Spain’s Criminal Case Against U.S. Authors of Legal Memoranda Allegedly Justifying Torture

Spain’s National Court (Audiencia Nacional) has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory.

On March 17, 2009, the Spanish Association for the Dignity of Prisoners filed a 98-page criminal complaint in the Spanish court against six officials of the George W. Bush Administration: (i) David Addington (former Counsel to, and Chief of Staff for, former U.S. Vice President Cheney); (ii) Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); (iii) Douglas Feith (former Under Secretary of Defense for Policy, U.S. Department of Defense (DOD)); (iv) Alberto R. Gonzales (former Counsel to former U.S. President George W. Bush, and former U.S. Attorney General); (v) William J. Haynes (former General Counsel, DOD); and (vi) John Yoo (former Deputy Assistant Attorney General, OLC, DOJ).

The six officials are alleged to have participated in, or aided and abetted, the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations, all in violation of international law, including violations of the Geneva Conventions and the Convention Against Torture.

On March 28, 2009, Judge Baltasar Garzon decided that the complaint met jurisdictional requirements and opened a preliminary investigation.

On April 16, 2009, Spain’s Attorney General raised objections to the continuance of the case, and the next day, Spain’s Public Prosecutor filed a request that the complaint be dismissed and responsibility for investigating the matter be referred to a different judge. The latter was done on April 23rd with Judge Eloy Velasco being assigned.

On May 4, 2009, Judge Velasco, pursuant to the US-Spain Treaty on Mutual Assistance in Criminal Matters, sent a formal request (Letters Rogatory) to the U.S. asking it to state “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.”  If there had been an affirmative response to this question, the Spanish court undoubtedly would have closed its investigation.

Nearly two years later, on March 4, 2011, the U.S. finally responded to the Letters Rogatory. It stated that the U.S. had clear jurisdiction over the case and asking that the case be sent to the U.S. for further review and investigation.

On April 13, 2011, Judge Velasco temporarily stayed the case in Spain and transferred the case to the U.S. Department of Justice with a request for the U.S. to indicate the time frame for U.S. action on the complaint.

On April 19, 2011, the Spanish Association for the Dignity of Prisoners filed an appeal of Judge Velasco’s order staying the case. That appeal is still pending.

In summary, the case is still pending in Spain with unresolved issues.

In the meantime, the body responsible for monitoring compliance with the multilateral treaty against torture (the Committee Against Torture or CAT) has severely criticized U.S. treatment of detainees in the so-called “war on terrorism” and the U.S. purported legal justification of such treatment through so-called “enhanced interrogation” techniques.

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.


[1] Convention Against Torture, Art. 19(1); Post: The Multilateral Treaty Against Torture (Nov. 29, 2011); Post: U.S. Ratification of the Multilateral Treaty Against Torture (Dec. 1, 2011); Post: U.S. First Report to the Committee Against Torture (Dec. 5, 2011).

[2] Post: U.S. First Report to the Committee Against Torture (Oct. 15, 1999); U.S. Dep’t of State, Second Periodic Report of the United States of America to the Committee Against Torture (May 6, 2005), http://www.state.gov/g/drl/rls/45738.htm.

[3]  Id. The second report also contained responses to CAT’s concerns and recommendations to the first U.S. report. In connection with the second report, the U.S. in October 2005 also provided CAT with supplemental responses that are contained in a U.S. Department of State website, http://www.state.gov/g/drl/hr/treaties/index.htm.

[4] CAT, List of issues to be considered during the examination of the second periodic report of the UNITED STATES OF AMERICA (Feb. 8, 2006), http://www.state.gov/g/drl/hr/treaties/index.htm.

[5] U.S. Dep’t of State, Response of the U.S.A. to List of issues to be considered during the examination of the second periodic report of the U.S.A. (April 28, 2006), http://www.state.gov/g/drl/hr/treaties/index.htm.

[6]  U.S. Dep’t of State, U.S. Treaty Reports, http://www.state.gove/g/drl/hr/treaties/index.htm: has posted the following documents at U.S. Dep’t of State, Opening Statement for U.S. Hearing at Committee Against Torture (May 5, 2006); U.S. Dep’t of State, Opening Remarks by John Bellinger (May 5, 2006); U.S. Dep’t of State, U.S. Delegation Oral Responses to CAT Committee Questions (May 5, 2006). See also U.N. Committee Against Torture, Summary Record of 703rd Meeting–Consideration of Second Periodic Report of the U.S.A. (May 5, 2006); Wright, U.S. Defends Rights Record Before U.N. Panel in Geneva, N.Y. Times (May 6, 2006).

