8 May 2006
The Committee against Torture this afternoon heard the response of the United States to questions raised by Committee Experts on the second periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Friday, 5 May, the delegation, which was led by John B. Bellinger, Legal Adviser of the Department of State of the United States, said that the United States had to disagree with the view that if there were a difference of opinion between an interpretation of the Convention advanced by the Committee against Torture and an interpretation advanced by a State party such as the United States, the interpretation of the Committee, as a matter of law, would prevail. Although a party to a treaty could agree to establish a third party to render authoritative interpretations of that treaty, in this case, the United States had not agreed to give the Committee such a role.
The United States was engaged in a real, not rhetorical, armed conflict with al-Qaida and its affiliates and supporters, the delegation said. It was important to clarify the distinction the United States drew between the struggle in which all countries were engaged in a "global war on terrorism" and the legal meaning of the United States armed conflict with al-Qaida. On a legal level, the United States believed that it had been and continued to be engaged in an armed conflict with al-Qaida. The United States did not consider itself to be in a state of international armed conflict with every terrorist group around the world. Responding to another Committee query, the delegation affirmed that waterboarding was not listed in the current Army Field Manual and therefore was not permitted for detainees under Department of Defense control
The Committee will submit its conclusions and recommendations on the report of the United States towards the end of the session on Friday, 19 May 2006.
As one of the 141 States parties to the Convention against Torture, the United States is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 10 a.m. on Tuesday, 9 May, it is scheduled to take up the initial report of Qatar (CAT/C/58/Add.1).
Response of the United States
JOHN B. BELLINGER, Head of the Delegation and Legal Adviser of the Department of State of the United States, responding to a series of questions raised by the Committee Experts on Friday, 5 May, said that on Friday Chairman Mavrommatis began his questions by noting that more was expected from the United States than from many other countries. They recognized that much of the rest of the world held the United States to a strict standard when it came to the rule of law and human rights. That was especially important when it came to moral imperatives, such as eliminating torture.
Mr. Bellinger said he wanted to be very clear about their position: United States officials from all government agencies were prohibited from engaging in torture at all times and in all places. They were also prohibited from engaging in cruel, inhuman or degrading treatment or punishment, as defined by United States obligations under the Convention against Torture. That was the case even in situations where the law of armed conflict applied.
In that context, in response to the question as to whether the United States would agree with the statement that some people were simply not entitled to human treatment, the answer was a clear and simple "no", Mr. Bellinger said. The non-negotiable demands of human dignity had to be protected without reference to race, gender, creed or nationality.
With regard to whether the United States Government had an active dialogue with non-governmental organizations (NGOs), Mr. Bellinger said that Secretary Rice met regularly with NGO officials. Indeed, Mr. Bellinger himself had met with 19 NGO representatives over the weekend to discuss these proceedings.
Most of the regrettable incidents or allegations of mistreatment of detained enemy combatants occurred several years ago. Now, the United States had more rigorous laws, more rigorous procedures, more rigorous training and more rigorous monitoring mechanisms, Mr. Bellinger emphasized.
Regarding the reservations the United States took to the Convention when they ratified it in 1994, although the United States was not a party to the Vienna Convention, the reservations made by the United States, including its reservations under the Convention against Torture, conformed to the provisions on reservations of the Vienna Convention, he said. The Convention did not prohibit reservations. In fact, more than 20 countries had made reservations to it.
Mr. Camara had suggested that if there were a difference of opinion between an interpretation of the Convention advanced by the Committee against Torture and an interpretation advanced by a State party such as the United States, the interpretation of the Committee, as a matter of law, would prevail. With respect, Mr. Bellinger said they had had to disagree with that view. Although a party to a treaty could agree to establish a third party to render authoritative interpretations of that treaty, in this case, the United States had not agreed to give the Committee such a role.
Mr. Mariño Menendez had asked why the United States had limited torture to "extremely severe" pain or suffering. They had not done that. In its criminal statute for the extraterritorial offence of torture, the United States had utilized the term "extreme" as a synonym for the term "severe". It did not use the term "extremely severe".
With respect to the question about the United States understanding defining the term "severe mental pain or suffering" in Article 1, that understanding had recited elements implicit in the text to provide the specificity needed to meet the requirements of a criminal statute. There had been no intent to limit the scope of Article 1.
