohibiting such practices apply both when the employees are operating in the United States and in other parts of the world.”

The report also said the U.S. “is aware of allegations that detainees held in U.S. custody pursuant to the global war on terrorism have been subject to torture or other mistreatment. The President of the United States [George W. Bush, however,] . . . has clearly stated that torture is prohibited. When allegations of torture or other unlawful treatment arise, they are investigated and, if substantiated, prosecuted.”

The report further stated that the U.S. recognizes “its obligation not to expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. . . . [A]llegations that it has transferred individuals to third countries where they have been tortured [are contrary to U.S. policies and procedures].”

After the submission of the Second Report and before the hearings, CAT in February 2006 provided the U.S. with a document containing 59 very detailed questions or issues that it wanted addressed before or at the hearings. The document demonstrated the Committee’s awareness of what was happening in the U.S. “war on terrorism” and of internal U.S. documents that had entered the public domain.[4] On April 28th the U.S. submitted its written responses to these issues.[5]

2. Committee’s Hearings Regarding  the U.S. Second Report

There were two parts to the Committee’s hearing regarding the U.S. in Geneva, Switzerland. The initial hearing took place on May 5, 2006.[6] The second, on May 8th.[7]

These hearings were the first time since 9/11 that the U.S. had answered questions from an international body about alleged U.S. abuses in the so-called war on terrorism. The seriousness of the occasion was underscored by the U.S.’ sending a delegation of 26 officials from the Departments of State, Defense, Justice and Homeland Security. It was headed by Barry Lowenkron (Assistant Secretary of State for Bureau of Democracy, Human Rights and Labor) and John Bellinger (Legal Advisor to the State Department) with high-level support from Thomas Monheim, (Associate Deputy Attorney General) and Charles Stimson (Deputy Assistant Secretary of Defense for Detainee Affairs).

a. May 5, 2006 Hearing

The initial hearing was opened by Mr. Lowenkron. He emphasized the U.S. commitment to uphold its obligations to eradicate torture and prevent cruel, inhuman or degrading treatment or punishment. Abuses, like those at Abu Ghraib in Iraq, sickened American people and were inexcusable and indefensible. The U.S. is taking steps to hold accountable those who were involved. The U.S. values transparency and openness. For example, the International Committee of the Red Cross, a European governmental group and over 1,000 journalists have visited the U.S. facility at Guantanamo Bay, and some have made positive statements about the facility.

These comments were reiterated by Mr. Bellinger, who emphasized U.S. efforts to help torture victims recover. The Torture Convention, he argued, was not intended to apply to armed conflicts which are governed by humanitarian law. There were many allegations about U.S. mistreatment of detainees, but he urged the Committee to remember they were only allegations, not proof, and to keep a sense of perspective and proportion regarding these claims. Bellinger then summarized the U.S.’ written responses to the Committee’s list of issues.

Mr. Monheim discussed the role of the Department of Justice’s Civil Rights Division in enforcing federal civil rights statutes and U.S. legal protections for victims of torture. Mr. Stimson spoke about the U.S. treatment of detainees in Afghanistan, Iraq and Guantanamo Bay.

After these presentations, several Committee members appeared skeptical about aspects of the U.S. presentation. Fernando Marino Menendez of Spain, the Committee’s Rapporteur for the U.S., raised several concerns. He said the International Court of Justice and the Committee believed that the Convention was applicable in times of armed conflict contrary to the U.S. position; that the U.S. failure to disclose information about intelligence services could be a violation of victims’ rights; that the U.S. had failed to adopt the Convention’s definition of “torture” and instead improperly had adopted a different definition; and international tribunals and opinion had concluded that forced disappearances constituted torture contrary to the U.S. position. Menendez also expressed skepticism of the U.S. assertions that its interrogation practices complied with the treaty, that the abuses were not systematic and that the U.S. complied with the treaty with respect to transfer of detainees to other countries.

The Committee’s Alternate Rapporteur for the U.S., Guibril Camara of Senegal, emphasized that the Committee’s interpretation of the treaty trumped that of the U.S., and he questioned the legitimacy of the U.S. reservations to its ratification of the treaty.

Other members of the Committee reiterated some of these concerns and added others as well.

b. May 8, 2006 Hearing

The U.S. delegation returned on May 8th to respond to the oral questions raised at the initial hearing. These responses focused on legal issues regarding U.S. implementation of the treaty; U.S. treatment of detainees and accountability for abuses; and monitoring and oversight of U.S. intelligence activities.