[7] U.N. Committee Against Torture, Summary Record of 706th Meeting–Consideration of Second Periodic Report of the U.S.A. (May 8, 2006) (original in French);U.S. Dep’t of State, The United States’ Oral Responses to the Questions Asked by the Committee Against Torture (May 8, 2006); Wright, U.S. Defends Itself on Inmate Abuse, N.Y. Times (May 9, 2006).

[8] U.S. Dep’t of State, U.S. Delegation Departure Statement (May 9, 2006) (available on State Department website).

[9] Committee Against Torture, Conclusions and Recommendations Regarding U.S.A. (7/25/06), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e2d4f5b2dccc0a4cc12571ee00290ce0.

[10] Human Rights Watch, U.N. Torture Committee Critical of U.S. (May 19, 2006); Lynch & Brubaker, U.N. Urges Closure of Guantanamo Detention Facility, Wash. Post (May 19, 2006); Lynch, Military Prison’s Closure Is Urged, Wash. Post (May 20, 2006); Golden, U.S. Should Close Prison in Cuba, U.N. Panel Says, N.Y. Times (May 20, 2006); Human Rights Watch, United States: Committee Against Torture Denounces U.S. Practices (June 1, 2006).

[11]  Id.

[12] Id.; U.S. Dep’t of State, U.S. Response to Specific Recommendations Identified by CAT, (7/25/07), http://www.state.gov/g/drl/rls/100736.htm.

[13]  See n.9 supra.

 

U.S. First Report to 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. The first such report is due within one year after the treaty went into force for that State Party, and supplemental reports on new measures every four years thereafter.[1]

The treaty went into force for the U.S. on November 20, 1994.[2] Therefore, its first such report was due on or before November 20, 1995. As is too often true for such reporting to the CAT or to other treaty bodies by all states, the U.S. did not meet this deadline.  Instead, the U.S. submitted its first report (the First Report) on October 15, 1999. It is important to remember that this was before 9/11 and the U.S.’ so-called “war on terror.”[3]

We will examine the First Report (73 pages plus annexes), the CAT hearing regarding the First Report, CAT’s responsive comments and the U.S. reaction to those comments.

1. The U.S. First Report

The First Report states the U.S. “has long been a vigorous supporter of the international fight against torture. . . .  Torture is prohibited by law throughout the United States.  It is categorically denounced as a matter of policy and as a tool of state authority.  Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States.  No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture.  Nor may any official condone or tolerate torture in any form.”

In addition, the First Report asserted, “No exceptional circumstances may be invoked as a justification of torture.  United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a ‘state of public emergency’) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.  The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory . . . .”

According to the First Report, torture “does not occur in the United States except in aberrational situations and never as a matter of policy.  When it does, it constitutes a serious criminal offence, subjecting the perpetrators to prosecution and entitling the victims to various remedies, including rehabilitation and compensation.”

The First Report discussed the U.S.’ domestic law background for its ratification’s declaration that the treaty was not self-executing and asserted that nevertheless the treaty remained binding on the U.S. as a matter of international law.

In addition, the U.S. said in the First Report that the U.S. had enacted a new federal law to implement the requirements of the Convention against Torture relating to acts of torture committed outside U.S. territory.[4] On the other hand, the U.S. considered its existing federal and state laws to be adequate to its obligations under the Convention to prosecute and punish acts of torture committed in the U.S. and, therefore, determined that it would not be appropriate to establish a new federal cause of action, or to “federalize” existing state protections, through adoption of omnibus implementing legislation.

2. Committee’s Hearing Regarding  the U.S. First Report

In May 2000 CAT held a hearing on the First Report.[5]

3.CAT’s Comments on the U.S. First Report

On May 15, 2000, CAT issued its Conclusions and Recommendations on the First Report (CAT Comments).[6]

After noting that the First Report was overdue, CAT complimented the U.S. on its extensive legal protection against torture and other cruel, inhuman or degrading treatment or punishment and its efforts to achieve transparency of its institutions and practices. CAT also appreciated
the U.S.’ broad legal rights to compensation for victims of torture, whether or not such torture occurred in the country, and its implementation of the principle of universal jurisdiction by adopting a criminal statute that applies whenever an alleged torturer is found within its territory. Another positive development was the U.S. regulations preventing refoulement of potential torture victims.