Several members of the Committee had asked questions regarding the application of the law of armed conflict to United States actions in Afghanistan and Iraq. The United States was engaged in a real, not rhetorical, armed conflict with al-Qaida and its affiliates and supporters, as reflected by al-Qaida's heinous attack on 11 September 2001, an attack that had killed more than 3,000 innocent civilians. It was important to clarify the distinction the United States drew between the struggle in which all countries were engaged in a "global war on terrorism" and the legal meaning of the nation's armed conflict with al-Qaida. On a legal level, the United States believed that it had been and continued to be engaged in an armed conflict with al-Qaida. The United States did not consider itself to be in a state of international armed conflict with every terrorist group around the world, Mr. Bellinger clarified.
In response to questions by Committee Experts on the application of the law of armed conflict to United States actions in Afghanistan and Iraq, Mr. Bellinger said that, regardless of legal analysis, both the law of armed conflict and human rights treaties, such as the Convention, had provisions that prohibited torture and mistreatment. Applying the law of armed conflict did not permit the United States to engage in such acts.
Continuing to respond to questions, another member of the delegation said that, with regard to persons under Department of Defense control, the Detainee Treatment Act of 2005 prohibited any treatment or interrogation technique that had not been authorized by, and listed in, the United States Army Field Manual on Intelligence Interrogation. Those techniques were the only techniques currently authorized for use at Department of Defense facilities.
Regarding the Committee's questions about waterboarding, the delegation wanted to make two points: first, waterboarding was not listed in the current Army Field Manual and therefore was not permitted for detainees under Department of Defense control; second, it would not be appropriate for the delegation to discuss further specifics of the revised Army Field Manual at this time, as they were in the midst of final consultations with Congress about them.
The delegation said they could confirm that the Department of Defense investigations of allegations relating to detainee abuse, including those at Abu Ghraib, also reviewed the conduct of people in the chain of command. After many of those investigations were completed, no misconduct had been found. More than 270 actions against more than 250 service members had been taken. Approximately 170 of those investigations also remained open.
The Committee had noted an apparent inconsistency between the numbers provided by Human Rights Watch, among others, and those provided by the Department of Defense. The numbers Human Rights Watch provided to the Committee were only 54 courts martial; only 40 service members sentenced to prison; only a small percentage of convicted service members given long sentences; and only 10 persons sentenced to one year or more. Those numbers were simply wrong, the delegation clarified. The facts were that, to date, there had been 103 courts martial; 89 service members had been convicted -- an 86 per cent conviction rate. Moreover 19 service members received sentences of one year or more. Furthermore, more than 100 service members had received non-judicial punishment; more than 60 were reprimanded; and to date 28 service members had been involuntarily separated from military service.
The answer to Mr. Menendez Marino's question, about whether supervisors had been investigated and held accountable, was yes.
Regarding Martin Mubanga, a British citizen who had sought and received extensive terrorist training camps in Afghanistan and Bosnia. He had used that training to fight in Bosnia and against United States forces in Afghanistan in 2001. Based on those activities, the United States detained Mr. Mubanga as an enemy combatant. Mr. Mubanga had alleged that, while at Guantanamo Bay, he had been subjected to racial insults and was intimidated by a guard. The investigation into those allegations had found them to be without merit.
The delegation said that the Government had acknowledged that the abuses at Abu Ghraib had been not merely the failure of individuals to follow known standards, but had also resulted from leadership failures. The United States was carefully monitoring its detention operations to prevent any recurrence of the Abu Ghraib abuses. The Government felt terrible about what had happened to the Iraqi detainees. Those people had been in United States custody and the country had had an obligation to treat them properly. It had not done that and that was wrong, the delegation said.
Regarding investigations, the delegation noted that the United States Congress had also extensively reviewed the issues. It had conducted hearings, and more than 150 members of Congress had visited the detention facilities.
With respect to the query about juveniles detained at Guantanamo and the reason for that detention, the delegation affirmed that there were currently no juvenile detainees at Guantanamo. At one point there had been three juveniles at Guantanamo. They had returned to their home country in January 2004. The United States had returned them to an environment where they would have the opportunity to reintegrate and they had done so with the assistance of non-governmental organizations. The United States was aware that one had returned to the fight.