Immediately after the conclusion of the hearings, the U.S. delegation released a written “Departure Statement.” It emphasized that (1) all U.S. officials are prohibited from engaging in torture and cruel, inhuman or degrading treatment or punishment at all times and in all places; (2) the U.S. deplores its personnel’s occasional violations of these bans and will investigate and hold perpetrators accountable; (3) the U.S. does not transfer people to countries where it is more likely than not that they would be tortured; and (4) the U.S. is able to recognize its failures and make things better and comply with the torture treaty. The statement also mentioned that while in Geneva, members of the delegation also met with the U.N. High Commissioner for Human Rights, the International Committee of the Red Cross and several human rights NGOs.[8]

3.   Committee’s Conclusions and Recommendations Regarding the U.S. Second Report

On July 25, 2006, the Committee issued its conclusions and recommendations regarding the U.S. Second Report. CAT complimented the U.S. for its exhaustive written responses to the Committee’s list of issues and to the questions raised at the hearing and for the presence of the large and high-level U.S. delegation at the hearing. CAT also welcomed the U.S. commitment to prohibition of torture and improper transfer of detainees to other countries. Finally CAT was pleased with new U.S. legislation on treatment of prisoners and detainees.[9]

The U.S.’ major effort to persuade the Committee that the U.S. was in full compliance with the Convention Against Torture, however, was unsuccessful. The Committee’s report recorded a lengthy list of concerns and recommendations. Although polite, diplomatic language was used, it was a stinging rebuke of the U.S. According to the Committee, the U.S. should:

• (a) enact a federal crime of torture consistent with Article 1 of the treaty;

• (b) ensure that acts of psychological torture, prohibited by CAT, are not limited to “prolonged mental harm” as set out in U.S. “understandings, ” but constitute a wider category of acts, which cause severe mental suffering, irrespective of their prolongation or its duration and withdraw its reservation to article. 16 (prevention of cruel, inhuman or degrading treatment);

• (c) investigate, prosecute and punish perpetrators under the U.S. extraterritorial torture statute;

• (d) recognize and ensure that CAT applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and that CAT’s provisions are without prejudice to provisions of any other international instrument;

• (e) recognize and ensure that CAT’s provisions apply to, and are fully enjoyed  by, all persons under the de facto effective control of its authorities, of whichever type, wherever located in the world as opposed to the regrettable U.S. view that they applied only to its de jure territory;

• (f) register all persons it detains in any territory under its jurisdiction;

• (g) ensure that no one is detained in any secret detention facility under its de facto effective control because doing so is a per se violation of the treaty; the U.S. “no comment” policy regarding such facilities is regrettable;

• (h) adopt all necessary measures to prohibit and prevent enforced disappearance in any territory under its jurisdiction, and prosecute and punish perpetrators because such practices are per se violations of the treaty; the U.S. view that such practices do not constitute torture is regrettable;

• (i) adopt clear legal provisions to implement the principle of absolute prohibition of torture in its domestic law without any possible derogation, ensure that perpetrators of acts of torture are prosecuted and punished appropriately, ensure that any interrogation rules, instructions oR methods do not derogate from the principle of absolute prohibition of torture and that no doctrine under domestic law impedes the full criminal responsibility of perpetrators of acts of   torture, and promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to                    acts of torture committed by their subordinates;

• (j) apply the non-refoulement guarantee to all detainees in its custody, cease the rendition of suspects, in particular by its intelligence agencies, to States where they face a real risk of torture, and ensure that suspects have the possibility to challenge decisions of refoulement; the Committee is concerned that the U.S. does not consider its non-refoulement obligation to extend to its detainees outside its territory;

• (k) with respect to refoulement only rely on “diplomatic assurances” from States which do not systematically violate the Convention’s provisions, and after a thorough examination of the merits of each individual case, establish and implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review, and effective post-return monitoring arrangements, and provide detailed information to the Committee on all cases since 9/11/01 where assurances have been provided;

• (l) cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured because detaining people indefinitely without charges constitutes a per se violation of the treaty;

• (m) ensure that education and training of all law-enforcement or military personnel, are conducted on a regular basis, in particular for personnel involved in the interrogation of suspects;  training to include interrogation rules, instructions and methods, and specific training on how to identify signs of torture and cruel, inhuman or degrading treatment; such personnel should also be instructed to report such incidents; regularly evaluate such training and education and ensure regular and independent monitoring of their conduct;

• (n) rescind any interrogation technique, including methods involving sexual humiliation, “waterboarding”, “short shackling” and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control;

• (o) promptly, thoroughly and impartially investigate all allegations of acts of torture or cruel, inhuman or degrading treatment or punishment by law-enforcement personnel and bring perpetrators to       justice, and provide the Committee with information on the ongoing investigations and prosecution relating to Chicago Police Department;