The Committee expressed its concern about the following aspects of U.S. compliance with the treaty:

  • (a) the U.S. failure to adopt a federal crime of torture consistent with Article 1 of the Convention.
  • (b) the U.S. reservation to Article 16 regarding “cruel, inhuman or degrading treatment or punishment” in violation of the Convention.
  • (c) the number of U.S. cases of police mistreatment of civilians and prisoners, many based on discrimination.
  • (d) U.S. use of electro-shock and restraint chairs as means of constraint and the harsh regime of  its”supermaximum” prisons and public chain gangs, all of which might violate Article 16 of the Convention.
  • (e) U.S. holding of minors (juveniles) with adults in the regular prison population.

As a result, CAT recommended that the U.S. (1) enact a federal crime of torture in terms consistent with Article 1 of the Convention;  (2)withdraw its reservations, interpretations and understandings relating to the Convention; (3) ensure that those who violate the Convention are investigated, prosecuted and punished, especially those who are motivated by discriminatory purposes or sexual gratification; (4) abolish electro-shock stun belts and restraint chairs as methods of restraining those in custody; (5) consider declaring in favor of article 22 of the Convention (allowing individual complaints against the U.S. to CAT over alleged violations of the treaty); and (6) ensure that minors (juveniles) are not held in prison with the regular prison population.

CAT then asked the U.S. to submit its second periodic report by November 19, 2001.

4. U.S. Response to CAT’s Comments on First Report

The U.S. responded to these CAT conclusions and recommendations in the U.S.’ second report to the Committee in May 2005, not the November 2001 date specified by CAT.[7] In this subsequent report the U.S. stated the following:

  • Federal Crime of Torture. Every act of torture within the meaning of the Convention, as ratified by the U.S., is illegal under existing federal and/or state law, and any individual who commits such an act is subject to penal sanctions as specified in criminal statutes at either the state or federal level. While the specific legal nomenclature and definitions vary from jurisdiction to jurisdiction, it is clear that any act of torture falling within the Convention would in fact be criminally prosecutable in every jurisdiction within the U.S. Therefore, the U.S. has decided to retain its current statutory regime on this point.
  • U.S. Reservation to Article 16. The Torture Convention does not prohibit the making of a reservation, and the U.S. reservation in question is not incompatible with the object and purpose of the Convention. In short, there is nothing in the U.S. reservation that would be unlawful or otherwise constitute a violation of the Convention. Therefore, the U.S. does not agree that its reservation to Article 16 violates the Convention. Moreover, the U.S. had valid reasons for the reservation and will not withdraw it.
  • Other U.S. reservations, understandings and declarations.The U.S. reached its conclusion that it would be necessary to condition U.S. ratification of the Convention on certain reservations, understandings and declarations as a result of a serious and careful review of U.S. law. The First Report sets forth the rationale for each of those conditions. There have been no developments in the interim that have caused the U.S. to revise its view of the continuing validity and necessity of the conditions set forth in its instrument of ratification.
  • Article 22. In light of CAT’s recommendation regarding Article 22, the U.S. has further considered whether to make a declaration recognizing the competence of the Committee to consider communications made by or on behalf of individuals claiming to be victims of a violation of the Convention by the U.S. Because the U.S. legal system legal system affords numerous opportunities for individuals to complain of abuse and seek remedies for such alleged violations, the U.S. will continue to direct its resources to addressing and dealing with violations of the Convention pursuant to the operation of its own domestic legal system. Therefore, the U.S. continues to decline to make such a declaration.

Conclusion

 Moreover, to this date the U.S. has not enacted a general federal crime of torture. Nor has the U.S. withdrawn its reservations, understandings and declarations to its ratification of the treaty or declared in favor of Article 22 of the Convention.  Thus, there are still unresolved disputes between the U.S. and CAT over these important issues.