All of the activities of the Central Intelligence Agency (CIA) were subject to inspection and investigation by the CIA's independent Inspector General and to oversight by the intelligence committees of the United States Congress. The CIA continued to review and, where appropriate, revise its procedures, including training and legal guidance, to ensure that they complied with United States Government policies and all applicable legal obligations, including the Convention against Torture and the Detainee Treatment Act. To that end, the CIA had put new guidelines and procedures in place during the last several years.
Two hypotheses had been raised -- forced disappearances and incommunicado secret detention -- and it was asked if those practices constituted torture. From a legal perspective, the delegation said, it depended on the facts of the case. The issue of incommunicado detention, however, was one that had been raised frequently and the delegation wished to note that the Fourth Geneva Convention, while not directly applicable, specifically recognized that in certain circumstances, individuals, such as spies and saboteurs, or other individuals suspected of activity hostile to the security of the detaining power, should be regarded as having forfeited their rights of communication.
Addressing a question regarding habeas corpus access to United States courts and the judicial remedy provision in the Detainee Treatment Act of 2005, the delegation said that the Act provided unprecedented procedural protections -- in United States domestic courts of law -- to enemy combatants captured during an ongoing armed conflict and held at Guantanamo Bay. Historically, captured enemy combatants had not been able to challenge their detention before domestic courts of the nations holding them, the delegation said. In imposing a uniform review procedure, the Act foreclosed whatever limited statutory habeas corpus jurisdiction may have applied because of the location of their detention at Guantanamo.
Regarding concerns about diplomatic assurances, the delegation said that they were simply a tool, one factor in the analysis. If, taking into account all relevant information including any assurances received, the United States believed that a person was more likely than not to be tortured if returned to a foreign country, the United States would not approve the return. Although a systematic practice of torture in a country would be highly relevant, it did not obviate the need to conduct an individual review to determine whether the standards were met in a particular case. Moreover, Article 3 did not accord a role to third-party "international bodies" to make the individual determination on behalf of the State party. It was the State party's obligation to ensure that the Convention's standard was met. It was the Secretary of State who was the decision-maker on Article 3 extradition cases.
Turning to questions related to implementation of the Prison Rape Elimination Act, the delegation reassured the Committee that there had not been a delay in the implementation of the Act. The act specifically required the collection of statistical data, a survey on prevalence of sexual assault, the formation of a Commission, and a report to the Attorney General by June 2007. The United States was working to implement fully the Act's important requirements to better detect, prevent, and punish prison rape.
The prevention of sexual violence against individuals in immigration custody was also a serious matter. All immigration detention facilities, including contract facilities, had to meet each of the Department of Homeland Security's National Detention Standards and immigration detention facilities also provided prison rape elimination act training to detention officers.
Regarding prosecutions of law enforcement officers involved in sexual assaults, the Department of Justice vigorously investigated and, where appropriate, prosecuted cases involving sexual misconduct by law enforcement officers. Since October 1999, the Criminal Section of the Civil Rights Division had charged 44 defendants with acts of sexual misconduct ranging from inappropriate sexual contact to forcible rape. Of those defendants, the delegation said, 16 were prison officials and most of the rest were police officers.
The Department of Homeland Security also undertook a number of measures to protect potentially vulnerable aliens held under its authority. Special management units were available to allow for the administrative segregation of vulnerable detainees upon request, such as when a detainee was a victim of assault by another detainee. Importantly, the delegation noted, while in custody, children could be housed with their adult family members and unaccompanied juveniles were kept completely segregated from adults.
Regarding redress and compensation measures, prisoners in federal and state facilities had recourse through private civil actions. In addition, any inmate subject to any abuse or violence was generally provided with an extensive exam and psychological assessment, as well as counselling.
The delegation reiterated that it was not the general practice of the United States Government to shackle female prisoners during childbirth. Depending on the facility, an inmate could be restrained in the unlikely event that she posed a threat to herself, her baby, or others around her. In the pending case of Shawanna Nelson, there was currently a Memorandum of Agreement to monitor the facility where Ms. Nelson had been held in Arkansas to make certain that no unconstitutional conditions existed for the inmates.
Comments and Questions by Committee Experts
FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of the United States, thanked the delegation of the United States for the efforts made to provide exhaustive and clear replies to the many questions the Committee had asked. Combating terrorism, as an international crime, did raise problems for all democracies, he recognized.
Regarding the armed conflict, the United States had confirmed that there was an armed conflict against al-Qaida, but not against other groups. Could the delegation qualify that more specifically? Was it an international conflict? Would the conflict ever come to an end? On what circumstances would that depend?