• (p) eradicate all forms of torture and ill-treatment of detainees by its military or civilian personnel, in any territory under its jurisdiction, and promptly and thoroughly investigate such acts, prosecute all those responsible for such acts, and ensure they are appropriately punished, in accordance with the seriousness of the crime;

• (q) ensure that independent, prompt and thorough procedures to review the circumstances of detention and the status of detainees are available to all detainees;

• (r) ensure that mechanisms to obtain full redress, compensation and rehabilitation are accessible to all victims of acts of torture or abuse, including sexual violence, perpetrated by its officials;

• (s) amend the U.S. Prison Litigation Reform Act to eliminate the requirement that there can be no lawsuit for mental or emotional injury suffered while in custody without a prior showing of physical injury;

• (t) ensure that the ban on use of statements induced by torture are fulfilled in all circumstances, including in the context of military commissions, and establish  an independent mechanism to guarantee the rights of all detainees in its custody;

• (u) review and revise its execution methods, in particular lethal injection, in order to prevent severe pain and suffering;

• (v) design and implement appropriate measures to prevent all sexual violence in all it detention centers, and ensure that all allegations of violence in detention centers are investigated promptly and independently, perpetrators are prosecuted and appropriately sentenced and victims can seek redress, including appropriate compensation;

• (w) ensure that detained children are kept in facilities separate from those for adults in conformity with international standards, and address the question of sentences of life imprisonment of children, as these could constitute cruel, inhuman or degrading treatment or punishment;

• (x) review the use of electroshock devices, strictly regulate their use, restricting it to substitution for lethal weapons, and eliminate the use of these devices to restrain persons in custody;

• (y) review the regime imposed on detainees in “supermaximum prisons,” in particular the practice of prolonged isolation;

• (z) ensure that reports of brutality and ill-treatment of members of vulnerable groups by its law-enforcement personnel are independently, promptly and thoroughly investigated and that perpetrators are prosecuted and appropriately punished;

• (aa) invite the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, in full conformity with the terms of reference for fact-finding missions by U.N. special procedures, to visit Guantánamo Bay and any other detention facility under its de facto control;

• (bb) reconsider its intent not to join the International Criminal Court;

• (cc) withdraw all U.S. reservations, declarations and understandings lodged at the time of ratification of CAT;

• (dd) make declaration under article 22, thereby recognizing the competence of the Committee to receive and consider individual communications, and ratify Optional Protocol to CAT;

• (ee) provide detailed statistical data, disaggregated by sex, ethnicity and conduct, on complaints related to torture and ill-treatment allegedly committed by law-enforcement officials, investigations, prosecutions, penalties and disciplinary action relating to such complaints, etc.

Indeed, journalists saw the Committee’s report as “a rebuke of Bush administration counter-terrorism policies.” Human Rights Watch said it was a “strong and thorough critique” and “a complete repudiation of virtually every legal theory that the Bush administration has offered for its controversial detention and interrogation policies.” [10]                   

4. U.S. Reaction to the Committee’s Conclusions and Recommendations

Immediately after the release of the Committee’s report, U.S. officials were very critical of the Committee and its report. Mr. Bellinger was reported as saying that the report was “skewed and reaches well beyond the scope and mandate of the Committee,” and he reiterated the U.S. argument that in any war, a belligerent nation holds captured combatants without charges indefinitely until the war is over. Bellinger even said the Committee had not provided a fair hearing.[11]

Pursuant to CAT’s request, within one year after the issuance of its conclusions and recommendation, the U.S. on July 25, 2007, submitted its follow-up report to the Committee regarding some of its conclusions and recommendations.[12] Here is what the U.S. said:

• The treaty has no provision regarding the registration of prisoners and, therefore, the recommendation to do so was not required; U.S. personnel, however, “generally maintain appropriate records” on detainees;

• The U.S. determines whether it is more likely than not that a person would be tortured in another country before transferring him, not whether there is a “real risk” of that occurring, and the treaty does not give such individuals a right to challenge the transfer;

• There is no basis in the treaty to recommend that the Guantanamo Bay facility be closed or that every detainee there have a right to judicial review of their detention;

• The law of war, not CAT, applies to detention of enemy combatants in the war on terrorism; and

• Juveniles are not regularly and generally held in federal and state prisons with adult prisoners. The U.S. is not a party to the Convention on the Rights of the Child and is not subject to any of its provisions.

Conclusion

CAT also requested the U.S. to submit its next periodical report on or before November 19, 2011.[13] The U.S., however, did not do so. Once again we see that CAT does not have power to order the U.S. or any other State Party to do anything or to impose sanctions on the party when it does not do what CAT politely had requested.