This brief review illustrates several significant features of the phenomenon of post-World War II human rights treaties. The world is still organized on the basis of nation-state sovereignty. Those nation states, however, have banded together to create various international institutions and laws with limited powers when an international consensus emerges that the world would be better off with such institutions and laws. Treaty bodies like CAT have very little power. CAT cannot order the U.S. to withdraw its conditions to ratification of the Convention Against Torture or to enact a federal law to criminalize torture in the U.S. Nor can CAT impose sanctions on the U.S. when it fails to do these things or submit its reports on time. On the other hand, being criticized by a treaty body like CAT can affect the international reputation of a nation state with other states, especially if the criticism is not just one treaty body and not a one-time occurrence on relatively minor issues. Most states would prefer to avoid these adverse reputational consequences.


[1] Convention Against Torture, Art. 19(1); Post: The Multilateral Treaty Against Torture (Nov. 29, 2011).

[2] Post: U.S. Ratification of the Multilateral Treaty Against Torture (Dec. 1, 2011).

[3] U.S. Dep’t of State, Initial Report to Committee Against Torture (Oct. 15, 1999), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G00/406/56/PDF/G0040656.pdf?OpenElement; http://2001-2009.state.gov/documents/organization/100296.pdf.

[4]  See n.2 supra.

[5] Committee Against Torture, Conclusions and Recommendations Regarding U.S.A. (May 15, 2000), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.55.44,paras.175-180.En?OpenDocument.

[6] Id.

[7] U.S. Dep’t of State, Second Periodic Report of the United States of America to the Committee Against Torture (May 6, 2005), http://www.state.gov/g/drl/rls/45738.htm; http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/425/90/PDF/G0542590.pdf?OpenElement.

U.S. Ratification of the Multilateral Treaty Against Torture

The U.S. procedures for ratification of multilateral treaties are complicated and not widely understood. The following are the steps in that procedure:

  • The U.S. Government’s participating in the preparation of the treaty, including multiparty negotiation of its terms.
  • The President’s signing the treaty on behalf of the U.S. (This could also be done by another high-level official of the Administration.)
  • The President’s submitting the treaty to the U.S. Senate for its advice and consent under Article II, Section 2 (2) of the U.S. Constitution.
  • The U.S. Senate Foreign Relations Committee’s conducting a hearing on whether the Senate should give its advice and consent to ratification of the treaty, taking a committee vote on that issue and reporting the results of the hearing and the vote to the full Senate.
  • The U.S. Senate’s debating a resolution to grant its advice and consent to ratification of the treaty and voting by at least two-thirds of those Senators present, under Article II, Section 2 (2) of the U.S. Constitution, to do so.
  • The President’s submitting the U.S. ratification instrument to the person designated in the treaty as the recipient of such instruments; for multilateral treaties that is usually the U.N. Secretary-General.
  • For at least multilateral treaties, the passing of a stipulated amount of time after submission of the ratification instrument before the treaty goes into force for the U.S.

For the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), these procedures took 17 to 19 years and five presidencies before the U.S. had ratified the treaty and it went into force for the U.S.

1. U.S. Participation in the Preparation of the Torture Convention.

As we have seen, the U.N.’s preparation of this treaty started in 1975 with its actual drafting by the U.N. Commission on Human Rights from 1978 through early 1984. During this nine-year period the U.S. was one of 53 members of that Commission and in that role participated in the treaty’s preparation.[1]

U.S. diplomats also were active participants in the drafting process with the objective of obtaining an effective treaty on the subject that the U.S. would be able to ratify. As President Reagan said, the U.S. “participated actively and effectively in the negotiation of the Convention.”[2]

Similarly U.S. Secretary of State George Schultz noted that the U.S. “contributed significantly to the development of the final Convention, especially in proposing that [it] focus on torture, rather than on other relatively less abhorrent practices.” In particular, the Secretary reported that the U.S. was a strong supporter for Article 7’s providing that if a State finds someone who committed torture in another country and does not extradite him to that country, the first State “shall . . . submit the case to its competent authorities for t he purpose of prosecution.” This use of the principle of universal jurisdiction was “to prevent a loophole that would create potential safe-havens for torturers.”[3]

An outside observer said, the U.S. “was one of the moving forces in the adoption of the Convention . . . [and] was involved at all stages of the drafting process,” and “the final version . . . is largely consistent with positions taken by [the U.S.] . . . during that process.”[4]

2. U.S. Signing the Torture Convention.

Although the Convention was available for signature by states immediately upon its unanimous approval by the U.N. General Assembly in December 1984, the U.S. did not sign the treaty until over three years later.