The United States was adopting a manual for interrogation techniques for the Army, he said. He wondered if those techniques also covered the intelligence services, or did they have a separate guideline?
Regarding disappeared persons and incommunicado detention centres, Mr. Mariño Menendez said that the United States answered that whether those practices constituted torture depended on the circumstances of the case. It was difficult for him to give specific circumstances, as this was not a court of law, but he mentioned the names of two detainees and asked about those specific cases.
As far as family members were concerned, forced disappearance was an act of torture. Also, when a person was forced to disappear, there was a high probability that that person would be subjected to torture and killed, he noted.
Given his understanding that the United States had said that diplomatic assurances were an additional element and not a guarantee, he wanted to know what the United States did if it discovered that, after receiving such assurances and allowing the return, that the person had been tortured. Did they send other people to that country subsequently? He cited a number of cases. How did the United States ensure that diplomatic assurances were complied with?
The new instructions of United States military law specifically prohibited the use of a confession extracted under torture, but Mr. Mariño Menendez said that he had a problem with the review procedure to look into such cases that was in place in Guantanamo.
GUIBRIL CAMARA, the Committee Expert serving as Co-Rapporteur for the report of the United States, thanked the delegation for its responses. That did not mean, however, that he agreed with everything that the delegation had said. This was a dialogue, he emphasized. He was confident that everyone wanted to make respect for human rights move forward.
Mr. Camara had one question: since the delegation said that torture was punished under United States law, when they went back, could they provide the Committee with statistics on penalties concerning acts of torture.
Other Experts then made further comments. One Expert asserted that in the United States the burden of proof was put on the victim of torture. Other issues raised included the use of tasers against vulnerable people, such as the handicapped; the McCain Amendment; the new United States field manual on interrogation techniques, where it was hoped that the specific techniques previously mentioned, such as waterboarding, would be specifically prohibited; and what protections were afforded to whistleblowers.
ANDREAS MAVROMMATIS, the Chairperson of the Committee, said that he had something to bring to the attention of the United States delegation and to the Committee, a letter from the lawyer of Saddam Hussein, who said that the former President of Iraq was being tortured by the United States when he was in custody and that he was now threatened by the death penalty after an unfair trial. He had also heard allegations of Guantanamo detainees being released to Albania. In addition, he had heard that there had been an executive decision to expand the capacity of the facilities at Guantanamo Bay.
Finally, he said that he wished that they had had more time to discuss what was happening in the United States at the federal level, because that could have led to an improvement of the situation.
Response by the Delegation
Responding briefly, the delegation said that, yes, the United States was in an international armed conflict with al-Qaida. When the United States went into Afghanistan it was indisputable that that was part of the international armed conflict with al-Qaida. It was also indisputable that that conflict was ongoing and that the conflict with al-Qaida was not going to end any time soon, the delegation added.
Regarding the International Covenant on Civil and Political Rights, the delegation said that the United States position was that the pact did not extend outside the territory of the United States.
The delegation affirmed that the intelligence agencies had there own clear internal guidance and their own procedures. They had been reviewing their obligations since the passage of the Detainee Treatment Act in December.
Was secret detention by definition torture? That was something the delegation felt there would be a debate about. Was the holding of someone without access to outside communication the infliction of severe physical pain and suffering? They did not think so. The Geneva Convention even provided for such cases, the delegation noted. That said, the concerns that had been raised were understandable.
Should a country continue to transfer individuals to a country that had given diplomatic assurances in the past and then violated them? That would certainly be highly relevant, the delegation commented.
The delegation disagreed with the Expert's comment that the burden of proof in the relevant United States law on torture cited was on the victim. It was on the Government.
Regarding tasers, studies had found that the use of tasers had significantly reduced harm in use-of-force situations, the delegation said, as it was a potentially less lethal form of force than other alternatives.
Regarding the letter from Saddam Hussein's lawyer, the United States had addressed such questions before and had denied the allegations.
In response to the concern that prisoners were being released to Albania, the delegation noted that the United States was not being given good suggestions or advice on what to do with the detainees there. In many cases it was difficult to know how to release them. The detainees may not have committed a specific criminal act, as the law existed before 11 September. The President did not want to keep Guantanamo open for longer than necessary, and the United States welcomed any assistance from other countries in that regard.
* *** *
For use of the information media; not an official record