During those three-plus years the U.S. Departments of State and Justice were engaged in negotiating a package of reservations and other conditions for U.S. ratification of the treaty. State advocated rapid signature; Justice, caution. Those negotiations apparently were not concluded until April 1988. The Department of State during this period also had discussions with the Senate Foreign Relations Committee staff on the subject of conditions for ratification.[5]

On April 18, 1988, John C. Whitehead, Deputy Secretary of State in the Reagan Administration, signed the Convention at the U.N. Whitehead said at signing that the treaty would be sent to the Senate for advice and consent to ratification with proposed reservations, understanding and declarations to resolve ambiguities and safeguard U.S. interests.[6]

3. U.S. President’s Submission of the Torture Convention to the U.S. Senate.

The next month, May 1988, the Reagan Administration submitted the treaty to the U.S. Senate for its advice and consent to ratification. President Reagan’s accompanying message said that U.S. ratification “will clearly express [U.S.] opposition to torture.”[7]

The accompanying letter from Secretary of State George Schultz said that the Administration would submit proposed legislation to implement the treaty. Such legislation, he said, was “needed only to establish [the Convention’s] Article 5(1)(b) jurisdiction over offenses committed by U.S. nationals outside the [U.S.] and to establish Article 5(2) jurisdiction over foreign offenders committing torture abroad who are later found in territory under U.S. jurisdiction.”[8]

With the treaty were the Administration’s proposed reservations, understandings and declarations for such Senate advice and consent.[9]

4. U.S. Senate Foreign Relations Committee’s Approval of the Torture Convention.

The Reagan Administration’s proposed 19 reservations and other conditions for ratification were criticized by the American Bar Association, human rights groups and others. As a result, nothing happened in the Senate over this treaty during the final months of the Reagan presidency in 1988.[10]

Shortly after President George H.W. Bush took office in January 1989, he indicated that the Convention Against Torture had higher priority for ratification than any other human rights treaty. President Bush then consulted with critics of the prior Administration’s proposed conditions and subsequently submitted a substantially reduced and revised set of proposed reservations and other conditions for the Senate’s advice and consent.[11]

Finally in January 1990 the Senate Foreign Relations Committee held hearings on the treaty. The Administration presented two witnesses: Abraham Soafer, Legal Advisor, Department of State, and Mark Richard, Deputy Attorney General, Criminal Division, Department of Justice. There also were five public witnesses, including Professor David Weissbrodt of the University of Minnesota Law School.[12]

On July 19, 1990, the Committee voted, 10 to 0 (all Democratic Senators), to recommend approval of the treaty by the entire Senate with three reservations, four understandings and two declarations. The nine Republican members of the Committee were not present for that vote due to other Senate business and later complained about the lack of notice of the Committee meeting while simultaneously expressing their support for ratification of the treaty.[13]

The August 30, 1990, Committee report on the treaty said the Convention was “a major step forward in the international community’s efforts to eliminate torture and other cruel, inhuman or degrading treatment or punishment. It “codifies international law as it has evolved . . . on the subject of torture and takes a comprehensive approach. . . .”  Its “strength . . .  lies in the obligation of States Parties to make torture a crime and to prosecute or extradite alleged torturers found in their territory.”[14]

5. U.S. Senate’s Approval of the Torture Convention.

On October 27, 1990, the Senate debated a resolution to approve the treaty. Democratic Senator Clairborne Pell of Rhode Island, the Chairman of the Foreign Relations Committee, introduced the resolution and offered four amendments that had been agreed to by the Republican minority members of the Committee headed by Senator Jesse Helms of North Carolina. These amendments were agreed to by the Senators present and voting. Thereafter a division of the Senate indicated that two-thirds of the Senators present and voting had voted in the affirmative for the resolution of ratification as amended.[15]

The resolution had the following two reservations:[16] (i) the U.S. considered itself bound by Article 16’s ban on “cruel, inhuman or degrading treatment or punishment” only insofar as the phrase means the cruel, unusual and inhumane treatment or punishment prohibited by the U.S. Constitution; and (ii) pursuant to Article 30(2) of the treaty, the U.S. did not regard itself bound by Article 30(1) whereby states agreed to arbitrate any disputes about the treaty while reserving the U.S.’ right to agree to arbitrate a particular dispute.[17]

The resolution had five understandings.[18] The most significant one related to Article 1’s definition of “torture” with the U.S. actually providing the following different definition:

  •  “in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; (4) or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”[19]

The resolution also had two declarations.[20] The first stated that CAT was not self-executing, i.e., the treaty was not enforceable in U.S. courts unless there was implementing federal legislation. The second stated that the U.S. recognized the competence of the Committee Against Torture to receive and consider claims by another state that the subject state is not complying with the treaty only if the complaining state had made a similar declaration.

Finally the resolution had a “proviso” that the U.S. President shall notify all present and prospective ratifying parties to the Convention, prior to depositing the instrument of ratification, that the treaty did not require or authorize U.S. legislation or other action prohibited by the U.S. Constitution as interpreted by the U.S. This proviso prompted the most discussion during the Senate debate. It was insisted upon by Senator Helms, who called it the “Sovereignty Amendment.” Democratic Senator Daniel Patrick Moynihan of New York criticized the proviso after pointing out that the U.S. had included similar language in its ratification of the Genocide Convention, but as a reservation, and that various other countries objected to it because it made the U.S. obligations uncertain.[21]

6. U.S. Submission of Ratification Instrument to the U.N. Secretary-General.

As noted above, the Senate’s advice and consent is not the final step in the process of the U.S.’ becoming a party to a treaty. For a multilateral treaty like CAT, the President has to submit U.S. ratification to the U.N. Secretary General.

That did not happen during the George H.W. Bush Administration. The first President Bush said the U.S. could not do so until the U.S. had adopted “implementing legislation” that his Administration had proposed to put torturers “in the same international ‘extradite or prosecute’ regime we have for terrorists.” That legislation, however, was not adopted during that Administration.[22]

In the next Congress, however, such implementing legislation was introduced and enacted into law on April 30, 1994. This legislation added 18 U.S.C. §§ 2340, 230A, which made it a crime for a U.S. national or foreigner present in the U.S. to have committed torture outside the U.S.[23] There is no similar federal criminal law for committing torture within the U.S.; the U.S. has deemed such a law to be unnecessary as such acts would be covered by existing state and federal criminal laws.[24]

In accordance with the previously described “proviso” in the Senate’s approval of the treaty, on June 2, 1994, the Clinton Administration submitted a letter to the Secretary-General giving notice to all present and prospective ratifying Parties to the Convention to the effect that: “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”[25]

The actual U.S. deposit of its instrument of ratification of CAT happened on October 21, 1994, and the treaty went into force for the U.S. on November 20, 1994.[26] Four European states filed objections to some of the U.S. reservations and understandings to its ratification of the treaty.[27]

Conclusion

The seven to nine years it took for the U.N. to develop and approve CAT and the additional 10 years it took for the U.S. to ratify the treaty demonstrate the difficulties of achieving such a treaty, the multitude of opinions and different countries and groups that are involved and the importance of patience and persistence in the development of multilateral human rights treaties. Also significant in light of recent political developments in the U.S., there was consistent, persistent and bipartisan support in the U.S., during the period, 1975 through 1994, for policies to combat, outlaw and punish torture perpetrators.


[1] Post: The Multilateral Treaty Against Torture (Nov. 29, 2011); U.N. High Commissioner for Human Rights, Commission on Human Rights, http://www2.ohchr.org/english/bodies/chr/membership.htm.

[2] U.S. Senate, Message from the President of the United States Transmitting the Convention Against Torture, 100th Cong., 2d Sess. (S. Treaty Doc. 100-20 May 23, 1988)(containing President Ronald Reagan, Message to the Senate Transmitting the Convention Against Torture and Inhuman Treatment or Punishment (May 20, 1988) [Reagan letter] and letter, Secretary of State Schultz to President Reagan (May 10, 1988)[Schultz letter]); U.S. Senate Comm. on Foreign Relations, Report on Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Exec. Rep. 101-30 (101st Cong., 2d Sess. Aug. 30, 1990)[“Senate Comm. Report”]; Senate Debate on Approval of the Convention, 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990)(comments by Senator Pell); Weissbrodt, et al., Prospects for U.S. Ratification of the Convention Against Torture, 83 ASIL Proc 529 (1989)(comments by co-author Paul Hoffman)[“Prospects“].

[3] Id.

[4]  Id.

[5] Prospects (co-author James S. Reynolds discussed his involvement in the State-Justice negotiations; co-author Robert E. Dalton discussed his participation in the State-Senate Committee discussions).

[6] Reuters, U.S. Signs a U.N. Document That Seeks an End to Torture, N.Y. Times (April 19, 1988); U.S. Senate, Message from the President of the United States Transmitting the Convention Against Torture, 100th Conf., 2d Sess. (S. Treaty Doc. 100-20 May 23, 1988)[containing U.S. Statement Upon Signing Convention].

[7] Reagan letter.

[8]  Schultz letter.

[9]  Id.

[10] Weissbrodt at 140-41; 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990) (comments by Senator Pell).

[11] Id.; Senate Comm. Report.

[12] U.S. Senate Foreign Relations Comm., Hearings on Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (101st Cong., 2d Sess. Jan. 30, 1990).

[13] Senate Comm. Report.

[14] Id.; 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990).

[15] Id.

[16]  The term “reservation” in international law means “the formal declaration by a State, when signing, ratifying, or adhering to a treaty, which modifies or limits the substantive effect of one or more of the treaty provisions as between the reserving Sate and other States party to the treaty.” (14 M. Whitehead, Digest of International Law, § 7, at 137-38 (1970)[“Whitehead”].)  International law has substantial limitations on a state’s use of reservations to a treaty. (Vienna Convention on the Law of Treaties, arts. 19-23.)  See Weissbrodt at 128-32.

[17] Id.; U.S. Senate, Reservations, Understandings and Declarations to U.S. Accession to CAT, 136 Cong. Rec. S17486-92 (Daily ed. Oct. 27, 1990).

[18]  The term “understanding” in international law usually means “a statement when it is not intended to modify of limit any of the provisions of the treaty in its international operation but is intended merely to clarify or explain or deal with some matter incidental to the operation of the treaty in a manner other than as a substantive reservation.” (Whitehead.) Merely calling something an “understanding,” however, does not make it so; if such a statement would exclude or vary the legal effect of any of a treaty’s provisions it would be a reservation subject to challenge. Indeed, Joan Fitzpatrick, a noted law professor, called the then proposed “understandings” with different definitions of “torture” and “cruel, inhuman or degrading treatment or punishment” as de facto and improper reservations. (Prospects (comments by co-author Fitzpatrick).)

[19] See n.17 supra.

[20] In international law the term “declaration” means a statement by the ratifying state “when it is considered essential or desirable to give notice of certain matters of policy or principle, without an  intention of derogating from the substantive rights or obligations [of the treaty].” (Whitehead.)

[21] 136 Cong. Rec. S17486-92 (101st Cong., 2d Sess. Oct. 27, 1990).

[22]  George Bush Presidential Library & Museum, Statement on Signing the Torture Victims Protection Act of 1991 (March 12, 1992). The Administration had proposed legislation to implement the Convention by making it a crime for a U.S. national or a foreigner present in the U.S. to have committed torture outside the U.S. It passed the House of Representatives in October 1992, but it did not pass the Senate in this Congress. (1992 H.R. 6017; ProQuestCongressional, Bill Tracking Report, 1992 H.R. 6017.)

[23] Pub. L. 103-236, §506(a), 103rd Cong., 2d Sess. (April 30, 1994).

[24] Schultz letter. U.S. federal law does make it a crime to commit certain acts with “intent to torture” in the special maritime and territorial jurisdiction of the U.S. (18 U.S.C. § 114); to commit “genocide” by “torture” or other means (18 U.S.C. § 1001);to commit “murder”  in various ways, including through  “a pattern or practice of . . . torture against a child or children” (18 U.S.C. § 1111); and to commit “war crimes,”  one of which is “torture” (18 U.S.C. § 2441).

[26]  See n.1 supra.

[27] See n.24 supra. Finland, Germany, the Netherlands and Sweden objected to the U.S. reservation regarding “cruel, inhuman or degrading treatment or punishment” as being incompatible with the objects and purpose of the treaty. Germany, the Netherlands and Sweden also stated that the U.S. understandings did not affect U.S. obligations under the treaty. (Id.)